        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                  Assigned on Briefs January 29, 2013 at Knoxville

              ANTONIO D. VAUGHN v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                  No. 2006-D-2752     Cheryl A. Blackburn, Judge


               No. M2012-00727-CCA-R3-PC - Filed February 20, 2013


The petitioner, Antonio D. Vaughn, appeals the denial of his petition for post-conviction
relief, arguing that he received ineffective assistance of counsel due to counsel’s failure to
adequately communicate with him. After review, we affirm the denial of the petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which JEFFREY S. B IVINS and
R OGER A. P AGE, JJ., joined.

William H. Stover (on appeal) and Jason Chaffin (at hearing), Nashville, Tennessee, for the
appellant, Antonio D. Vaughn.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Bret T. Gunn, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                          FACTS

       Following a jury trial in 2007, the petitioner was convicted of possession of not less
than one-half ounce nor more than ten pounds of marijuana with the intent to sell or deliver
within 1000 feet of a school, a Class D felony. He was sentenced as a career offender to
twelve years at 100%, to be served consecutively to a prior sentence. This court affirmed his
conviction on direct appeal, and no application for permission to appeal was filed with the
Tennessee Supreme Court. See State v. Antonio Vaughn, No. M2008-01067-CCA-R3-CD,
2010 WL 1462525, at *1 (Tenn. Crim. App. Apr. 13, 2010).
       The State’s proof at trial established that the petitioner and his cousin, Chance
Vaughn,1 were arrested after their vehicle was stopped for speeding in Nashville and officers
discovered a large plastic bag containing 3.8 ounces of marijuana inside the front of
Chance’s pants. Id. at *1-2. Chance told the officers that the marijuana belonged to the
petitioner, which the petitioner initially denied. However, the petitioner later admitted that
the marijuana was his and said that Chance was selling it for him. Officers also found $938
in cash on Chance and $367 in cash on the petitioner. Id. at *2. The evidence at trial further
established that the location where the petitioner and his cousin were stopped, in the area of
39th Avenue North and Clifton Avenue, was within 1000 feet of McKissack School. Id. at
*8.

        On November 30, 2010, the petitioner filed a pro se petition for post-conviction relief,
in which he raised a claim of ineffective assistance of counsel. Following the appointment
of post-conviction counsel, he filed an amended petition on May 11, 2011, in which he alleged
that pretrial counsel was deficient for failing to communicate with him during critical stages
of the proceedings by: (1) not reviewing the evidence the State intended to use at trial; (2) not
discussing the petitioner’s prior record and how that might impact settlement, trial, or
sentencing; (3) not discussing trial strategies and defense theories; (4) not discussing that
without the petitioner’s testimony there would be nothing to rebut the State’s position that the
petitioner had made statements implicating himself in the crime; and (5) not discussing that
the offense occurred within a school zone and what implications that would have regarding
his sentence.

        At the June 29, 2011 evidentiary hearing, the petitioner testified that his claims of
ineffective assistance of counsel were solely against pretrial counsel, who represented him for
about two years before trial counsel was appointed. The petitioner acknowledged that he
originally had been charged with a Class E felony, possession of marijuana with intent. The
petitioner said that pretrial counsel talked to him “briefly” after his arraignment and told him
that his case “wouldn’t be no big thing.” During their “first discussion date,” counsel advised
the petitioner that the State had made a plea offer of four years at thirty-five percent, “running
consecutive with [his] parole.” The petitioner told counsel he did not think that was a good
deal because the police officers “didn’t get the drugs off of [him].” According to the
petitioner, counsel then went “ballistic and said I think you should take this and I am not
going to be f’ing around with this case and I ain’t really got time for this.” The petitioner had
no further contact with counsel until his court appearance three months later when counsel
informed him the case would be set for trial. A superseding indictment subsequently was
issued, increasing his charge from a Class E felony to a Class D felony. The petitioner said


        1
           Because the petitioner and this witness share the same last name, we will refer to this witness by
his first name. We intend no disrespect in doing so.

                                                     -2-
that counsel never explained the “severity of the crime or that [the petitioner] was going to
. . . be charged with a school zone.”

       The petitioner said that he wrote letters to counsel, but counsel never responded.
Counsel sent a copy of the discovery to the petitioner but never met with him to review it.
According to the petitioner, he only saw counsel “when they made the offer” and when he had
court dates. The petitioner said that counsel never discussed his prior record with him or the
risk he was taking in rejecting the State’s plea offer. He did not receive another plea offer
from the State, and nothing really happened with his case during the two years he was in jail
awaiting trial. He told counsel that his cousin would testify on his behalf during the five- to
fifteen-minute visit they had the day counsel brought him clothes to try on. Counsel never
discussed what their defense theory would be, whether the petitioner would testify, or what
his sentencing range would be. Shortly before trial, the petitioner and counsel had a
disagreement, resulting in counsel’s withdrawal from the case. Trial counsel was
subsequently appointed to represent the petitioner and “tried all the way up to the actual trial
date” to get plea offers from the State, but the prosecutor “kept refusing.”

        On cross-examination, the petitioner acknowledged that pretrial counsel “briefly”
showed him “behind the glass at the courthouse” the plea offer letter from the prosecutor.
Counsel told him that his case would be set for trial if he refused the offer, but he told counsel
to “try to get [him] a lesser offer.” If he had known that the State was not going to give him
a better offer, the petitioner “probably” would have taken the offer. He said he “was just
looking for a better offer . . . because the evidence against [him] wasn’t no solid evidence.”
He said he set the case for trial, hoping that “a better attorney” would be able to get him a
better offer; however, “no more offers w[ere] given.” Asked what he wished pretrial counsel
had done, the petitioner said, “Tried to either communicate with me, explain to me the severity
of the crime, he never explained to me that I was going to be brought back and re-indicted for
a higher offense. He never explained that to me.”

        Pretrial counsel testified that he had been a licensed attorney since 2001 and that about
eighty percent of his practice was criminal defense work. After he was appointed to represent
the petitioner, he filed a discovery request. The prosecutor sent him a plea offer letter, along
with the discovery response, and counsel sent a copy of both to the petitioner. Counsel
identified and read aloud the letter, in which the prosecutor set forth a plea offer of four years
as a Range III offender at forty-five percent and stated that if the petitioner rejected the offer,
the prosecutor would likely seek a superseding indictment charging a school zone offense.
Counsel discussed the plea offer with the petitioner, but the petitioner rejected it. Counsel
informed the petitioner several times that he would be charged with a school zone offense
with increased punishment, but the petitioner was “quite confident” that a family member was
going to claim the drugs and “save the day for [the petitioner].” After the case was set for

                                                -3-
trial, counsel received a second letter from the prosecutor advising that a superseding
indictment was being sought alleging that the offense occurred within 1000 feet of a school.

        On cross-examination, pretrial counsel said that the petitioner’s “definition of
communication is you must agree and tell him what he wants to hear and agree with
everything he says.” Counsel stated that the petitioner was very experienced with the criminal
justice system and had been in and out of the Department of Correction his entire life.
Contrary to the petitioner’s testimony, counsel said that he did review the discovery with the
petitioner and that the petitioner’s request every court date was for counsel to “run out there
and beg [the prosecutor] for a better offer.” The petitioner wanted counsel to subpoena his
cousin, but counsel did not do so because the State already had done so. Counsel had a
transcript of the petitioner’s cousin’s guilty plea hearing prepared so that the petitioner could
actually see that his cousin had agreed to testify against him. Counsel said that the petitioner
was “adamant that he felt that his cousin was going to come and claim the drugs, which
wasn’t the case.” Counsel discussed with the petitioner what a school zone charge meant and
the fact that it required 100 percent service of the sentence. The petitioner subsequently told
counsel he wanted a new lawyer.

       At the conclusion of the hearing, the post-conviction court took the matter under
advisement and subsequently issued a detailed written order denying the petition. Accrediting
the testimony of pretrial counsel over that of the petitioner, the court concluded that the
petitioner failed to meet his burden of showing that pretrial counsel was in any way deficient
in his performance, or that he was prejudiced as a result of pretrial counsel’s alleged
deficiencies.

                                         ANALYSIS

       The petitioner argues that he received ineffective assistance of pretrial counsel because
counsel “did not communicate effectively certain plea offers, investigate potential witnesses,
and solicit other offers prior to trial.”

       The post-conviction petitioner bears the burden of proving his allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-110(f). When an evidentiary hearing is
held in the post-conviction setting, the findings of fact made by the court are conclusive on
appeal unless the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d 497,
500 (Tenn. 1996). Where appellate review involves purely factual issues, the appellate court
should not reweigh or reevaluate the evidence. See Henley v. State, 960 S.W.2d 572, 578
(Tenn. 1997). However, review of a trial court’s application of the law to the facts of the case
is de novo, with no presumption of correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn.
1998). The issue of ineffective assistance of counsel, which presents mixed questions of fact

                                               -4-
and law, is reviewed de novo, with a presumption of correctness given only to the
post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn.
2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

       To establish a claim of ineffective assistance of counsel, the petitioner has the burden
to show both that trial counsel’s performance was deficient and that counsel’s deficient
performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S.
668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting
that same standard for determining ineffective assistance of counsel that is applied in federal
cases also applies in Tennessee). The Strickland standard is a two-prong test:

       First, the defendant must show that counsel’s performance was deficient. This
       requires showing that counsel made errors so serious that counsel was not
       functioning as the “counsel” guaranteed the defendant by the Sixth
       Amendment. Second, the defendant must show that the deficient performance
       prejudiced the defense. This requires showing that counsel’s errors were so
       serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687.

       The deficient performance prong of the test is satisfied by showing that “counsel’s acts
or omissions were so serious as to fall below an objective standard of reasonableness under
prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing
Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). Moreover,
the reviewing court must indulge a strong presumption that the conduct of counsel falls within
the range of reasonable professional assistance, see Strickland, 466 U.S. at 690, and may not
second-guess the tactical and strategic choices made by trial counsel unless those choices were
uninformed because of inadequate preparation. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn.
1982). The prejudice prong of the test is satisfied by showing a reasonable probability, i.e.,
a “probability sufficient to undermine confidence in the outcome,” that “but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 694.

       Courts need not approach the Strickland test in a specific order or even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S.
at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency or
prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”).

       In its order denying the petition, the post-conviction court concluded:



                                                -5-
               In reviewing the contradictory testimony, the Court finds pre-trial
       counsel’s testimony to be credible. The Court also is perplexed as to what type
       of relief Petitioner is seeking – should post-conviction relief be granted
       Petitioner would be entitled to a new trial, but the trial would be on the
       superseding indictment that includes the school zone violation; the trial would
       not be on the original indictment. Petitioner had no complaint about his trial
       counsel or the way he handled the trial on the superseding indictment charge.
       Rather, now having been convicted, Petitioner wishes to instead accept the
       original plea offer extended prior to the superseding indictment or be tried on
       the original charge. As noted at the post-conviction hearing, this appears to be
       a case of “buyer’s remorse.” Upon Court questioning, Petitioner even indicated
       he felt entitled to another offer once the State sought a superseding indictment.

               It is important to note that Petitioner conceded he had received all of his
       discovery. Pre-trial counsel testified, and the State confirmed, that the D.A.’s
       letter setting forth the original offer was included with the discovery packet.
       This letter explicitly states the offer 4 years as a Range III Offender,
       consecutive to parole violation for a conviction of possession of more than 0.5
       ounces of marijuana; the letter also stated that should the case not be resolved
       on these terms, a superseding indictment would likely be sought. . . .

              ....

              Accordingly, upon reviewing the testimony and exhibits, nothing in the
       record shows that pre-trial counsel failed to meet with Petitioner to keep him
       informed of the proceedings or that pre-trial counsel failed to provide Petitioner
       the information set forth in the State’s letter (i.e., the only plea offer and
       consequence of a superseding indictment). . . .

              Petitioner’s request for post-conviction relief is denied as to Petitioner’s
       claims that pre-trial counsel failed to communicate with him in that he allegedly
       did not discuss the charges, potential defenses (namely, Petitioner’s request to
       call his cousin as a witness), or the effect of a superseding indictment. As
       Petitioner’s ineffective assistance claim focused on these grounds, which are
       all found to lack merit, the Court finds there are no “cumulative” grounds to
       warrant post-conviction relief.

       The record fully supports the findings and conclusions of the post-conviction court.
The post-conviction court specifically accredited the testimony of pretrial counsel that he
“discussed the case with Petitioner on ‘countless court dates’; that he mailed Petitioner the

                                               -6-
discovery along with the D.A.’s letter noting the original offer and consequence of a
superseding indictment; that they discussed the potential superseding indictment when
Petitioner rejected the initial offer; and that Petitioner’s requested witness . . . already had
been subpoenaed by the State and would be a State witness.” We conclude that the petitioner
has failed to prove that the evidence preponderates against the post-conviction court’s
credibility determination.

                                       CONCLUSION

       Based on our review, we conclude that the petitioner has not met his burden of
establishing that he was denied the effective assistance of pretrial counsel. Accordingly, we
affirm the denial of the petition for post-conviction relief.


                                                    _________________________________
                                                    ALAN E. GLENN, JUDGE




                                              -7-
