        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                Assigned on Briefs at Knoxville September 15, 2015

             RYAN ROBERT HAASE v. STATE OF TENNESSEE

             Direct Appeal from the Circuit Court for Marshall County
                    No. 2011-CR-98-PCR       Lee Russell, Judge



                 No. M2015-00251-CCA-R3-PC – Filed May 9, 2016



The Petitioner, Ryan Robert Haase, filed a petition for post-conviction relief in the
Marshall County Circuit Court, alleging that his counsel were ineffective for failing to
advise him correctly on his range classification and that as a result, he chose to reject a
plea agreement and proceed to trial. The post-conviction court denied the petition, and
the Petitioner appeals. Upon review, 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 ALAN E. GLENN
and D. KELLY THOMAS, JR., JJ., joined.

Melissa L. Thomas, Fayetteville, Tennessee, for the Appellant, Ryan Robert Haase.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Robert Carter, District Attorney General; and Weakley E. Barnard,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

                                I. Factual Background

      The Petitioner was convicted by a Marshall County Circuit Court Jury of
attempted first degree murder, aggravated assault, and domestic assault. State v. Ryan
Robert Haase, No. M2012-02244-CCA-R3-CD, 2013 WL 6732908, at *1 (Tenn. Crim.
App. Dec. 20, 2013). The convictions stemmed from the Petitioner‟s throwing boiling oil
on his twenty-four-year-old girlfriend, with whom he lived. Id. At trial, the victim
testified that after the Petitioner hit her on March 19, 2011, March 22, 2011, and April 8,
2011, she told him to move out of her house by April 15, 2011. Id. The Petitioner
repeatedly asked for permission to stay in the house, but the victim refused. Id. On the
night of April 10, 2011, the victim and the Petitioner argued. Id. at *2. The victim went
to bed around 10:00 p.m. and woke around 2:00 a.m. when the Petitioner came into her
bedroom, threw her cellular telephone, and called her a derogatory name. Id. The
Petitioner left the room, but the victim could not fall back asleep. Id. A few minutes
later, the Petitioner returned and threw a pot of hot oil on the victim. Id. The victim‟s
“pain was instant and „[e]xcruciating.‟” Id. The victim ran from the bedroom in search
of the landline telephone, and the Petitioner remained in the bedroom. Id. The victim‟s
“skin was „falling off‟ of her and blood was „everywhere.‟” Id. Unable to locate a
telephone, the victim ran out of the house and sought help from a neighbor. Id. at *3.
The neighbor called 911, and the victim was ultimately flown to Vanderbilt Hospital. Id.
The victim spent 126 days in intensive care, underwent “thirteen surgeries and five
„procedures,‟” and anticipated needing “„many‟” other medical treatments. Id. The
victim lost an ear and vision in one eye and, as of the time of trial, still had open wounds
that bled and had to take pain medicine. Id. She had been unable to work since the
offense. Id. at *1.

       At the sentencing hearing, the trial court merged the aggravated assault and
domestic assault convictions into the attempted murder conviction and sentenced the
Petitioner as a Range II, multiple offender to forty years in the Tennessee Department of
Correction with release eligibility after serving thirty-five percent of the sentence. Id.

       Subsequently, the Petitioner filed a petition for post-conviction relief, alleging that
his counsel were ineffective. In pertinent part,1 the Petitioner contended that his counsel
advised him that he was a Range I, standard offender, leading him to reject a plea offer
from the State. However, at trial, the trial court determined that the Petitioner was a
Range II, multiple offender and sentenced him to forty years in the Tennessee
Department of Correction with release eligibility after service of thirty-five percent of the
sentence.

       At the post-conviction hearing, W.H., an assistant public defender, testified that he
and another assistant public defender, M.C., were appointed to represent the Petitioner in
the general sessions court. The assistant public defenders obtained discovery from the
State, which included the State‟s notice of enhancement form listing three prior
convictions from another state. One was “a home invasion second degree,” which was
equivalent to aggravated burglary in Tennessee. W.H. stated that the Petitioner was
advised that the home invasion conviction “would count against [him] for any offense for
        1
         The Petitioner raised numerous claims in his post-conviction petition, which have been
abandoned on appeal. Accordingly, we will constrain our recitation to facts relating to the claim raised on
appeal.
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determining range.”     The second conviction was a “marijuana charge.”           The third
conviction was

              less clear. It was listed as a controlled substance, less than 50
              grams, but did not contain a schedule drug or anything like
              that. So what we told him was without more information, you
              are possibly a Range II offender for everything, but possibly
              also a Range I offender. So discussing with him, we asked if
              he would allow us to try to negotiate as a Range I offender
              unless the State said otherwise.

W.H. said that the Petitioner was advised that if the trial court determined that either of
the drug convictions should be classified as a C, D, or E felony, the Petitioner would
“definitely” be a Range II offender. W.H. asserted that the Petitioner seemed to
understand that he could potentially be a Range II offender.

        W.H. said that when the case was transferred to circuit court, counsel asked the
Petitioner to allow them to negotiate with the State for an agreement as a Range I
offender, and he agreed. On December 7, 2011, the State approached counsel with an
offer of a twenty-year sentence with release eligibility after thirty percent of the sentence
if the Petitioner would plead guilty to attempted first degree murder. Counsel discussed
the offer with the Petitioner and explained the sentence he would be facing if he rejected
the offer to plead as a Range I offender. W.H. recalled that the counsel “pretty much
begged” the Petitioner to accept the State‟s offer because of their concerns that he would
be convicted of attempted first degree murder and receive a longer sentence.

       Although the Petitioner acknowledged to counsel that “he was in the wrong,” he
staunchly maintained that he did not attempt to murder the victim and committed only an
aggravated assault. W.H. said that the Petitioner believed that the conviction offense was
as important as the sentence. The Petitioner refused to plead guilty to any offense greater
than attempted second degree murder or accept a sentence longer than twelve years.
Accordingly, the Petitioner refused the State‟s plea offer. The prosecutor advised counsel
that the only offer the State would make was a conviction of attempted first degree
murder with a sentence of twenty years. The State rejected the counsel‟s counteroffer of
attempted second degree murder with a sentence of twelve years.

        W.H. said that following a “riot” at the Lincoln County Jail, the Petitioner‟s entire
“cell block” was charged. The charges against the Petitioner were eventually dropped,
but the public defender‟s office filed a motion to withdraw because it represented other
clients in the cell block. Subsequently, the trial court appointed trial counsel. W.H. said
that he could not recall whether he or another attorney from the public defender‟s office
spoke with trial counsel when the Petitioner‟s file was given to trial counsel. However,
                                            -3-
W.H. stated that he would have been available to discuss matters with trial counsel.
W.H. said that the State‟s offer was a verbal offer and was never reduced to a formal
written agreement. He did not specifically recall advising trial counsel of the plea offer
but said that his practice was to make subsequent counsel aware of any plea offers. After
being relieved as counsel, W.H. had no further communications with the Petitioner.

        On cross-examination, W.H. clarified that he had received the enhancement notice
a “fairly lengthy period of time” before the State made the plea offer. He spoke with the
Petitioner about potential dispositions of the case almost every time they met, and they
discussed “potential penalties . . . from the very beginning in general sessions court.”

       W.H. said that they explained to the Petitioner that the proof against him was
strong, that the victim had serious injuries, and that “there would be a lot of emotion
involved in” the trial. The Petitioner understood but wanted to proceed to trial.

        On redirect examination, W.H. said that he advised the Petitioner that on “the
aggravated assault, he was definitely a Range II.” He told Petitioner that he could be a
Range II offender and face a sentence of up to forty years for attempted first degree
murder and up to twenty years for attempted second degree murder. He did not recall
telling the Petitioner “that the next time [they] came to court, [they] could get a different
offer or maybe take that offer.” W.H. discussed with the Petitioner the possibility of
negotiating for a fifteen-year sentence, but the Petitioner seemed adamant that he would
not accept a sentence greater than twelve years and refused to plead guilty to attempted
first degree murder.

       M.C., an assistant public defender, testified that almost from the beginning of the
case, the Petitioner questioned why he was charged with attempted first degree murder
instead of aggravated assault. Counsel explained the charges and told the Petitioner
about the sentences he could receive. M.C. recalled that the State made a plea offer that
included a sentence of twenty years. The Petitioner rejected the offer, because he wanted
a sentence of twelve years or less.

       M.C. said that counsel received the enhancement notice “well before” the plea
offer was made. He said:

              [T]he marijuana, we didn‟t think that would enhance him at
              all. The home invasion, to us, looked like an aggravated
              burglary in this State, so we believe that would enhance him.
              And there was question about the other one, because it was
              not completely clear about what the controlled substance was.
              So we weren‟t sure whether he was going to be a Range I or a
              Range II.
                                            -4-
        M.C. said that the Petitioner was informed that he was facing a sentence between
fifteen and twenty-five years if he were sentenced as a Range I offender and that “he was
looking much closer to the 25 mark.” Additionally, counsel informed the Petitioner that
he was facing a forty-year sentence if the trial court determined he was a Range II
offender. M.C. said that they were surprised that the State offered twenty years. Counsel
“begged” the Petitioner to accept the twenty-year sentence “because we felt like that was
by far his best option.” Counsel explained that the Petitioner unquestionably committed
the offense and that the only question was the Petitioner‟s mental state at the time of the
offense.

       Trial counsel testified that after he was appointed, the Petitioner told him about a
prior plea offer involving a sentence of twenty years. Trial counsel contacted M.C. and
verified that the State had made a plea offer that included a sentence of twenty years.
However, the offer was withdrawn before trial counsel began representing the Petitioner.
Trial counsel recalled that the facts of the case “were just terrible” and that the prosecutor
“really took that to heart.” Trial counsel was certain that the Petitioner‟s only options
were to go to trial or enter an “open plea.”

       Trial counsel said that because the State had withdrawn the offer, he focused on
preparing for trial. One or two weeks prior to trial, trial counsel examined the
enhancement notice to determine whether any of the prior convictions could be used to
impeach the Petitioner if he testified at trial. At that point, trial counsel realized that the
Petitioner was potentially a Range II offender. Trial counsel contacted the prosecutor and
inquired about the twenty-year offer. The prosecutor responded that “there‟s no offer in
the case right now.”

         Trial counsel said that the Petitioner needed to testify at trial “to explain why he
did what he did, and that he wasn‟t trying to kill this woman.” A couple of days prior to
trial, trial counsel told the Petitioner‟s father that the Petitioner was a Range II offender
and that the Petitioner had turned down a plea offer. Trial counsel testified that he told
the Petitioner‟s father:

              I‟m deciding not to tell your son that he‟s Range II right now,
              because I think he‟s in such a fragile state that it‟s going to
              screw him up testifying on the stand. If he‟s got to deal with
              him being maybe a Range II instead of Range I, that‟s – I
              think it‟s just going to hurt us as far as his ability to testify up
              here and do well.

The Petitioner‟s father responded that he thought trial counsel‟s idea was probably a good
one. Trial counsel said that the Petitioner testified well at trial. After the Petitioner
                                              -5-
testified and while the trial was still proceeding, trial counsel advised the Petitioner,
“[B]rother, I think you may be Range II.”

        Trial counsel was not sure whether he was told by the Petitioner‟s previous
attorneys that the Petitioner may be a Range II offender. He said at that point, the
Petitioner‟s classification was not a major concern because the State was not willing to
offer a settlement.

        Trial counsel agreed that it was “a bad case,” especially because the Petitioner
confessed to the offense. Although the Petitioner maintained that he was guilty of only
aggravated assault, trial counsel informed the Petitioner, “I can‟t do anything to get rid of
this attempted first-degree murder, we got to go to trial on it.” Trial counsel denied
telling the Petitioner that he could “beat” the attempted first degree murder charge but
that he may have said, “[W]e got a good shot at this.” Trial counsel also noted, however,
that the victim‟s injuries were “severe” and “horrible.”

        The Petitioner testified that he was convicted of attempted first degree murder and
that he was sentenced as a Range II offender to forty years in confinement. The
Petitioner denied that the assistant public defenders warned him that he was possibly a
Range II offender. According to the Petitioner, the assistant public defenders told him
that the State offered a plea with a sentence of twenty years as a Range I offender with
release eligibility after service of thirty percent of the sentence. The attorneys asked what
plea the Petitioner would be willing to accept, and the Petitioner responded, “[N]o more
than 12 years at 30 percent, which would be a second-degree attempted murder.” The
Petitioner said that the attorneys told him that he was supposed to return to court in
approximately one month and that they would try to get the State to agree to fifteen years
at thirty percent.

       The Petitioner said that he considered accepting the offer because he was told the
State would not agree to reduce the charge. However, while the Petitioner was
considering the offer, the assistant public defenders were replaced with trial counsel. The
Petitioner said that he told trial counsel about the prior offer and was told that the State
was no longer negotiating. The Petitioner acknowledged that he did not tell any of his
attorneys that he would agree to accept a sentence of fifteen years and plead guilty to
attempted first degree murder.

       The Petitioner said that trial counsel did not tell him prior to trial that he was
potentially a Range II offender. The Petitioner said that he probably would have
accepted the plea agreement if he had been informed that he was potentially a Range II
offender. The Petitioner said that he thought the maximum sentence he could receive
was a twenty-five years with release eligibility after serving thirty percent.

                                            -6-
        On cross-examination, the Petitioner again stated that the assistant public
defenders never told him that he could be sentenced as a Range II offender and that they
never reviewed the notice of enhancement with him. The Petitioner acknowledged that
when he learned that he could be sentenced as a Range II offender, he did not ask trial
counsel to stop the trial so that he could plead guilty. The Petitioner further
acknowledged that the assistant public defenders told him about the State‟s offer of
twenty years at thirty percent. The Petitioner reiterated that he “probably” would have
taken the plea agreement if he had known about the Range II classification. He agreed
that his “answer would still be equivocal.”

       The Petitioner initially stated that he could not recall whether he ever discussed his
out-of-state convictions with the assistant public defenders but eventually stated that they
did not discuss them. However, he acknowledged that he did discuss those convictions
with trial counsel.

        The District Public Defender testified that on December 7, 2011, she was in the
Marshall County Circuit Court with the attorneys from her office. She said that the State
made “a 20-year offer.” The attorneys discussed the offer with the Petitioner, although
“[i]t had been clear for some time that [the Petitioner] was only going to be interested in
an offer on an aggravated assault case.” They warned the Petitioner that the case would
be difficult to try due to the victim‟s “horrendous injuries.” However, the Petitioner
refused to plead guilty to attempted first degree murder. The District Public Defender
feared that if the Petitioner did not accept the offer, he would be forced to go to trial.

        The post-conviction court found “defense counsel [to be] entirely credible in their
version of the facts and what the [Petitioner] was told and when he was told it.”
Additionally, the court accredited counsel‟s testimony that the Petitioner refused to plead
guilty to attempted first degree murder because he did not intend to kill the victim. The
court stated that the Petitioner “made the legitimate if unwise decision to go to trial.”
Accordingly, the post-conviction court found that the Petitioner failed to establish that his
counsel were ineffective. The post-conviction court issued a written order denying the
petition. On appeal, the Petitioner challenges the post-conviction court‟s ruling.

                                       II. Analysis

       To be successful in a claim for post-conviction relief, a petitioner must prove the
factual allegations contained in the 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
                                            -7-
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, 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).

       On appeal, the Petitioner maintains that his counsel were ineffective by failing to
inform him that he could be considered a Range II offender if he were convicted at trial.
He asserts that this failure influenced his decision to reject the State‟s offer to allow him
to plead guilty to attempted first degree murder with an accompanying Range I twenty-
year sentence with release eligibility after service of thirty percent of the sentence. The
State responds that the Petitioner‟s attorneys advised the Petitioner that he was potentially
a Range II offender, that he should accept the twenty-year plea offer, and that he faced a
potential sentence of forty years as a Range II offender if he were convicted at trial.

                                            -8-
       The post-conviction court found that the Petitioner‟s counsel were not ineffective.
The post-conviction court accredited the testimony of counsel, finding that the Petitioner
was advised that he was potentially a Range II offender. Further, the post-conviction
court found that the Petitioner

             was unwilling to accept any offer that the State was actually
             prepared to make in the case and that this would have been
             true regardless [of the Petitioner‟s] beliefs concerning the
             status of his range. The [Petitioner] was adamant that he did
             not intend to murder the victim and that he was not going to
             accept a sentence of more than twelve years. . . . [I]t cannot
             be said that “but for” the error, the outcome of the case would
             have been different. The Office of the Public Defender
             provided information about the danger of the [Petitioner]
             being found to be Range II, and the [Petitioner] ignored that
             concern.

       The evidence does not preponderate against the findings of the post-conviction
court. Petitioner has failed to show that counsel were ineffective.

                                    III. Conclusion

      Upon review, we affirm the judgment of the post-conviction court.


                                                 _________________________________
                                                 NORMA MCGEE OGLE, JUDGE




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