        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs September 14, 2011

                RONALLEN HARDY v. STATE OF TENNESSEE

             Direct Appeal from the Circuit Court for Rutherford County
                       No. F64422     David M. Bragg, Judge


                No. M2011-00497-CCA-R3-PC - Filed January 9, 2012


The petitioner, Ronallen Hardy, filed a petition for post-conviction relief from his four felony
convictions and the accompanying effective sentence of life plus twenty-two years, alleging
that his counsel were ineffective. The post-conviction court denied the petition, and the
petitioner now appeals. Upon review, we affirm the judgment of the post-conviction court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J ERRY L. S MITH and
J AMES C URWOOD W ITT, J R., JJ., joined.

Sean G. Williams, Murfreesboro, Tennessee, for the appellant, Ronallen Hardy.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; William C. Whitesell, Jr., District Attorney General; and Trevor H. Lynch, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                  I. Factual Background

      Following a jury trial, the petitioner was convicted of first degree premeditated
murder, first degree felony murder, especially aggravated robbery, aggravated burglary,
conspiracy to commit especially aggravated robbery, and conspiracy to commit especially
aggravated burglary. The petitioner’s murder convictions were merged, and his conspiracy
convictions were also merged. On direct appeal, this court summarized the proof as follows:

                     The [petitioner’s] convictions resulted from his
              involvement in the robbery and shooting death of Randy Betts
                 in December 2005. Before trial, the [petitioner] filed motions
                 to suppress a taped statement he made to police in which he
                 admitted that he, Aldrick “Scoot” Lillard, and Vanessa Claude
                 went to the victim’s house to take the victim’s guns. According
                 to the [petitioner’s] statement, he and Claude waited in the car
                 while Lillard knocked on the door of the victim’s home. Shortly
                 thereafter, the [petitioner] heard two gunshots and left the car to
                 look into the house. The [petitioner] described the victim’s
                 appearance, injury, and location; however, he claimed that he
                 only looked into the house. He said that he did not go into the
                 house because his foot was bleeding from a prior gunshot
                 wound he had received and that he did not want to leave his
                 DNA at the scene. The [petitioner] said that Claude pulled the
                 car into the yard and that Lillard spent around forty-five minutes
                 loading guns from the victim’s home into the car. Lillard told
                 the [petitioner] that he shot the victim because the victim was a
                 “snitch.”

State v. Ronallen Hardy, No. M2008-00381-CCA-R3-CD, 2009 WL 2733821, at *1 (Tenn.
Crim. App. at Nashville, Aug. 31, 2009). The petitioner received a total effective sentence
of life without parole plus twenty-two years.

       Thereafter, the petitioner filed a petition for post-conviction relief, alleging that his
counsel were ineffective. Specifically, the petitioner alleged that one of his attorneys
(hereinafter “pretrial counsel”) was ineffective by failing to adequately communicate with
him and by withdrawing prior to trial. The petitioner alleged that the attorney who actually
represented him at trial (hereinafter “trial counsel”) was ineffective by failing to call
witnesses or present mitigation evidence during the sentencing phase.1

       At the post-conviction hearing, pretrial counsel testified that she and trial counsel
were both appointed to represent the petitioner. She said that the petitioner had two co-
defendants and that each co-defendant was appointed two attorneys. She acknowledged that
she had never before tried a murder case.

       Pretrial counsel recalled that meeting with the petitioner “face to face” was difficult
because she resided in Rutherford County and he was incarcerated in Davidson County.
Pretrial counsel asked that the petitioner be transferred to Rutherford County. However, the


        1
          In his post-conviction petition, the petitioner raised additional claims of ineffective assistance that
he did not pursue on appeal.

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move upset and angered the petitioner, so pretrial counsel requested the petitioner be returned
to Davidson County. Pretrial counsel said the petitioner was difficult to represent because
he was uncooperative and “would fuss and carry on.” Pretrial counsel recalled that she also
spoke with the petitioner’s mother.

       Pretrial counsel said that there was extensive discovery and several court dates. She
and trial counsel discussed the discovery materials with each other and with the petitioner.
She recalled that she presented all plea offers to the petitioner, but none were accepted. She
said that she may have spent five hours or less speaking directly with the petitioner but that
she spent fifty hours or more on trial preparations.

       Pretrial counsel stated that during the approximately six or eight months she
represented the petitioner, she filed two motions to withdraw. Her first motion was due to
her trouble communicating with the petitioner. She explained that the petitioner was angry
and unhappy with the proceedings. However, that motion to withdraw was denied. Shortly
before the scheduled trial date, “a tragic episode” occurred which necessitated that pretrial
counsel withdraw; specifically, her son and his life-long best friend were robbed, and the
friend was shot and killed during the robbery. The incident caused “emotional issues” for
her, and she had to seek psychiatric help for her son. Concern for her son forced her to
“back[] off” of her law practice for about a month. She stated that the facts of her son’s
robbery were similar to the facts of the petitioner’s case and that she therefore did not “think
[she] could have sat in the courtroom” during the petitioner’s trial. Accordingly, she
believed it was in the petitioner’s best interest for her to withdraw. Pretrial counsel’s second
motion to withdraw was granted, and trial counsel filed a motion to continue.

        Trial counsel testified that the majority of his practice was not devoted to criminal law
but that he occasionally represented criminal clients. Trial counsel said that he was
appointed to represent the petitioner at trial and on direct appeal. Trial counsel said, “I feel
like I did everything possible that I could have done for [the petitioner].”

       Trial counsel said that he met with the petitioner approximately twelve times, that he
met with the petitioner’s parents, and that he made himself available to the petitioner. Trial
counsel said that the petitioner was usually cooperative with him. However, the petitioner
ignored trial counsel’s advice by refusing to stand to show respect when the judge and jury
entered and exited the courtroom.

        Trial counsel agreed that he and pretrial counsel “did a substantial amount of work”
prior to pretrial counsel’s withdrawal from the case. Trial counsel said that he was concerned
about being the petitioner’s sole attorney because he had never tried a murder case.
Regardless, he did not file a motion to have co-counsel appointed because only one attorney

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was appointed in a noncapital crime. Additionally, trial counsel said that he had experience
in trying other types of cases.

        Trial counsel said that the petitioner’s extensive statements to police were the greatest
obstacles of the case. Trial counsel spent hours reviewing the petitioner’s statements. He
also filed a motion to suppress the statements, but the motion was denied. Trial counsel
stated that the petitioner chose not to testify at the trial or at the sentencing hearing.

        Trial counsel stated that the petitioner turned eighteen years old shortly before the
crimes were committed. Trial counsel, the petitioner, and the petitioner’s parents discussed
the petitioner’s school work, activities, and any potential character evidence that could be
offered in mitigation. Trial counsel also weighed “the pros and cons” of presenting witnesses
and subjecting them to cross-examination. Trial counsel stated that if there had been any
mitigation proof, he would have presented it at the sentencing hearing. He said, “The only
way I would have intentionally not presented mitigation proof on his behalf is if it had been
at his request or at his direction.” Trial counsel specifically recalled the petitioner’s family
suggesting a potential mitigation witness that the petitioner did not want trial counsel to call.

       The petitioner’s mother, Connie Hardy, testified that she repeatedly called pretrial
counsel to try to arrange a “three-way call” with the petitioner, who was incarcerated.
However, she was successful in reaching pretrial counsel only one time, and the resulting
“three-way call” lasted no more than fifteen minutes.

       Mrs. Hardy stated that about two or three weeks prior to trial, she learned that trial
counsel was also representing the petitioner. She repeatedly called trial counsel. Trial
counsel returned the calls but was usually unable to make contact with Mrs. Hardy due to
differences in their schedules.

       Mrs. Hardy said that she and her husband met with trial counsel in person one time
to discuss a plea offer made by the State; however, they never discussed the petitioner’s
childhood. Trial counsel asked Mrs. Hardy to recommend potential character witnesses, and
she complied with the request. Mrs. Hardy was unable to attend the petitioner’s sentencing
hearing, but Mr. Hardy was there.

        Following the hearing, the post-conviction court entered an order denying the petition
for post-conviction relief. The post-conviction court accredited the testimony of trial counsel
regarding the petitioner’s decision to not testify at the sentencing hearing. Additionally, the
court stated that trial counsel investigated the petitioner’s background for potential mitigating
evidence and discovered none. The court noted that the petitioner did not present proof of
any mitigating evidence that could have been presented by trial counsel.

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        The post-conviction court observed that pretrial counsel’s motion to withdraw was
granted because Tennessee Supreme Court Rule 13 authorized the appointment of only one
attorney in a non-capital case and because of the “tragic event” that occurred involving
pretrial counsel’s son. The post-conviction court found that the petitioner had presented no
proof that counsel’s withdrawal “fell below an attorney’s professional standard of conduct.”
Further, the court accredited pretrial counsel’s testimony that she believed her withdrawal
was in the petitioner’s best interest. The court also accredited pretrial counsel’s testimony
regarding the petitioner’s uncooperative and angry nature. Moreover, the court noted that
trial counsel was granted a continuance to give him additional time to prepare and that trial
counsel “spent a substantial amount of time preparing the case.” Additionally, the court
accredited trial counsel’s testimony that he considered and rejected presenting witnesses
because such witnesses “might also have to give unfavorable character testimony or
otherwise be impeached on cross-examination.” Therefore, the post-conviction court found
that counsel were not deficient and that the petitioner was not prejudiced by the actions or
inactions of counsel. On appeal, the petitioner challenges the post-conviction court’s ruling.

                                        II. Analysis

       To be successful in his claim for post-conviction relief, the petitioner must prove all
factual allegations contained in his post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.
App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).
Issues regarding the credibility of witnesses, the weight and value to be accorded their
testimony, and the factual questions raised by the evidence adduced at trial are to be resolved
by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997). Therefore, the post-conviction court’s findings of fact are entitled to
substantial deference on appeal unless the evidence preponderates against those findings. See
Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

       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, 40
S.W.3d at 458. However, we will review the post-conviction court’s conclusions of law
purely de novo. Id.

       When a petitioner seeks post-conviction relief on the basis of 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,

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369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish
deficient performance, the petitioner must show that counsel’s performance was below “the
range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). To establish prejudice, 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. Moreover,

                       [b]ecause a petitioner must establish both prongs of the
              test, a failure to prove either deficiency or prejudice provides a
              sufficient basis to deny relief on the ineffective assistance claim.
              Indeed, a court need not address the components in any
              particular order or even address both if the [petitioner] makes an
              insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).

        As we noted earlier, the petitioner alleges that pretrial counsel was ineffective by
failing to adequately communicate with him and by withdrawing prior to trial. The petitioner
alleges that trial counsel was ineffective by failing to call witnesses or present mitigation
evidence during the sentencing phase. However, the petitioner does not explain how he was
prejudiced by the alleged deficiencies of counsel or what witnesses could have been called.
Generally, “[w]hen a petitioner contends that trial counsel failed to discover, interview, or
present witnesses in support of his defense, these witnesses should be presented by the
petitioner at the evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim.
App. 1990). We may not speculate on what benefit a witness might have offered to the
petitioner’s case, nor may we guess as to what evidence further investigation may have
uncovered. Id.

        As the post-conviction court found, both pretrial counsel and trial counsel spent a
substantial amount of time preparing for the petitioner’s case. Due to a family tragedy,
pretrial counsel was compelled to withdraw. Trial counsel filed suppression motions and
cross-examined witnesses. Trial counsel said that he “ did everything possible” for the
petitioner and only declined to present proof at the petitioner’s behest. The petitioner did not
present proof at the post-conviction hearing regarding the effect of additional meetings with
counsel, of the benefit of pretrial counsel’s continued representation, or of any mitigating
evidence that could have been presented at the sentencing hearing. We agree with the post-
conviction court that the petitioner failed to carry his burden of establishing that his counsel
were deficient or that he suffered prejudice from their representation.



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                                   III. Conclusion

       In sum, we conclude that the petitioner failed to establish that his counsel were
ineffective. Accordingly, we affirm the judgment of the post-conviction court.


                                                _________________________________
                                                NORMA McGEE OGLE, JUDGE




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