         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs July 13, 2004

              LON ADELBERT PIERCE v. STATE OF TENNESSEE

                   Direct Appeal from the Circuit Court for Benton County
                        No. CR690-PC-1     C. Creed McGinley, Judge



                    No. W2003-02384-CCA-R3-PC - Filed August 20, 2004


The petitioner appeals the dismissal of his petition for post-conviction relief from his conviction for
first degree murder, arguing that the post-conviction court erred in finding he received effective
assistance of counsel at trial and on appeal. Following our review, we affirm the dismissal of the
petition.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
NORMA MCGEE OGLE , JJ., joined.

Guy T. Wilkinson, District Public Defender, and Vicki S. Snyder, Assistant District Public Defender,
for the appellant, Lon Adelbert Pierce.

Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney
General; G. Robert Radford, District Attorney General; and Steven L. Garrett and Beth C. Boswell,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                             OPINION

                                               FACTS

        The petitioner, Lon Adelbert Pierce, was indicted for the March 21, 1997, first degree
premeditated murder of Larry Gene Peppers, Sr., and the attempted first degree murder of Peppers’
son. See State v. Lon Adelbert Pierce, No. W1999-01433-CCA-R3-CD, 2000 WL 1664278, at *1
(Tenn. Crim. App. Oct. 23, 2000), perm. to appeal denied (Tenn. Sept. 2, 2003). Following a trial,
the jury acquitted him of attempted first degree murder but was unable to reach a verdict on the
premeditated murder count of the indictment. Id. The petitioner was thereafter retried on the first
degree murder count, found guilty, and sentenced to life imprisonment. Id. His conviction and
sentence were affirmed by this court, and, following a delayed appeal, our supreme court denied his
application for permission to appeal. Id.
        As related in the direct appeal opinion, the petitioner’s conviction stemmed from a
disagreement with the victim over payment for a truck the petitioner had sold the victim under an
informal installment agreement, with the understanding that the victim’s wife would record the lien
in the petitioner’s favor for the unpaid portion of the sale price. Id. When the victim’s wife failed
to record the lien and the victim failed to make payments in accordance with their agreement, the
petitioner became angry and began making statements in the weeks before the murder to various
individuals, including Douglas Glenn Whitfield, the owner of a truck stop, and Whitfield’s
employee, Beth Mary Podgwaite, about his intention of either retrieving his truck or killing the
victim. Id. at *2. The direct appeal opinion relates what then transpired:

                       On the morning of March 21, 1997, Larry Peppers, Sr., his
               wife Teresa, and his son Larry Jr. left their home to drive to the North
               40 Truck Stop. While traveling along on the highway, they saw [the
               petitioner], who turned his car around and followed them to the truck
               stop. The Peppers went inside, and [the petitioner] followed. [The
               petitioner] confronted the victim, and the victim tried to back away.
               Mr. Whitfield was concerned about the disagreement taking place
               inside his business and asked [the petitioner] to go outside. [The
               petitioner] complied. When the Peppers finished their business, they
               went outside. As the Peppers attempted to leave, [the petitioner]
               approached their vehicle. He and the victim exchanged words. Larry
               Sr. told Larry Jr. to call the police, and the victim [sic] said that Larry
               Jr. should call the morgue. [The petitioner] said he was going to get
               a gun. He leaned into his vehicle, which was parked nearby, and
               retrieved a gun. Twice he pointed the gun at Larry Sr., and Larry Jr.
               pushed [the petitioner’s] arm away. [The petitioner] pointed the gun
               at Teresa Peppers, and again Larry Jr. pushed [the petitioner’s] arm
               away. As the two struggled over the gun, [the petitioner] fired and
               wounded Larry Jr. The [petitioner] chased Larry Sr. in the parking
               lot. Shots rang out, and Larry Sr. fell wounded. The [petitioner]
               approached Larry Sr. and shot him again as he lay wounded on the
               pavement. Teresa Peppers ran toward the truck stop, and [the
               petitioner] followed her. Podgwaite, who was working inside the
               truck stop, heard the [petitioner] say, “W[h]ere is she? I’m going to
               kill her.” Whitfield intervened and told [the petitioner] to leave.
               [The petitioner] went outside and stayed on the premises for about
               five minutes before driving off.

                      Larry Peppers, Sr. died from his injuries. Larry Peppers, Jr.
               survived.

                      After [the petitioner] left the truck stop, he changed vehicles
               and drove to Arkansas. Eventually, he went to Mexico. He lived on


                                                  -2-
                the lam for fourteen months but finally surrendered to authorities in
                Phoenix, Arizona.

Id. at **2-3 (footnote omitted).

        At trial, the petitioner presented evidence that at the time of the shooting, “he was in dire
financial condition,” was “very distraught” over the victim’s failure to pay, had not slept in a couple
of days, and could not remember when he had last eaten. Id. at *3. He also presented expert
testimony from a psychiatrist and a neuropsychologist to support a claim of diminished capacity,
which included proof that “he was suffering from major depression and hypoglycemia related to
diabetes on the day of the crime”; that he “had a below-average IQ in the borderline mentally
retarded range”; that he “had a history of major depression and suicidal thoughts dating back to
1994”; and that all of these factors, combined with his sleep deprivation, “resulted in diminished
capacity . . . to act intentionally.” Id.

         On November 4, 2002, the petitioner filed a pro se petition for post-conviction relief, alleging
ineffective assistance of counsel. Following the appointment of counsel, he filed an amended
petition on December 18, 2002, in which he alleged counsel was ineffective at trial and on appeal
for failing to subpoena witnesses who could have established that the killing occurred during the heat
of passion, for failing to file a Rule 11, Tenn. R. App. P., application for permission to appeal to the
supreme court, and for failing to comply with the petitioner’s request for a copy of the trial transcript.

        The petitioner testified at the February 28, 2003, evidentiary hearing that trial counsel
informed him during a meeting in Memphis that he would appeal his case to the Tennessee Supreme
Court and later sent him a letter, dated October 25, 2000, to that effect. The petitioner denied that
he had received a second letter, dated the same day and sent to the same address, in which counsel
stated that after dictating the first letter he had begun “to contemplate whether this was something
that [the petitioner] wished for [him] to do,” and therefore was advising that unless he heard from
the petitioner within the next thirty days, he would not file an application for permission to appeal
to the supreme court. The petitioner said he did not learn until September 10, 2002, that an appeal
had never been filed.

          The petitioner testified he informed trial counsel of witnesses from the truck stop who would
have established that the shooting occurred in the heat of passion, but the witnesses never testified
at trial. Trial counsel never explained why he failed to investigate or subpoena these witnesses, other
than to say that it “wasn’t the thing to go to.” Trial counsel spoke with him “a couple of times”
during the course of his representation, asking if he understood what was going on, and he replied
that he “basically” did. However, he did not understand what was happening with the appeals
process and felt that trial counsel failed to keep him informed about it. The petitioner also testified
that he requested that trial counsel provide him with a copy of his trial transcript, but he failed to do
so. On cross-examination, he acknowledged that it was possible he had made statements about
killing the victim to witnesses at the truck stop during the two weeks before the shooting.



                                                   -3-
         Trial counsel testified he had been licensed to practice law since 1986. He said that
approximately thirty percent of his practice was criminal, and the petitioner’s case was not his first
murder trial. He testified that when he went to Memphis to discuss the appeal, the petitioner, who
had had a heart attack during the second trial, was suffering from diabetes and “felt like . . . he was
going to die,” “had essentially given up,” and “really didn’t care” about filing an appeal.
Nevertheless, trial counsel appealed the case through the intermediate court level. Two days after
receiving the opinion, he dictated his first letter to the petitioner dated October 25, 2000. Trial
counsel testified he dictated the second letter later that same day after thinking about the supreme
court’s criteria for accepting an application for permission to appeal and the fact that the petitioner
had no interest in pursuing an appeal. Although he sent the second letter to the same address as the
first, he never heard from the petitioner. Trial counsel stated that he investigated and interviewed
a number of witnesses from the truck stop. However, because they could have corroborated that the
petitioner had threatened to kill the victim, he chose not to have them testify on the petitioner’s
behalf.

         On March 5, 2003, the post-conviction court entered an order granting the petitioner the right
to file a delayed application for permission to appeal to the supreme court, finding that, despite the
second letter sent to the petitioner, trial counsel had clearly failed to comply with Rule 14 of the
Rules of the Tennessee Supreme Court, which sets forth the procedures counsel must follow when
withdrawing representation from an indigent client following an adverse ruling of the intermediate
appellate court.1 The post-conviction court stayed all other matters contained in the petition pending


         1
           Rule 14, “Withdrawal of counsel for indigent party after adverse decision in interme diate appe llate court,”
provides in part:

                           Permission for leave to withdraw as counsel for an indigent party after an
                  adverse final decision in the Co urt of Appeals or Court of Criminal Appeals and
                  before preparation and filing of an Application for Permission to Appeal in the
                  Suprem e Court must be obtained from the intermediate appellate court by filing a
                  motion with the Appellate Court Clerk not later than fourteen (14) days after the
                  intermediate court’s entry of final ju dgm ent.

                            The motion shall state that: (1) based upon counsel’s review of the
                  opinion of the intermediate appellate court, the brief filed on behalf of the indigent
                  party in that court presents such issues as are available for seco nd-tier appe llate
                  review if sought by the party acting pro se, and (2) the written notification
                  prescribed by this rule and a copy of the intermed iate court’s opinion have been
                  forwarded to the ind igent party.

                            The motio n shall be accompanied by a copy of the written notification
                  forwarded to the ind igent party. The written notification shall state: (1) that counsel
                  does not intend to file an Ap plication for P ermission to A ppe al and that counsel is
                  asking the interm ediate court for permission to withdraw; (2) that the p arty may file
                  a pro se Application for Permission to Appeal with the Clerk of the Supreme Co urt
                  if filed within sixty (60) days after entry of final judgment in the intermed iate
                  app ellate court; (3) the date on which the intermediate court’s opinion was released;
                                                                                                             (continued...)

                                                            -4-
the outcome of the delayed appeal. On September 2, 2003, our supreme court denied the petitioner’s
application for permission to appeal. On September 17, 2003, the post-conviction court entered an
order dismissing the petition for post-conviction relief, finding that trial counsel’s conduct was not
deficient and that the petitioner had “not been deprived of any constitutional right that would support
post conviction relief.” This appeal followed.

                                                      ANALYSIS

                                     Post-Conviction Standard of Review

        The post-conviction petitioner bears the burden of proving his or her allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-210(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 State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999);
Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996). However, review of the post-conviction 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 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, 6 S.W.3d at 461.

                                        Ineffective Assistance of Counsel

        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, 104 S. Ct.
2052, 2064, 80 L. Ed.2d 674 (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.



       1
           (...continued)
                    and (4) the date o n which an Ap plication for P ermission to Appeal is due. The
                    written notification must also reflect the party’s mailing address to which the notice
                    was forward ed.

                                                            -5-
466 U.S. at 687, 104 S. Ct. at 2064.

         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, 104 S. Ct. at 2065; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). 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, 104 S. Ct. at 2068.

         As he did with the post-conviction court, the petitioner argues on appeal that trial counsel
was ineffective for failing to subpoena the critical truck stop witnesses who could have established
state of passion, for failing to pursue his appeal to the supreme court, and for failing to provide him
with a transcript of the trial. The State responds by arguing, inter alia,2 that the post-conviction court
properly found that trial counsel’s decision not to subpoena the witnesses from the truck stop was
a sound trial strategy and that the petitioner has not shown he was prejudiced by trial counsel’s
failure to file an application for permission to appeal or to provide him with a copy of the trial
transcript. We agree with the State.

        When reviewing a claim of ineffective assistance of counsel, we are mindful that we must
indulge a strong presumption that counsel’s conduct fell within the range of reasonable professional
assistance, see Strickland, 466 U.S. at 690, 104 S. Ct. at 2066, and may not second-guess the tactical
and strategic choices made by counsel unless those choices were uninformed because of inadequate
preparation. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Trial counsel testified he
investigated and interviewed the truck stop witnesses, and fully explained the reason he decided not
to subpoena them to trial:

                   And my concern was bringing all these other potential people in, that
                   the jury was going to hear I’m going to kill him if he don’t pay me,


         2
             The State additionally argues that the petition is time-barred because it was filed more than one year beyond
the date that the judgment became final. Tennessee Code Annotated section 40-30-10 (a) (2003) provides that a petition
for post-conviction relief must be filed “within one (1) year of the date of the final action of the highe st state appellate
court to which an appeal is taken or, if no appeal is taken, within one (1) year of the date on which the judgment became
final[.]” Our supreme court has recognized, however, that in some cases due p rocess requ ires that this o ne-year statute
of limitations be tolled. See W illiams v. State, 44 S.W .3d 464, 471 (Tenn. 2001 ) (concluding that due process required
tolling of post-conviction statute of limitations when petitioner was misled into believing that his counsel was continuing
app eals process on his behalf); see also Conley R. Fair v. State, No. E2003-00807-CCA-R3-PC, 2004 WL 370254, at
*3 (Tenn. Crim. App. M ar. 1, 2004) (remanding to the post-conviction court to determine whether due process required
tolling of statute of limitations based on trial counsel’s failure to file Rule 11 application for permission to appeal to the
supre me court or Rule 14 m otion to withdraw from his representation of petitioner, with the following instruction: “If
the post-conviction court determines that the petitioner, through no fault of his own, was denied his right to seek second-
tier review and filed his petition within a reasonable time, the court shall grant him the opportunity to seek a delayed
appeal to our supreme court.”). Here, the post-conviction court obviously concluded, based on the evidence, that due
process required that the statute of limitations b e tolled in this case.

                                                             -6-
                was just going to keep that testimony time and time again going to
                trial.

                        So, from a trial strategy, I didn’t want the jury to just keep
                hearing that. Our position was that he said if he doesn’t pay me it’s
                killing me from a financial standpoint.

                        You had his testimony then against this one Beth Podgeway
                [sic]. However, if you called these other folks in that would basically
                corroborate Beth then, obviously, it would look worse towards the
                defense.

        The post-conviction court found that “[c]ounsel’s decision in this regard [was] supported by
logic and reason, in that some witnesses from the truck stop were called and clearly supported a
premeditated act as opposed to a heat of passion type situation.” The record fully supports this
finding. Furthermore, we agree with the State that the petitioner has not shown how any alleged
deficiency in counsel’s performance with respect to these witnesses prejudiced his case. When a
petitioner contends that trial counsel was ineffective for failing to investigate or present potential
witnesses in support of his defense, he bears the burden of presenting these witnesses at the
post-conviction evidentiary hearing. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).
Here, the petitioner neither named the potential witnesses nor presented their testimony at the
evidentiary hearing. Without showing what evidence the witnesses would have provided had they
been subpoenaed at trial, the petitioner cannot meet the prejudice prong of the Strickland test. Id.
at 758.

         We further agree with the State that, in light of the post-conviction court’s having granted
the petitioner the opportunity to file a delayed application for permission to appeal to the supreme
court, the petitioner has also failed to show that he was prejudiced by trial counsel’s failure to pursue
the appeal or to provide him with a copy of his trial transcript.

                                           CONCLUSION

       Based on our review, we conclude that the petitioner has failed to meet his burden of showing
he was denied the effective assistance of counsel at trial or on appeal. Accordingly, we affirm the
post-conviction court’s dismissal of the petition for post-conviction relief.


                                                        ___________________________________
                                                        ALAN E. GLENN, JUDGE




                                                  -7-
