         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs October 6, 2004

               MICHAEL G. UPSHAW v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Shelby County
                       No. P-25894 Carolyn Wade Blackett, Judge



                   No. W2003-02820-CCA-R3-PC - Filed December 8, 2004



The Appellant, Michael G. Upshaw, appeals the judgment of the Shelby County Criminal Court
denying his petition for post-conviction relief. On appeal, Upshaw argues that he was denied the
effective assistance of counsel at trial. After review of the record, we affirm the denial of post-
conviction relief.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JAMES
CURWOOD WITT , JR., JJ., joined.

Joshua B. Spickler, Memphis, Tennessee, for the Appellant Michael G. Upshaw.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; J. Ross Dyer,
Assistant Attorney General; William L. Gibbons, District Attorney General; Gail Vermaas and
Michelle Kimbril Parks, Assistant District Attorneys General, for the Appellee, State of Tennessee.

                                            OPINION

                                       Factual Background

        In April of 1999, the Appellant was convicted of second degree murder by a Shelby County
jury and sentenced to a term of twenty-four years as a violent offender. On direct appeal, this court
found no error and affirmed the Appellant’s conviction and sentence. State v. Michael G. Upshaw,
No. W1999-00777-CCA-R3-CD (Tenn. Crim. App. at Jackson, Jan. 11, 2001).

        In November of 1997, the victim, Sammy Thomasson, and a friend, Carmen Corum, drove
to the intersection of Percy and Delta Streets in Memphis to purchase crack cocaine. The two had
purchased drugs at this location previously, but were unsuccessful in their efforts on this occasion.
The two were about to drive away when a car with several men in it approached and blocked their
vehicle’s exit. Corum testified that a man stepped out of the car, approached their car, and ordered
her and the victim to get out. When the victim attempted to put the car in reverse, the man raised
a gun to the window and fired, fatally striking the victim in the head.

        Mario Merritt, the driver of the vehicle which blocked the victim’s vehicle and in which the
Appellant was a passenger, testified at trial that the Appellant, “was armed with a pistol which he
carried in the front of his pants [and] . . . that he then saw the Appellant walk to the driver’s side of
the victim’s car and shoot the victim in the head.” Id. During police questioning, the Appellant
admitted that he shot the victim once, “by mistake,” with a .38 caliber pistol.

       In November of 2001, the Appellant filed a pro se petition for post-conviction relief, alleging
that he was denied the effective assistance of counsel. Following appointment of counsel, an
evidentiary hearing was held on August 28, 2003. The post-conviction court denied relief by written
order on November 3, 2003. This timely appeal followed.

                                               Analysis

         In order to succeed on a post-conviction claim, the Appellant bears the burden of proving,
by clear and convincing evidence, the allegations set forth in the petition. Tenn. Code Ann. § 40-30-
110(f) (2003). To succeed on a challenge of ineffective assistance of counsel, the Appellant must
demonstrate that counsel’s representation fell below the range of competence demanded of attorneys
in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under Strickland v.
Washington, the Appellant must establish (1) deficient representation and (2) prejudice resulting
from the deficiency. 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). The Appellant is not entitled
to the benefit of hindsight, may not second-guess a reasonably based trial strategy, and cannot
criticize a sound, but unsuccessful, tactical decision made during the course of the proceeding.
Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). This deference to the tactical
decisions of trial counsel is dependent upon a showing that the decisions were made after adequate
preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

        The issues of deficient performance by counsel and possible prejudice to the defense are
mixed questions of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). “[A] trial court’s
findings of fact underlying a claim of ineffective assistance of counsel are reviewed on appeal under
a de novo standard, accompanied with a presumption that those findings are correct unless the
preponderance of the evidence is otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001)
(citing Tenn. R. App. P. 13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). However,
conclusions of law are reviewed under a purely de novo standard with no presumption of correctness.
Fields, 40 S.W.3d at 458. Upon de novo review, accompanied by a presumption that the post-
conviction court’s findings are correct, this court must determine whether the Appellant received the
effective assistance of counsel.

       The Appellant argues that he received ineffective assistance of counsel in the following
respects: (1) trial counsel failed to properly advise the Appellant with regard to release eligibility


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during plea negotiations; (2) trial counsel failed to properly cross-examine witnesses; and (3) trial
counsel “failed to provide ‘adequate legal counsel’ by encouraging Appellant to go to trial with no
witnesses. . . .”

I. Release Eligibility Advice

        At the post-conviction hearing, trial counsel explained that she communicated the State’s
offer of fifteen years in exchange for a guilty plea to second degree murder to the Appellant. The
Appellant agreed to the offer, and trial counsel prepared the plea agreement form, which reflected
service of the sentence at 30% as a Range 1 offender. Trial counsel was then reminded by the
prosecutor that second degree murder was classified as a violent crime which required service at
100%. The Appellant was advised of the mistake, and as a result, rejected the State’s plea offer and
requested that his case proceed to trial. Because we find that the mistake was corrected, no prejudice
is shown.

II. Failure to Properly Cross-Examine Witnesses

        The Appellant contends that trial counsel failed to properly cross-examine Mario Merritt,
Karen Corum, and “two other witnesses” who are not identified. He asserts that trial counsel should
have cross-examined “Mario Merritt [who] testified that Appellant didn’t shoot the victim.” The
proof at trial, however, clearly established that Merritt identified the Appellant as the shooter. With
regard to Corum, the proof at trial established that Corum was unable to identify the Appellant as
the person who shot the victim. Thus, it is unclear what further benefit could have been obtained
from cross-examination of this witness, nor does the Appellant provide any suggestion in his brief.
The post-conviction court found that the extent or absence of cross-examination of the various
State’s witnesses by trial counsel was governed by chosen trial strategy. The facts do not
preponderate against this finding.

III. “[ E]ncouraging Appellant to go to Trial”

        Finally, the Appellant argues that trial counsel “failed to provide adequate legal counsel by
encouraging the Appellant to go to trial with no witnesses despite the State’s proof and instead of
pleading guilty to the negotiated plea offer.” First, we are constrained to note that nowhere in the
record does the proof indicate that trial counsel “encouraged Appellant to go to trial.” On the
contrary, the record is clear that the Appellant, at the trial level, advised the trial court that it was his
desire to “proceed and go to trial.” Moreover, at the post-conviction hearing, the Appellant testified
that he chose to go to trial because the State “didn’t have enough evidence against [him].” For these
reasons, we find Appellant’s allegation of deficient performance without merit.




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                                          CONCLUSION

        In reviewing an ineffectiveness claim, we are required to consider the totality of the evidence
presented at trial. Strickland, 466 U.S. at 695, 104 S. Ct. at 2069. Thus, we examine not only what
trial counsel failed to do, but what counsel did do. As such, our focus is upon the adequacy or
inadequacy of trial counsel’s performance from counsel’s perspective at the time, not from the
distorting effects of hindsight. Id. at 689, 104 S. Ct. at 2065. Moreover, our review is highly
deferential. After review, we find that trial counsel for the Appellant was functioning as “counsel
guaranteed” the Appellant by the Sixth Amendment and further find that the trial did not produce
an unreliable or unjust result. Accordingly, the judgment of the post-conviction court denying relief
to the Appellant is affirmed.



                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE




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