                                                                                           11/27/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                              September 25, 2018 Session

          LARRY JERELLER ALSTON v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Knox County
                          No. 107977   Scott Green, Judge


                             No. E2017-02528-CCA-R3-PC


The petitioner, Larry Jereller Alston, appeals the denial of his petition for post-conviction
relief, which petition challenged his Knox County Criminal Court jury convictions of
especially aggravated kidnapping, aggravated burglary, and aggravated robbery. In this
appeal, the petitioner contends that the “all or nothing” plea offer extended by the State to
the petitioner and his co-defendants was illegal, that the prosecutor’s subsequent
withdrawal of that offer based upon personal animus toward his co-defendant’s counsel
entitles him to post-conviction relief, and that the behavior of his co-defendant’s counsel
during plea negotiations equates to a deprivation of the effective assistance of counsel
sufficient to warrant post-conviction relief. Because the petitioner has failed to establish
that he is entitled to post-conviction relief, 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 ROBERT W.
WEDEMEYER and ROBERT L. HOLLOWAY, JR., JJ., joined.

Gerald Gulley, Knoxville, Tennessee, for the appellant, Larry Jereller Alston.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Kevin Allen,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

               A Knox County Criminal Court jury convicted the petitioner and his co-
defendants, Kris Theotis Young and Joshua Edward Webb, of especially aggravated
kidnapping, aggravated burglary, aggravated robbery, and possession of a firearm with
the intent to go armed during the commission of a dangerous felony. Our supreme court
summarized the facts of the case:
Ashley Dawn Hill, a neighbor of the victim’s, testified that on
April 15, 2010, she was sitting on her front porch on Chicago
Avenue when she saw three men walking down the middle of
the street. As they approached the victim’s house, the men
unsuccessfully tried to stop a vehicle. Ms. Hill saw the men
walk up to the victim as she was getting into her car and
heard one of the men say, “Excuse me.” Ms. Hill looked
down momentarily and then heard the victim scream. When
she looked up, she saw one of the men reach into the victim’s
car and grab her purse. The victim got out of her car and ran
to her house, and the men followed her inside. At that point,
Ms. Hill telephoned 911. The jury heard a recording of Ms.
Hill’s 911 call, which was consistent with her trial testimony.

       The victim testified that on April 15, 2010, around
1:45 p.m., she left her home to get into her car, which was
parked on the street, and saw three men, later identified as the
[the petitioner and his co-defendants], walking toward her.
As she was getting into the car, one of the men asked if she
knew a certain girl. The victim told him that she did not and
turned to get into the car. She testified, “The next thing I
know there were guns to my head.” One of the men
demanded that she give them her pocketbook and “get to the
house.” She recalled that two of the men had pistols and the
other had a sawed[-]off shotgun stuffed down his pants. As
she put it, “the big one,” later identified as Mr. Young, was
the one who took her purse. After obtaining the purse, the
men then “pushed [the victim] to go open the door to the
house.” The victim was frightened and shaking so badly that
it was difficult to unlock the door, but once she did, the men
pushed her inside.

        Once inside the house, the men pushed the victim onto
the living room couch and told her “not to move.” One of the
men said, “Don’t let her out,” and they then began ransacking
her home. As the victim recalled, “They wanted my money;
they wanted my jewelry; they wanted anything I had.” The
men dumped the contents of her pocketbook onto a table,
taking $140 cash and her bank card. One of the [men]
demanded that she give him her “bank number.” Confined to
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              the couch, she complied with his demands. Several minutes
              later, as one of the [men] was carrying a flat-screen television
              out the front door, he noticed that the police had arrived.
              Upon seeing the police, the man shouted, dropped the
              television, and ran toward the kitchen. As he ran away, the
              victim escaped out the front door.

                     ....

                     . . . . Mr. Alston was initially taken into custody at the
              back of the house, while Mr. Young and Mr. Webb remained
              inside. . . . Police searched Mr. Alston and recovered $110
              in cash and the victim’s bank card. On Mr. Webb, police
              found two five-dollar bills, a lighter, his wallet, a gold-type of
              bracelet, and a prescription pill bottle bearing the victim’s
              name. Mr. Young had a black cell phone, his wallet, and $25
              in cash.

State v. Alston, 465 S.W.3d 555, 558-59 (Tenn. 2015).

               Following the jury’s verdicts of guilty, the trial court set aside the verdicts
of especially aggravated kidnapping, aggravated burglary, and possession of a firearm
with the intent to go armed during the commission of a dangerous felony. Id. at 559.
The trial court concluded that the convictions of especially aggravated kidnapping and
aggravated burglary violated principles of due process and then “reasoned that the
firearms convictions could not stand in light of the dismissal of the especially aggravated
kidnapping and aggravated burglary convictions, which were the predicate dangerous
felonies for the firearms offenses.” Id. at 559-60.

               On direct appeal, this court “reversed the trial court’s setting aside the jury
verdicts of especially aggravated kidnapping and aggravated burglary,” concluding that
our supreme court’s ruling in State v. White, 362 S.W.3d 559 (Tenn. 2012), applied to the
case because it was in the appellate pipeline when White was filed and that “the trial court
erred by failing to provide the jury instruction promulgated by White” as to the
petitioner’s convictions of aggravated robbery and especially aggravated kidnapping. We
determined, however, that the erroneous failure to provide the White instruction was
harmless beyond a reasonable doubt. We also concluded that the White instruction was
not required with regard to the conviction of aggravated burglary. We affirmed the trial
court’s setting aside the firearms conviction on grounds other than those relied on by the
trial court. State v. Larry Jereller Alston, Kris Theotis Young, and Joshua Edward Webb,

                                             -3-
No. E2012-00431-CCA-R3-CD (Tenn. Crim. App., Knoxville, Feb. 13, 2014), aff’d, 465
S.W.3d 555 (Tenn. 2015).

              Upon the initial application for permission to appeal, our supreme court
remanded the case to this court for reconsideration in light of the supreme court’s holding
in State v. Cecil, 409 S.W.3d 599 (Tenn. 2013). Following our reconsideration of the
case on remand, this court again reached the same result. The supreme court then granted
permission to appeal “to determine whether a jury instruction pursuant to White must be
given when a defendant is accused of a kidnapping accompanied by an aggravated
burglary” and to “address whether the erroneous failure to instruct the jury in this case,
pursuant to White, was harmless beyond a reasonable doubt.” Alston, 465 S.W.3d at 560.

             The supreme court affirmed this court’s conclusion that “a kidnapping
charge accompanied by an aggravated burglary charge, standing alone, does not warrant a
White instruction.” Id. at 564. The high court also affirmed our conclusion “that the
absence of a White instruction was harmless beyond a reasonable doubt” as to the other
convictions. Id. at 567. The supreme court reinstated the convictions of especially
aggravated kidnapping and aggravated burglary and remanded the case for sentencing.
Id.1

               On May 2, 2016, the petitioner filed a timely petition for post-conviction
relief, alleging that his convictions violated double jeopardy principles and that he was
deprived of the effective assistance of counsel when his counsel failed to convey an “all
or nothing” plea offer from the State and when counsel for Mr. Webb behaved in a
manner that caused the State to prematurely withdraw the offer. Following the
appointment of counsel, the petitioner filed an amended petition for post-conviction
relief, in which petition he claimed that his conviction of especially aggravated
kidnapping violated principles of due process; that his counsel performed deficiently by
failing to challenge the sufficiency of the evidence supporting his conviction of especially
aggravated kidnapping, the legal sufficiency of the indictment, and the propriety of the
jury instructions and by failing to petition the United States Supreme Court for certiorari;
that his convictions violated double jeopardy principles; that his counsel performed
deficiently by failing to communicate a plea offer from the State; and that Mr. Webb’s
counsel deprived him of the effective assistance of counsel by behaving in a manner that
caused the State to prematurely withdraw the plea offer. In a second amended petition,
the petitioner alleged that the “all or nothing” plea offer from the State violated due
process principles.



1
       Neither party appealed this court’s holding affirming the dismissal of the firearms conviction.
                                                   -4-
              At the June 2017 evidentiary hearing, the petitioner testified that he did not
recall his counsel’s conveying to him any plea offers prior to trial. He said that,
following the sentencing hearing, trial counsel told him that the State had made an offer
that was quickly withdrawn after Assistant District Attorney General Kevin Allen and
Alex Brown, Mr. Webb’s attorney, “had gotten into some kind of fusion.” The petitioner
recalled that counsel told him the offer included “an eight (8), ten (10), and a twelve
(12)” and that he assumed he was “the eight,” but he admitted that he “had no sure way to
know.” The petitioner said that he would have accepted any of the offered sentences.

               Trial counsel, who was appointed to represent the petitioner once the case
reached the criminal court, testified that at some point, General Allen made an offer to
the petitioner and his co-defendants that included the eight-, 10-, and 12-year sentences
based upon their relative culpability as described by the victim. The State’s offer
required that all the men accept the agreement. Counsel said that he thought that he had
conveyed the offer to the petitioner shortly after it was made, but he had no specific
recollection of having done so. He said that the offer “came off the table so quickly” that
it was possible that it had been withdrawn before counsel could convey it to the
petitioner. Trial counsel recalled that Mr. Brown, who represented Mr. Webb, was the
first person to tell him that the offer had been withdrawn. According to trial counsel, Mr.
Brown said that he was not satisfied with the offer because he believed Mr. Webb, who
had been offered the 10-year sentence, to be the least culpable of the three perpetrators.
Mr. Brown told counsel that when he conveyed his dissatisfaction to General Allen,
General Allen indicated that he could not give Mr. Webb “a better deal” than Mr. Young
and the petitioner because Mr. Webb is white and the others are black. Mr. Brown then
accused General Allen of racism, and, according to counsel, General Allen responded
with an obscenity before hanging up the telephone. General Allen eventually informed
trial counsel that the offer had been rescinded.

               Mr. Brown testified that when the case was at the general sessions court
level, the State made a plea offer to his client that included a six-year sentence. The
offer, however, was conditioned upon the petitioner and Mr. Young’s also accepting a
plea offer from the State. Mr. Brown said that the petitioner and Mr. Young would not
accept the State’s offer because they “were trying to raise the argument that the [victim]
was a drug dealer.” At that point, the State withdrew the offer based upon the rejections
by the petitioner and Mr. Young. Once the case reached the criminal court, the State
made another plea offer that “put [Mr. Webb] in the middle of the thing,” which Mr.
Brown found unsatisfactory given Mr. Webb’s willingness to cooperate with the State.
Mr. Brown said that he continued “trying to pester” General Allen to make Mr. Webb a
better offer. Mr. Brown testified that General Allen “took the position” that “he wasn’t
going to let the white guy have a better deal than the black guys, ‘cause he didn’t want it
to look like he was being a racist and favor him.”
                                            -5-
              Mr. Brown testified that at the same time he was attempting to negotiate a
better offer with General Allen, counsel for Mr. Young and the petitioner were “going to
bring in a witness who was going to prove that the [victim] was a drug dealer.”

              General Allen made a statement to the court about the events that preceded
his withdrawing the plea offer in this case. However, General Allen made his statement
in his role as the representative of the State in this post-conviction action. He was not
called as a witness by either party, was not placed under oath, and was not subject to
cross-examination. “While it is true that a lawyer is an officer of the court, his statement
of extra-judicial facts made in the course of argument, when not under oath as a witness
and not subject to cross-examination, proves nothing.” Trotter v. State, 508 S.W.2d 808,
809 (Tenn. Crim. App. 1974). Because “statements made by counsel during the course of
a hearing, trial, or argument” are not evidence, State v. Roberts, 755 S.W.2d 833, 836
(Tenn. Crim. App. 1988), we do not include it in our recitation of the evidence adduced at
the evidentiary hearing. See Davis v. State, 673 S.W.2d 171, 172 (Tenn. Crim. App.
1984) (stating that the assistant district attorney’s assertions during a post-conviction
hearing did “not constitute proof” “to refute the petitioner’s contentions”).

               In the written order denying post-conviction relief, the post-conviction
court found that, because the evidence established that “counsel for a co-defendant was
engaging in further attempts to renegotiate the agreement,” there was “no proof of an
across the board acceptance” and that “at least one of [the petitioner’s] co-defendants had
either explicitly or implicitly rejected the offer by attempting to bargain for a better
offer.” The court also noted that the decision to extend a plea offer lies solely within the
discretion of the prosecutor and that this court had expressly approved of “all or nothing”
offers like the one extended in this case. As to the petitioner’s claim of ineffective
assistance of counsel linked to Mr. Brown’s actions, the court concluded that Mr. Brown
did not “owe any duty” to the petitioner and was instead “charged with the ethical
responsibility to zealously represent the interests of his client to the exclusion of all
others.”

              In this appeal, the petitioner reiterates his claims that General Allen acted
illegally, improperly, and unethically by withdrawing the plea offer based upon personal
animus toward Mr. Brown and that Mr. Brown’s actions during his discussion of the plea
offer with General Allen amounted to a deprivation of the effective assistance of counsel.
The State asserts that the post-conviction 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-
                                            -6-
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.” Id. 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
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).

              The petitioner first asserts that the “all or nothing” plea offer made by
General Allen “was illegal in this case” because it “create[d] an inherent conflict of
interest.” He asserts that the nature of the plea offer “created a situation in which each
lawyer thus became a de facto agent of each co-defendant in addition to the defendant
which that lawyer was representing de jure.”
                                             -7-
               As this court has observed, “[w]hen there are multiple defendants, the
district attorney general may make an offer of settlement contingent upon all of the
defendants accepting the offer and pleading guilty.” Parham v. State, 885 S.W.2d 375,
382 (Tenn. Crim. App. 1994). Indeed, this court has consistently approved of “all or
nothing” or “package” deals like the one offered by General Allen in this case. See, e.g.,
State v. Street, 768 S.W.2d 703 (Tenn. Crim. App. 1988); Hodges v. State, 491 S.W.2d
624 (Tenn. Crim. App. 1972); see also, e.g., State v. Joseph Lance Risner, No. E2002-
01112-CCA-R3-PC (Tenn. Crim. App., Knoxville, June 30, 2003); Edward Dean Mullins
v. State, No. E2002-00730-CCA-R3-PC (Tenn. Crim. App., Knoxville, Feb. 24, 2003);
Crystal Rena Sturgill v. State, No. E2002-00385-CCA-R3-PC (Tenn. Crim. App.,
Knoxville, Feb. 4, 2003); Natasha W. Cornett v. State, No. E2002-00034-CCA-R3-PC
(Tenn. Crim. App., Knoxville, Sept. 30, 2002). Nothing about the facts of the present
case distinguish it from any of the others in which similar plea offers have been made.
Indeed, the petitioner’s situation is akin to that in Hodges, wherein Hodges complained
that his due process rights were violated when “an offer of punishment was made by the
attorney general contingent on both pleading guilty, which offer collapsed when
[Hodges’ co-defendant] would not agree.” Hodges, 491 S.W.2d at 628.

               As to the petitioner’s claim that General Allen “acted improperly” when
withdrawing the plea agreement, we begin by noting that “there is no constitutional right
to plea bargain.” Weatherford v. Bursey, 429 U.S. 545, 561 (1977). The decision to
extend, or, conversely, withdraw a plea offer at any time prior to its acceptance by the
trial court lies solely within the discretion of the prosecutor, and “[t]here is simply no
authority for the proposition that a plea agreement can be enforced prior to acceptance by
the court.” State v. Turner, 713 S.W.2d 327, 329 (Tenn. Crim. App. 1986) (citing
Metheny v. State, 589 S.W.2d 943, 945 (Tenn. Crim. App. 1979)); see also Parham, 885
S.W.2d at 382 (stating that “the district attorney general may withdraw or revoke the plea
agreement” until it is accepted by the trial court). The evidence in this case indicates that
General Allen extended a plea offer to the petitioner and his co-defendants expressly
conditioned upon all three men accepting the offer. Mr. Brown, not satisfied with the
terms of the offer extended to Mr. Webb, expressed his dissatisfaction with the offer and
attempted to negotiate better terms. It was entirely reasonable for General Allen to
interpret Mr. Brown’s actions as a repudiation of the offer and to then withdraw it.
Moreover, General Allen was entirely free to withdraw the offer even without the
repudiation. Accordingly, the petitioner is not entitled to relief on this issue.

              Finally, the petitioner has presented no authority in support of his
contention that the nature of the plea offer operated to alter the obligations of the
attorneys representing the petitioner and his co-defendants such that Mr. Brown’s actions
could be construed as a deprivation of the effective assistance of counsel for the
                                             -8-
petitioner. As the post-conviction court observed, each attorney bore an obligation to
represent his own client zealously and owed no duty to the other defendants. As this
court has explained,

                     [a] co-defendant’s counsel has no obligation to protect
             the interests of the co-defendant. His duty and obligation is
             to his client alone. It is the client who has retained him or for
             whom he has been appointed to whom his duty of loyalty lies,
             free of compromising influences and loyalties. His obligation
             is to represent the interests and only the interests of his client.
             In a joint trial each defendant represented by separate counsel
             is thus protected.

State v. Brown, 644 S.W.2d 418, 421 (Tenn. Crim. App. 1982) (citation omitted). Mr.
Brown was obligated to pursue the best plea offer he could on behalf of Mr. Webb, and
he bore no duty to suggest to Mr. Webb that he take any offer due to any potential benefit
to the petitioner or to Mr. Young. That Mr. Brown’s actions deprived the petitioner of
the opportunity to accept the State’s offer does not alter our conclusion. See Street, 768
S.W.2d at 711.

             Accordingly, we affirm the judgment of the post-conviction court.


                                                    _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




                                             -9-
