        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs November 27, 2012

                JAMES G. COONS, II v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                   No. 2008-B-893     Cheryl A. Blackburn, Judge


                  No. M2012-00529-CCA-R3-PC - Filed May 21, 2013


James G. Coons, II ("the petitioner") filed for post-conviction relief from his open plea of
guilty to the lesser included offense of Second Degree Murder and received a maximum
Range II sentence of 40 years in the Department of Correction. Specifically, he asserts that
counsel did not investigate or prepare for trial properly or advise him properly as to the
possibilities of sentencing. The petition was denied and this appeal followed. Upon a
thorough review of the record, we affirm the judgment of the post-conviction court.

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

CHRISTOPHER CRAFT, SP. J., delivered the opinion of the Court, in which ROBERT W.
WEDEMEYER and CAMILLE R. MCMULLEN, JJ., joined.

Ryan C. Caldwell, Nashville, Tennessee, for the appellant, James G. Coons, II

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel;
Victor S. Johnson, III, District Attorney General; and Katrin Miller, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                       BACKGROUND
        The petitioner, James G. Coons, II, appeals the denial of his petition for
post-conviction relief. He was indicted April 11, 2008, for the premeditated murder of his
wife, Rebecca Ollis Coons, and entered a plea of guilty on February 7, 2009, to the lesser
included offense of Second Degree Murder, with the trial court to determine his sentence
after a sentencing hearing. He received the maximum sentence of 40 years as a Range II
offender in the Department of Correction. The petitioner appealed that sentence, contending
that the trial court did not adequately consider his mental health as a mitigating factor in his
punishment. His sentence was affirmed in State v. James G. Coons, II, 2010 Tenn. Crim.
App. LEXIS 459, No. M2009-01361-CCA-R3-CD (Tenn. Crim. App. June 4, 2010), perm.
app. denied (Tenn. 2010). Much aggrieved, he has timely filed the instant petition for post-
conviction relief, alleging that his trial attorney failed to render him effective assistance of
counsel in two respects: failing to prepare for trial properly, and improperly advising him
as to the probable sentence he would receive as a result of his entering an open plea of guilty
to Second Degree Murder. As a consequence of this ineffective assistance, he alleges that
his plea of guilty was not a knowing and voluntary plea.

               FACTS OF THE CASE AS ADDUCED AT SENTENCING
       In assessing trial counsel’s performance, we must take into account the facts available
to him prior to the petitioner's decision to enter his plea of guilty, as set out by the Court of
Criminal Appeals in affirming the petitioner's sentence:

               This case arises from the [petitioner's] fatal stabbing of his wife, with whom
       he had a history of domestic violence. The [petitioner's] presentence report contains
       the following account of the events leading up to and following the victim's death:

              On 11/09/07 the victim, Rebecca Coons, returned home from work and ended
              up getting into an argument with her husband, [the petitioner]. The argument
              started because [the petitioner] wanted to use the victim's truck to go get his
              new medication. The victim did not want [the petitioner] to drive her truck
              because he did not have a license. The argument went on for some time and
              [the petitioner] got angry. During the interview [the petitioner] stated that he
              blacked out and didn't remember stabbing the victim, but she was stabbed/cut
              22 times and died at the scene. The suspect called his mother, Donna Coons.
              He told her that he had hurt his wife and that she needed to check on her.
              Donna Coons woke up her other son, Thomas Coons and both came to the Bell
              Road apartment. When they arrived, [the petitioner] let them into the
              apartment. Thomas check[ed] the victim's pulse and found that she did not
              have one. [The petitioner] called mobile crisis and 911, while Thomas was still
              inside. Thomas and Donna Coons left [the] apartment and waited for the
              police. When Officer Shaw arrived, Thomas and Donna Coons told him that
              the [petitioner] had stabbed the victim and that she was dead. Shaw went into
              the apartment to check on the victim and saw that E.M.S. was working on the
              victim. He exited the apartment and was followed outside by [the petitioner].
              The [petitioner] was still talking to mobile crisis when Shaw asked him what
              had happened. He stated that he had stabbed her. He was placed under arrest
              by Officer Shaw. E.M.S. did not transport the victim to the hospital. The
              suspect's family members gave written and taped statements . . . while at the

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       scene. The [petitioner] was transported to the station where he signed a
       Miranda rights waiver during a video taped interview. He stated that he did not
       remember stabbing the victim, but he assumed he did. He stated that he
       blacked out during the argument. When he "awoke" she was lying on the floor
       "hurt," as he put it. He then [said] that he did call his mother to come check on
       her. The [petitioner] was arrested and charged with criminal homicide. The
       victim and the suspect have had a turbulent marriage, with several domestic
       violence allegations being made by the victim. To quote the victim's stepfather,
       "This doesn't surprise me at all."

        Based upon this conduct, a Davidson County grand jury indicted the
[petitioner] for first degree premeditated murder, and the [petitioner] subsequently
pled guilty to second degree murder.
        Following entry of the [petitioner's] guilty plea, the trial court held a
sentencing hearing wherein the following evidence was presented: According to the
presentence report, the [petitioner], who was thirty-seven when he killed the victim
and thirty-eight at sentencing, dropped out of school at age thirteen. He began to use
alcohol and marijuana at age sixteen and did not stop until his mid-thirties. He has
been diagnosed with bi-polar and anti-social disorders, which were being treated with
the medications Gedeon and Remeron. He attended counseling at Cornerstone from
2000 to 2001 and was admitted to Vanderbilt Hospital for depression in 2006. Since
2003, he had received Supplemental Security Income based upon his diagnosis of
depression. The [petitioner] had three children from two previous marriages.
        The [petitioner's] criminal record indicated he had over twenty convictions,
including: four convictions for assault, four convictions for driving with a suspended
or revoked license, two convictions for criminal impersonation, two convictions for
theft between $ 500 and $ 1000, and one conviction each for failure to appear,
aggravated assault, kidnapping, reckless driving, a weapons offense, theft under $500,
resisting arrest, burglary, and manufacture of a Schedule I hallucinogen.
        The victim's daughter submitted a letter describing how the victim's
relationship with the [petitioner] alienated the victim from her family. The letter
recounts several occasions on which the victim's daughter observed the [petitioner]
strike and threaten the victim.
        At the hearing, Dr. Stacy Turner, an assistant medical examiner for the
Tennessee State Medical Examiner's Office, testified she performed the victim's
autopsy. Dr.Turner testified that the victim was thirty-five when she died and that she
was otherwise healthy. The victim's cause of death was multiple sharp force injuries.
Her body bore twenty-two sharp force injuries, fourteen of which would have been
fatal alone. The stab wounds appeared on the victim's upper back and on her left
anterior chest and breast. She also had several scrapes on her right knee and multiple

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       bruises and scrapes on her left knee. Finally, the victim also had multiple defensive
       injuries to her hands and arms. Dr.Turner testified that the injuries to the victim's
       hands and arms are consistent with injuries received from assuming a defensive
       position during an attack.
               Dr. Turner said the maximum depth of the victim's stab wounds was five
       inches and that a kitchen-type knife likely caused her injuries. The victim had bilateral
       hemathoraces, the presence of collected blood in the chest and lungs. She likely died
       from her injuries in only a few minutes, and, due to the severity of her wounds, would
       not have survived with immediate medical attention.
               Linda Streicher, the victim's mother, testified that she was aware that the
       [petitioner] was physically abusing the victim. The victim had told her mother she was
       planning to leave the [petitioner] and was considering moving in with either a friend
       from school or her half-sister who lived in Florida. Streicher said her daughter had
       graduated with a degree in criminal justice a few months before her death. Due to her
       experience with the [petitioner], the victim planned to work with juveniles and with
       domestic violence.
               Streicher explained that the [petitioner's] behavior toward her daughter had
       affected their family in several ways: the victim's daughter moved to East Tennessee
       in order to escape the [petitioner] whom she feared because of his violent behavior
       toward her mother. The victim's father felt guilty for not saving the victim from the
       [petitioner], and he began to experience depression. The victim's son, from whom the
       victim was estranged, refused to mention his mother after her death.
               The [petitioner] offered the following allocution statement: "I just wanted to
       say I'm sorry for what I did, but I tried to get some help a couple of days before it.
       And they let me go. And then I was out on some Klonopins. That's what made me
       forget what happened."
               At the conclusion of the hearing, the trial court applied four enhancement
       factors and one mitigating factor, and it sentenced the Defendant to forty years in the
       Tennessee Department of Correction.

State v. Coons, 2010 Tenn. Crim. App. LEXIS 459, at **1-4.

                    PROOF AT THE POST-CONVICTION HEARING
       The petitioner testified at the hearing on his petition, as his only witness, that when
he was first arrested he had only been charged with "criminal homicide," and not Murder
First Degree. He only met with his attorney twice, and his family had hired trial counsel
because he had originally told him that he would receive no more than a six year sentence,
but that if he went to trial, he was looking at "life or death." He stated he only had a third
grade education, and he testified that he wanted his attorney to file a motion to suppress his
two statements to the police because he did not remember giving a statement and knew they

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did not read him his Miranda rights. He could not remember, however, whether he had
mentioned this to his attorney, and a motion to suppress was never filed.
        The petitioner testified that on the day of the guilty plea, when he signed the plea
petition it was blank. His attorney told him that if he signed it he would probably get 15
years.1 When asked why he told the trial judge during the guilty plea voir dire that he
understood the terms of the plea if he in fact did not, he stated rather cryptically that it was
because "if you make a deal, you can't say you made a deal because they won't let you enter
it." He insisted that he didn't understand that he was to receive somewhere between 25 and
40 years in exchange for his plea of guilty, and he could not recall if his attorney reviewed
his criminal record with him or told him that record would have an adverse effect on his
sentence. His attorney had made sure he had been mentally evaluated, and he had been found
to be competent. To his knowledge, his attorney interviewed no witnesses, but he did not
request that he do so, or ask that he employ a private investigator. Finally, when asked what
it was about his attorney's representation that he found to be deficient, the petitioner stated,
"I don't know."
        On cross-examination, the petitioner stated that he did not commit the murder; that
some other woman in the police report did. He also did not remember giving a statement to
the police taking responsibility for the crime. He also admitted that he met with his attorney
several times: after his arrest, at the preliminary hearing, at his arraignment after indictment,
at a 404(b) hearing when witnesses were called to testify about prior bad acts of violence he
committed towards the victim and again prior to his guilty plea. He stated that they had met
"I know two or three times I can't remember exactly how many times."
        The petitioner's trial attorney was called by the State as its only witness at the hearing.
He testified that he had been a criminal defense attorney since 2006, and had handled several
homicide, murder and attempted homicide cases. He met with the petitioner 5 to 6 times at
the courthouse and 4 to 5 times in jail. He also handled the preliminary hearing. His
explanation for the petitioner's reference to an initial six year offer to the homicide was that
the petitioner was possibly referring to an early conversation he had with the petitioner in
which he went over the petitioner's possible ranges of punishment for murder first degree,
murder second degree and voluntary manslaughter. As the petitioner was a Range II
offender, he had explained to him that if the proof came in a certain way and he were
convicted of voluntary manslaughter that he could receive a minimum of 6 to 10 years. He
filed a motion to suppress the petitioner's statements to the police, but he decided not to have
a hearing on the motion as he found it meritless after talking to the officers involved and the
petitioner's mother and brother. He discussed this decision with the petitioner, who agreed.
The petitioner had been Mirandized prior to the statement. The attorney testified that he did


        1
         A Range I offender's sentencing range would be from 15 to 25 years on Second Degree Murder, a
Class A felony. As the petitioner was Range II, his correct sentencing range would be from 25 to 40 years.


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not hire a private investigator because he interviewed all the witnesses himself. He also had
a lengthy Tenn. R. Evid. 404(b) hearing on the petitioner's history of violence against the
victim, at which the trial judge found the evidence admissible.
        Shortly before trial, the State offered to allow the petitioner to plead guilty to Second
Degree Murder and let the trial judge determine the sentence after a sentencing hearing, and
his attorney "thought some conditions existed that might allow the Court to give him less
than the maximum, which is obviously less than what he would have gotten had he gone to
trial and lost on first degree." He laid out the petitioner's options, along with input from the
petitioner's mother. When the petitioner decided to plead guilty, the waiver form he signed
was blank where the agreed sentence would normally be filled in because it was to be
determined by the trial court after the sentencing hearing.
        On cross-examination, the attorney testified that he was certain the petitioner thought
he would get less than 40 years at sentencing when he signed the waiver, which only said
"open with a sentencing hearing" where an agreed-upon sentence would normally be.
However, even if the petitioner received the maximum sentence, that option would have been
better than going to trial. His attorney was asked as follows:

       Q. Okay. Is there anything in your mind that you feel [the petitioner] did not
       understand about what his - - what he was pleading to or what his sentence would be?
       A. No. I think the one area I was concerned about with [the petitioner] was that
       because of his record and because of the violent nature of this offense that I wanted
       him to understand that going to trial would have been a poor decision. And it took
       him a while to get to that point. And that's why, as [the prosecutor] indicated, we pled
       basically right prior to a trial date. And I was concerned - - but when he finally came
       around to understand it, I felt much more comfortable with it.
       Q. Okay.
       A. And the effects that the - - this was a big concern and, of course, the hearing on
       it turned out that the Court was going to allow the 404B evidence in. Once that came
       in to me that made it even more clear that this was the best decision to make.

As stated above, the petitioner is now asking that his guilty plea be set aside because his trial
attorney failed to render him effective assistance of counsel in two respects: in not preparing
for trial properly and in improperly advising him as to the probable sentence he would
receive as a result of his entering an open plea of guilty to Second Degree Murder. As a
consequence of this ineffective assistance, he alleges that his plea of guilty was not a
knowing and voluntary plea.

                                         ANALYSIS
        We treat claims of ineffective assistance of counsel in a petition for post-conviction
relief as mixed questions of law and fact. Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn.

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2009); State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn. 2001). To prevail on a claim for
postconviction relief, the petitioner bears the burden of proving his or her factual allegations
by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f) (2012); Tenn. Sup. Ct.
R. 28 § 8(D)(1); Grindstaff, 297 S.W.3d at 216. The post-conviction court's findings of fact
are conclusive on appeal unless the evidence in the record preponderates against them.
Grindstaff, 297 S.W.3d at 216; State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We review
de novo the post-conviction court's application of the law to its factual findings, according
no presumption of correctness to its conclusions of law. Grindstaff, 297 S.W.3d at 216;
Dellinger v. State, 279 S.W.3d 282, 293 (Tenn. 2009).

I. Ineffective Assistance of Counsel in Trial Preparation and Investigation
        Pursuant to the Sixth Amendment of the United States Constitution, "[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his
defense." See also Tenn. Const. art. I, § 9 ("[I]n all criminal prosecutions, the accused hath
the right to be heard by himself and his counsel."). In Hill v. Lockhart, 474 U.S. 52, 58, 106
S. Ct. 366, 88 L. Ed. 2d 203 (1985), the United States Supreme Court held that the two-part
test outlined in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984) was applicable to challenges of guilty pleas based on ineffective assistance of counsel.
To succeed on a claim that his or her legal representation has been constitutionally
inadequate, a criminal defendant "must establish both that counsel's performance was
deficient and that the deficiency prejudiced the defense." Vaughn v. State, 202 S.W.3d 106,
116 (Tenn. 2006) (citing Strickland v. Washington, 466 U.S. at 688, and Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)). A defendant's "failure to prove either deficiency or prejudice
provides a sufficient basis to deny relief on the ineffective assistance claim. Indeed, a court
need not address the components in any particular order or even address both if the defendant
makes an insufficient showing of one component." Goad v. State, 938 S.W.2d 363, 370
(Tenn. 1996) (citing Strickland, 466 U.S. at 697).
        The first prong of this two-prong test is deficient performance. This prong requires
the petitioner to prove that "counsel's representation fell below an objective standard of
reasonableness" and overcome the "strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance." Strickland, 466 U.S. at 688-89. The
second prong of the test is prejudice. This prong requires the petitioner to prove "a
reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 694. The definition of "reasonable probability
is a probability sufficient to undermine confidence in the outcome." Id. When ineffective
assistance of counsel is alleged in the context of a guilty plea, the prejudice analysis
focuses on whether counsel's constitutionally ineffective performance affected the outcome
of the plea process. In other words, in order to satisfy the "prejudice" requirement, the
defendant must show that there is a reasonable probability that, but for counsel's errors, he
would not have pleaded guilty and would have insisted on going to trial. Hill, 474 U.S. at

                                              -7-
59; See also Grindstaff, 297 S.W.3d at 216-17.
       The petitioner first argues that his attorney failed to adequately investigate his case
or prepare for trial. The attorney testified, and the record fully supports, that he personally
interviewed all of the witnesses, conducted an extensive Tenn. R. Crim. P. 404(b) hearing
on the petitioner's behalf and filed a motion to suppress the petitioner's statements, striking
the motion to suppress only when the facts showed that the motion was meritless. A copy
of the motion the attorney filed on August 27, 2008, six months before the plea was entered,
was entered as Exhibit 3 to the hearing, clearly contradicting the petitioner's testimony that
no such motion was filed. It was also uncontradicted at the sentencing hearing, at which the
petitioner admitted to and apologized for the killing, that the petitioner had committed the
murder and had confessed to it. Although the petitioner is now claiming that a female who
was mentioned in a police report committed the killing, he not only failed to produce the
name of that person at the hearing on the petition, but also the name of any other witness who
might have been able to help in his defense whom his attorney had failed to interview. The
petitioner has failed to establish by clear and convincing evidence that his attorney performed
deficiently in either his trial investigation or preparation. Moreover, the Petitioner has failed
to demonstrate any prejudice to the petitioner as the result of any alleged deficiency.
Accordingly, the Petitioner is entitled to no relief on this basis.

II. Ineffective Assistance of Counsel in Guilty Plea Advice
        The petitioner also alleges that he was given improper guilty plea advice by his
attorney, and thought that he would be receiving a 15 year sentence rather than a 40 year
sentence. He states that he did not understand the terms of the open plea of guilty to Second
Degree Murder, and that his attorney improperly advised him as to the probable sentence he
would receive as a result of his entering an open plea of guilty to Second Degree Murder.
As a consequence of this ineffective assistance, he alleges that his plea of guilty was not
knowingly and voluntarily made.
        The transcript of the guilty plea reflects that the trial judge clearly explained to the
petitioner that by entering that open plea, he was exposing himself to a range of 15 to 40
years in the Department of Correction, and that the petitioner testified that he understood this.
There was also a discussion in open court with the prosecutor that although the State
contended he was Range II, that fact would be decided by the trial judge at the sentencing
hearing. The petitioner acknowledged that the guilty plea petition was read to him by his
attorney and that he had no questions about it before he signed it. He also acknowledged
that his attorney had done everything he wished him to do in the case. In her order denying
the petition for post-conviction relief, the trial judge found credible the trial attorney's
testimony that he advised the petitioner of the nature and consequences of the possible
outcomes in the case and based on his experience recommended that the petitioner take the
open plea to the lesser included offense instead of proceeding to trial. "[T]he post-conviction
court's credibility determinations are conclusive on appeal unless the evidence preponderates

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against them." Granderson v. State, 197 S.W.3d 782, 792 (Tenn. Crim. App. 2006) (citing
State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). The post-conviction judge also found that
the petitioner understood the terms of the plea, which was entered knowingly and voluntarily,
and did not accredit the testimony of the petitioner. The proof does not preponderate against
the trial court’s findings in this regard. Although the petitioner's attorney testified that he felt
that the mitigating factor of the petitioner's mental condition should have kept the petitioner
from receiving the maximum sentence of 40 years, there has been no credible proof that he
ever guaranteed this outcome to the petitioner in exchange for his entering a plea of guilty.
When the petitioner received the maximum sentence, the attorney appealed the sentence and
did everything he could to have it reduced. However, the fact that the petitioner in fact
received the maximum sentence does not render the plea unknowing or involuntary. Courts
must not measure counsel's performance by "20-20 hindsight." Hellard v. State, 629 S.W.2d
4, 9 (Tenn. 1982). Rather, "[a] fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's
perspective at the time." Strickland, 466 U.S. at 689; see also Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996). "[A] reviewing court must be highly deferential and should indulge a
strong presumption that counsel's conduct falls within the wide range of reasonable
professional assistance." State v. Burns, 6 S.W.3d 453, 462 (Tenn. 1999). In other words, the
petitioner “must overcome the presumption that, under the circumstances, counsel's
challenged action ‘might be considered sound trial strategy.’” Strickland, 466 U.S. at 689,
quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955). In view of the facts surrounding the
petitioner's offense, stipulated to during the plea of guilty and contained in the presentence
report cited by this court in the opinion affirming the appeal of the petitioner's sentence, the
advice given to the petitioner to accept a plea to the lesser included offense of Second Degree
Murder appears to fall into the category of "sound trial strategy." Accordingly, the petitioner
is entitled to no relief on this issue.

                                      CONCLUSION
       For the reasons set forth above, we affirm the judgment of the post-conviction court.


                                                   ___________________________________
                                                   CHRISTOPHER CRAFT, SPECIAL JUDGE




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