         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs May 18, 2004

                BILLY DAVID GRUBB v. STATE OF TENNESSEE

                   Direct Appeal from the Criminal Court for Knox County
                             No. 75249    Ray L. Jenkins, Judge



                      No. E2003-02189-CCA-R3-CD - Filed June 24, 2004


The petitioner, Billy David Grubb, pled guilty in 2001 to first degree premeditated murder and
especially aggravated burglary for which he was sentenced, respectively, to consecutive sentences
of life without parole and twelve years. Subsequently, he filed a timely petition for post-conviction
relief, which was amended by counsel, claiming, inter alia, that trial counsel had been ineffective
by not seeking a pretrial mental evaluation. Following an evidentiary hearing, the post-conviction
court dismissed the petition. After review, we affirm the dismissal.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JOE G.
RILEY , J., joined.

Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant, Billy David Grubb.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Zane Scarlett, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

                                              FACTS

       At the petitioner’s guilty plea submission hearing, the State advised the court of the facts it
was prepared to prove had the case gone to trial:


                      If called to testify, your Honor, those persons listed on the
               indictment would testify that on March the 5th of 2001, Marguerite
               Latham did reside at 1929 Maryland Avenue. She was acquainted
with [the petitioner], who lived on Massachusetts Avenue here in
Knox County, Tennessee.

         On that date, [the petitioner] knocked on her door and asked
to use the phone, and she went to get the phone for him. She allowed
him into the home and handed him the phone. He then asked for a
glass of water; and when she went to get the glass of water from the
refrigerator, she recalls that he struck her. She was assaulted
numerous times by the [petitioner] and was able to tell Investigator
Loeffler of the Knoxville Police Department that she remembers at
one time he was on top of her choking her. She lost consciousness
and . . . did not know how the [petitioner] left the house. She did
wake up and call 911, because she was unable to get up off of the
floor.

        She was taken to U. T. Hospital where she was treated for the
injuries sustained in this assault and where she ultimately died 10
days later.

         The Police Department began investigating this and
discovered that certain items were missing from the residence,
including the victim’s car and some jewelry and other personal items
of hers.

       The investigation led to them looking for [the petitioner], and
three days later, Detectives Price, Marcum, and Claiborne of the
Knoxville Police Department went to Asheville, North Carolina,
acting on a tip. Once there, they found [the petitioner], who they
recognized, and served on him the arrest warrants.

       They talked to the persons with whom he was staying and they
were allowed to search the room in which he was staying and
recovered certain personal items that belonged to Ms. Latham. The
clothes that he was wearing when the attack occurred were
confiscated as well.

        In addition, he gave a detailed, three-page confession to the
detectives from Knoxville, Tennessee, admitting what he had done
and that he had stolen items from her, and that he had fled to North
Carolina to avoid detection. He also told them where he had thrown
the keys to the car, which he had stolen on the day of the attack, and
those were recovered.



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                        Dr. Sandra Elkins would testify that Ms. Latham was 78 years
                old at the time of the attack. She sustained multiple blunt-force
                injuries, was hospitalized and died as a result on March 15th. In
                addition to the blunt-force injuries to the head and chest, the autopsy
                revealed neck injuries consistent with attempted strangulation during
                the assault.

                       It would be further proof that the assault and the death
                occurred here in Knox County, Tennessee, and that [the petitioner]
                was identified not only by Ms. Latham, but by his confession.

          Both the petitioner and his trial counsel testified at the evidentiary hearing. Post-conviction
counsel explained that the petitioner’s claim of ineffective assistance of counsel was based upon his
belief “that before he . . . entered his plea that he should have had a psychiatric or mental evaluation,
. . . that’s the only thing that he’s really complaining about.”

         At the hearing, the petitioner testified that he was twenty-eight years old, had attended school
to “[a]bout the seventh” grade, and could “[b]arely” read and write. He said that he had been
“released from a mental institution three days before – prior before the murder even happened.” He
said he “had [a] mental history since [he] was nine years old [and had] been in just about any mental
institution there are.” He had told trial counsel that he wanted to be examined. He testified that had
he been told he was not facing the death penalty, he “would have took it to trial” after he had an
“evaluation, but [he] was never evaluated.”

        On cross-examination, the petitioner said that he had been hospitalized as a “[p]aranoid
schizophrenic, manic depressant” and had been “on medication and everything.” He said he had
gone to the hospital because he “was strung out on coke” and left the hospital after ten days because
that was all he could afford. He said that, at the time of the murder, he had been on Paxil, Buspar,
and “a couple of others.” As to his complaint against trial counsel, the petitioner said that “if he
didn’t tell me I was – threatened me with the death, I would have never took [sic] the plea in the first
place.” According to the petitioner, he did not “premeditate” killing the victim, “[i]t was just an
accident[,] it happened.” He said if trial counsel had properly represented him, he did not believe
he “would have ended up with life without possibility. [He] might have ended up with life with, but
not without.” As to why he had pled guilty, the petitioner said that “[t]he death penalty was more
– and my family not wanting me to go and go take the chance of getting the death penalty. They
would rather see me live and go through it, through prison again.” He said he pled guilty “[b]efore
I knew what I knew [sic] now.” Had his trial counsel been effective, according to the petitioner, he
would have come “out a little bit better than life without the possibility of parole, of ever getting
back on the streets, if [he had] took [sic] it to trial with a good counsel.”

       The petitioner’s trial counsel testified that, in his opinion, the petitioner had no basis for
presenting, as a defense, a claim of insanity or diminished mental capacity. He described his
knowledge of the petitioner’s mental history:


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               [The petitioner] has been in mental facilities off and on since he was
               about nine years old. He’s been evaluated since he was about four or
               five years old. He has, that I can find, nine different evaluations,
               none of which ever found him to have an axis one definition that
               would – diagnosis that qualify him for a mental status defense. He’s
               never been diagnosed as paranoid schizophrenic by anyone, ever.

       Counsel recounted his gathering of the petitioner’s mental records:

               I have thousands of pages of mental–medical records from lakeshore
               and Peninsula, and Peninsula Lighthouse, Overlook; Dr. Charles
               Rodwell, Dr. Randall May, Jackson Academy. I got his school
               records from the Knox County archives. I’ve got his Taft Youth
               Center records, John Tarlton records, Highland Retreat records,
               Horizon Medical Center records, his special ed records from schools,
               all of his TDOC records, his Mountain View Developmental Center
               record. We went through all of that.

                       I did have a doctor at the school social work, Dave Patterson,
               working with me in this case, and Dave Patterson assimilated all
               those records and submitted to me about a 30-page report on [the
               petitioner], explaining what those were, what all the diagnoses were
               and where that left us from the standpoint of a mental status defense.

        Counsel explained why he had not believed that a mental status defense was available to the
petitioner:

               [U]ntil he was 18, [the petitioner] was always diagnosed with a
               conduct disorder. And as you know, a conduct disorder is oftentimes
               a precursor for an adult antisocial conduct disorder diagnosis.
               Antisocial conduct disorder is not a disorder that would allow you to
               rely on a defense of insanity.

                       When he became an adult, nobody ever labeled him as
               antisocial, although his psychological records all suggest that he is
               probably antisocial. But, as you know, mental health providers
               hesitate to label someone as antisocial.

                       They talked about depression that he had and . . . certainly,
               [the petitioner] had a very, very, very difficult life and had serious,
               serious problems of addiction. And [the petitioner] never had any
               sort of an axis one diagnosis ever that would afford him a mental
               status defense.


                                                -4-
         Explaining why a death penalty notice had not been filed in the matter, trial counsel said that
the State’s policy was to give a defendant “an opportunity to avoid the death penalty.” He said that
if a defendant turned down such an offer, and the State then filed a notice it would be seeking the
death penalty, the State was “very slow to come off the notice.” He said the State told him, “[I]f we
don’t work this case out, [the State was] going to file a death notice.” Counsel said that he explained
this to the petitioner and had “several notes from [the petitioner] saying if I go to trial, I’m going to
get death, and he wanted to plead guilty.”

        On cross-examination, trial counsel said he brought the petitioner’s file, which consisted of
two bankers boxes, to the hearing. His records showed that he had met with the petitioner “around
20 different times” while representing him, seeing him “every day” for a period. He said it had been
the petitioner’s decision to plead guilty. As for the prospects had the case gone to trial, counsel said
the petitioner “didn’t have a defense.”

         Counsel said that the petitioner had been released from the hospital about a month prior to
the killing, not three days as the petitioner had testified. He said the petitioner’s problem had been
“cocaine addiction” and that “when [the petitioner] was in trouble, [the petitioner] would call [the
hospital] and tell them that he was going to commit suicide,” resulting in “a suicide admission.”
Counsel said that when the petitioner was admitted to the hospital prior to the killing, “they didn’t
see anything that appeared to be of a psychotic nature, other than some depression.” His discharge
summary stated “that he suffered from cannabis and cocaine abuse, and they gave no axis to a
diagnosis.”

       At the conclusion of the hearing, the post-conviction court made oral findings of fact and
conclusions of law in dismissing the petition:

                        [The petitioner’s] main complaint is that in spite of a history
                of mental examinations and illnesses throughout his life, since the age
                of nine and an earlier examination, that he was not examined as a
                possible defense to the death penalty, although he freely admits that
                he did the act.

                      He claims that not only was he paranoid schizophrenic, but he
                was manic depressive. That he was “not too good with a memory.”

                       Even his family advised him to enter a plea to avoid the death
                penalty, although [the petitioner] indicates that he would rather have
                received the death penalty than serve an extended period of time in
                the penitentiary without parole.

                      [Trial counsel], the Public Defender for Knox County,
                Tennessee, Sixth District, testified that in his Office, to his
                knowledge, he was the only attorney who represented [the petitioner].


                                                  -5-
                        He obtained all of the records of the defendant/petitioner,
                went through them. And the only thing that he could find was a
                conduct disorder. That there was no diagnosis through all those
                years, some two thousand pages of records, that would have allowed
                a status defense.

                        That he explained the situation to [the petitioner], and it was
                his desire to enter a plea.

                        Now, the effective assistance of counsel is based on the
                Tennessee case of Baxter v. Rose, 523 S.W.2d 930, and Strickland v.
                Washington, 466 U.S. 668. Nowhere does the testimony rise to the
                violation of any of [the petitioner’s] rights. In fact, he carries the
                burden of proving his claim by clear and convincing evidence, TCA
                40-30-110(f).

                        This Court can see no violation of the rights of the
                petitioner/defendant, and, accordingly, the petition is dismissed.

                                             ANALYSIS

        The post-conviction petitioner bears the burden of proving his allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2003). When an evidentiary hearing
is held in the post-conviction setting, the findings of fact made by the court are conclusive on appeal
unless the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d 497, 500 (Tenn.
1996). Where appellate review involves purely factual issues, the appellate court should not reweigh
or reevaluate the evidence. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However,
review of a trial court’s application of the law to the facts of the case is de novo, with no presumption
of correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issues of deficient
performance of counsel and possible prejudice to the defense are mixed questions of law and fact
and, thus, subject to de novo review by the appellate court. See State v. Burns, 6 S.W.3d 453, 461
(Tenn. 1999).

         In order to determine the competence of counsel, Tennessee courts have applied standards
developed in federal case law. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997)
(noting that the same standard for determining ineffective assistance of counsel that is applied in
federal cases also applies in Tennessee). The United States Supreme Court articulated the standard
in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which is
widely accepted as the appropriate standard for all claims of a convicted petitioner that counsel’s
assistance was defective. The standard is firmly grounded in the belief that counsel plays a role that
is “critical to the ability of the adversarial system to produce just results.” Id. at 685, 104 S. Ct. at
2063. The Strickland standard is a two-prong test:



                                                  -6-
                First, the defendant must show that counsel’s performance was
                deficient. This requires showing that counsel made errors so serious
                that counsel was not functioning as the “counsel” guaranteed the
                defendant by the Sixth Amendment. Second, the defendant must
                show that the deficient performance prejudiced the defense. This
                requires showing that counsel’s errors were so serious as to deprive
                the defendant of a fair trial, a trial whose result is reliable.

Id. at 687, 104 S. Ct. at 2064. The Strickland Court further explained the meaning of “deficient
performance” in the first prong of the test in the following way:

                In any case presenting an ineffectiveness claim, the performance
                inquiry must be whether counsel’s assistance was reasonable
                considering all the circumstances. . . . No particular set of detailed
                rules for counsel’s conduct can satisfactorily take account of the
                variety of circumstances faced by defense counsel or the range of
                legitimate decisions regarding how best to represent a criminal
                defendant.

Id. at 688-89, 104 S. Ct. at 2065. The petitioner must establish “that counsel’s representation fell
below an objective standard of reasonableness under prevailing professional norms.” House v. State,
44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

         As for the prejudice prong of the test, the Strickland Court stated: “The defendant 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.” 466 U.S. at 694, 104 S. Ct. at 2068; see also Overton v.
State, 874 S.W.2d 6, 11 (Tenn. 1994) (concluding that petitioner failed to establish that “there is a
reasonable probability that, but for counsel’s errors, the outcome of the proceedings would have been
different”).

        Courts need not approach the Strickland test in a specific order or even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S. at 697,
104 S. Ct. at 2069; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency
or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”).

       We note that when post-conviction proceedings have included a full evidentiary hearing, as
was true in this case, the trial judge’s findings of fact and conclusions of law are given the effect and
weight of a jury verdict, and this court is “bound by the trial judge’s findings of fact unless we
conclude that the evidence contained in the record preponderates against the judgment entered in the
cause.” Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). The reviewing court must
indulge a strong presumption that the conduct of counsel falls within the range of reasonable
professional assistance, see Strickland, 466 U.S. at 690, 104 S. Ct. at 2066, and may not second-


                                                  -7-
guess the tactical and strategic choices made by trial counsel unless those choices were uninformed
because of inadequate preparation. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The fact
that a strategy or tactic failed or hurt the defense does not alone support the claim of ineffective
assistance of counsel. See Thompson v. State, 958 S.W.2d 156, 165 (Tenn. Crim. App. 1997).
Finally, a person charged with a criminal offense is not entitled to perfect representation. See
Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). As explained in State v. Burns, 6
S.W.3d 453, 462 (Tenn. 1999), “[c]onduct that is unreasonable under the facts of one case may be
perfectly reasonable under the facts of another.”

        Since the petitioner pled guilty to the charges against him, there were additional required
showings, which he failed to make, to establish that he was entitled to relief. “In cases involving a
guilty plea or plea of nolo contendere, 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) (citing Hill v. Lockhart, 474
U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985); Bankston v. State, 815 S.W.2d 213, 215
(Tenn. Crim. App. 1991)). Hill explains the showing of prejudice which must be made by a
petitioner who entered a guilty plea:

               In many guilty plea cases, the “prejudice” inquiry will closely
               resemble the inquiry engaged in by courts reviewing
               ineffective-assistance challenges to convictions obtained through a
               trial. For example, where the alleged error of counsel is a failure to
               investigate or discover potentially exculpatory evidence, the
               determination whether the error “prejudiced” the defendant by
               causing him to plead guilty rather than go to trial will depend on the
               likelihood that discovery of the evidence would have led counsel to
               change his recommendation as to the plea. This assessment, in turn,
               will depend in large part on a prediction whether the evidence likely
               would have changed the outcome of a trial.

474 U.S. at 59, 106 S. Ct. at 370.

        Initially, we note the post-conviction court announced its findings at the conclusion of the
hearing, and there are no written findings in the technical record. Following a post-conviction
hearing, a trial court is required to enter written findings of fact and conclusions of law addressing
all grounds for relief. See Tenn. Code Ann. § 40-30-111(b) (2003); Tenn. Sup. Ct. R. 28, § 9(A).
Nevertheless, the trial court's oral pronouncement of its findings from the bench does not necessarily
require reversal and can be harmless error. See State v. Higgins, 729 S.W.2d 288, 290-91 (Tenn.
Crim. App. 1987). Here, the post-conviction court's findings and conclusions are sufficiently
comprehensive to allow for proper appellate review; hence, the failure to enter written findings and
conclusions was harmless. Tenn. R. App. P. 36(b).




                                                 -8-
         Although the petitioner’s hearing testimony was somewhat contradictory, his claim appears
to be that, had his trial attorney secured a mental evaluation prior to the resolution of his case, he
somehow would be serving a lesser sentence than life without parole. However, his trial attorney
testified as to the extensive preparation he had invested in preparing the matter, including many
meetings with the petitioner and amassing a large volume of his mental health records. It was the
attorney’s belief that no basis existed for a mental incapacity defense, and the record reflects that
he had substantial information as to the petitioner’s mental history prior to making this
determination. The petitioner presented no proof that he would have benefitted in any fashion from
trial counsel’s seeking a mental evaluation prior to the disposition of his case. See Black, 794
S.W.2d at 758 (trial counsel not ineffective for failing to file a motion for severance when it “would
have been an effort in futility”). The post-conviction court found both that the petitioner had failed
to establish that his trial counsel had been ineffective and that he would not have pled guilty absent
counsel’s alleged mistakes. The record in this matter, including the transcript of the petitioner’s
pleas of guilty, supports these determinations by the post-conviction court.

                                          CONCLUSION

       Based upon the foregoing authorities and reasoning, we affirm the post-conviction court’s
dismissal of the petition for post-conviction relief.


                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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