         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs December 12, 2001

                 HARRY D. CLARDY v. STATE OF TENNESSEE

              Direct Appeal from the Criminal Court for Montgomery County
                       No. 40000044    John H. Gasaway, III, Judge



                   No. M2001-01029-CCA-R3-PC - Filed January 23, 2002


The petitioner in this post-conviction matter was originally convicted of theft of property over
$10,000 in value, a Class C felony, and sentenced to 15 years imprisonment as a Range III persistent
offender. After his conviction was affirmed on direct appeal, he sought post-conviction relief which
was denied by the post-conviction court. In this appeal, the petitioner alleges trial counsel was
ineffective for failing to (1) recommend he accept the state’s plea offer, and (2) challenge an
erroneous jury instruction on the range of punishment. After a thorough review of the record, we
conclude the petitioner received ineffective assistance of counsel based upon counsel's failure to
object to the erroneous range of punishment jury charge at trial and failure to argue the error on
direct appeal. Accordingly, we reverse and remand for a new trial.

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

JOE G. RILEY, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR. and JOHN
EVERETT WILLIAMS, JJ., joined.

Robert T. Bateman, Clarksville, Tennessee, for the appellant, Harry D. Clardy.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; John
Wesley Carney, Jr., District Attorney General; and Arthur F. Bieber, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                            OPINION

        Upon petitioner’s conviction by a Montgomery County jury of Class C felony theft over
$10,000, he was sentenced to 15 years as a Range III persistent offender. Petitioner conceded he had
“probably 60 to 70" prior felony convictions. His conviction and sentence were affirmed by this
court on direct appeal. See State v. Harry D. Clardy, C.C.A. No. 01C01-9710-CC-00457, 1998 WL
917803 (Tenn. Crim. App. Dec. 22, 1998, at Nashville), perm. to app. denied (Tenn. 1999). He
timely filed a petition for post-conviction relief.
                                      UNDERLYING FACTS

         We briefly recite the facts of the offense as garnered from our opinion in the direct appeal.
On October 25, 1994, petitioner was seen directing a tractor-trailer truck into a parking lot at
Bellamy Auction in Clarksville, Tennessee. It was subsequently determined the tractor-trailer had
been stolen. There was testimony indicating the trailer itself had a value of $7,000, and the
merchandise in it was valued at over $47,000. Petitioner had earlier tried to sell the merchandise in
the trailer. See Clardy, 1998 WL 917803, at *1-2.

        As stated, he was convicted by a jury of theft over $10,000, a Class C felony. In addition,
the jury specified the total value of the stolen property was $15,000. Due to the petitioner’s prior
convictions, he was sentenced as a Range III persistent offender to 15 years.


                                 POST-CONVICTION HEARING

        Prior to any testimony at the post-conviction hearing, petitioner’s counsel argued the trial
court erroneously instructed the jury as to the range of punishment for the offense of theft over
$10,000, and trial counsel was ineffective by failing to object. The jury charge, as contained in the
technical record, reflects the trial court instructed the jury only as to the range of punishment for a
standard offender, which was 3 to 6 years, rather than the entire range of 10 to 15 years. It was
undisputed the petitioner was subsequently sentenced by the trial court to 15 years as a persistent
offender.

        The petitioner's trial counsel testified at the post-conviction hearing that he negotiated a plea
agreement with the district attorney's office. He had some uncertainty as to the exact offer since his
file had been destroyed by a tornado that struck Clarksville. He believed the agreement was for six
years but did not dispute that it was for four years. He further stated he recommended the petitioner
accept the plea offer, but the petitioner chose to go to trial. Neither the state nor petitioner’s counsel
asked him why he made no objection to the trial court’s erroneous jury instruction on range of
punishment.

       The petitioner testified trial counsel advised him of the state’s four-year offer, but counsel
implicitly recommended he proceed to trial. Petitioner offered no testimony concerning the range
of punishment jury instruction.

        The post-conviction court found trial counsel properly conveyed the plea offer to petitioner,
who rejected it. Although the post-conviction court conceded error with the range of punishment
set forth in the jury charge, it found it would have made no difference in the jury’s verdict if the
proper range of punishment had been given. Thus, the post-conviction court found trial counsel did
not render ineffective assistance.



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                         INEFFECTIVE ASSISTANCE OF COUNSEL

        The petitioner contends trial counsel was ineffective due to his failure to (1) recommend
acceptance of the plea offer, and (2) object to and raise on direct appeal the erroneous jury
instruction concerning the range of punishment. We reject petitioner’s first ground for relief, but
we must agree that he is entitled to relief on the second ground.

A. Standard of Review

        The trial judge's findings of fact on post-conviction hearings are conclusive on appeal unless
the evidence preponderates otherwise. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). This court
may not reweigh or reevaluate the evidence, nor substitute its inferences for those drawn by the trial
judge. State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn. 2001). However, the trial court’s conclusions
of law are reviewed under a purely de novo standard with no presumption of correctness. Fields v.
State, 40 S.W.3d 450, 458 (Tenn. 2001).

B. Standards Relating to Effective Assistance of Counsel

        This court reviews a claim of ineffective assistance of counsel under the standards of
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The petitioner
has the burden to prove that (1) the attorney’s performance was deficient, and (2) the deficient
performance resulted in prejudice to the petitioner so as to deprive him of a fair trial. Strickland, 466
U.S. at 687, 104 S. Ct. at 2064; Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Butler v. State,
789 S.W.2d 898, 899 (Tenn. 1990). In order to establish prejudice, the petitioner must establish 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, 104 S. Ct. at 2068. The test in Tennessee
to determine whether counsel provided effective assistance is whether his or her performance was
within the range of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975).

C. Plea Offer

        At the post-conviction hearing, trial counsel testified he recommended the petitioner accept
the plea agreement. The post-conviction court implicitly accredited counsel's testimony regarding
this issue and discredited the petitioner's testimony. The trial court, not this court, determines the
credibility of witnesses. Burns, 6 S.W.3d at 461. This issue is without merit.


D. Erroneous Jury Instruction

      At the time of this jury trial, the trial court was required to instruct the jury on the range of
punishment if requested to do so. See Tenn. Code Ann. § 40-35-201(b) (Supp. 1994) (repealed


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1998).1 It is uncontested that the trial court submitted an erroneous jury instruction concerning the
range of punishment. The jury instructions are preserved in the technical record and contained the
following range of punishment instruction:

                                          Range of Punishment
                           The jury will not attempt to fix any punishment or sentence
                  at this time. However, for your information only, you are informed
                  that the ranges of punishment as to the crimes involved herein are as
                  follows:

                          Theft of Property over $10,000 but less than $60,000 – Not
                  less than three (3) nor more than six (6) years incarceration and a fine
                  not to exceed $10,000.
                  ....

This range of punishment instruction of 3 to 6 years is the sentencing range only for a Range I
standard offender. The petitioner, however, was subsequently classified at sentencing as a Range
III persistent offender and was subject to a sentencing range of 10 to 15 years. He was sentenced
to the maximum sentence of 15 years.

      The precise issue for our review is whether counsel’s failure to preserve as error this
improper range of punishment instruction constituted ineffective assistance of counsel, and if so,
whether it can be attacked in a post-conviction proceeding.

        Our supreme court has recently addressed this issue in Dean v. State, __ S.W.3d __, 2001
WL 1328491 (Tenn. Oct. 30, 2001, at Knoxville). In deference to the post-conviction court, we note
the Dean opinion was not filed until after the post-conviction court’s disposition. In Dean, the trial
court, without objection, improperly instructed the jury the sentencing range for attempted second
degree murder was 3 to 10 years, whereas the proper range was 8 to 30 years. Id. at *5. The jury
convicted Dean of attempted second degree murder, and the trial court sentenced him to 15 years
which was “a sentence greater than the punishment contemplated by the jury for that offense.” Id.
In the appeal from denial of post-conviction relief, our supreme court concluded the petitioner was
prejudiced by trial counsel’s deficient performance in failing to object and granted post-conviction
relief.

        The instant case is controlled by Dean. The jury convicted the petitioner of theft of property
and, for whatever reason, specifically found its value to be $15,000, which was far less than the
$54,000 shown by the state’s proof. The jury was erroneously instructed that the range of
punishment was 3 to 6 years for this offense. Trial counsel neglected to object to this erroneous

         1
           The petitioner’s trial in April 1995 occurred prior to the General Assembly’s revision of Ten n. Co de A nn. §
40-35-20 1(b). The current version, applying only to trials occurring after May 18, 1998, states, “the judge shall not
instruct the jury, nor shall the attorneys be permitted to comment at any time to the jury, on possible penalties for the
offense charged nor all lesser-included offenses.” See 199 8 Pu blic A cts, Ch apter 104 1.

                                                          -4-
instruction at trial, and it was not raised on direct appeal. The trial court sentenced the petitioner to
15 years imprisonment as a Range III persistent offender, almost three times greater than that
contemplated by the jury. We conclude it was reasonably probable that had counsel objected to and
appealed the erroneous jury instruction, the result would have been different. See State v. Cook, 816
S.W.2d 322, 326 (Tenn. 1991) (holding erroneous jury instruction on range of punishment was plain
error requiring new trial on issue of guilt or innocence). Accordingly, the petitioner was prejudiced
by his trial counsel’s deficient performance and is entitled to post-conviction relief.


                                           CONCLUSION

      Based on the above analysis, we reverse the judgment of the post-conviction court and
remand for a new trial.



                                                        ___________________________________
                                                        JOE G. RILEY, JUDGE




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