         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs January 11, 2005

                 LARRY MITCHELL v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Shelby County
                         No. P-27009     John P. Colton, Jr., Judge



                    No. W2004-00981-CCA-R3-PC - Filed April 25, 2005




The Appellant, Larry Mitchell, appeals the judgment of the Shelby County Criminal Court denying
his petition for post-conviction relief. On appeal, Mitchell argues that he was denied his Sixth
Amendment right to the effective assistance of counsel. After a review of the record, we affirm the
denial of post-conviction relief.

               Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

DAVID G. HAYES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
J. C. MCLIN , JJ., joined.

Kamilah E. Turner, Memphis, Tennessee, for the Appellant, Larry Mitchell.

Paul G. Summers, Attorney General and Reporter; John L. Bledsoe, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Andre Thomas, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                            OPINION

                                    Procedural Background

        The Appellant is currently serving an effective twenty-four year sentence as a result of his
convictions for attempted first degree murder, especially aggravated kidnapping, two counts of
aggravated robbery, and theft of property over $10,000. These convictions stem from three separate
criminal episodes which occurred on the dates of May 9 and May 14, 2001, in Shelby County.
Compelling evidence, including victim identification of the Appellant and fingerprint evidence,
linked the Appellant to these crimes. Pursuant to a plea agreement, the Appellant entered guilty
pleas to the above offenses on October 28, 2002.
         In January of 2003, the Appellant filed a pro se petition for post-conviction relief alleging
that he was denied the effective assistance of counsel. Following the appointment of counsel and
the filing of an amended petition, an evidentiary hearing was held on January 15, 2004. The post-
conviction court denied relief by written order of March 25, 2004. This timely appeal followed.

                                              Analysis

       The Appellant argues that his trial counsel was deficient for failing to: (1) provide him with
available discovery material; (2) contact material witnesses; (3) conduct a proper investigation; (4)
advise him of the elements of the offenses; and (5) file a motion for severance of the offenses.
Additionally, the Appellant contends that his guilty pleas were not voluntary because trial counsel
coerced him into pleading guilty.

        In order to succeed on a post-conviction claim, the Appellant bears the burden of showing,
by clear and convincing evidence, the allegations set forth in the petition. Tenn. Code Ann. § 40-30-
110(f) (2003). To support a Sixth Amendment claim of ineffective assistance of counsel, the
Appellant must establish that counsel’s performance fell below the range of competence of attorneys
demanded in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under Strickland
v. Washington, the Appellant must establish (1) deficient representation and (2) prejudice resulting
from the deficiency. 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). It is unnecessary for a court
to address deficiency and prejudice in any particular order, or even to address both if the petitioner
makes an insufficient showing on either. Id. at 697, 104 S.Ct. at 2069. With a guilty plea, to satisfy
the “prejudice” prong, the Appellant “must show that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill
v. Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 369 (1985).

        The issues of deficient performance by counsel and possible prejudice to the defense are
mixed questions of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). “A trial court’s
findings of fact underlying a claim of ineffective assistance of counsel are reviewed on appeal under
a de novo standard, accompanied with a presumption that those findings are correct unless the
preponderance of evidence is otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing
Tenn. R. App. P. 13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). However, conclusions
of law are reviewed under a purely de novo standard with no presumption of correctness. Fields, 40
S.W.3d at 458.

I. Discovery, Witnesses, and Pretrial Investigation

       The Appellant contends that trial counsel failed to provide him with discovery material made
available by the State. Although raised as a ground for deficient performance, this issue was never
developed by the Appellant at the post-conviction hearing. Thus, we are uninformed as to what
discovery material the Appellant is referring to and more importantly how this material, if provided,
would have produced a different conclusion. Proof of deficient representation by omission requires
more than a bare allegation of some lost potential benefit. Notwithstanding the Appellant’s


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assertions, trial counsel testified that he reviewed all discovery material and the facts of the case with
the Appellant on numerous occasions. Trial counsel also testified that after his appointment in the
case, he received the Public Defender’s entire investigative file and, after reviewing various
statements of witnesses in the file, made additional personal contact with other witnesses. He further
explained that the State provided “open file” discovery in the case, and, therefore, he had access to
the State’s witnesses through this source as well. Trial counsel testified that he reviewed the
elements of the various offenses with the Appellant, and together they developed the defense strategy
which was to be employed if the case proceeded to trial. The post-conviction court, in accrediting
the testimony of trial counsel, found that the Appellant’s allegations of (1) failing to provide
discovery; (2) failing to advise as to the elements of the offenses; and (3) failing to conduct a proper
investigation were not supported by the proof. The record does not preponderate against these
findings. These issues are without merit.

II. Motion to Sever

        Next, the Appellant contends that trial counsel was deficient because he failed to file a
motion to sever the offenses. Severance of offenses is governed by Tenn. R. Crim. P. 8 and 13.
Here, Appellant fails to identify which offenses should have been severed, whether joinder of the
offenses was permissive as provided by Tenn. R. Crim. P. 8(b), or how the Appellant was prejudiced
by trial counsel’s failure to pursue severance. With regard to this allegation, the Appellant was
required to show by clear and convincing evidence (1) that a motion to sever would have been
granted and (2) that there was a reasonable probability that the proceedings would have concluded
differently if counsel had performed as suggested. The Appellant clearly has failed to establish either
factor. Thus, this issue is without merit. Moreover, as found by the post-conviction court, the
Appellant’s entry of guilty pleas to the offenses made this issue moot.

III. Coerced Guilty Plea

         Finally, the Appellant argues that his guilty pleas were not knowing and voluntary because
trial counsel coerced him into pleading guilty. The Appellant asserts that when he wanted to plead
to a twenty-year sentence and could not get it, trial counsel urged him to accept a twenty-five year
sentence. Describing the circumstances, he stated, “[trial counsel] kept telling me . . . you need to
take this twenty-five, if you don’t you’re going to trial and get a hundred and ninety-five years.”
Trial counsel’s testimony on this issue differed materially from that of the Appellant. With regard
to this issue, the post-conviction court found as follows:

        Counsel submits that he gave Petitioner his honest and professional opinion based
        upon the facts and situation presented, which is his duty to the client. Counsel
        submits that upon receiving the first plea offer, he communicated to Petitioner that
        he did not think it was in Petitioner’s best interest to take the offer. Prior to trial, a
        second plea agreement was offered of 25-years, which was drastically less than the
        first offer. Counsel negotiated the reduction of an additional year, down to 24-years.
        Counsel submits that he and Petitioner agreed that taking the offer was the best


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       resolution. Also, counsel describes Petitioner as “elated” and stated that Petitioner
       thanked counsel for “saving him many years in prison”.

       ...

       Petitioner was given ample opportunity to express any coercion or intimidation
       brought on by counsel throughout the questioning process of entering the guilty plea.
       At no time did Petitioner express any such coercion. Therefore, this Court finds the
       claim of coercion is without merit and no due process violation exists.

        The record supports these findings and the post-conviction court’s conclusion that the
Appellant has failed to establish that he was denied the effective assistance of counsel or that his
pleas of guilty were unknowingly and involuntarily entered.

                                         CONCLUSION

        Based upon the foregoing, we affirm the dismissal of the petition for post-conviction relief
by the Shelby County Criminal Court.



                                                             ______________________________
                                                             DAVID G. HAYES, JUDGES




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