         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs December 2, 2008

                    DONALD MAYS v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                           No. P-26606     John P. Colton, Judge



                   No. W2007-02585-CCA-MR3-PC -              Filed July 17, 2009


The petitioner, Donald Mays, appeals the denial of his petition for post-conviction relief. The
petitioner has previously been granted a remand to the post-conviction court for consideration of the
issues that he now appeals: (1) whether trial counsel was ineffective for failing to allege in his
motion for new trial that the trial court erred in failing to instruct the jury on robbery as a lesser
included offense of aggravated robbery; and (2) whether appellate counsel was ineffective for failing
to raise on appeal that it was plain error for the trial court not to instruct on robbery as a lesser
included offense of aggravated robbery. After careful review, we affirm the judgment from the post-
conviction court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which J.C. MCLIN , J., joined.
CAMILLE R. MCMULLEN J., not participating.

Charles W. Gilchrist, Jr., Memphis, Tennessee, for the appellant, Donald Mays.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Senior Counsel;
William L. Gibbons, District Attorney General; and Glen Baity, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION

       The facts of this appeal were summarized as follows in this court’s opinion:

               The convictions were based upon an incident occurring on June 17, 1999,
       involving the kidnapping of 19-year-old Dayton Smith, the daughter of Viola Taylor.
       While the victim waited in the car for her mother, the petitioner entered Ms. Taylor’s
       vehicle, found the keys in the ignition, pulled a gun, and drove away. There was
       evidence that as the victim demanded to be released, the petitioner stole two of her
       rings, having a total value of approximately $500.00, and then drove away in a
        reckless manner. When the petitioner slowed at an intersection, the victim jumped
        out of the vehicle, injuring her arm and leg, and then returned to the Jefferson
        Building.

                Two weeks later, the petitioner “rented” the stolen vehicle to Derrick Houston
        for $9.00 and a rock of cocaine. Houston, after being stopped by the police in West
        Memphis, Arkansas, led officers to the petitioner. The victim first identified the
        petitioner in a photographic lineup and then identified the petitioner at trial. Other
        evidence, particularly a glove, connected the petitioner to the crime. The victim
        found the glove, which bore the petitioner’s surname “Mays,” in the trunk of her
        vehicle one week before trial. Neither the state nor the defense discovered the
        existence of the glove until the last day of the trial.

Donald Mays v. State, No. W2003-02761-CCA-R3-PC, 2004 Tenn. Crim. App. LEXIS 967, at **2-3
(Tenn. Crim. App. at Jackson, Oct. 28, 2004), perm. app. denied (Tenn. Feb. 28, 2005).

                                                 Analysis

         In his first issue, the petitioner argues that trial counsel was ineffective for failing to allege
in his motion for new trial that the trial court erred in failing to instruct the jury on robbery as a lesser
included offense of aggravated robbery. He contends that trial counsel had a duty to object to the
trial court’s refusal to instruct on robbery as a lesser included offense of aggravated robbery. In its
opinion on the petitioner’s first appeal of his petition for post-conviction relief, this court stated that
“the proof offered at trial justified instructions on aggravated kidnapping, kidnapping, robbery, and
theft, the trial court erred by failing to instruct the jury as to those offenses.” Donald Mays, 2004
Tenn. Crim. App. LEXIS 967, at *17. This court, on appeal, remanded the issue of the omission of
the lesser included offenses to the post-conviction court.

         On remand, the post-conviction court determined that the failure to instruct the jury on the
lesser included offense of robbery was harmless error and specifically stated that “no reasonable jury
would have convicted on the lesser included offenses of robbery . . . instead of the charged offense
of aggravated robbery.” The post-conviction court reached this conclusion because the evidence at
trial was uncontroverted that the petitioner used a deadly weapon, holding it on the victim during the
duration of the car ride.

        Since the petitioner alleged ineffective assistance of counsel, it was the petitioner’s burden
in the post-conviction court to prove the allegations by clear and convincing evidence. T.C.A. § 40-
30-210(f) (2006). We are required to affirm the post-conviction court’s findings unless the petitioner
proves that the evidence preponderates against those findings. State v. Burns, 6 S.W.3d 453, 461
(Tenn. 1999).

       In order to prove ineffective assistance of counsel, the petitioner must prove that (1)
counsel’s performance was deficient, and (2) the deficiency was prejudicial in terms of rendering a


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reasonable probability that the result of the trial was unreliable or the proceedings were
fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).
The Tennessee Supreme Court has also applied this standard to the right to trial counsel under
Article I, Section 9 of the Tennessee Constitution, State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn.
1989), and to the right to counsel on direct appeal under the Fourteenth Amendment. Campbell v.
State, 904 S.W.2d 594, 596 (Tenn. 1995).

       The issue of deficient performance by counsel and possible prejudice are mixed questions
of law and fact. Burns, 6 S.W.3d at 461. Because the issue on appeal in the instant case involves
a conclusion of law, this court’s review is de novo. Fields v. State, 40 S.W.3d 450, 458 (Tenn.
2001).

        Following the remand from this court, the post-conviction court’s order analyzed whether
the failure to instruct the jury on robbery amounted to harmless error. In its review, the trial court
stated that a conviction of aggravated robbery requires that the perpetrator either use a deadly
weapon or cause serious bodily injury. T.C.A. § 39-13-402 (2006). Robbery is a lesser included
offense of aggravated robbery and is defined as the intentional or knowing theft of property from the
person of another by violence or putting the person in fear. T.C.A. § 39-13-401 (2006). Aggravated
robbery differs from the charge of robbery in that it includes an additional element requiring that the
defendant accomplish the act with a deadly weapon or by display of any article used or fashioned to
lead the victim to reasonably believe it to be a deadly weapon. T.C.A. § 39-13-402. The post-
conviction court found that “the difference between aggravated robbery and robbery is unequivocal:
aggravated robbery is accomplished with the use of a deadly weapon and the robbery charge makes
no mention of a deadly weapon.”

         The post-conviction court ruled that trial counsel’s failure to preserve the trial court’s refusal
to instruct on robbery was harmless beyond a reasonable doubt because the failure was not
prejudicial and did not effect the outcome of the trial. A finding of no prejudice prevents the
petitioner from demonstrating that counsel was ineffective because the petitioner must demonstrate
that counsel’s actions were deficient and were prejudicial in terms of rendering a reasonable
probability that the result of the trial was unreliable or the proceedings were fundamentally unfair
under the test in Strickland v. Washington, 466 U.S. at 687. Therefore, the petitioner is not entitled
to relief on this issue because it was uncontroverted that a gun was used in the commission of this
crime.

        Next, the petitioner argues that his appellate counsel was ineffective for failing to raise on
appeal, as plain error, the argument that the trial court erred in failing to instruct the jury on robbery
as a lesser included offense of aggravated robbery. Specifically, the petitioner contends that
appellate counsel was ineffective because, on the day counsel filed his motion to withdraw as
appellate counsel, the Tennessee Supreme Court filed the opinion in State v. Allen, which held that
“the trial court must provide an instruction on a lesser-included offense supported by the evidence
even if such instruction is not consistent with the theory of the State or of the defense.” 69 S.W.3d
181, 187-88 (Tenn. 2002).


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         As previously stated, the post-conviction court found that the proof that a gun was used was
overwhelming and undisputed at trial. As a result, the post-conviction court found that the outcome
of the trial would have been no different had the instruction for the lesser included offense of robbery
been given. Consequently, we can conclude that the decision by appellate counsel not to pursue the
issue of the jury instruction on robbery was harmless error. In the decision of State v. Richmond, 90
S.W.3d 648 (Tenn. 2002), the Tennessee Supreme Court held that the trial court’s failure to instruct
the jury on robbery was harmless error. Here, the post-conviction court concluded that the failure
to pursue the instruction on robbery “did not affect the outcome of the trial beyond a reasonable
doubt” for the same reason that the Tennessee Supreme Court in State v. Richmond determined that
the evidence was overwhelming that the petitioner committed the robbery with a gun. Accordingly,
we conclude that appellate counsel’s failure to raise the issue of robbery as a lesser included offense
of aggravated robbery is harmless error, and we affirm the judgment from the post-conviction court.

                                             Conclusion

       Based on the foregoing and the record as a whole, we affirm the judgment from the post-
conviction court.



                                                        ___________________________________
                                                          JOHN EVERETT WILLIAMS, JUDGE




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