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

            MICHELLE SHOEMAKER v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Jackson County
                        No. 02-160 John D. Wootten, Jr., Judge



                    No. M2009-00472-CCA-R3-CD - Filed April 13, 2010


Petitioner, Michelle Shoemaker, was unsuccessful in her direct appeal to this Court from her
convictions in Jackson County for first degree murder, conspiracy and tampering with
evidence. These convictions resulted in an effective life sentence. See State v. Michelle
Shoemaker, No. M2005-02652-CCA-R3-CD, 2006 WL 3095446 (Tenn. Crim. App., at
Nashville, Nov. 2, 2006), perm. app. denied, (Tenn. March 12, 2007). Following her
unsuccessful direct appeal, she filed a petition for post-conviction relief alleging that she was
afforded ineffective assistance of counsel by both her trial and appellate counsel. After
conducting an evidentiary hearing on the post-conviction petition, the post-conviction court
denied the petition. Petitioner now appeals the post-conviction court’s denial of her petition.
After a thorough review of the record, we conclude that Petitioner has been unable to prove
that either trial or appellate counsel were ineffective. Therefore, we affirm the post-
conviction court’s denial of the petition.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which D AVID H. W ELLES and
T HOMAS T. W OODALL, JJ., joined.

Rebecca Brady, Cookeville, Tennessee, for the appellant, Michelle Shoemaker..

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Ton P. Thompson, Jr., District Attorney General, and Justin Harris, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                          OPINION

                                     Factual Background

        Petitioner was convicted by a Jackson County jury of first degree murder, conspiracy
to commit first degree murder, solicitation for first degree murder and tampering with the
evidence in connection with the murder of her stepfather perpetrated by Dean Shoemaker and
Robert Foutch. Michelle Shoemaker, 2006 WL 3095446, at *1. Petitioner was sentenced to
an effective life sentence. The trial court merged her conviction for solicitation of murder
into the first degree murder conviction and ordered her twenty-year sentence for conspiracy
and three-year sentence for tampering with evidence to be served concurrently with the life
sentence. Id. Petitioner was unsuccessful on direct appeal to this Court. Id. at *11.

       Petitioner’s convictions arose from the 2002 murder of her stepfather, Jim Kerr. The
evidence at trial established that four individuals, Petitioner; Petitioner’s mother, Carol Kerr;
Petitioner’s husband, Dean Shoemaker; and Robert Foutch a/k/a Glen “Frankie” Sanders,
who lived with Petitioner and her husband, conspired to kill Mr. Kerr and to share the life
insurance proceeds that Mrs. Kerr anticipated she would receive following her husband’s
death. The evidence demonstrated that the actual killing was perpetrated by Dean Shoemaker
and Robert Foutch. Id. at *1.

        On February 22, 2008, Petitioner filed a pro se petition for post-conviction relief. In
this petition she alleged that she had been afforded ineffective assistance of counsel. Counsel
was appointed and an amended petition was filed September 2, 2008. The post-conviction
court conducted an evidentiary hearing on January 7, 2009. Former Sheriff Kenneth Bean
was the first witness at the hearing. He testified that he participated in obtaining a statement
from Petitioner. In addition to Sheriff Bean, Tennessee Bureau of Investigation (“TBI”)
Agent, Russ Winkler, was also present. Agent Winkler did most of the questioning and
typing of the statement. Sheriff Bean could not recall whether or not Petitioner had requested
an attorney, but he did not think that she had. When asked if Petitioner had been told that in
order to see her children again she needed to cooperate with law enforcement, Sheriff Bean
denied it. He stated that she might have been told she would get to see her children sooner
if she would cooperate. Petitioner had been told that she could leave at any time when they
started taking her statement.

        The next witness at the hearing was Petitioner’s counsel at trial. Trial counsel stated
that he and Petitioner discussed whether to ask for a change of venue, but Petitioner did not
want to move the trial. Trial counsel stated that he did not believe that the alleged threats on
Petitioner’s life were that important to her defense. However her leaving her children and
running off to Mexico with a boyfriend, as opposed to staying close to her husband who was

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set to be a witness at her trial were damaging to her defense. Trial counsel stated that he
wanted Petitioner to stay close to her husband because he was slated to testify. Trial counsel
was hoping that Petitioner’s husband would have some sympathy for her and maybe refuse
to testify. Throughout his representation of Petitioner, she maintained that she did not know
anything about the planning of the murder. Petitioner maintained that there had been some
joking, but she did not know that the murder was really going to occur.

       Trial counsel confirmed that the State did make an offer for a plea with a sentence of
fifteen years. According to trial counsel, Petitioner did not want to take the offer. Trial
counsel said that he would have been very comfortable with her accepting the offer.
Petitioner maintained that she was innocent. Trial counsel stated that he was shocked with
the amount of information the State turned over during discovery. The State had an open file
policy. After a hearing on the motion to suppress had been held, the State turned over a tape
recording to trial counsel. In the recording, Petitioner said something like “Mother, they got
us; they know about it.” Trial counsel immediately presented the recording to Petitioner and
told her that they should file a motion for a continuance. Petitioner refused to agree to a
continuance. She said that she wanted to have the trial over.

       Trial counsel refuted assertions that he had told Petitioner that her case would be “a
piece of cake.” He did tell her immediately before trial that he and Petitioner should walk
into the courtroom with an air of confidence that she was innocent. Trial counsel testified
that he went through the evidence with Petitioner and informed her honestly about his
thoughts about the case. He visited with her often while she was in jail. While Petitioner
was out on bond, she visited his office.

       Trial counsel stated that he engaged a second attorney, appellate counsel, to work with
him on part of the case so that appellate counsel would be fully prepared to take up the
appeal if need be. Trial counsel thought very highly of appellate counsel’s appellate skills.

        Appellate counsel also testified at the hearing. He began to help about two months
before the trial. Appellate counsel did not think a change of venue would have been
appropriate. He did not remember much publicity about the case in either newspapers or
television. Appellate counsel stated that he chose which issues from the motion for new trial
to bring on appeal by relying upon his philosophy that he did not want to focus on issues that
would not really change the outcome in light of her life sentence. He wanted to get her first
degree murder conviction overturned in order to get a new trial.

        Appellate counsel stated that he did not raise an issue concerning the constitutionality
of her final statement to law enforcement because it would basically have been Petitioner’s
word versus Agent Winkler’s word. He knew that the argument had not worked in the

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suppression hearing and believed that it would not have worked on appeal. Appellate
counsel testified that he went over his appellate strategy with Petitioner. He told her that his
intention was to get her conviction overturned. Petitioner did not ask appellate counsel to
include more issues, she left it up to his discretion.

          Petitioner was the final witness at the hearing. She stated at the outset of her
testimony that she did not have any confidence in trial counsel. However, on cross-
examination she stated that she did have confidence in him. Petitioner also stated that trial
counsel led her to believe that he was confident in the defense strategy. The night before
trial, trial and appellate counsel asked her how she was feeling. Petitioner stated that she said
she was sure of getting an acquittal. Petitioner also testified that trial counsel told her that
the tape recording was not “that big of a deal” and that she should not worry about it.

         Petitioner stated that trial counsel presented the fifteen-year offer to her. Petitioner
maintained that she considered the offer, but trial counsel told her she should take the case
to trial. Petitioner also stated that she wanted the case moved to another venue because the
trial was “plastered all over the front page of the newspaper several times.” She testified
there had been threats on her life and she discussed these with trial and appellate counsel.
She told them they could contact her doctor or her daughter’s counselor to corroborate the
threats. On cross-examination, she admitted that the doctor had heard the information from
her. Petitioner complained that she was not allowed to have any input into the motion for
new trial or her appeal. She denied that appellate counsel spoke with her in person about the
appeal. She stated that he told her on the telephone what the issues would be. According to
Petitioner, she asked him if there should be more issues, but he said no.

      At the conclusion of the hearing, the post-conviction court denied the petition for post-
conviction relief. Petitioner filed a timely notice of appeal.

                                         ANALYSIS

       The post-conviction court’s findings of fact are conclusive on appeal unless the
evidence preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).
During our review of the issue raised, we will afford those findings of fact the weight of a
jury verdict, and this Court is bound by the court’s findings unless the evidence in the record
preponderates against those findings. See Henley v. State, 960 S.W.2d 572, 578 (Tenn.
1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). This Court may not
reweigh or re-evaluate the evidence, nor substitute its inferences for those drawn by the post-
conviction court. See State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn. 2001). However, the
post-conviction court’s conclusions of law are reviewed under a purely de novo standard with
no presumption of correctness. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

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        On appeal, Petitioner argues that the post-conviction court erred in denying her
petition because counsel was ineffective in that counsel failed to communicate openly and
honestly with her and failed to properly investigate and appeal the Constitutionality of her
final statement to police. When a petitioner seeks post-conviction relief on the basis of
ineffective assistance of counsel, the petitioner bears the burden of showing that (a) the
services rendered by trial counsel were deficient and (b) that the deficient performance was
prejudicial. See Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order
to demonstrate deficient performance, the petitioner must show that the services rendered or
the advice given was below “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). In order to demonstrate
prejudice, the petitioner must show that there is a reasonable probability that, but for
counsel’s deficient performance, the result of the proceeding would have been different. See
Strickland v. Washington, 466 U.S. 668, 694 (1984). “Because a petitioner must establish
both prongs of the test to prevail on a claim of ineffective assistance of counsel, failure to
prove either deficient performance or resulting prejudice provides a sufficient basis to deny
relief on the claim.” Henley, 960 S.W.2d at 580.

       As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record
preponderates against the court’s findings. See id. at 578. However, our supreme court has
“determined that issues of deficient performance by counsel and possible prejudice to the
defense are mixed questions of law and fact . . . ; thus, [appellate] review of [these issues]
is de novo” with no presumption of correctness. Burns, 6 S.W.3d at 461.

        Furthermore, on claims of ineffective assistance of counsel, the petitioner is not
entitled to the benefit of hindsight. See Adkins, 911 S.W.2d at 347. This Court may not
second-guess a reasonably based trial strategy, and we cannot grant relief based on a sound,
but unsuccessful, tactical decision made during the course of the proceedings. See id.
However, such deference to the tactical decisions of counsel applies only if counsel makes
those decisions after adequate preparation for the case. See Cooper v. State, 847 S.W.2d 521,
528 (Tenn. Crim. App. 1992).

                                 Ineffective Trial Counsel

       With regard to Petitioner’s allegations that counsel failed to communicate with her
honestly regarding her plea offer and her chances of being convicted, the post-conviction
court stated that trial counsel had met with her numerous times both while she was out on
bond and in jail; had informed her of the offer from the State; and discussed the evidence
with her. We find no evidence that preponderates against the post-conviction court’s
findings. Basically, the issue comes down to a credibility determination between trial

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counsel’s testimony at the hearing and Petitioner’s testimony at the hearing. It is clear that
the post-conviction court found trial counsel’s testimony credible. “[Q]uestions of credibility
of the witnesses, the weight and value of the evidence, and resolution of conflicts in the
evidence are matters entrusted to the trial judge as the trier of fact,” and the post-conviction
court’s credibility determinations are conclusive on appeal unless the evidence preponderates
against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn.1996). We find no evidence to
preponderate against the findings of the trial court. Therefore, Petitioner has not proven that
the services rendered by trial counsel were deficient with regard to this issue.

                                Ineffective Appellate Counsel

        Petitioner also argues that she was afforded ineffective assistance by appellate
counsel. She argues that appellate counsel’s failure to raise an issue regarding the trial
court’s denial of her motion to suppress her statement to police constituted ineffective
assistance of counsel. A petitioner alleging ineffective assistance of appellate counsel must
prove both that (1) appellate counsel acted objectively unreasonably in failing to raise a
particular issue on appeal, and (2) absent counsel’s deficient performance, there was a
reasonable probability that defendant’s appeal would have been successful before the state’s
highest court. See e.g., Smith v. Robbins, 528 U.S. 259, 285, 120 S. Ct. 746, 145 L.Ed.2d
756 (2000); Aparicio v. Artuz, 269 F.3d 78, 95 (2nd Cir. 2001); Mayo v. Henderson, 13 F.3d
528, 533-34 (2d Cir. 1994). To show that counsel was deficient for failing to raise an issue
on direct appeal, the reviewing court must determine the merits of the issue. Carpenter v.
State, 126 S.W.3d 879, 887 (Tenn. 2004) (citing Kimmelman v. Morrison, 477 U.S. 365, 375,
106 S. Ct. 2574, 91 L.Ed.2d 305 (1986)). Obviously, if an issue has no merit or is weak, then
appellate counsel’s performance will not be deficient if counsel fails to raise it. Id.
Likewise, unless the omitted issue has some merit, the petitioner suffers no prejudice from
appellate counsel’s failure to raise the issue on appeal. Id. When an omitted issue is without
merit, the petitioner cannot prevail on an ineffective assistance of counsel claim. Carpenter,
126 S.W.3d at 888 (citing United States v. Dixon, 1 F.3d 1080, 1083 (10th Cir. 1993)).
Additionally, ineffectiveness is very rarely found in cases where a defendant asserts that
appellate counsel failed to raise an issue on direct appeal, primarily because the decision of
what issues to raise is one of the most important strategic decisions to be made by appellate
counsel.

        Petitioner has failed to include the transcript of the hearing on the motion to suppress
in the record. We have also reviewed the record in Petitioner’s direct appeal. However, the
record on direct appeal does not contain a transcript of the hearing on the motion to suppress.
For this reason, we are unable to determine the merits of whether the trial court should not
have denied the motion to suppress. As stated above, to prevail on a claim that appellate
counsel was ineffective, we must determine the merits of the issue that appellate counsel

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failed to present on direct appeal. In this case, we are unable to determine the merits of this
issue. Therefore, Petitioner is unable to prove both prongs that appellate counsel acted
unreasonably in failing to raise the issue and that Petitioner would have been successful on
direct appeal based upon this issue.

       Therefore, this issue is without merit.

                                      CONCLUSION

       For the foregoing reasons, we affirm the post-conviction court’s denial of the petition
for post-conviction relief.

                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




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