         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs December 16, 2003

            LEON TERRELL PHILLIPS v. STATE OF TENNESSEE

                   Direct Appeal from the Circuit Court for Bedford County
                               No. 8330    Charles Lee, Judge



                      No. M2002-02090-CCA-R3-PC - Filed May 19, 2004


The petitioner, Leon Terrell Phillips, pled guilty in the Bedford County Circuit Court to attempted
first degree murder and received a sentence of thirty years incarceration in the Tennessee Department
of Correction, which sentence was to be served at thirty percent. Subsequently, the petitioner filed
a petition for post-conviction relief, alleging that he received the ineffective assistance of counsel.
The post-conviction court dismissed the petition, and the petitioner appeals. Finding no error, we
affirm the judgment of the post-conviction court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOE G. RILEY and THOMAS T.
WOODALL, JJ., joined.

Hershell D. Koger, Pulaski, Tennessee, for the appellant, Leon Terrell Phillips.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
William Michael McCown, District Attorney General; and Michael David Randles, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                              OPINION

                                       I. Factual Background

        The petitioner entered his guilty plea to attempted first degree murder on March 1, 1999. On
February 29, 2000, he filed a petition for post-conviction relief, alleging ineffective assistance of
counsel. Specifically, the petitioner alleged that counsel failed to advise him that if he went to trial
on the indicted charge of especially aggravated robbery, a jury could consider the lesser-included
offenses of the charged offense. The petitioner maintained that if he had been properly advised, he
would not have pled guilty but would have proceeded to trial. Additionally, he contended that
counsel should have asked for a change of venue, citing the extensive publicity generated by the
offense.1

        On May 25, 2000, the post-conviction court conducted a hearing. Following the testimony
of the petitioner, the post-conviction court granted the State’s motion to dismiss the petition,
concluding that the issue involved a question of law as to whether a lesser-included offense would
have been charged if the petitioner had elected to proceed to trial. The post-conviction court, without
making any findings of fact, concluded that the evidence would not have supported a charge on the
lesser-included offenses and dismissed the petition.

        The petitioner appealed the post-conviction court’s decision. On appeal, this court noted that
the post-conviction court, by dismissing the petition in the manner it did, rotely accredited the
petitioner’s testimony, thereby agreeing that the petitioner had proven prejudice. Leon Terrell
Phillips v. State, No. M2000-02383-CCA-R3-PC, 2001 WL 717358, at *3 (Tenn. Crim. App. at
Nashville, June 27, 2001). However, the post-conviction court’s actions left open the question of
the deficiency of counsel’s performance. Id. Ultimately, this court concluded that the post-
conviction court’s ruling was based upon an inappropriate standard regarding the validity of the
petitioner’s guilty plea. Id. at *2. Accordingly, this court reversed the judgment of the post-
conviction court and remanded for further evidentiary hearings and the entry of the appropriate
findings of fact and conclusions of law. Id. at *3.

        Following this court’s remand, the post-conviction court conducted another evidentiary
hearing. The post-conviction court, with the agreement of the petitioner and the State, allowed the
transcript of the petitioner’s testimony from his initial post-conviction hearing to be introduced into
evidence. This court previously summarized the petitioner’s testimony regarding the events
surrounding the offense as follows:

                         Mario Starnes asked the petitioner to help him rob a
                 restaurant. The petitioner refused at first, but agreed to help after
                 Starnes asked him again. They agreed that no one would be hurt,
                 only bound with duct tape. However, the petitioner carried a loaded
                 sawed-off shotgun and Starnes had a loaded pistol. They went to the
                 restaurant at night in Starnes’s sister’s car and parked near the back
                 door of the restaurant. The petitioner wore two sets of clothing, the
                 outer consisting of dark colors. He also wore a toboggan with a pair
                 of dark panty hose over his head, and Starnes wore a ski mask.

                         After they entered the restaurant, Starnes went to get the
                 money – appearing to know its location – while the petitioner was
                 dealing with some employees. At some point, Starnes had shot into
                 the ceiling. The petitioner made the employees sit on the floor, and


       1
           This claim has been abandoned on appeal.

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             he told the victim’s wife to approach. However, she went around a
             corner and returned with her husband, the victim. The victim
             approached the petitioner and pushed the shotgun away. He pushed
             the petitioner in the chest and screamed for him to leave. The victim
             pushed the petitioner out the back door.

                     The petitioner threw the shotgun down and left the property
             because he was “through” with it. He removed the toboggan and
             panty hose, crossed some bank property, and was headed toward a
             Wendy’s restaurant when he looked back and saw Starnes and the
             victim outside. The petitioner heard or saw a shot or two. The
             petitioner obtained his share of the robbery proceeds several days
             later and spent some of it. After his arrest, the petitioner gave a tape-
             recorded statement of the events to the police.

                     The petitioner testified that his attorney told him that on the
             strength of the state’s case, she believed that he would probably get
             a sentence of twenty-four to twenty-five years and serve eighty-five
             percent. She explained to him how he could be criminally
             responsible for Starnes’s shooting the victim. He also admitted that
             they discussed the difference between especially aggravated robbery
             and aggravated robbery and that he told his attorney that he would
             accept aggravated robbery at eight to twelve years with a thirty-
             percent release eligibility date. The petitioner also acknowledged that
             his primary concern was getting a thirty-percent release eligibility
             date.

                     The petitioner testified that his attorney did not tell him that
             the jury could consider lesser included offenses, such as aggravated
             robbery. He said if he had known of such a possibility, he would
             have gone to trial. The petitioner agreed that at the guilty plea
             hearing, he had told the trial court that he had been satisfied with his
             attorney and had discussed all defenses and options with her. He
             explained, though, that he did not know at that time of her failure to
             discuss with him lesser included offenses in the context of a jury trial.
             Upon questioning at the evidentiary hearing by the trial court
             regarding the pretrial negotiations, the petitioner said that if the state
             had not offered a reduction he would have gone to trial, noting that it
             would, at least, cost the state the expense of a trial.

Id. at *2.




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        Trial counsel testified at the hearing following remand that she and the petitioner discussed
at length the petitioner’s options and what could happen at trial. Although counsel did not have an
independent recollection of using the term lesser-included offense, she stated that they discussed
what a jury might do and what a jury might convict the petitioner of under the facts of his case. On
direct examination, the following colloquy occurred between the State and the petitioner’s trial
counsel:

               Q: Was there ever any discussion about whether a jury might convict
               him of the charge of aggravated robbery as opposed to especially
               aggravated robbery?

               A: Yes, I believe there was, yes. Yes, there was.

               Q: So was Mr. Phillips explained, and maybe didn’t use the term
               lesser included offense, that a jury possibly would have the option of
               convicting him of some charge of less severe than the indicted charge
               of especially aggravated robbery?

               A: Yes, like I said earlier it was probably more in the context of
               when we were discussing trying to enter into a plea of aggravated
               robbery and it was in that context that, you know, we might be able
               to get the State to agree to this because there is a chance that you
               could be found guilty of aggravated robbery because he was not the
               shooter in this incident . . . .

               ....

               Q: Did you discuss with him if the State wasn’t going to agree to it
               that that would be his only remaining option to get an aggravated
               robbery conviction would be at a jury trial?

               A: Yes.

        Counsel recalled that the petitioner’s primary concern was that he not plead to an offense that
required him to serve eighty-five percent of his sentence. She explained that the parties agreed to
allow the petitioner to plead guilty to attempted first degree murder and receive a sentence with a
thirty percent release eligibility date in a “hybrid” type of plea.

        Following the conclusion of the hearing, the post-conviction entered an order dismissing the
petition. The post-conviction court made extensive findings of fact and conclusions of law.
Specifically, the court found that trial counsel was an experienced trial attorney who investigated the
State’s case and discussed with the petitioner the various defenses which were available to him. The
court accredited the testimony of counsel, finding that the petitioner was fully informed of the


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options available to him if he proceeded to trial. The court found that the petitioner’s testimony was
not credible and that the petitioner had failed to prove his allegations by clear and convincing
evidence. On appeal, the petitioner contests this ruling.

                                              II. Analysis

        A claim of ineffective assistance of counsel is a mixed question of law and fact. See State
v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s findings of
fact de novo with a presumption that those findings are correct. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001). However, we will review the post-conviction court’s conclusions of law purely
de novo. Id.

        “To establish ineffective assistance of counsel, the petitioner bears the burden of proving
both that counsel’s performance was deficient and that the deficiency prejudiced the defense. Goad
v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064 (1984)). In evaluating whether the petitioner has met this burden, this court
must determine whether counsel’s performance was within the range of competence required of
attorneys in criminal cases. See Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Moreover, in
the context of a guilty plea, “the petitioner must show ‘prejudice’ by demonstrating that, but for
counsel’s errors, he would not have pleaded guilty but would have insisted upon going to trial.”
Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998); see also Hill v. Lockhart, 474 U.S.
52, 59, 106 S. Ct. 366, 370 (1985).

        In the instant case, the petitioner’s trial counsel testified that she and the petitioner discussed
the options available to him and the possible results if he proceeded to trial. The petitioner was
aware of the distinctions in the proof required to find him guilty of especially aggravated robbery as
opposed to aggravated robbery. After fruitless negotiations regarding a plea to aggravated robbery,
counsel advised the petitioner that his only chance of obtaining an aggravated robbery conviction
would be as a result of a jury trial. Counsel noted that the petitioner’s primary concern was that he
not receive a sentence that required him to serve eighty-five percent. Accordingly, counsel
negotiated a plea agreement allowing the petitioner to plead guilty to attempted first degree murder,
with his sentence to be served at thirty percent. The evidence, in our view, does not preponderate
against the findings of the post-conviction court.

                                            III. Conclusion

        Accordingly, we affirm the judgment of the post-conviction court.



                                                         ___________________________________
                                                         NORMA McGEE OGLE, JUDGE



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