        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs July 21, 2009

            GRADY WAYNE MEALER v. STATE OF TENNESSEE

              Direct Appeal from the Circuit Court for Marshall County
                       No. 2008CR86     Robert Crigler, Judge




                  No. M2008-02676-CCA-R3-PC - Filed July 23, 2010


Petitioner, Grady Wayne Mealer, appeals the dismissal of his petition for post-conviction
relief in which he alleged that he received ineffective assistance of counsel because he was
denied the right to testify at trial. After a thorough review of the record, we conclude that
Petitioner has failed to show that his trial counsel rendered ineffective assistance of counsel
and affirm the judgment of the post-conviction court.

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

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

Hershell D. Koger, Pulaski, Tennessee, for the appellant, Grady Wayne Mealer.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney
General; William Michael McCown, District Attorney General; and Weakley E. Barnard,
Assistant District Attorney General, for the appellee, the State of Tennessee.

                                         OPINION

I. Background

       Following a jury trial, Petitioner was convicted of burglary and two counts of theft of
property valued at more than one thousand dollars but less than ten thousand dollars, all Class
D felonies. The two theft convictions were merged, and Petitioner received an effective
twelve-year sentence in the Department of Correction as a Career offender. On appeal, this
Court affirmed the convictions. State v. Grady Wayne Mealer, No. M2006-01978-CCA-R3-
CD, 2007 WL 2042503 (Tenn. Crim. App. July 13, 2004). The facts surrounding Petitioner’s
convictions were summarized by this Court on direct appeal as follows:

      George “Bill” Scott testified that he lived at 2980 Anes Station Road in
      Marshall County. About May 18, 2005, Scott, his wife, his daughter, and his
      son-in-law traveled to Macon, Georgia to attend a high school graduation. The
      family had planned to be gone for one week but decided to return home early.
      About 4:00 p.m. on May 22, the Scotts pulled into their driveway. Bill Scott’s
      wife went inside while he sat outside to rest. He stated that he had a workshop
      about one hundred fifty feet from his house and that he would work on cars
      and other vehicles in the shop. The shop had two car bays, and each bay had
      a sliding door that could be raised. Scott kept hand tools, welders, cutting
      torches, sockets, wrenches, and grinders in the shop. He stated that the shop
      and its bay doors were locked when he and his family left for their trip to
      Georgia.

      Scott testified that his wife came outside and sat with him. While they were
      sitting outside, Scott thought he saw someone go into his shop’s second car
      bay. He and his wife walked over to the shop and saw that one of the bay
      doors was raised. Scott saw the appellant, who Scott had known since the
      appellant was a baby, “climbing over some stuff [and] toting tool boxes.”
      Scott asked the appellant what he was doing, and the appellant said he had
      come to get the tools for Bill Scott. Scott told the appellant, “I am Bill Scott.
      You know better than that, Grady.” The appellant admitted he had lied to
      Scott and said, “I come to get them for my brother Cleborn. He said they was
      his.” Scott told the appellant to put the tools back in the shop, and the
      appellant put the tools in the first car bay. Scott told his wife to telephone the
      police, and the appellant said he was not going back to jail. The appellant
      went to his car and opened the door. Scott stopped neighbor Jimmy
      Richardson, who had been driving by, and asked Richardson for help.
      Richardson told the appellant that the appellant was not leaving, the appellant
      shoved Richardson, and Richardson fell backward. The appellant jumped into
      his car as Scott’s daughter and son-in-law pulled into the driveway.

      Bill Scott testified that as the appellant began to drive away, Jimmy
      Richardson reached into the appellant’s car window, and the appellant dragged
      Richardson about twenty or twenty-five feet before Richardson was able to get
      out of the car. Scott and his daughter got into his truck and followed the
      appellant. Scott stated that he sometimes had to drive ninety to one hundred
      miles per hour to keep up with the appellant and that he chased the appellant

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for ten to fifteen miles to the appellant’s father’s property. When the appellant
got to the property, he jumped out of the car and ran into the woods. A patrol
car pulled up to the property and officers shined lights into the woods, but they
could not find the appellant. Scott returned home to check on his tools and
discovered that the appellant had put twelve to fifteen thousand dollars worth
of tools into buckets and had brought the buckets outside. He stated that over
one thousand dollars worth of tools were missing, including a socket set,
ratchets, three tool boxes containing tools, and grinders. He said that lamps
with three large owls on them were also missing and that the lamps were later
found in the trunk of the appellant’s car. He stated that the appellant had
entered the shop by kicking loose a piece of plywood over a trap door.

On cross-examination, Scott testified that when he and his wife returned home
that afternoon, the bay doors to the shop were closed. After the appellant
jumped out of his car and ran into the woods, Scott did not look into the
appellant’s car because the officers told him to stay back. He said he did not
know if any tools were in the appellant’s car.

Lorene Scott, Bill Scott’s wife, testified that on the afternoon of May 22, her
husband drew her attention to something, and they walked from their house to
his shop. When they got to the shop, the appellant was walking out with two
tool boxes in his hands. The appellant told Bill Scott, “Bill Scott sent me here
to get these tools.” Bill Scott told the appellant, “Well, I am Bill Scott.” The
appellant then said that his brother Cleborn had sent him. Bill Scott told the
appellant that the tools did not belong to Cleborn, and he told his wife to “call
the law.” The appellant got into his car to leave, and Bill Scott stopped Jimmy
Richardson for help. Richardson tried to hold the appellant, but the appellant
fled, and Bill Scott and his daughter chased the appellant. Later, Bill Scott and
his wife inspected the shop. They found tools piled up at the door, and it took
them one or two days to put the tools back in their place.

Emma Jean Scott Pugh, Bill and Lorene Scott’s daughter, testified that she
lived two houses away from her parents. On May 22, Pugh and her husband
dropped off the Scotts at their home, and the Pughs drove to their own home
to unload their car. They then returned to the Scotts’ house, and Emma Pugh
saw her parents and the appellant coming out of her father’s garage. Bill Scott
tossed his daughter a cellular telephone and told her to call the police because
the appellant was trying to rob him. The appellant tried to get into his car,
which he had parked at the bottom of a hill next to the shop, but Bill Scott shut
the car door and told the appellant he was not going anywhere until the police

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arrived. Jimmy Richardson drove by, and Bill Scott asked him to help prevent
the appellant from leaving. The appellant pushed Richardson and jumped into
his car, and Richardson reached into the window to try to take the appellant’s
keys out of the ignition. The appellant drove away, dragging Richardson
twenty-five to thirty feet. Bill Scott and his daughter got into a truck and
chased the appellant to the Mealer property, where the appellant ran into the
woods.

Jimmy Richardson testified that he lived about one mile from the Scotts. On
May 22, 2005, he rode by the Scotts’ house, and Bill Scott stopped him and
said, “He’s robbing me.” Richardson told the appellant to stop, but the
appellant started his car engine. Richardson told the appellant that “you’re not
leaving” and tried to grab the key out of the ignition. However, Richardson’s
arm got caught in the window, and the appellant dragged him “a little ways.”
Richardson stated that the appellant’s sister lived about one and one-half miles
from the Scotts.

Investigator Jimmy Oliver testified that on May 22, 2005, he was a deputy with
the Marshall County Sheriff’s Department and responded to a call that
originated from Anes Station Road. In response to the call, Investigator Oliver
drove to Farmington Belfast Road and stopped at the Mealer property. He
spoke to Bill Scott, who stated that the appellant had fled into the woods.
Investigator Oliver and another officer searched the property but could not find
the appellant. Investigator Oliver saw “some owl lamps” in the appellant’s car
and talked with the appellant’s sister. On cross-examination, Investigator
Oliver testified that he did not see any tools in the car and that he never
inventoried the car. He said Lorene Scott told him the owl lamps were hers.

Minnie Mae Myatt, the appellant’s sister, testified for the appellant that on
May 22, she learned about the incident between Bill Scott and the appellant
and went to her father’s property. When she arrived, Bill Scott and
Investigator Oliver were there. Myatt’s car was also there, and Investigator
Oliver helped Myatt take the battery out of the car. Investigator Oliver told
Myatt that he did not find anything in the car and asked Bill Scott if anything
in the car belonged to Scott. Bill Scott told Investigator Oliver, “[N]o.
Nothing was taken.” The jury convicted the appellant of burglary and two
counts of theft of property. The trial court merged the theft convictions, and
the appellant agreed to an effective twelve-year sentence to be served at sixty
percent.



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State v. Mealer, 2007 WL 2042503, at *1-3.

II. Post-Conviction Hearing

        Petitioner testified that trial counsel did not visit him before trial, while he was in the
Marshall County Jail, and they did not discuss the case in preparing for trial. Because he had
always pled guilty, Petitioner said that he had not been through a jury trial in any of his other
cases. He testified that on the day of trial, counsel told him about the State’s offer and that
Petitioner should accept it; however, the offer included a prison term. In a conversation that
took place in the corner of the courtroom during trial, Petitioner said that he and trial counsel
discussed whether he should testify, and trial counsel advised against it. Petitioner testified
that trial counsel told him that if he testified, the State would bring up his past, and he would
receive a longer sentence. He understood that it was trial counsel’s decision as to whether
he testified at trial.

        Petitioner testified that he stopped at the victim’s property on the day of the offenses
to use the restroom in a shop located near the road. He thought that he was in the shop for
ten minutes. Petitioner said that he saw the victim who accused Petitioner of “robbing him.”
Another man was also present, and the victim told him to call police. Petitioner testified that
he panicked and fled the scene in his vehicle. He denied having any tools or property in his
hand and said that nothing in the car belonged to the victim.

        On cross-examination, Petitioner admitted that he had prior convictions for felony
failure to appear, violation of the habitual motor offender law, fifth offense driving under the
influence of an intoxicant, and burglary of a motor vehicle. He also had numerous
misdemeanor convictions. Despite having twenty-two separate convictions, Petitioner said
that he did not have any legal knowledge. He could not recall anyone from the public
defender’s office, other than trial counsel, who spoke with him about the case. Petitioner
claimed that he and trial counsel spoke for about an hour to an hour and a half before trial.
He said that they discussed enhancement factors, whether he should accept the State’s plea
offer, and he informed trial counsel that he was not guilty and that he was on the victim’s
property at the time of the offenses to use the restroom. He also told counsel that no lamp or
tools were missing even though witnesses testified that they saw him loading the victim’s
tools into his car. Petitioner thought that the State’s offer was “[e]ight at 45.” He did not
recall trial counsel explaining that is it was his choice whether to testify at trial. Petitioner
acknowledged that the trial court questioned him in open court about his decision not to
testify, and he told the court that he understood that it was his choice whether to testify. He
also signed a document concerning his right to testify. However, he claimed that trial
counsel told him what to say to the court.



                                                -5-
       Trial counsel testified that he handled the preliminary hearing and learned a “vast
majority” of the case through the victim’s testimony at that hearing. The victim said that he
had been gone a few days on vacation, and when he arrived home, he saw Petitioner in his
shop in the process of moving tools around. Petitioner initially told the victim that he had
permission to be there; however, Petitioner fled the scene when he realized that he was
talking to the shop’s owner. Trial counsel testified that he and Petitioner discussed the case
before the preliminary hearing. He said, “Mr. Mealer kept insisting that he wasn’t guilty, but
he didn’t really tell us any sort of facts about the case.” Petitioner never mentioned that he
was in the shop to use the restroom and said that his sister, Minnie, would testify on his
behalf. Trial counsel testified that he filed for discovery and obtained a complete list of the
State’s witnesses. He met with Petitioner a minimum of three or four times before trial.
Public Defender Donna Hargrove also spoke with him and sent investigators out to interview
witnesses. The two investigators also met with Petitioner at the jail. Trial counsel testified
that he received a plea offer from the State and recommended that Petitioner accept it. He
also advised Petitioner of the possible sentence that he would receive if the case went to trial.

       Concerning Petitioner’s testimony, trial counsel testified that his normal practice is
to explain the trial process to a defendant before trial. He said, “And I will explain to them
that we want to wait until after the testimony to make a decision about whether nor not they
should testify. I let them know that the decision is theirs.” Trial counsel testified that after
Minnie Mealer testified, he met with Petitioner in a corner of the courtroom about testifying.
It was at least the second conversation that he and Petitioner had about testifying. Trial
Counsel said that he and Petitioner discussed the State’s proof, and based on Petitioner’s
prior convictions, it was his recommendation that Petitioner not testify, “but it was his
choice.” Petitioner also signed a form concerning his right to testify. Trial counsel testified
that he did not tell Petitioner what to say during the Momon hearing.

       On cross-examination, trial counsel testified that he remembered talking to Petitioner
about whether he should testify. He wanted to be clear about what he had done and “what
Mr. Mealer’s reasons for not testifying were” because Petitioner had brought a post-
conviction petition against another attorney. Trial counsel testified that he felt Petitioner
should not testify because “[a]ny time you have felonies on your record, the jury is
predisposed to not believe you.” He also stated that the victim was a very believable witness,
and “his wife and his daughter and his son-in-law only added to that.” Trial counsel felt that
putting Petitioner on the stand with felonies would not help the case, “especially when he
couldn’t give me anything substantive as far as what his defense was.” Trial counsel testified
that he told Petitioner that they needed to discuss what Petitioner would say if he testified.
He said that Petitioner did not ask many questions after trial counsel gave his
recommendation about testifying, and he felt that Petitioner understood everything. He said
that Petitioner’s main concern was getting his sister to testify.

                                               -6-
        Public Defender Donna Hargrove testified that she became involved in Petitioner’s
case at the circuit level, and she did not receive a lot of information from him the first time
that they met. She also met with him several other times at the courthouse. Ms. Hargrove
testified that Petitioner said that he did not commit the offenses, but he offered no
explanation as to why he was on the victim’s property other than say that they were family
friends. She said that Petitioner gave specifics about the “Brown” case, another case that
Petitioner had pending, but he would never “speak in specifics” about the present case. Ms.
Hargrove then took the names from the State’s witness list and requested that investigators
interview them. She also spoke with Petitioner’s sister who said that one of the officers told
her that he did not find anything in Petitioner’s car. This contradicted the officer’s testimony
at the preliminary hearing. Ms. Hargrove testified that she communicated all of the
information to trial counsel. She said, “ We were both frustrated that he wouldn’t speak to
us. We didn’t know what kind of defense we had going in with the Scott case. He wouldn’t
talk about it other than I didn’t do it. We were family friends, talk to Minnie.”

        Marshall “Micky” Campbell, an investigator with the public defender’s office,
testified that he and another investigator met with Petitioner two or three times at the
Marshall County Jail. Petitioner gave them a detailed explanation about everything involving
Mr. Brown’s car lot, but the only information that he would give about the present case was
that he “didn’t do it.” Investigator Campbell said that Petitioner did not think that the Scott
family would testify against him because of the prior family relations. He did not receive any
information from Petitioner concerning a possible defense, and Petitioner did not mention
anything about the restroom. Mr. Campbell spoke with the State’s witnesses and confirmed
that their testimony would be the same as it was at the preliminary hearing. He also spoke
with Petitioner’s sister and did not learn anything that would be helpful to the case.

III. Standard of Review

        A petitioner seeking post-conviction relief must establish his allegations by clear and
convincing evidence. T.C.A. 40-30-210(f). The trial court’s application of the law to the
facts is reviewed de novo, without a presumption of correctness. Fields v. State, 40 S.W.3d
450, 458 (Tenn. 2001). A claim that counsel rendered ineffective assistance is a mixed
question of fact and law and therefore also subject to de novo review. Id.; State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999).

       When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, he must establish that counsel’s performance fell below the range of competence
demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).
In addition, he must show that counsel’s ineffective performance actually adversely impacted
his defense. Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 2067, 80 L. Ed.

                                              -7-
2d 674 (1984). In reviewing counsel’s performance, the distortions of hindsight must be
avoided, and this Court will not second-guess counsel’s decisions regarding trial strategies
and tactics. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The reviewing court, therefore,
should not conclude that a particular act or omission by counsel is unreasonable merely
because the strategy was unsuccessful. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
Rather, counsel’s alleged errors should be judged from counsel’s perspective at the point of
time they were made in light of all the facts and circumstances at that time. Id. at 690, 104
S. Ct. at 2066.

       A petitioner must satisfy both prongs of the Strickland test before he or she may
prevail on a claim of ineffective assistance of counsel. See Henley v. State, 960 S.W.2d 572,
580 (Tenn.1997). That is, a petitioner must not only show that his counsel’s performance fell
below acceptable standards, but that such performance was prejudicial to the petitioner. Id.
Failure to satisfy either prong will result in the denial of relief. Id. Accordingly, this Court
need not address one of the components if the petitioner fails to establish the other.
Strickland, 466 U.S. at 697, 104 S. Ct. at 2069. In cases involving a guilty plea, the
petitioner must show prejudice by demonstrating that, but for counsel’s errors, he or she
would not have pleaded guilty but would have insisted on going to trial. See Hill v. Lockhart,
474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985); Bankston v. State, 815 S.W.2d
213, 215 (Tenn. Crim. App. 1991).

IV. Knowing and Voluntary Waiver of the Right to Testify at Trial

        Petitioner argues that his decision not to testify at trial was not knowing and voluntary
because trial counsel failed to meet with him and was unprepared for trial. However, the
record shows that Petitioner signed a waiver of his right to testify, and he was questioned
extensively about the waiver at trial. At trial, Petitioner told the court that he understood that
it was his choice whether to testify and that he did not want to testify. The record shows that
trial counsel met with Petitioner and was prepared for trial. A preliminary hearing was held,
trial counsel received discovery from the State, and he had investigators interview the
witnesses. Concerning Petitioner’s right to testify, trial counsel said he recommended that
Petitioner not testify, but told him that it was his choice.

        The post-conviction court credited the testimony of trial counsel and other member’s
of the public defender’s office and found that Petitioner did not mention the “restroom
defense” to them. The court held that Petitioner’s testimony “about having to use the
bathroom would not have changed the outcome of the case. In fact, it would have
corroborated his presence there at the scene. The post-conviction court further noted: “It
defies logic that you would go inside someone’s shop to use the bathroom when you are in
a rural area away from the road. It frankly makes no [sense] whatsoever.” The court pointed

                                               -8-
out that there were numerous witnesses for the State that were extremely credible, and there
was no reason for them to fabricate evidence.

       The court further concluded:

       Frankly, I credit since he filed a post conviction against Kelly Wilson, and it
       appears that both Mr. Collins and the Court took extra pains to make sure the
       defendant understood he had a choice to testify, and also as the State pointed
       out on cross-examination, the defendant has had many experiences with the
       Court and had been exposed every time he pled guilty. Courts have advised
       him of his rights. The fact that Ms. Hargrove mentioned he was inquiring
       about getting the sentence concurrent just shows he certainly understands the
       legal system very well.

We conclude that Petitioner has failed to show that trial counsel’s assistance fell below
acceptable standards or that Petitioner was prejudiced by any aspect of his trial counsel’s
assistance. Petitioner is not entitled to relief on this issue.

                                      CONCLUSION

       After a thorough review, we affirm the judgment of the post-conviction court.

                                                   ___________________________________
                                                   THOMAS T. WOODALL, JUDGE




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