                                                                                                      05/21/2018
         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs March 13, 2018

       FREDERICK WENDELL THOMAS v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Shelby County
                       No. 12-00917 J. Robert Carter, Jr., Judge


                                No. W2017-00917-CCA-R3-PC


The petitioner, Frederick Wendell Thomas, appeals the denial of post-conviction relief
from his 2013 Shelby County Criminal Court jury conviction of first degree murder, for
which he received a life sentence. In this appeal, the petitioner contends only that he was
denied the effective assistance of counsel. Discerning no error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ALAN E.
GLENN and TIMOTHY L. EASTER, JJ., joined.

Matthew Charles Gulotta, Memphis, Tennessee (on appeal), and James E. Thomas,
Memphis, Tennessee (on appeal and at hearing),1 for the appellant, Frederick Wendell
Thomas.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Kirby May, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

               The Shelby County Grand Jury charged the petitioner with one count each
of first degree premeditated murder and employing a firearm during the commission of a
dangerous felony. Following a jury trial, the petitioner was convicted as charged of first
degree murder. The trial court imposed a sentence of life imprisonment and dismissed
the firearm charge. This court affirmed the conviction and sentence on direct appeal. See

1
        Following the filing of the briefs in this case, this court permitted Mr. Thomas to withdraw and
appointed Mr. Gulotta to represent the petitioner.
State v. Fredrick Thomas, No. W2013-02762-CCA-R3-CD (Tenn. Crim. App., Jackson,
May 6, 2015), perm. app. denied (Tenn. Aug. 13, 2015).

                The evidence adduced at the petitioner’s trial established the following:

                [The petitioner] and the victim had been unhappy in their
                relationship in the days and weeks leading up to their final
                argument. On the evening of the victim’s death, [the
                petitioner] and the victim got into an argument. [The
                petitioner] told the victim that she should call the police and
                that they were both going to die. The victim hysterically
                called 911; the operator heard the victim scream and heard
                the children begging [the petitioner] not to shoot their mother.
                [The petitioner] took his gun from its holster and repeatedly
                shot the unarmed victim and then turned the gun on himself.
                When police arrived, [the petitioner] was holding a weapon.
                Testing confirmed that this was indeed the gun that murdered
                the victim. The jury heard the evidence and chose to
                disregard [the petitioner’s] theory that the crime was borne
                out of passion.

Id., slip op. at 6.

              On January 12, 2016, the petitioner filed, pro se, a timely petition for post-
conviction relief, alleging, inter alia, that he was deprived of the effective assistance of
counsel. Following the appointment of counsel and the amendment of the petition, the
post-conviction court conducted an evidentiary hearing on February 9, 2017.

                At the evidentiary hearing, trial counsel testified that he had been retained
to represent the petitioner at trial but that he had been appointed to handle the petitioner’s
appeal. Trial counsel stated that he had not sought the services of an investigator because
the case was “pretty straightforward” in that the petitioner “was alleged to have shot his
wife in the presence of his two daughters, and then turned the gun on his head and shot
himself.” Although trial counsel was unable to show the necessity of an investigator, he
did seek and was granted the funds for a neuropsychologist. Trial counsel noticed that,
when he spoke to the petitioner, he possessed an “absent glazed stare” and had “very
delayed speech,” so counsel wanted to determine whether he was competent to stand
trial, particularly because “half of [the petitioner’s] brain was literally blown off.”

             Prior to the shooting, the petitioner “had never had any mental health
diagnoses” and was only known to consume alcohol and use “recreational marijuana.”
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The petitioner had also maintained a “good job working with the city” for some time.
The neuropsychologist was permitted to testify at trial to the petitioner’s suffering from
severe depression, but because the expert was unable to find diminished capacity, he was
not permitted to testify regarding the petitioner’s competency. The expert was actually
“shocked” to discover how little the petitioner’s gunshot wound to the head had affected
his mental capacity.

              During the course of his investigation, trial counsel interviewed the
petitioner’s mother, his brother, and the petitioner’s two daughters, who had witnessed
the shooting. None of them were able to provide any information that would have
supported the theory of diminished capacity. The petitioner was not under the influence
of alcohol or drugs at the time of the shooting. Because trial counsel was unable to argue
the petitioner’s actual innocence, he proceeded under the theory that the defendant had
acted in the heat of passion following his discovery of a hotel receipt which indicated that
the victim had been having an affair.

               Following his appointment to represent the petitioner on his direct appeal
and this court’s issuance of the opinion affirming the petitioner’s conviction and
sentence, trial counsel did not seek to withdraw from his representation of the petitioner
because he intended to file an application for permission to appeal to the supreme court.
Before trial counsel could file the application, he received notice that the petitioner had
filed, pro se, an application for permission to appeal; trial counsel testified that the
application was “basically an identical version of [trial counsel’s] direct appeal.”

               When trial counsel learned that the petitioner had filed his own application
in the supreme court, counsel “prepared a Rule 11 as well as a motion to withdraw.”
Trial counsel was certain that he had filed both the Rule 11 application and his motion to
withdraw within the 60-day time limit, but post-conviction counsel noted that neither
document appeared in the record. Trial counsel testified that the supreme court denied
the petitioner’s Rule 11 application.

               With this evidence, the post-conviction court denied relief, finding no clear
and convincing evidence that trial counsel had rendered ineffective assistance of counsel.
The court found that neither party had introduced into evidence trial counsel’s purported
motion to withdraw or application for permission to appeal, but the court noted that the
supreme court’s order denying the Rule 11 also denied the “State’s Motion to Strike Pro
Se Pleading, describing it as moot.” The court then found that the petitioner had failed to
prove “that counsel failed to perform any required action,” and, referencing the
“extraordinary nature” of an appeal to the supreme court, held that the petitioner offered
“no proof of errors in need of correction or law that need[ed] to be developed” in support
of his claim that counsel was ineffective for failing to pursue a Rule 11 application.
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              In this appeal, the petitioner reiterates his claim of ineffective assistance of
counsel, claiming that trial counsel performed deficiently by failing to file an application
for permission to appeal to the supreme court and that, as a result of this failure, he
should now be permitted to seek a delayed appeal. The State contends that the court did
not err by denying relief.

              We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. A post-
conviction petitioner bears the burden of proving his or her factual allegations by clear
and convincing evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to
the post-conviction court’s findings of fact the weight of a jury verdict, and these findings
are conclusive on appeal unless the evidence preponderates against them. Henley v.
State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn.
Crim. App. 1997). By contrast, the post-conviction court’s conclusions of law receive no
deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453
(Tenn. 2001).

               Before a petitioner will be granted post-conviction relief based upon a
claim of ineffective assistance of counsel, the record must affirmatively establish, via
facts clearly and convincingly established by the petitioner, that “the advice given, or the
services rendered by the attorney, are [not] within the range of competence demanded of
attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and
that counsel’s deficient performance “actually had an adverse effect on the defense,”
Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, 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. Should the petitioner fail to establish either deficient performance or prejudice, he is
not entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).
Indeed, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697.

               When considering a claim of ineffective assistance of counsel, a reviewing
court “begins with the strong presumption that counsel provided adequate assistance and
used reasonable professional judgment to make all significant decisions,” Kendrick v.
State, 454 S.W.3d 450, 458 (Tenn. 2015) (citing Strickland, 466 U.S. at 689), and “[t]he
petitioner bears the burden of overcoming this presumption,” id. (citations omitted). We
will not grant the petitioner the benefit of hindsight, second-guess a reasonably based trial
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strategy, or provide relief on the basis of a sound, but unsuccessful, tactical decision
made during the course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn.
Crim. App. 1994). Such deference to the tactical decisions of counsel, however, applies
only if the choices are made after adequate preparation for the case. Cooper v. State, 847
S.W.2d 521, 528 (Tenn. Crim. App. 1992).

              A claim of ineffective assistance of counsel is a mixed question of law and
fact. Kendrick, 454 S.W.3d at 457; Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010);
State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453,
461 (Tenn. 1999). When reviewing the application of law to the post-conviction court’s
factual findings, our review is de novo, and the post-conviction court’s conclusions of
law are given no presumption of correctness. Kendrick, 454 S.W.3d at 457; Fields, 40
S.W.3d at 457-58; see also State v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

              Rule 11 of the Tennessee Rules of Appellate Procedure provides that an
application for permission to appeal to the supreme court must be filed “within 60 days
after the entry of the judgment of the” intermediate appellate court. Tenn. R. App. P.
11(b). “Appointed counsel shall continue to represent an indigent party throughout the
proceedings, including any appeals, until the case has been concluded or counsel has
been allowed to withdraw by a court.” Tenn. Sup. Ct. R. 13, § 1(e)(5); see also State v.
Burkhart, 541 S.W.2d 365, 371 (Tenn. 1976) (stating that a criminal defendant does not
have the constitutional right to proceed pro se “and simultaneously . . . be represented by
participating counsel”). Counsel seeking to withdraw from the representation of an
indigent party following an adverse decision in the intermediate appellate court must seek
permission by filing a motion with the clerk of the intermediate appellate court no more
than 14 days after the entry of the final judgment. Tenn. Sup. Ct. R. 14.

               In our view, the record fully supports the denial of relief in this case. Trial
counsel testified that he “wasn’t planning to withdraw” from his representation of the
petitioner and that he “was planning to file a Rule 11” within 60 days of this court’s May
6, 2015 opinion affirming the trial court’s ruling on direct appeal. Before he could do so,
the petitioner filed, pro se, a Rule 11 application on June 8, 2015. According to trial
counsel, he then scrambled to file both a motion to withdraw and a Rule 11 application.
Neither the petitioner’s pro se Rule 11 application nor trial counsel’s motion to withdraw
or Rule 11 application appear in the record before us, and nothing indicates which Rule
11 application was denied by the supreme court on August 13, 2015. This is of no
consequence, however, because it is clear that the supreme court denied the application
on its merits, and the petitioner would only be entitled to a delayed appeal if he had been
“deprived of the right to request an appeal pursuant to Rule 11.” Tenn. Sup. Ct. R. 28, §
9(D)(1)(b)(i) (emphasis added). The petitioner requested Rule 11 review, and review was
denied. Thus, he was not entitled to a delayed appeal. Moreover, the petitioner has
                                             -5-
utterly failed to show what, if any, basis existed to justify a grant of discretionary review,
and as such, he has failed to establish prejudice. See Strickland, 466 U.S. at 694.
Accordingly, we hold the petitioner has failed to prove by clear and convincing evidence
any facts that demonstrate that trial counsel’s representation was deficient or prejudicial.

               The petitioner failed to establish that he was denied the effective assistance
of counsel at trial. Accordingly, the judgment of the post-conviction court is affirmed.

                                                   _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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