                                                                                        06/26/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                March 7, 2017 Session

                  CARLOS SMITH v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                       No. 10-02597 Paula Skahan, Judge


                            No. W2016-01087-CCA-R3-PC


The petitioner, Carlos Smith, appeals the denial of post-conviction relief from his 2012
Shelby County Criminal Court jury convictions of attempted second degree murder,
aggravated assault, aggravated robbery, especially aggravated burglary, employing a
firearm during the commission of a dangerous felony, and being a felon in possession of
a handgun, claiming that he was denied the effective assistance of counsel at trial.
Because the post-conviction court failed to make any findings with regard to the
petitioner’s claim that trial counsel did not properly inform him of his potential
sentencing exposure, we remand for the limited purpose of making the requisite findings
on this issue. In all other respects, we affirm the judgment of the post-conviction court.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.

Joshua B. Dougan, Jackson, Tennessee (on appeal), and Eugene Belenitsky, Memphis,
Tennessee (at hearing), for the appellant, Carlos Smith.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Pamela Fleming Stark
and Sam Winnig, Assistant District Attorneys General, for the appellee, State of
Tennessee.

                                       OPINION

             A Shelby County Criminal Court jury convicted the petitioner of two
counts each of attempted second degree murder and aggravated assault, and one count
each of aggravated robbery, especially aggravated burglary, employing a firearm during
commission of a dangerous felony, and being a felon in possession of a handgun, and the
trial court imposed an effective sentence of 120 years’ incarceration. This court affirmed
the convictions on direct appeal. See State v. Carlos Smith, No. W2012-01931-CCA-R3-
CD (Tenn. Crim. App., Jackson, Aug. 29, 2013), perm. app. denied (Tenn. Jan. 15,
2014).

             In Carlos Smith, this court stated the facts of the case as follows:

             Late in the evening of November 2, 2009, the defendant, his
             girlfriend, Kelsie Brunner, and his friend, Carl Hall, decided
             to rob Reginald Milam. The defendant, Ms. Brunner, and Mr.
             Hall proceeded to a local Wal-Mart, where Ms. Brunner
             purchased two ski masks, a pair of gloves and a set of bolt
             cutters. Ms. Brunner then drove the men to Mr. Milam’s
             residence. The defendant and Mr. Hall exited the vehicle,
             wearing the ski masks rolled up on their heads to resemble
             caps.

                    The defendant and Mr. Hall accosted George
             McColley, Jr., and Richard Hardin, Mr. Milam’s brother-in-
             law, as the two gentlemen were returning to Mr. Milam’s
             residence, where they resided. The defendant and Mr. Hall,
             both of whom were armed and wearing ski masks, forced Mr.
             McColley and Mr. Hardin into the residence at gunpoint,
             demanding to see Mr. Milam. In a back bedroom of the
             residence, the gunmen encountered Mr. Milam, his wife,
             Lillian Hardin, and two of the couple’s grandchildren. The
             defendant held them all, including Mr. McColley and Mr.
             Hardin, at gunpoint and demanded money. Renell Hardin,
             Mr. Milam’s and Mrs. Hardin’s adult daughter, heard the
             commotion and exited her bedroom. When the defendant and
             Mr. Hall noticed her, they forced her into the back bedroom at
             gunpoint. At some point during the fracas, a struggle ensued,
             and the defendant and Mr. Hall shot both Mr. Hardin and Mr.
             McColley. Mr. McColley also managed to stab Mr. Hall in
             the back of the neck. The defendant and Mr. Hall then fled
             the scene with approximately $300 to $400 in cash, and they
             returned to Ms. Brunner’s vehicle. The defendant told Ms.
             Brunner that “the people in the house weren’t compliant, that
             they got into a physical altercation and at that point [the
             defendant] had to shoot them.”
                                           -2-
       On April 15, 2010, the Shelby County grand jury
issued an 11-count indictment against the defendant, Mr.
Hall, and Ms. Brunner, stemming from these criminal
offenses. The defendant was charged with two counts of
attempted second degree murder in the shootings of Mr.
Hardin and Mr. McColley, and two counts of aggravated
assault against Mrs. Hardin and her daughter, Renell Hardin.
In addition, the defendant was charged with the aggravated
robbery of Mr. Milam, the especially aggravated burglary of
Mr. Hardin’s residence, employing a firearm during the
commission of a dangerous felony, and being a felon in the
possession of a handgun.

        The trial court conducted a jury trial in January 2012.
Mr. McColley, Mr. Hardin, Mrs. Hardin, Ms. Renell Hardin,
and Lajettie Pegues, one of Mr. Milam’s and Mrs. Hardin’s
daughters, all provided similar testimony about the events of
November 2-3, 2009. Ms. Brunner testified that she had been
charged with facilitation of especially aggravated robbery for
her role in the offenses and confirmed that she had been
convicted of the felony of reckless aggravated assault in
2008. Ms. Brunner denied that she had been offered a deal in
exchange for her testimony against the defendant. Christina
Lane with the Shelby County Criminal Court Clerk’s Office
testified that the defendant was charged with aggravated
robbery in July 2000 and that he was ultimately convicted of
that crime. Immediately following Ms. Lane’s testimony, the
trial court instructed the jury as follows:

      Ladies and gentlemen, if from the evidence
      presented you find that [the defendant] has been
      convicted of a prior crime you can consider that
      evidence only for the purpose of its effect on
      the count of the indictment that alleges that he
      is a convicted felon in possession of a firearm.
      You are not to consider it for any other purpose.
      It doesn’t go to whether he’s guilty, or not
      guilty of any of the other charges involved in
      any of the other counts of the indictment. It is
                             -3-
                        only being allowed to be presented to you for
                        the sole purpose of that particular count that
                        alleges that he has previously been convicted of
                        a felony. But, you are not to base you[r]
                        decision on the rest of the charges based upon
                        that conviction. Only for that count of the
                        indictment are you to use it.

                      Once the State rested its case, the defendant moved for
               a judgment of acquittal, which the trial court denied.
               Following a Momon colloquy, see State v. Momon, 18 S.W.3d
               152, 161-62 (Tenn. 1999), the defendant elected not to testify
               and chose to present proof. The jury convicted the defendant
               as charged on all counts. Following a sentencing hearing, the
               trial court imposed an effective sentence of 120 years’
               incarceration.

Id., slip op. at 1-3.

              On June 24, 2014, the petitioner filed, pro se, a timely petition for post-
conviction relief, alleging, inter alia, that he was deprived of the effective assistance of
counsel. Following the appointment of counsel and the amendment of the petition, the
post-conviction court conducted an evidentiary hearing on October 30, 2015 and
February 8, 2016.

              At the evidentiary hearing, trial counsel testified that he attempted to shield
the jury from learning that the petitioner had a prior conviction of aggravated robbery.
Trial counsel explained that he had sought to sever the felon in possession of a firearm
count from the other charges in the indictment to avoid the jury’s learning that the
petitioner had a prior conviction of aggravated robbery. Trial counsel lost this motion,
however, and during the middle of the petitioner’s trial, he objected to a sheriff’s
department employee’s testimony regarding the petitioner’s fingerprints matching a set of
prints that were already in the fingerprint system. Trial counsel explained that, during a
bench conference, he attempted to stipulate that the petitioner had a prior conviction of
aggravated robbery.

               With respect to plea offers, trial counsel “[d]efinitely” recalled discussing
an offer with the petitioner. Although trial counsel could not recall the exact nature of
the offer, he testified that it was “a pretty substantial offer” but that the petitioner refused
to consider it. Trial counsel stated that his typical practice with respect to rejected plea
                                              -4-
offers was to “put the defendant on the witness stand,” recount the plea offer, and have
the defendant state “that he did not want the offer and he wanted a trial,” although
counsel could not recall with any specificity whether he had done so in this instance.
Trial counsel testified that he had told the petitioner that “he would get a lot more time” if
he was found guilty at trial and that he thought he had discussed with the petitioner his
status as a career offender. Trial counsel agreed that the State’s notice of impeaching
conduct listed nine prior felony convictions and that counsel was on notice that the
petitioner was a career offender. Trial counsel also conceded that, during the petitioner’s
sentencing hearing, he argued that several of the petitioner’s prior aggravated robbery
convictions should be considered as a single conviction for the purpose of calculating his
sentencing range. When asked if he informed the petitioner that all of his prior
aggravated robbery convictions counted as a single conviction for sentencing purposes,
trial counsel responded that he did not believe he had discussed it with the petitioner “in
that kind of detail” but that the petitioner knew that if we was convicted at trial “that he
would . . . certainly . . . get a lot more time than the State offered him.”

              On cross-examination, trial counsel agreed that he had argued vehemently
in favor of severing the felon in possession of a handgun count from the other charges in
order to prevent the jury from learning that the petitioner had a prior conviction of
aggravated robbery but that the trial court had ruled against him. Trial counsel conceded
that he had attempted to stipulate that the petitioner was the individual named in the
indictment charging him with being a felon in possession of a firearm in order to avoid
the testimony about his fingerprints.

               Trial counsel reiterated that the petitioner “was adamant . . . that he wanted
a trial and he really didn’t want to consider any offer.” Counsel also noted that he had
represented the petitioner on prior occasions and that he had a “pretty good
relation[ship]” with the petitioner. Because trial counsel took over the petitioner’s case
nearly one year after the petitioner was charged with the instant crimes, he thought it was
possible that the plea offer had already been extended to the petitioner when he had been
represented by a member of the public defender’s office, Michael Johnson, but that, in
any event, he recalled “discussing the offer with” the prosecutor.

              With respect to counsel’s sentencing hearing argument that the petitioner’s
prior aggravated robbery convictions should count as only two convictions, trial counsel
agreed that he had presented that argument to the trial court as a “plausible theor[y].”

               On redirect examination, counsel was asked to clarify the exact nature of
the stipulation he was offering to make during the course of the petitioner’s trial, and trial
counsel responded thusly:
                                             -5-
              My whole purpose was that the jury should not be advised
              that [the petitioner] had a prior conviction, you know, when
              they’re trying, you know, the indictment where they allege
              that he was a convicted felon, you know, for that particular
              felony to tell that to the jury on the front end would be
              prejudicial. So when I articulated my position we would
              stipulate that he was, he’s the same one that was convicted,
              you know, at that period of time which was alleged in the
              indictment and that’s what we would stipulate so it would not
              have to be brought before the jury. That was the stipulation.
              That would result in the bifurcated hearing.

                Pamela Fleming Stark testified that she was the prosecuting attorney for the
petitioner’s trial. Ms. Stark was “pretty sure that” there were no plea offers made to the
petitioner during the time period in which trial counsel represented him. She
acknowledged that trial counsel might “have asked [her] what the original offer was” and
might “have attempted to take it to [the petitioner] in hoping that he could convince [her]
to let him have it” but that, because the petitioner’s case was already set for trial when
trial counsel took over the case, Ms. Stark could not imagine extending an offer at that
time. Ms. Stark agreed that co-defendant Carl Hall had entered an open plea on the day
of trial; that Mr. Hall had “showed some remorse and begged to testif[y]”; and that she
had argued in favor of Mr. Hall’s receiving a lesser sentence than the petitioner because
the petitioner’s criminal record was substantially worse than that of Mr. Hall. Ms. Stark
testified that she did not have a notation in the petitioner’s file about a plea offer:

              This is the type of case a lot of times I won’t even make an
              offer on because people were shot in their own home.
              However, knowing Mr. Johnson and having worked with him
              for many years I probably would have given him something
              for no other reason than there was no support in this trial, the
              proof was so good.

                     We had DNA evidence not only from the ski masks
              that were found just a short distance, as I recall, from the
              hospital where they threw Mr. Carl Hall out to get treatment
              for his gunshot wounds. And then further down the road
              there w[as] a bag of, I think there was a glove that was
              thrown in a garbage can at a convenien[ce] store. And then
              further down in an abandon[ed] lot a bag with I believe the
                                            -6-
            guns in it was there. And there was DNA off the guns as well
            as DNA off the other and there may have actually been
            ballistics in this case as well. All of which Ms. Brunner
            brought us back to and all of which came back to Carlos
            Smith.

                  ....

                  Meaning that –

                  ....

                   --I would have felt bad for the defense attorney that
            had the case. And I would [have] made an offer. So exactly
            what it was, it would [have] been high especially with [the
            petitioner] because he had a series of aggravated robberies
            and clearly in my opinion wouldn’t have learned anything
            from it. I would [have] thought he was a very dangerous
            person. But I would have given an offer of some nature that
            would [have] been considerably lower than the hundred and
            twenty years that he got. I think probably something around
            sixty years. But [the petitioner] didn’t want it.

               When questioned about trial counsel’s attempt to stipulate to the
petitioner’s prior conviction, Ms. Stark testified as follows:

                   That’s not what happened at all. I mean, you can read
            it in the transcripts. [Trial counsel] repeatedly tried to
            bifurcate the process as far as having the convicted felon in
            possession of a handgun tried at the same time. I argued that
            that was not case law and [the trial court] agreed with me.
            And it wasn’t the current case law. There was no reason for
            bifurcation and it was not bifurcated.

                   After the indictment had long since [been] read, we
            were in the middle of our proof and ending the proof, we
            went to have [the petitioner] fingerprinted and put the
            fingerprint, an R&I expert on, and that is when [trial counsel]
            agreed to stipulate at that point that he was the person in the
            indictment. By that time it was long past when we read the
                                         -7-
             indictment and we’d already read the indictment listing the
             charge.

                    So it would [have] been of no purpose at that point to
             stipulate to a felony and it wouldn’t [have] shielded the jury
             from anything. It wouldn’t [have] shielded the [petitioner]
             from anything. When I read the indictment inside the
             indictment itself for that count list[s] what crime he had been
             convicted of. And that’s how all convicted felon in
             possession of a handgun indictment counts are.

                    ....

                    Now I can’t say what [trial counsel] thought he was
             stipulating to. But the argument that the judge and I were
             having with [trial counsel] and the case I was wanting to put
             on was that I just didn’t want [Mr. Stein] to say he’s the
             person in that indictment number. I wanted to prove given
             the name that it was one [and] the same person.

                     But it was never an issue of stipulating to the felony
             itself. We were calling the R&I person. In fact, there’s proof
             submitted, an offer of proof submitted with the R&I person
             sitting here about the fingerprinting.

              The petitioner testified that trial counsel never informed him that he was
considered a career offender, but the petitioner conceded that the trial court informed
him, prior to setting the case for trial, of the potential sentence he was facing for each
felony conviction. The petitioner recalled that, at his sentencing hearing, trial counsel
argued to the court that the petitioner was not a career offender, and the petitioner
testified that trial counsel never indicated to him that his six prior convictions of
aggravated robbery, which all arose “at one time,” would be counted as six separate
felonies. The petitioner stated that he would not have proceeded to trial if he had been
made aware of his potential exposure. The petitioner believed that he would be
sentenced as a Range II offender.

             According to the petitioner, the State had offered him a plea of 25 years at
100 percent service, and the petitioner recalled that the State extended this offer to him
both while he was represented by Mr. Johnson and again when trial counsel took over his
case.
                                           -8-
               On cross-examination, the petitioner denied that Mr. Johnson had ever
discussed his potential exposure with him, even when Mr. Johnson presented the plea
offer to the petitioner. The petitioner also denied that the trial court had ever informed
him of his potential exposure, although he admitted that the trial court had voir dired him
prior to setting the case for trial. The petitioner eventually conceded that the proof
against him, including the testimony of his codefendants, DNA evidence, video
surveillance footage from Walmart, and evidence that the vehicle and handgun were
linked to the petitioner, was substantial.

               Mr. Johnson testified for the State and stated that he had represented the
petitioner until shortly before the petitioner’s initial trial date, at which time trial counsel
substituted in to represent the petitioner. Mr. Johnson admitted that he did not recall the
petitioner with any specificity, but he testified that he “[a]bsolutely” would have
informed his clients that prior convictions for violent felonies would not have been
considered a single felony. Mr. Johnson denied that he ever would have set a case for
trial without first informing his client of his potential exposure. With respect to the
petitioner’s status as a career offender, Mr. Johnson stated that he “[a]bsolutely” would
have informed the petitioner of this information. Mr. Johnson testified that, if the
petitioner had received a plea offer of 25 years at 100 percent service, he likely would
have recommended that the petitioner take it “if the proof [was] that overwhelming”
because 25 years would have been “better than the alternative if he were to go to trial.”
Mr. Johnson confirmed, however, that the decision of whether to accept a plea offer
would have been ultimately left to the petitioner and that he never would have allowed
the petitioner to make such a decision without being fully informed of the potential
sentence he would be facing.

              On cross-examination, Mr. Johnson admitted that he did not recall the
specifics of the petitioner’s case, but he insisted that he “told [the petitioner] what his
exposure was and told him what the offer was without any hesitation whatsoever.”

              With this evidence, the post-conviction court denied relief, finding that,
although trial counsel had “properly stipulated to the [p]etitioner’s prior felony
conviction in order to protect the jury from hearing that the [p]etitioner was previously
charged with aggravated robbery,” the petitioner failed to show that this tactical decision
by trial counsel resulted in deficient representation or that, but for this alleged deficiency,
the outcome would have differed. The post-conviction court found that the petitioner
failed to establish by clear and convincing evidence that he had received ineffective
assistance of counsel. The post-conviction court did not, however, make any findings
regarding the petitioner’s knowledge of his exposure at sentencing.
                                              -9-
              In this appeal, the petitioner reiterates his claim of ineffective assistance of
counsel, claiming that trial counsel performed deficiently by failing to shield the jury
from learning of his prior aggravated robbery conviction and by failing to raise the issue
on direct appeal. In addition, the petitioner argues that trial counsel was deficient by
failing to inform him of his status as a career offender and his potential sentence
exposure. The State contends that the court did not err by denying relief.

              We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. A post-
conviction petitioner bears the burden of proving his or her factual allegations by clear
and convincing evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to
the post-conviction court’s findings of fact the weight of a jury verdict, and these findings
are conclusive on appeal unless the evidence preponderates against them. Henley v.
State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn.
Crim. App. 1997). By contrast, the post-conviction court’s conclusions of law receive no
deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453
(Tenn. 2001).

               Before a petitioner will be granted post-conviction relief based upon a
claim of ineffective assistance of counsel, the record must affirmatively establish, via
facts clearly and convincingly established by the petitioner, that “the advice given, or the
services rendered by the attorney, are [not] within the range of competence demanded of
attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and
that counsel’s deficient performance “actually had an adverse effect on the defense,”
Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, the petitioner “must
show that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at
694. Should the petitioner fail to establish either deficient performance or prejudice, he is
not entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).
Indeed, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697.

              When considering a claim of ineffective assistance of counsel, a reviewing
court “begins with the strong presumption that counsel provided adequate assistance and
used reasonable professional judgment to make all significant decisions,” Kendrick v.
State, 454 S.W.3d 450, 458 (Tenn. 2015) (citing Strickland, 466 U.S. at 689), and “[t]he
                                            - 10 -
petitioner bears the burden of overcoming this presumption,” id. (citations omitted). We
will not grant the petitioner the benefit of hindsight, second-guess a reasonably based trial
strategy, or provide relief on the basis of a sound, but unsuccessful, tactical decision
made during the course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn.
Crim. App. 1994). Such deference to the tactical decisions of counsel, however, applies
only if the choices are made after adequate preparation for the case. Cooper v. State, 847
S.W.2d 521, 528 (Tenn. Crim. App. 1992).

              A claim of ineffective assistance of counsel is a mixed question of law and
fact. Kendrick, 454 S.W.3d at 457; Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010);
State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453,
461 (Tenn. 1999). When reviewing the application of law to the post-conviction court’s
factual findings, our review is de novo, and the post-conviction court’s conclusions of
law are given no presumption of correctness. Kendrick, 454 S.W.3d at 457; Fields, 40
S.W.3d at 457-58; see also State v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

              Turning first to the petitioner’s claim regarding his alleged stipulation, we
find that, because of the necessity of proving that the petitioner was a convicted felon in
order to show that he was, in fact, a felon in possession of a handgun, it was necessary for
the jury to discover his status as a felon. However, even if the petitioner had actually
properly stipulated to the petitioner’s prior felony conviction – and our reading of the
transcript does not convince us that he did – given the overwhelming evidence of the
petitioner’s guilt, we cannot say that the petitioner was in any way prejudiced by this
information. See Strickland, 466 U.S. at 697.

               It bears noting that the prosecutor, Ms. Stark, in testifying at the post-
conviction hearing, referenced trial counsel’s repeated efforts to “bifurcate the process as
far as having the convicted felon in possession of a handgun tried at the same time.” Our
review of the record before us reveals that trial counsel did not actually seek bifurcation
at any point; rather, he sought to sever the felon in possession of a firearm charge from
the other counts in the indictment. The parties argued the issue of severance prior to trial,
the trial court denied trial counsel’s motion, and we affirmed the denial of severance on
direct appeal. Carlos Smith, slip op. at 7. Thus, it appears that Ms. Stark mistakenly
referred to bifurcation at the post-conviction hearing when she actually meant severance,
and it is likely that trial counsel was intending to seek bifurcation of the felon in
possession charge prior to trial but he erroneously moved for severance of the charges.
Although trial counsel may have been deficient in failing to properly seek bifurcation,
any deficiency was not prejudicial given, as previously stated, the overwhelming proof of
the petitioner’s guilt.


                                            - 11 -
              With respect to the petitioner’s claim that trial counsel failed to adequately
inform him of his career offender status, thus resulting in the petitioner’s rejection of a
plea offer, we find that the post-conviction court failed to make any findings regarding
this issue. Accordingly, we remand this case to the post-conviction court for the limited
purpose of determining whether trial counsel was ineffective in this regard, and such
findings must be made based on the existing record. In all other respects, the judgment of
the post-conviction court is affirmed.

                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




                                           - 12 -
