        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 March 23, 2010 Session

                 BILLY J. COFFELT v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Davidson County
                       No. 99-A-552 J. Randall Wyatt, Jr., Judge



                 No. M2009-00474-CCA-R3-PC - Filed November 5, 2010


In Davidson County Criminal Court, following a jury trial, Petitioner was convicted of felony
escape, two counts of aggravated assault and three counts of especially aggravated
kidnapping. State v. Lyle T. Van Ulzen, No. M2004-02462-CCA-R3-CD, 2005 WL 2874654,
at *1-2 (Tenn. Crim. App., at Nashville, Oct. 31, 2005); State v. Billy J. Coffelt, No. M2002-
01214-CCA-R3-CD, 2003 WL 22116628, at *1-2 (Tenn. Crim. App., at Nashville, Sept. 11,
2003), perm. app. denied (Tenn. Feb. 2, 2004). After direct appeal to this Court and
resentencing, Petitioner’s effective sentence was ninety years. Lyle T. Van Ulzen, 2005 WL
2874654, at *6-7. Petitioner filed a petition for post-conviction relief alleging ineffective
assistance of counsel. Following an evidentiary hearing, the post-conviction court denied the
petition. On appeal, Petitioner argues that the post-conviction court erred in denying his
petition. Petitioner specifically argues that trial counsel was ineffective because trial
counsel: (1) refused to allow Petitioner to testify at trial and failed to request a Momon
hearing; (2) failed to request Pattern Jury Instruction 8.02 and an instruction on the elements
of false imprisonment as a lesser included offense of especially aggravated kidnapping; (3)
failed to request a jury instruction for the natural and probable consequences rule; (4) failed
to raise in either the motion for new trial or on direct appeal the issue of stipulation of the
offense for which Petitioner was incarcerated at the time of his escape; and (5) failed to
request a severance from the co-defendant. After a thorough review of the record on appeal,
we affirm the post-conviction court’s denial of the petition.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which T HOMAS T. W OODALL and
R OBERT W. W EDEMEYER, JJ., joined.

David Collins, Nashville, Tennessee, for the appellant, Billy J. Coffelt.
Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General, and Amy Eisenbeck, Assistant
District Attorney General, for the appellee, State of Tennessee.




                                           OPINION

                                      Factual Background

       Petitioner and a co-defendant were each convicted of one count of felony escape, two
counts of aggravated assault and three counts of especially aggravated kidnapping stemming
from their assault and confinement of three correctional officers at Riverbend Maximum
Security Institution (“Riverbend”) and subsequent escape from the institution. Lyle T. Van
Ulzen, 2005 WL 2874654, at *1-2; State v. Billy J. Coffelt, 2003 WL 22116628, at *1-2.
Petitioner was sentenced to life imprisonment without possibility of parole for the especially
aggravated kidnapping conviction, two years for the escape conviction, and six years for the
aggravated assault conviction. Billy J. Coffelt, 2003 WL 22116628, at *1.

       On direct appeal, this Court affirmed Petitioner’s convictions and vacated and
remanded Petitioner’s life sentence with regard to the especially aggravated kidnapping
convictions. Id. at *9. Upon resentencing, the trial court sentenced Petitioner to thirty years
for each especially aggravated kidnapping conviction to be served consecutively which is an
effective sentence of ninety years. Lyle T. Van Ulzen, 2005 WL 2874654, at * 3. Petitioner
appealed the effective ninety-year sentence to this Court. Id. at *1. This Court affirmed the
effective ninety-year sentence. Id. at *6-7.

        On August 31, 2004, Petitioner filed a petition for post-conviction relief. However,
at the time he filed the petition, his appeal from the trial court’s resentencing was pending.
Therefore, by order filed December 2, 2004, the post-conviction court stayed any proceedings
on the petition until Petitioner’s appeal from the resentencing was concluded. After the
conclusion of the appeal from the resentencing, Petitioner filed two subsequent amended
petitions for post-conviction relief on November 9, 2007, and April 17, 2008. On December
8, 2008, the post-conviction court held a hearing.

        Petitioner testified at the hearing. He stated that trial counsel erred at trial because he
did not join in the co-defendant’s motion to request a jury instruction on kidnapping for the
purpose of committing another offense. Petitioner stated that his co-defendant’s motion for
the jury instruction was overruled. Petitioner also maintained that he wanted to testify at
trial. However, trial counsel told him he was not going to testify. He did not go in front of

                                                -2-
the trial court for an explanation regarding his right to testify. He stated that he did not know
he was not going to testify until right after the State rested its case.

        Petitioner’s co-defendant filed a motion to suppress regarding a statement Petitioner
gave to the authorities about the escape. The motion was granted, and the trial court ordered
that no part of the statement could be entered as evidence at trial. Petitioner maintained that
the statement was helpful to him. In addition, Petitioner’s co-defendant pled guilty to escape
before trial. Petitioner did not plead guilty to any charges. Petitioner asked trial counsel to
file a motion for severance from his co-defendant because of the motion to suppress and the
fact that his co-defendant pled guilty to escape.

        Petitioner requested that trial counsel file a bill of particulars. Trial counsel declined
to do so because the State had supplied enough discovery materials. Trial counsel received
a great deal of discovery material from the State. Trial counsel shared the information with
Petitioner. In the discovery materials, according to Petitioner, there was no indication from
Officer Williams, one of the guards who was kidnapped, that she had sustained an injury to
her wrist. At the trial, she testified she had been injured, and Petitioner said that her trial
testimony was the first time he had heard of an injury. He maintained that a bill of
particulars would have clarified the issue as to whether she sustained an injury.

        Petitioner also stated that he had informed trial counsel that his prior conviction from
1979 out of Nashville was pending on post-conviction at the time of the trial on the current
charges. Because the case was still pending on post-conviction, Petitioner did not believe
that conviction should be used to say he was lawfully confined at the time he escaped. The
case was subsequently sent back for trial, and the trial judge dismissed the case. According
to Petitioner, he agreed to stipulate that he was incarcerated. Trial counsel filed a motion to
stipulate that Petitioner was incarcerated on a felony conviction, so there would be no need
to go into the nature of the charge. The trial court refused the motion but, eventually, trial
counsel stipulated that Petitioner had been convicted of an assault.

        Petitioner requested that trial counsel go to the prison and take photographs of the area
from which Appellant had escaped. Petitioner knew that trial counsel filed a motion with the
trial court to photograph the area. The trial court denied the motion. According to Petitioner,
the trial court told trial counsel to get permission from the warden and the commissioner.
Petitioner testified that he did not hear anything about the photographs after he received this
information. He believed that a photograph of the scene would have shown this Court on
direct appeal that the laundry room where the officers were confined contained a window.
Petitioner maintained that they could have escaped through that window.




                                               -3-
        When asked about the fact that there was no Momon hearing, Petitioner testified that
he believed he was going to testify at trial. He believed that he would be presenting his
version of the events. However, according to Petitioner, trial counsel did not want him to
testify because his prior convictions would come out at trial. Petitioner stated that his
convictions came out at trial anyway. Petitioner testified that he and his co-defendant were
on the “Super Max” list that contains the names of inmates who are qualified for the list by
reason their prior records. According to Petitioner, the Super Max list was admitted at his
trial.

       Petitioner admitted that he had spoken with his co-defendant about escaping.
Petitioner stated that almost every inmate talks about it, but they do not act on it. He did not
believe that his co-defendant was going to act on it until that night.

       Petitioner stated that trial counsel conceded his guilt of escape in both opening and
closing argument. Petitioner maintained that this constituted ineffective assistance of
counsel. Petitioner stated that he never gave permission to trial counsel to plead him guilty.
In addition, Petitioner was unhappy about trial counsel’s failure to request a jury charge on
the natural and probable consequences rule. Petitioner also stated that he believed his
statement about trying to stop the escape should have come in under Bruton v. U.S., 391 U.S.
123 (1968), and if trial counsel had been granted a severance then the statement would have
been used at trial. Petitioner maintained that he tried to contact someone when the escape
was occurring, but his co-defendant had a knife and Petitioner did not. Petitioner again
admitted discussing escaping with his co-defendant. However, according to Petitioner, when
his co-defendant began talking about taking the officers, Petitioner said no. When the escape
began, Petitioner’s co-defendant was in charge the entire time.

       Trial counsel also testified at the post-conviction hearing. Trial counsel has been
licensed since 1992. Sixty to seventy percent of his practice is in criminal defense. Trial
counsel recalled representing Petitioner in the matter at hand in 2000. Trial counsel also
represented Petitioner in another matter in 2002 or 2003. Trial counsel recalled that
Petitioner was in court on several occasions because the trial was pending for a long time.
He saw him at the courthouse several times, and he also went to see him one or two times at
Riverbend.

        Trial counsel testified that the main defense at trial was an Anthony defense. Trial
counsel stated that it was more of a legal argument. He was not anticipating being able to
get a jury instruction about Anthony. Because of the underlying facts of the case: the short
duration of captivity, the officers’ lives were not in danger, and securing the officers was the
only way to escape, trial counsel believed that a defense based upon State v. Anthony, 817



                                              -4-
S.W.2d 299 (Tenn. 1991) was appropriate. He stated the actual Anthony argument would
come on appeal, but his plan was to convince the jury that the real offense was an escape.

        Trial counsel recalled an attempt to take pictures of the laundry area in the prison. He
called the prison officials, and they refused his request to photograph in the prison. At about
that time, the State gave trial counsel supplemental discovery. This discovery included
twenty to thirty micro cassette tapes of interviews conducted by the prison officials in
connection with the escape. Trial counsel stated this information was like having a
preliminary hearing for every witness in the case. He believed he knew what was going on
with the trial. In addition, he was given diagrams of the scene. Trial counsel felt
comfortable with the information he had.

        Trial counsel stated that he usually prepares his clients to testify at trial. He asks the
client hard questions like the district attorney would ask to gauge the client’s reaction. This
becomes part of the decision-making process in determining whether the client should testify
at trial. The majority of the time, trial counsel reserves the decision until the close of the
State’s proof. In the case at hand, trial counsel recalled that the co-defendant testified that
Petitioner was not responsible for the crimes. Trial counsel believed that the trial had gone
about as well as could be expected. Several witnesses testified about the short duration of
the detention of the officers. In addition, there was testimony regarding several mistakes
made by the prison officials the night of the escape. Trial counsel is sure he advised
Petitioner not to testify, but if Petitioner had demanded to testify, trial counsel would have
let him testify.

        Trial counsel recalled filing a motion in limine asking the trial court to prevent the
State from introducing the nature of the crime for which Petitioner was in prison at the time
of the escape. Trial counsel agreed to admit that Petitioner was in for a felony but wanted
to prevent the jury from discovering the type of felony.

        On cross-examination, trial counsel was asked about a jury charge conference with
the trial court. Trial counsel stated that if an instruction for false imprisonment was not
included in the final jury charge, trial counsel did not request the charge. Trial counsel could
not recall any reason for not requesting an instruction for false imprisonment. Likewise, trial
counsel could not recall a reason that he did not request Part A of the Pattern Jury Instruction
for aggravated kidnapping. Trial counsel agreed that he did not include either the failure to
include a jury instruction for false imprisonment or Part A of the aggravated kidnapping
pattern jury instruction in his motion for new trial.

       Trial counsel was also questioned on cross-examination regarding the issue of the
stipulation of the felony for which Petitioner was serving time at the time of the escape. Trial

                                               -5-
counsel wanted to stipulate to the felony for which Petitioner was serving time and filed a
motion to that effect. The trial court denied the motion. Trial counsel stated that he knew
of the Supreme Court’s opinion, Old Chief v. United States, 519 U.S. 172 (1997), but he
could not be sure that he was familiar with it at the time of Petitioner’s trial. Instead, on
direct appeal, trial counsel cited State v. Aaron James, M2000-00495-CCA-R3-CD, 2001
WL 732380 (Tenn. Crim. App., at Nashville, Jun. 29, 2001), aff’d and remanded, State v.
James, 81 S.W.3d 751 (Tenn. 2002), which had adopted the holding in the Old Chief case.


       Trial counsel could not remember a suppression motion by the State or Petitioner’s
co-defendant to suppress a statement made by Petitioner. The co-defendant pled guilty to
escape the morning of the trial to the trial court’s surprise. Trial counsel could not remember
a reason for not requesting a severance at that time. He did not see the co-defendant’s plea
to escape as prejudicial to Petitioner. He discussed pleading guilty to escape with Petitioner,
but Petitioner refused.

        Trial counsel stated that he did not request a bill of particulars. He felt sure he knew
everything because of the amount of material to which he was allowed access during
discovery. He stated that even the State did not realize the officer was claiming an injury as
a result of the escape. Trial counsel could not remember any details about the trial court’s
failure to charge the jury about the natural and probable consequences rule as part of the
criminal responsibility charge.

      Trial counsel was also questioned regarding the trial court’s failure to conduct a
Momon hearing when Petitioner chose not to testify. He stated that he was aware that
Momon was decided on November 16, 1999, and that Petitioner’s trial was in February or
March 2000. He admitted that the trial court did not voir dire Petitioner about his
understanding of his right to testify.

        Petitioner’s appellate counsel from the appeal of his second sentencing also testified
at the hearing. Appellate counsel did not challenge the application of the two enhancement
factors based on Blakely v. Washington, 542 U.S. 296 (2004), because Petitioner was
sentenced below mid-range of his sentencing range. Therefore, appellate counsel stated,
Blakely did not apply because he did not believe that the trial court had enhanced Petitioner’s
sentence because it was below the mid-range.

       On January 22, 2009, the post-conviction court filed a written order denying
Petitioner’s petition for post-conviction relief. Petitioner filed a timely notice of appeal.

                                         ANALYSIS

                                              -6-
       Petitioner argues that he was afforded ineffective assistance of counsel and, therefore,
the post-conviction court should have granted his petition for post-conviction relief. The
State argues that the post-conviction court’s denial of the petition was correct.

       The post-conviction court’s findings of fact are conclusive on appeal unless the
evidence preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).
During our review of the issue raised, we will afford those findings of fact the weight of a
jury verdict, and this Court is bound by the post-conviction court’s findings unless the
evidence in the record preponderates against those findings. See Henley v. State, 960 S.W.2d
572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). This
Court may not reweigh or re-evaluate the evidence, nor substitute its inferences for those
drawn by the post-conviction court. See State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn.
2001). However, the post-conviction court’s conclusions of law are reviewed under a purely
de novo standard with no presumption of correctness. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001).

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, the petitioner bears the burden of showing that (a) the services rendered by trial
counsel were deficient and (b) that the deficient performance was prejudicial. See Powers
v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient
performance, the petitioner must show that the services rendered or the advice given was
below “the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975). In order to demonstrate prejudice, the petitioner must
show that there is a reasonable probability that, but for counsel’s deficient performance, the
result of the proceeding would have been different. See Strickland v. Washington, 466 U.S.
668, 694 (1984). “Because a petitioner must establish both prongs of the test to prevail on
a claim of ineffective assistance of counsel, failure to prove either deficient performance or
resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley, 960
S.W.2d at 580.

       As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record
preponderates against the court’s findings. See id. at 578. However, our supreme court has
“determined that issues of deficient performance by counsel and possible prejudice to the
defense are mixed questions of law and fact . . . ; thus, [appellate] review of [these issues]
is de novo” with no presumption of correctness. Burns, 6 S.W.3d at 461.

        Furthermore, on claims of ineffective assistance of counsel, the petitioner is not
entitled to the benefit of hindsight. See Adkins, 911 S.W.2d at 347. This Court may not

                                              -7-
second-guess a reasonably based trial strategy, and we cannot grant relief based on a sound,
but unsuccessful, tactical decision made during the course of the proceedings. See id.
However, such deference to the tactical decisions of counsel applies only if counsel makes
those decisions after adequate preparation for the case. See Cooper v. State, 847 S.W.2d 521,
528 (Tenn. Crim. App. 1992).

       Petitioner argues that trial counsel’s representation was deficient for several reasons.

                                          Momon Issue

        Petitioner’s first argument is that trial counsel was ineffective in refusing to allow
Petitioner to testify at trial and failing to conduct a “Momon hearing.” The State admits that
trial counsel was ineffective in failing to request a Momon hearing. However, the State
argues that Petitioner has not demonstrated that he was prejudiced by this failure.

        We initially point out that Petitioner is correct in restricting his argument to ineffective
assistance of counsel with respect to the Momon issue. Petitioner did not present this issue
in either his motion for new trial or his direct appeal. A ground for post-conviction relief is
waived “if the petitioner personally or through an attorney failed to present it for
determination in any proceeding before a court of competent jurisdiction in which the ground
could have been presented.” T.C.A. § 40-30-106(g). Therefore, we can only review this
issue in terms of whether Petitioner’s trial counsel was ineffective for not insisting on a
Momon hearing.

        The right of a criminal defendant to testify at trial is a fundamental constitutional
right, which may only be personally waived by the defendant. Momon v. State, 18 S.W.3d
152, 161 (Tenn. 1999). “Generally, a right that is fundamental and personal to the defendant
may only be waived if there is evidence in the record demonstrating ‘an intentional
relinquishment or abandonment of a known right or privilege.’” Id. at 161-62 (quoting
Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). To ensure that the right to testify has been
personally waived by the defendant, the Momon court directed trial courts in all future cases
to follow procedural guidelines which call for defense counsel to request a jury-out hearing
in the presence of the trial court to demonstrate that the defendant’s waiver of the right to
testify has been knowingly, intelligently, and voluntarily made. Id. at 163. At this hearing,
which “shall be placed on the record,” defense counsel must at a minimum show “that the
defendant knows and understands” the following:




                                                -8-
       (1) the defendant has the right not to testify, and if the defendant does not
       testify, then the jury (or court) may not draw any inferences from the
       defendant’s failure to testify;

       (2) the defendant has the right to testify and that if the defendant wishes to
       exercise that right, no one can prevent the defendant from testifying;

       (3) the defendant has consulted with his or her counsel in making the decision
       whether or not to testify; that the defendant has been advised of the advantages
       and disadvantages of testifying; and that the defendant has voluntarily and
       personally waived the right to testify.


Id. at 162. The mere failure of a trial court to follow these guidelines, however, is not enough
to support the defendant’s claim that he was deprived of his constitutional right to testify “if
there is evidence in the record to establish that the right was otherwise personally waived by
the defendant.” Id. at 163. A waiver of this right may not be presumed by a silent record.
Id. at 162. Furthermore, even if the record is silent as to a personal waiver, to be successful
in his challenge the defendant must prove that the error was not harmless beyond a
reasonable doubt. State v. Posey, 99 S.W.3d 141, 149 (Tenn. Crim. App. 2002) (citing
Momon, 18 S.W.3d at 166). When determining if the error was harmless beyond a
reasonable doubt, the following factors should be considered: “(1) the importance of the
defendant’s testimony to the defense case; (2) the cumulative nature of the testimony; (3) the
presence or absence of evidence corroborating or contradicting the defendant on material
points; and (4) the overall strength of the prosecution’s case.” Id.

        In its order denying the petition, the post-conviction court addressed the Momon issue.
The post-conviction court specifically stated that there was insufficient evidence in the record
to support the conclusion that Petitioner personally waived his right to testify. The post-
conviction court noted that the Momon case had been filed a few months before Petitioner’s
trial and, therefore, the requirements set out in Momon were in effect at the time Petitioner
was tried. The post-conviction court concluded that the failure to request such a hearing was
deficient representation. The post-conviction court then went on to determine whether the
failure to request the Momon hearing resulted in prejudice, the second prong required in
ineffective assistance of counsel claims. The post-conviction court made the following
findings:


              The Court finds that the Petitioner testified that he wished to testify to
       explain that he was only participating in the escape because of his fear of Mr.

                                              -9-
       Van Ulzen. The Court also finds that Mr. [Van] Ulzen testified at trial that the
       Petitioner had no part in the planning of the escape and that he participated
       only “to ensure that nothing got out of hand”. The Court finds that Mr. [Van]
       Ulzen’s testimony was sufficient to convey to the jury the Petitioner’s alleged
       hesitation to commit these acts and that the Petitioner’s testimony on this point
       would have been unnecessarily duplicating. The Court also finds that the
       Petitioner testified that he wished to testify that he called the unit manager to
       warn her of the impending escape, but that this account was uncorroborated by
       any other admissible evidence. The Court also finds that the State submitted
       evidence at trial to demonstrate active participation in all phases of the escape,
       including physically assaulting and securing the [prison guards] and securing
       the escape and that this evidence was supported by numerous witnesses. The
       Court finds that the proposed testimony of the Petitioner was duplicating or
       otherwise uncorroborated and the effect of its exclusion on the Petitioner’s
       verdict is harmless beyond a reasonable doubt.

               The Court also gives credit to [trial counsel’s] testimony concerning his
       conversations with the Petitioner. The court finds that [trial counsel’s]
       practice, with regard to his criminal clients, was to make a recommendation
       about testifying but ultimately to leave the decision about whether to testify up
       to them. The Court finds that the evidence presented by the State at the
       Petitioner’s trial demonstrated that the Petitioner’s argument was primarily
       legal in nature – relying almost entirely on his Anthony defense – and that the
       Petitioner’s testimony would not have contributed to this defense. The Court
       therefore finds that, while the waiver was not made explicit , the Petitioner and
       [trial counsel] had agreed that he should not testify. The Court finds that the
       Petitioner has failed to establish, by clear and convincing evidence, that he was
       prejudiced by [trial counsel’s] omission.


        Therefore, the post-conviction court concluded that the failure to conduct a Momon
hearing was harmless beyond a reasonable doubt. We agree with the post-conviction court.
The post-conviction court analyzed Petitioner’s proposed testimony under the factors set out
above to determine whether it was harmless error. We conclude the record on appeal
demonstrates that : (1) Petitioner’s testimony was not important to the defense case because
of the Anthony defense; (2) in light of the co-defendant’s testimony about Petitioner’s lack
of involvement in the planning, Petitioner’s testimony would have been cumulative; (3) there
was no corroborating evidence regarding Petitioner’s assertion that he tried to alert a unit
manager of the impending escape; and (4) the State’s case was very strong with many witness
to the incident. In our own review of the record we find evidence to support each of these

                                              -10-
conclusions. Therefore, we too conclude that the failure to conduct a Momon hearing was
harmless beyond a reasonable doubt. For this reason, we find that Petitioner suffered no
prejudice resulting from trial counsel’s ineffectiveness in failing to secure the Momon
hearing. Petitioner has not met both Strickland prongs to be successful on this issue.

                                      Jury Instructions

        Petitioner also argues that he was afforded ineffective assistance of counsel because
trial counsel failed to request Pattern Jury Instruction 8.02 and an instruction on the elements
of false imprisonment as a lesser included offense of aggravated kidnapping. Petitioner
additionally argues that counsel was ineffective for failing to raise the issue in either the
motion for new trial or on appeal.

                                   Aggravated Kidnapping

        Petitioner was indicted for three counts of especially aggravated kidnapping under
Tennessee Code Annotated section 39-13-305(a)(1) which requires that the kidnapping be
“[a]ccomplished with a deadly weapon or by display of any article used or fashioned to lead
the victim to reasonably believe it to be a deadly weapon.” The trial court instructed the jury
on the lesser included offenses of aggravated kidnapping, kidnapping and facilitation of
especially aggravated kidnapping. Petitioner complains that the trial court did not instruct
the jury on Pattern Jury Instruction 8.02 which is based upon aggravated kidnapping as
defined in Tennessee Code Annotated section 39-13-304(a)(1) which states, “Aggravated
kidnapping is false imprisonment, as defined in § 39-13-302, committed: (1) To facilitate the
commission of any felony or flight thereafter.” The trial court’s instruction on aggravated
kidnapping was based upon Tennessee Code Annotated section 39-13-304(a)(5) which states,
“Aggravated kidnapping is false imprisonment, as defined in § 39-13-302, committed . . . (5)
While the defendant is in possession of a deadly weapon or threatens the use of a deadly
weapon.”

        The State argues on appeal that aggravated kidnapping committed in order “to
facilitate the commission of any felony or flight thereafter,” Tennessee Code Annotated
section 39-13-304(a)(1), is not a lesser included offense of especially aggravated kidnapping
under the indictment based upon Tennessee Code Annotated section 39-13-305(a)(1), which
defines especially aggravated kidnapping as “[a]ccomplished with a deadly weapon or by
display of any article used or fashioned to lead the victim to reasonably believe it to be a
deadly weapon, . . . .”

       The test to determine whether an offense is a lesser included offense of the indicted
offense was articulated in the supreme court decision of State v. Burns, 6 S.W.2d 453 (Tenn.

                                              -11-
1999). Under the Burns test, an offense is a lesser included offense of the greater indicted
offense if:


       (a) all of its statutory elements are included within the statutory elements of the
       offense charged; or
       (b) it fails to meet the definition in part (a) only in the respect that it contains
       a statutory element or elements establishing
       (1) a different mental state indicating a lesser kind of culpability; and/or
       (2) a less serious harm or risk of harm to the same person, property or public
       interest; or
       (c) it consists of
       (1) facilitation of the offense charged or of an offense that otherwise meets the
       definition of lesser-included offense in part (a) or (b); or
       (2) an attempt to commit the offense charged or an offense that otherwise
       meets the definition of lesser-included offense in part (a) or (b); or
       (3) solicitation to commit the offense charged or an offense that otherwise
       meets the definition of lesser-included offense in part (a) or (b).


Id. at 466-67. Petitioner argues that the aggravated kidnapping instruction in question is a
lesser included offense of especially aggravated kidnapping because it falls within (b)(2)
under Burns.

Recently, our Court has addressed a similar issue. In Antonio L. Fuller v. State, No. M2008-
01421-CCA-R3-PC, 2010 Tenn. Crim. App. LEXIS 842 (Tenn. Crim. App., at Nashville,
Sept. 28, 2010), As in the case at hand, the petitioner was indicted for especially aggravated
kidnapping accomplished with a deadly weapon as stated in Tennessee Code Annotated
section 39-13-305(a)(1). Antonio L. Fuller, 2010 Tenn. Crim. App. LEXIS 842, at * 10. The
petitioner was found guilty of especially aggravated kidnapping at the conclusion of a jury
trial. Id. at *1. The trial court instructed the jury on facilitation of especially aggravated
kidnapping accomplished with a deadly weapon, aggravated kidnapping while defendant is
in possession of a deadly weapon, and facilitation of aggravated kidnapping while defendant
is in possession of a deadly weapon as lesser included offenses of especially aggravated
kidnapping. Id. at *11. The petitioner argued that his trial counsel was ineffective for failing
to request the same jury instruction in question here, i.e., aggravated kidnapping found at
Tennessee Code Annotated section 39-13-304(a)(1) which is aggravated kidnapping defined
as false imprisonment “to facilitate the commission of any felony or flight thereafter.” Id.
This Court concluded that the petitioner was unable to prove prejudice even assuming that
aggravated kidnapping under Tennessee Code Annotated section 39-13-304(a)(1) based upon

                                              -12-
facilitation to commit a felony or flight thereafter, was a lesser included offense of especially
aggravated kidnapping accomplished with a deadly weapon. We concluded that the
petitioner could not show that he was prejudiced by failing to request the instruction because
the jury had chosen to convict on the higher offense even after having been instructed on the
other lesser included offenses.

      The same situtation is present in the facts at hand. The trial court instructed the jury
on aggravated kidnapping while in possession of a deadly weapon at Tennessee Code
Annotated section 39-13-304(a)(5). The jury chose to convict Petitioner of especially
aggravated kidnapping accomplished with a deadly weapon. With regard to the difference
between aggravated kidnapping while in possession of a deadly weapon and especially
aggravated kidnapping accomplished with a deadly weapon, the Sentencing Commission
Comments state the following:


       Subdivision (a)(5) punishes a kidnapping involving the possession or
       threatened use of a deadly weapon. For example, during the kidnapping, if the
       defendant had a deadly weapon in his or her pocket but did not mention or use
       it, or if he or she did not have a deadly weapon in his or her possession, but
       threatened the victim with the use of a deadly weapon, the offense would be
       punishable as an aggravated kidnapping under this section. If the defendant
       actually used a deadly weapon or used something other than a deadly weapon
       but convinced the victim that it was a deadly weapon, the offense would be
       punishable as an especially aggravated kidnapping under § 39-13-305(a)(1).

        Clearly, the jury determined that Petitioner used a deadly weapon to accomplish the
kidnapping. By choosing to convict Petitioner of the greater offense, the jury rejected the
lesser offense and demonstrated that it would not have convicted Petitioner for aggravated
kidnapping to facilitate a felony or flight, which does not require the use of a deadly weapon.
See State v. Williams, 977 S.W.2d 101, 107 (Tenn. 1998). For this reason, Petitioner is
unable to meet both prongs under Strickland because he is unable show that trial counsel's
failure to request an instruction has prejudiced him.

                                     False Imprisonment

       Petitioner also argues that trial counsel was ineffective for failing to request an
instruction on false imprisonment as a lesser included offense of especially aggravated
kidnapping. As stated above, the trial court instructed on several other lesser included
offenses but did not instruct on false imprisonment.



                                              -13-
       Tennessee Code Annotated section 40-18-110, in pertinent part, provides:


       (b) In the absence of a written request from a party specifically identifying the
       particular lesser included offense or offenses on which a jury instruction is
       sought, the trial judge may charge the jury on any lesser included offense or
       offenses, but no party shall be entitled to any such charge.




       (c) Notwithstanding any other provision of law to the contrary, when the
       defendant fails to request the instruction of a lesser included offense as
       required by this section, such instruction is waived. Absent a written request,
       the failure of a trial judge to instruct the jury on any lesser included offense
       may not be presented as a ground for relief either in a motion for new trial or
       on appeal.


         In State v. Page, 184 S.W.3d 223 (Tenn. 2006), the Tennessee Supreme Court
determined that Tennessee Code Annotated section 40-18-110 was constitutional, concluding
that “if a defendant fails to request an instruction on a lesser included offense in writing at
trial, the issue will be waived for purposes of plenary appellate review and cannot be cited
as error in a motion for new trial or on appeal.” Page, 184 S.W.3d at 229.

         An instruction on a lesser included offense must be given if the trial court, viewing
the evidence most favorably to the existence of the lesser included offense, concludes (a) that
“evidence exists that reasonable minds could accept as to the lesser-included offense,” and
(b) that the evidence “is legally sufficient to support a conviction for the lesser-included
offense.” Id. at 469. “If a lesser offense is not included in the offense charged, then an
instruction should not be given, regardless of whether the evidence supports it.” Id. at 467.
The failure to instruct the jury on lesser included offenses requires a reversal for a new trial
unless a reviewing court determines that the error was harmless beyond a reasonable doubt.
State v. Ely, 48 S.W.3d 710, 727 (Tenn. 2001). In making this determination, the reviewing
court must “conduct a thorough examination of the record, including the evidence presented
at trial, the defendant’s theory of defense, and the verdict returned by the jury.” State v.
Allen, 69 S.W.3d 181, 191 (Tenn. 2002).

       Our supreme court stated in State v. Allen, 69 S.W.3d 181 (Tenn. 2002):




                                              -14-
       When a lesser-included offense instruction is improperly omitted, we conclude
       that the harmless error inquiry is the same as for other constitutional errors:
       whether it appears beyond a reasonable doubt that the error did not affect the
       outcome of the trial. See Bowles, 52 S.W.3d at 77. In making this
       determination, a reviewing court should conduct a thorough examination of the
       record, including the evidence presented at trial, the defendant’s theory of
       defense, and the verdict returned by the jury. A reviewing court may find the
       error harmless because the jury, by finding the defendant guilty of the highest
       offense to the exclusion of the immediately lesser offense, necessarily rejected
       all other lesser-included offenses. Williams, 977 S.W.2d at 106.

69 S.W.3d at 190.

       Our courts have already determined that false imprisonment is a lesser included
offense of especially aggravated kidnapping. See, e.g., State v. Gerald L. “Pete” Shirley,
No. E2002-03096-CCA-R3-CD, 2004 WL 34506, at *20 (Tenn. Crim. App., at Knoxville,
Jan. 7, 2004); State v. Nesha Newsome, No. W2002-01306-CCA-R3-CD, 2003 WL
23100597, *6 (Tenn. Crim. App., at Jackson, Dec. 30, 2003), perm. app. denied (Tenn. May
24, 2004); State v. Evangeline Combs & Joseph D. Combs, Nos. E2000-02801-CCA-R3-CD,
E2000-2800-CCA-R3-CD, 2002 WL 31118329, *60 (Tenn. Crim. App., at Knoxville, Sept.
25, 2002), perm. app. denied (Tenn. Jan. 27, 2003). For this reason we must conclude that
trial counsel’s failure to request an instruction for false imprisonment is deficient
representation. However, our inquiry does not end there. We must also determine if this
instance of ineffectiveness prejudiced Petitioner.

        As stated above, the failure to instruct on a lesser included is subject to harmless error
analysis. Our supreme court has stated, “A reviewing court may find the error harmless
because the jury, by finding the defendant guilty of the highest offense to the exclusion of
the immediately lesser offense, necessarily rejected all other lesser-included offenses.” Allen,
69 S.W.3d at 190. In the case at hand, the jury convicted Petitioner of especially aggravated
kidnapping even though they were also instructed on aggravated kidnapping, kidnapping, and
facilitation of a felony-especially aggravated kidnapping. Clearly, the jury determined
Petitioner to be guilty of especially aggravated kidnapping and rejected all other lesser
included offenses. Therefore, we conclude that the failure to instruct on false imprisonment
was harmless error. For this reason, we find that Petitioner was not subject to prejudice as
a result of trial counsel’s failure to request an instruction for false imprisonment.

                      Natural and Probable Consequences Jury Charge




                                              -15-
      Petitioner’s next argument is that he was afforded ineffective assistance of counsel
because trial counsel failed to request a jury instruction on the natural and probable
consequences rule. At trial, Petitioner was convicted of three counts of aggravated assault
by use or display of a deadly weapon, in this case, a knife, as stated in the indictment.
According to Petitioner, no witness testified that he saw Petitioner with a knife. Therefore,
he concludes Petitioner’s convictions for aggravated assault were based on the theory of
criminal responsibility.

     Our supreme court analyzed the natural and probable consequences rule in State v.
Richmond, 90 S.W3d 648 (Tenn. 2002). The court stated the following:


              The natural and probable consequences rule arose as a common law
       component of criminal responsibility and extends criminal liability to the crime
       intended by a defendant, and collateral crimes committed by a co-defendant,
       that were the natural and probable consequences of the target crime. See State
       v. Carson, 950 S.W.2d 951 (Tenn. 1997). We have noted on several occasions
       that “criminal responsibility is not a separate, distinct crime. It is solely a
       theory by which the State may prove the defendant’s guilt of the alleged
       offense . . . based upon the conduct of another person.” State v. Lemacks, 996
       S.W.2d 166, 170 (Tenn. 1999).

Richmond, 90 S.W.3d at 654. In 1997, our supreme court filed State v. Carson, 950 S.W.2d
951 (Tenn. 1997). In Carson, our supreme court determined that our legislature intended the
natural and probable consequences rule derived from the common law to apply to the
criminal responsibility statute included in our criminal code. Id. at 655 (citing Carson, 950
S.W.2d at 955.)

       Subsequently, our supreme court revisited the natural and probable consequences rule
in State v. Howard, 30 S.W.3d 271 (Tenn. 2000). In Howard, our supreme court held that
“the purpose of the natural and probable consequences rule is to hold aiders and abettors
‘responsible for the criminal harms they have naturally, probably and foreseeably put into
motion.’” Richmond, 90 S.W.3d at 656 (quoting Howard, 30 S.W.3d at 276). In its analysis
of Howard, our supreme court stated the following:


       Clearly, Howard stands for the proposition that the natural and probable
       consequences rule is “an essential element that the State must prove beyond
       a reasonable doubt” when seeking a conviction based on the theory of criminal
       responsibility. Howard, 30 S.W.3d at 277 (Tenn. 2000). The State may satisfy

                                             -16-
       this burden only by strict compliance with the three-pronged test as established
       by Howard.


Richmond, 90 S.W.3d at 657. The holding in Howard was that “the State must prove beyond
a reasonable doubt and the jury must find: ‘(1) the elements of the crime or crimes that
accompanied the target crime; (2) the defendant was criminally responsible pursuant to
Tennessee Code Annotated section 39-11-402; and, (3) that the other crimes that were
committed were the natural and probable consequences of the target crime.’” Id. (quoting
Howard, 30 S.W.3d at 276).

        The post-conviction court rejected Petitioner’s arguments as to ineffective assistance
of counsel based upon the failure to request an instruction including the natural and probable
consequences rule. The post-conviction court initially found that Petitioner could have been
found guilty of aggravated assault as either a principal or under the theory of criminal
responsibility. The post-conviction court referred to the fact presented at trial that Petitioner
was in possession of a stun gun, and it was known by at least one officer that he had the stun
gun. The post-conviction court held that a stun gun could be considered a deadly weapon.
However, the indictment specifically states that the deadly weapon in question was a knife.
Therefore, Petitioner’s possession of the stun gun could not support his conviction for the
three counts of aggravated assault under the indictment. The post-conviction court also
pointed out that two “shank knives” were found at a later time and that the jury could have
determined that Petitioner had used one of the knives. We agree with the post-conviction
court that it is reasonable to assume that the jury could have determined that one of the shank
knives found after the escape was used by Petitioner. However, the fact remains that none
of the victims testified that Petitioner held a weapon. In addition, the jury was instructed on
criminal responsibility. Therefore, we conclude that we must address the issue in terms of
the failure to instruct on the natural and probable consequences rule.

      With respect to conviction under the theory of criminal responsibility, the post-
conviction court set forth the following findings:


       The Petitioner contends that, when a defendant is convicted under criminal
       responsibility, the trial court is required to submit a jury instruction regarding
       the natural and probable consequences rule. In support of the contention, the
       Petitioner cites State v. Howard, 30 S.W.3d 271 (Tenn. 2000), – a decision that
       was handed down after the Petitioner’s trial but before his motion for new trial
       was submitted. The Court finds that the State presented sufficient evidence to
       demonstrate that the Petitioner’s actions were done in furtherance of the

                                              -17-
       escape and that he acted and assisted in the aggravated assaults and especially
       aggravated kidnappings, and that he benefitted from these crimes, which
       permitted him to escape undetected. The Court also finds that the Petitioner’s
       trial was concluded months before the Howard case was handed down and that
       the Petitioner has not demonstrated that Howard would be retroactive to the
       Petitioner’s case, thereby requiring the Court to include this instruction. Even
       if the Court were required to include this instruction, however, the Court also
       finds beyond a reasonable doubt that these crimes flowed as natural and
       probable consequences of the felony escape and so the failure to include such
       an instruction would be harmless error.


Petitioner argues that trial counsel was ineffective for not requesting an instruction for the
natural and probable consequences rule at trial, for not raising the issue at his motion for new
trial, and for not raising the issue on appeal. Petitioner admits that his trial was held in
March 2000 and that Howard was decided several months later in July 2000. Nevertheless,
he argues that Howard was merely a continuation of Carson. He states that “while not
spelled out as clearly in Carson as it was in Howard, the duty to charge the natural and
probable consequence rule is required to be charged in cases where the State is relying on
criminal responsibility as the crutch for conviction under a particular statute.” In the
alternative, he argues that the rule set out in Howard should apply to his case because his
case was in the process of direct review.

        This Court has addressed a similar issue in Darrell Jennings v. State, No. W2007-
01087-CCA-R3-PC, 2009 WL 3400701 (Tenn. Crim. App., at Jackson, Oct. 21, 2009), perm.
app. denied, (Tenn. Apr. 14, 2010). In Darrell Jennings, the defendant was convicted of
felony murder and sentenced to life imprisonment. 2009 WL 3400701, at *2. The conviction
and sentence were affirmed on appeal. Id. The supreme court’s decision in Howard was
handed down while the defendant’s case was on direct appeal. Id. at *3. In his petition for
post-conviction relief, the defendant argued that trial counsel was ineffective for failing to
request an instruction on the natural and probable consequences rule as set out in Howard.
Id. at *2. This Court determined that trial counsel had not rendered ineffective assistance of
counsel and stated the following reasoning:


               Given the timing of the Howard opinion in relation to the petitioner’s
       trial and direct appeal, we cannot conclude that counsel was deficient for
       failing to request a natural and probable consequences jury instruction
       regarding the charged offense of first degree murder. Obviously, as the
       Howard opinion was released during the pendency of the petitioner’s first tier

                                              -18-
       appellate review, counsel could have submitted the Howard opinion to this
       court as supplemental authority. Counsel admittedly did not do so. However,
       counsel raised the issue of a natural and probable consequences instruction in
       his Rule 11 application for permission to appeal. We conclude that, under the
       facts of this case, counsel did not act “‘outside the wide range of professionally
       competent assistance.’” Torrey Lyonel Frazier v. State, No. E2007
       -02518-CCA-R3-PC, 2009 WL 774482, at *5 (Tenn. Crim. App. at Knoxville,
       Mar. 25, 2009) (quoting Strickland, 466 U.S. at 690), perm. to appeal granted,
       (Tenn., Aug. 17, 2009).


Id. at *7.

        Applying this reasoning to the case at hand, it is obvious that the trial occurred before
Howard was released. Therefore, as in Darrell Jennings, we conclude that trial counsel was
not ineffective in failing to request a jury instruction on the natural and probable
consequences rule. With regard to the failure to raise the issue in the motion for new trial
or in the direct appeal, we conclude that trial counsel should have raised the issue.
Therefore, we move on to the second Strickland prong, whether Petitioner was prejudiced
by trial counsel’s failure to raise the issue. To determine whether or not Petitioner was
prejudiced we must determined whether the trial court’s failure to instruct the jury on the
natural and probable consequences rule was harmless error.

        In Richmond, our supreme court set out the following analysis with regard to harmless
error in the context of the failure to instruct on the natural and probable consequences rule:


               We have previously held that a trial court’s failure to charge the natural
       and probable consequences rule when warranted by the evidence is
       constitutional error. See Howard, 30 S.W.3d at 277 n.6. For such error to be
       harmless, the State has the burden of establishing beyond a reasonable doubt
       that the error did not affect the outcome of the trial. See id. (citing Neder v.
       U.S., 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed.2d 35 (1999)). We reiterate that
       it is the jury’s role as fact-finder to decide whether the State has proven all
       essential elements of an offense beyond a reasonable doubt. See Howard, 30
       S.W.3d at 277. Yet, the United States Supreme Court made clear in Neder that
       when a jury’s verdict “necessarily included a finding” on the omitted element,
       the error may be harmless. 27 U.S. 1, 16, 2 Petitioner. 1, 7 L. Ed. 327 (1829)
       (Stevens, J., concurring). Neder further clarified that this type of harmless
       error is not limited to situations wherein the jury’s verdict necessarily included

                                              -19-
       a finding on the omitted element. Thus, it is proper for a reviewing court to
       make a thorough examination of the record to determine if, beyond a
       reasonable doubt, the jury verdict would have been the same absent the error.
       See Allen, 69 S.W.3d at 190. A reviewing court must ask whether the record
       contains evidence that could rationally lead to a contrary finding by the jury
       with respect to the omitted element. See id. If, after viewing the evidence in
       the light most favorable to the State, there is no rational basis for a contrary
       conclusion by the trier of fact, then the omitted element constitutes harmless
       error.


Richmond, 90 S.W.3d 657-658 (footnote omitted).

        As stated above, the natural and probable consequences rule is an essential element.
In Howard, our supreme court stated that the State must prove and a jury must find the
following three prongs when instructed on the natural and probable consequences rule, “(1)
the elements of the crime or crimes that accompanied the target crime; (2) that the defendant
was criminally responsible pursuant to Tennessee Code Annotated section 39-11-402; and
(3) that the other crimes that were committed were natural and probable consequences of the
target crime.” 30 S.W.3d at 276. The jury found the first two prongs, that the elements of
the offense were present and that Petitioner was criminally responsible. We must determine
whether the facts, when taken in a light most favorable to the State, lead to the conclusion
that aggravated assault would be a natural, probable and foreseeable crime when committing
an escape.

        We conclude that aggravated assault would be a natural, probable and foreseeable
criminal act in an escape. Petitioner and his co-defendant were being held at Riverbend. The
inmates at Riverbend are supervised by prison guards. In order to escape from the prison,
an inmate would have to anticipate that they would have to overpower the guards at some
point in order to make their way out of the prison. Therefore, we conclude that the outcome
to Petitioner’s case would not have been any different had the trial court instructed the jury
on the natural and probable consequences rule. For this reason, we find that the lack of the
instruction is harmless error and, therefore, Petitioner has suffered no prejudice. Petitioner
has not met the second prong required in Strickland. Therefore, Petitioner cannot be
successful on this issue.

                                    Stipulation of Felony

       Before trial, trial counsel filed a motion in limine to stipulate to the offense for which
Petitioner was in prison at the time of the escape. The trial court denied the motion.

                                              -20-
Petitioner’s next issue is that trial counsel was ineffective for failing to raise the issue of
stipulation of the offense in either the motion for new trial or on direct appeal. The State
argues that this Court addressed this issue on direct appeal.

        Under Tennessee Code Annotated section 40-30-206, the trial court shall enter an
order dismissing the petition for post-conviction relief if, inter alia, it appears the ground
asserted for relief has been previously determined on the merits by a court of competent
jurisdiction. T.C.A. § 40-30-206(h).

        In his first direct appeal, Petitioner’s counsel raised the issue “that the trial court
should have allowed the State to prove no more than that [the defendants] were each in
prison while serving a sentence for a felony . . . .” State v. Billy J. Coffelt, 2003 WL
22116628, at *5. This Court concluded that the trial court erred in allowing the State to
introduce proof as to the underlying offenses, but the error was harmless and “had no impact
whatsoever on the jury’s verdict.” Id. at *6. A court of competent jurisdiction has previously
determined that the introduction of Petitioner’s offense for which he was incarcerated did not
affect the jury verdict. Petitioner is unable to prove prejudice because this issue has already
been held to be harmless. Petitioner cannot be successful on this issue.

                                            Severance

       Petitioner argues that he was afforded ineffective assistance of counsel because trial
counsel failed to move for severance after the trial court granted the co-defendant’s motion
to suppress Petitioner’s statement that he attempted to alert the unit manager of the escape
and after his co-defendant pled guilty to escape in the presence of the jury. The State argues
that both issues are without merit.

                                 Following Motion to Suppress

         As stated above, prior to trial, the co-defendant filed a motion to suppress Petitioner’s
statement that he attempted to alert the unit manager at Riverbend about the escape. The trial
court granted the motion to suppress the statement. Petitioner argues that trial counsel’s
failure to move for severance so that the statement could be entered in a trial solely of
Petitioner was ineffective assistance of counsel. The post-conviction court found that the
suppression motion prevented the entry of the statements into evidence but did not prevent
Petitioner from testifying about calling the unit manager. The post-conviction court stated
that trial counsel reserves the decision about his clients testifying until the close of the State’s
proof. Therefore, at the time the trial court granted the motion, trial counsel still considered
Petitioner’s testifying as a possibility. For this reason, the trial court determined that trial



                                               -21-
counsel’s representation was not deficient “because he could have gotten the same evidence
admitted in another manner.”

        We agree with the trial court that trial counsel’s representation was not deficient in
failing to ask for a severance to enable the entry of a self-serving statement into evidence.
Even if Petitioner did not testify about this call to the unit manager, he could have called the
manager to testify about the call. Yet, he raises no claim about counsel’s failure to call the
manager, and there is no testimony from the manager at the post-conviction hearing. We
additionally point out, that even if we determined that trial counsel was deficient, Petitioner
would be unable to prove that the action was so prejudicial that it affected the outcome of the
trial. Even taking the statement as true that Petitioner called the unit manager, the statement
is not enough in and of itself to counteract the overwhelming evidence presented by the State
of the testimony by the officers of Petitioner’s direct involvement in their kidnapping and the
fact that Petitioner did indeed escape as a result of both his and his co-defendant’s action.
In addition, Petitioner’s co-defendant testified that Petitioner had no hand in the planning and
that Petitioner unwillingly participated in the escape. Therefore, evidence that was even
more favorable to Petitioner was offered to the jury and ultimately rejected.

       Therefore, we conclude that Petitioner would be unable to meet both prongs under
Strickland and cannot be successful on this issue.

                                  Co-defendant’s Guilty Plea

       Petitioner also argues that trial counsel was ineffective in failing to ask for a severance
following his co-defendant’s entry, immediately before trial and in the presence of the jury,
of a plea of guilty to escape.

        Trial counsel testified that his strategy was to focus on the aggravated assault and
especially aggravated kidnapping charges. He stated that his plan was to point out to the jury
that the officers were not in danger and they were detained for a short period of time. Trial
counsel wanted the jury to see that the real offense was the escape and not the other offenses
charged. He also attempted to convince Petitioner to plead guilty to escape. Trial counsel
stated that he did not consider the co-defendant’s guilty plea to be prejudicial to Petitioner’s
case.

        As stated above, we are not to second guess a reasonably based trial strategy. In this
case, trial counsel was presented with overwhelming evidence of Petitioner’s participation
in the escape. In order to accomplish the escape, Petitioner and his co-defendant were
required to commit offenses that carried much more serious punishment that the escape itself.
We conclude that trial counsel’s strategy to try to convince the jury that the real offense was

                                               -22-
escape was a sound tactical decision. We cannot in this case say that trial counsel’s
unsuccessful strategy was tantamount to ineffective assistance of counsel. Therefore,
Petitioner is unable to meet the first Strickland prong.

                                      CONCLUSION

       For the foregoing reasons, we affirm the post-conviction court’s denial of the petition
for post-conviction relief.


                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




                                             -23-
