         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs October 15, 2008

                 ALMEER K. NANCE v. STATE OF TENNESSEE

                   Direct Appeal from the Criminal Court for Knox County
                          No. 75969 Kenneth F. Irvine, Jr., Judge



                    No. E2008-00857-CCA-R3-PC - Filed January 23, 2009


The petitioner, Almeer K. Nance, appeals the judgment of the Knox County Criminal court denying
post-conviction relief. The petitioner was convicted of felony murder, especially aggravated robbery,
two counts of especially aggravated kidnapping, and three counts of aggravated robbery. He
subsequently accepted an agreed sentence of life plus twenty-five years in the Department of
Correction. On appeal, the petitioner argues that he was denied his Sixth Amendment right to the
effective assistance of counsel, specifically arguing that trial counsel was ineffective by: (1)
erroneously advising him not to testify at trial, which he asserts effectively deprived him of his
constitutional right; and (2) failing to raise the issues of sufficiency of the evidence and severance
on direct appeal. After a thorough review of the record before us, the judgment of the post-
conviction court is affirmed.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JERRY L. SMITH and
ROBERT W. WEDEMEYER , JJ., joined.

Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant, Almeer T. Nance.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; Randall
Eugene Nichols, District Attorney General; and C. Leon Franks, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION

                                       Factual Background

       The underlying facts of the case, as recited in the direct appeal, are as follows:

       . . . Essentially, on January 16, 1996, the [petitioner] and Robert Manning robbed at
       gunpoint Scott’s Market in Knoxville. Two days later Manning picked up the
       [petitioner] at the [petitioner’s] home. Amanda Goode accompanied the pair. In
       looking for a place to rob, the three finally came to a Radio Shack. Goode stayed in
       the car while Manning and the [petitioner], wearing toboggans/ski masks, entered the
       store. Both men were once more armed with guns, and in the process of the robbery,
       the store clerk, Joseph Ridings, was shot in the head. He subsequently died from this
       wound. Upon leaving the store, Manning and the [petitioner] rejoined Goode in a
       stolen Mazda, and the trio drove from the scene. They then discovered a raised
       garage door at the home belonging to Arthur and Patsy Sipf. Again, Manning and
       the [petitioner] exited the car. Finding the door from the garage to the living area of
       the home unlocked, the two proceeded into the house. Once more the pair donned
       toboggans/ski masks. They stole items from the home while holding both Sipfs on
       the floor at gunpoint. The offenders then forced the couple into the trunk of one of
       the Sipfs’ cars. Having done so, Manning and the [petitioner] left in an automobile
       belonging to the Sipfs. Goode continued in the Mazda. At this point . . . the
       [petitioner] was apparently returned to his home. . . .

              Some days thereafter, the authorities captured Manning and Goode in
       Kentucky and therefrom gained information about the [petitioner’s] involvement in
       these crimes. The police arrested the [petitioner] in the early morning hours of
       January 22, 1996, and subsequently obtained a signed waiver and confession from
       him.

State v. Almeer Nance, No. E2000-00170-CCA-R3-CD (Tenn. Crim. App., at Knoxville, Oct. 23,
2001). Following a jury trial, the petitioner was convicted of felony murder, especially aggravated
robbery, two counts of especially aggravated kidnapping, and three counts of aggravated robbery.
The petitioner appealed the convictions to this court, challenging only the denial of his motion to
suppress. The convictions were affirmed on direct appeal. Id.

        In November 2002, the petitioner filed a pro se petition for post-conviction relief asserting
multiple instances of ineffective assistance of counsel at the juvenile, trial, and appellate levels.
Counsel was appointed, but no amended petition was filed. On its own motion, the post-conviction
court dismissed the petition for failure to prosecute in September 2005, and the petitioner appealed
the dismissal. Almeer Nance v. State, No. E2005-02265-CCA-R3-PC (Tenn. Crim. App., at
Knoxville, June 9, 2006). On appeal, this court reversed and remanded to the post-conviction court
with instructions to determine whether the delay in the case was caused by the bad faith of the
petitioner. Id. On remand, the post-conviction court determined that the petition should not have
been dismissed, and an evidentiary hearing was scheduled. At the hearing, only the petitioner and
trial counsel testified.

        The petitioner, who was twenty-nine years of age at the time of the hearing, testified that the
crimes were committed when he was sixteen years old. After a hearing in the juvenile court, his
case was transferred, and he was tried as an adult. Trial counsel was appointed to represent him
following a disagreement with the attorney who had represented him in juvenile court. According
to the petitioner, trial counsel only met with him on four or five occasions, and he felt that she was


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not prepared to try the case. The petitioner acknowledged that trial counsel had explained the crimes
for which he was charged and had filed a motion to suppress his confession to the police.

        The petitioner testified that he tried to explain to trial counsel what he believed would be his
defense, specifically that he wanted to testify at trial and explain to the jury that he also was a victim
of his co-defendant. The petitioner testified at the hearing that he knowingly participated in the first
robbery but, afterwards, attempted to distance himself from co-defendant Manning. However,
according to the petitioner, Manning threatened him nonverbally into participating in the subsequent
crimes. The petitioner stated that he was afraid because he was aware of Manning’s reputation and
knew that he had shot other people and was in possession of a gun. Manning testified at trial for the
defense and admitted that he had fired the shot that killed the victim in the murder case. He also
admitted that he had forced the petitioner to commit the crimes with him.

          The petitioner reiterated in his testimony at the hearing that he wanted to testify at trial but
stated that trial counsel did not want him to do so. He testified that he believed if he had testified
at trial, the outcome of the case would have been different. He admitted that trial counsel discussed
with him his right to testify and made him aware that, ultimately, the decision was his. However,
according to the petitioner, trial counsel never prepared him to testify and advised him against it.
According to the petitioner, he followed trial counsel’s advice even though he wanted to testify.

        Trial counsel testified, in contradiction to the petitioner, that both she and the two hired
investigators met with the petitioner on numerous occasions. She stated that she was aware of the
facts of the petitioner’s case and that she had procured co-defendant Manning to testify in the
petitioner’s behalf. According to trial counsel, she pursued a theory of defense that the co-defendant
forced the petitioner into committing the crimes. She also filed a motion to suppress the petitioner’s
confession and vigorously pursued it at all levels. According to trial counsel, this was the
petitioner’s strongest appealable issue, and it was the issue she chose to pursue on appeal to this
court because she felt she had a viable chance of prevailing. She acknowledged that she raised no
other issues on appeal and stated that she felt that the issues of severance and sufficiency of the
evidence did not have merit. She testified that it was her strategy to present only what she believed
to be the strongest issue on appeal so as not to detract from its merit.

       With regard to the petitioner’s right to testify, trial counsel stated that she discussed his right
with him on numerous occasions and made clear to him that it was ultimately his decision. She
acknowledged that she advised him that it would not be a good decision to testify because of his
temper and his immaturity, and she explained the reasoning behind her advice to the petitioner.

        After hearing the testimony presented, the post-conviction court found that the petitioner was
not entitled to post-conviction relief and denied the petition. The petitioner now appeals that denial.

                                                Analysis




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        On appeal, the petitioner raises the single issue of whether the post-conviction court erred
in concluding that he was not denied his Sixth Amendment right to the effective assistance of
counsel. Specifically, he contends that trial counsel was ineffective in: (1) misadvising him
regarding his right to testify; and (2) failing to raise the issues of sufficiency of the evidence and
severance on direct appeal. To succeed on a challenge of ineffective assistance of counsel, the
petitioner bears the burden of establishing the allegations set forth in his petition by clear and
convincing evidence. T.C.A. § 40-30-110(f) (2006). The petitioner 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, 466 U.S. 668, 687,
104 S. Ct. 2052 (1984), the petitioner must establish (1) deficient performance and (2) prejudice
resulting from the deficiency. The petitioner 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 proceedings. 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).

        It is unnecessary for a court to address deficiency and prejudice in any particular order or
even to address both if the petitioner makes an insufficient showing on either. Strickland, 466 U.S.
at 697, 104 S. Ct. at 2069. In order to establish prejudice, the petitioner must establish a “reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999) (quoting Strickland, 466 U.S. at 694, 104
S. Ct. at 2068).

        The issues of deficient performance by counsel and possible prejudice to the defense are
mixed questions of law and fact. Id. at 461. “[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.

I. Right to Testify

         First, the petitioner contends that trial counsel was ineffective because she advised him not
to testify at trial, advice which the petitioner claims “was wrong” “because he was a frail, immature
16 year old, when the crimes occurred” and because his best defense would have been “his own trial
testimony.” Though the petitioner acknowledges that he made the decision not to testify based upon
trial counsel’s advice, he contends that he did so only because he believed if he did not he would,
in effect, have no counsel and because counsel never prepared him to testify. Thus, the petitioner
argues that he had no alternative except to accept trial counsel’s advice.



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        Tennessee recognizes that a criminal defendant has a fundamental right to testify. Momon
v. State, 18 S.W.3d 152, 157 (Tenn. 2000). Moreover, the right may only be waived personally by
the defendant. Id. at 161; Vermilye v. State, 754 S.W.2d 82, 88 (Tenn. Crim. App. 1987) (“The
decision as to whether an accused should testify at trial rests with the accused, not defense
counsel.”). Initially, we note that the procedure adopted by the Tennessee Supreme Court in Momon
to ensure that a defendant has personally waived his right to testify has no application to this case.
The petitioner’s trial was held prior to our supreme court’s holding in Momon, and the court in
Momon expressly held that the procedures set forth “do not establish a new constitutional rule which
must be retroactively applied,” specifying that the procedure should be applied “in all cases tried or
retried after the date of this decision.” Momon, 18 S.W.3d at 162-63.

        At the conclusion of the post-conviction hearing, the court made the following findings:

               By [the petitioner’s] own testimony, the most important complaint he has is
        that he didn’t testify at his trial, and that if he had testified that he could have
        convinced the jurors that he operated under duress and that they would not have
        convicted him of felony murder.

                 But he’s also very candid - - [the petitioner] is very candid that he understood
        it was his right to make the decision about whether he testified or not; that he
        followed the advice of counsel, which counsel admits that she gave that he should not
        testify and explained to him why. And now he is here saying he wished he had done
        otherwise.

                This is not a situation where the Court can look and say with the benefit of
        hindsight he should have tried a different strategy because maybe that one would
        have worked. As long as [the petitioner] understood his rights at the trial which it’s
        clear he did, that it was his decision to make, it’s not ineffective assistance.

        The post-conviction court found that the petitioner understood that the decision to testify was
his decision and that the petitioner made that decision based upon trial counsel’s advice. Indeed,
both the petitioner and trial counsel specifically testified that the petitioner was aware that the
decision of whether he testified at trial was to be made by the petitioner. The petitioner’s argument
is essentially that trial counsel’s advice was uninformed and erroneous advice. We disagree.

         While trial counsel conceded that she advised the petitioner not to testify, merely informing
a client that it is in his best interest not testify does not equate to a denial of the right. Additionally,
it appears that the decision to so advise the petitioner was based upon trial counsel’s preparation and
observations of the petitioner and his inability to control his temper. Thus, as found by the post-
conviction court, it appears to have been a strategic decision formed in furtherance of the defense,
which was explained to the petitioner prior to his making his decision not to testify. As noted by the
trial court, it is not the function of the courts to second-guess trial strategy. Adkins, 911 S.W.2d at
347. Moreover, the same testimony was put before the jury through another witness, and the only


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evidence presented that the result of the trial would have been different was the petitioner’s own
assertions. Accordingly, we conclude that there is nothing in the record to preponderate against the
post-conviction court’s finding that trial counsel was not ineffective and that the petitioner personally
waived his right to testify.

II. Issues on Direct Appeal

        Next, the petitioner contends that trial counsel was ineffective by failing to raise the issues
of sufficiency of the evidence and severance of the offenses on direct appeal. According to the
petitioner, “[t]he reasons given by counsel, at the evidentiary hearing, for not presenting the issues
on appeal were weak” and “counsel by not presenting the issues for review, in effect, substituted
counsel’s opinion, as to this merits of the issues, for that of this court.”

        If a claim of ineffective assistance of counsel is based on the failure of counsel to raise a
particular issue on appeal, as is the case before us, then the reviewing court must determine the
merits of the omitted 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 (1986)). If the omitted issue has no
merit or is weak, then appellate counsel’s performance will not be deficient if counsel failed to raise
it on appeal. Id. Likewise, if the issue has no merit, then the petitioner suffered no prejudice from
the failure to raise the issue on appeal. Id.

        “[T]he determination of which issues to present on appeal is a matter of counsel’s
discretion.” State v. Swanson, 680 S.W.2d 487, 491 (Tenn. Crim. App. 1984). Further, “the failure
of counsel for a criminal defendant to argue every single issue that a case may present or to present
every issue in an appeal that a client may request is not per se ineffective assistance of counsel.” See
id. at 491. This court should evaluate the questionable conduct from counsel’s perspective at the
time of her conduct with “a strong presumption that [her] conduct falls within the wide range of
reasonable professional assistance.” Burns, 6 S.W.3d at 462. Counsel should not be deemed to have
been ineffective merely because a different procedure or strategy might have produced a different
result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). Moreover, this court
has held that “[c]ounsel is not constitutionally required to argue every issue on appeal, or to present
issues chosen by his client.” Swanson, 680 S.W.2d at 491. “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.” Kennath Henderson v. State, No. W2003-01545-CCA-R3-PD
(Tenn. Crim. App., at Jackson, June 28, 2005).

       With regard to the prejudice prong, the petitioner is required to demonstrate prejudice due
to appellate counsel’s error. In order to establish prejudice, the petitioner must show that, had
counsel raised the issue or issues asserted, there is a reasonable probability that his conviction would
have been reversed. Thus, we are required to examine the merits of the issues which were not raised
by appellant counsel on appeal. Carpenter, 126 S.W.3d at 887.



                                                  -6-
       In denying relief, the post-conviction court made the following findings:

               On the appellate issue, there was a strategy decision that was made. And this
       Court is not allowed to look behind strategic decisions, but even if I was allowed to
       do that, what [trial counsel] did was a proper strategic decision. That there’s one key
       issue she wanted to raise, and she made a decision that that would be most effective
       going to the appellate courts if she focused on that issue. That - - if she didn’t detract
       from that with other issues. And I think that’s a proper strategy.

               The insufficiency of the evidence is an issue that very seldom wins in front
       of the appellate courts. I think that can be shown just by a review of appellate court
       decisions. And I think she correctly looked at it and said that if you - - if the facts are
       strong in these cases that that would just take away from the issue. And she was
       clearly trying to be successful on the suppression issue. So I don’t think there’s
       ineffective assistance of appellate counsel shown either.

        Again, we find nothing in the record before us to preponderate against the post-conviction
court’s findings. Trial counsel specifically testified that, as a matter of strategy, she chose to raise
only the suppression issue on direct appeal because she felt that the petitioner had a good chance of
receiving relief on that issue. She stated that she did not want to detract from the issue she believed
to be most meritorious by raising the issues of sufficiency and severance, which she did not believe
were viable for relief on appeal. As found by the trial court, this is a solid strategic decision which
falls “within the wide range of reasonable assistance.” See Burns, 6 S.W.3d at 462.

        Moreover, we note that the petitioner has failed to establish the prejudice prong as well. He
offers no argument and cites to no authority as to why the sufficiency or the severance issue would
have been successful on appeal. Additionally, we note that the petitioner has failed to include a
record of the trial proceedings below or any motions filed; thus, we are precluded from fully
reviewing the merits of the two issues omitted on appeal. It is the petitioner’s burden to prove, by
clear and convincing evidence, that the issues which were not raised on appeal had merit and that
if they had been raised, there is a reasonable probability that the convictions would have been
reversed. The petitioner has failed to carry his burden of establishing that in this case.

                                           CONCLUSION

       Based upon the foregoing, the denial of post-conviction relief is affirmed.




                                                        ___________________________________
                                                         JOHN EVERETT WILLIAMS, JUDGE



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