        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs October 4, 2011

                   TRACY GLENN v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Gibson County
                     No. 8865        Clayburn L. Peeples, Judge


               No. W2011-00399-CCA-R3-PC - Filed January 11, 2012


The petitioner, Tracy Glenn, appeals the denial of her petition for post-conviction relief from
her Class E felony theft conviction, arguing that she was denied a fair trial and received
ineffective assistance of counsel because the jury was not instructed on facilitation as a
lesser-included offense. Following our review, we affirm the denial of the petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P.J., and
J AMES C URWOOD W ITT, J R., J., joined.

Joseph E. Tubbs, Humboldt, Tennessee, for the appellant, Tracy Glenn.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
Garry G. Brown, District Attorney General; and Jason Scott and Edward L. Hardister,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION

                                           FACTS

        On July 7, 2009, the Gibson County Grand Jury returned an indictment charging the
defendant with one count theft of property over $500, a Class E felony, for having
knowingly aided and assisted Latonya Croom in her theft of property from a Walmart store.
On March 2, 2010, the defendant was convicted by a Gibson County jury of the indicted
offense. She was subsequently sentenced by the trial court as a Range II, multiple offender
to three years and six months in the Department of Correction. She filed no direct appeal of
her conviction or sentence.
       The petitioner subsequently filed a pro se petition for post-conviction relief, followed
by an amended petition after the appointment of counsel, in which she raised the following
two claims: (1) that she was denied her right to the effective assistance of counsel due to
counsel’s having talked her out of accepting a plea offer from the State; and (2) that she was
denied her right to a fair trial “due to the failure to charge the jury” on the lesser-included
offense of facilitation.

        Although the petitioner presented proof and argued both claims at the evidentiary
hearing, on appeal she confines herself to arguing that she was denied the effective assistance
of counsel and a fair trial due to counsel’s failure to request that the jury be instructed on
facilitation as a lesser-included offense.

       The petitioner did not include the transcript of her trial in the record on appeal. From
the evidentiary hearing testimony, however, we have gleaned that the State presented
evidence at trial, in the form of the store’s surveillance tape and the testimony of a police
officer, to show that the petitioner was involved with Croom in shoplifting a number of items
from the store, which ended up in the petitioner’s vehicle.

        When asked at the evidentiary hearing why she had not accepted the State’s offer of
eleven months and twenty-nine days in exchange for a guilty plea to misdemeanor theft, the
petitioner replied: “Because I never took nothing out of the store and the definition of theft
is to deprive or conceal and the camera never showed me any time depriving or concealing
anything in Walmart and that’s why I went to trial.” The petitioner added that trial counsel
also advised her not to take the offer, telling her that she would be facing essentially the same
amount of time if she lost at trial. She said that trial counsel never spoke to her about the jury
instructions and that she simply assumed he would represent her to the best of his ability. On
cross-examination, the petitioner acknowledged that she had prior convictions for aggravated
robbery, six counts of forgery, and theft under $500.

       The petitioner’s fiancé, Gregory Lenon, who said he was present at every meeting that
the petitioner had with counsel, testified that trial counsel never discussed lesser-included
offenses or any trial strategy of not requesting a lesser-included offense.

       The petitioner’s trial counsel testified that the petitioner chose to go to trial rather than
accept the plea offer because she wanted to be able to watch her daughters, who were stars
on their school basketball team, finish their season. The petitioner also believed that her co-
defendant would prove her innocent by testifying that she alone was responsible for the theft.
When it came down to trial, however, the co-defendant instead testified that the petitioner
might have been aware of the stolen clothes that she put in the backseat of the petitioner’s
car.

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      Trial counsel testified that he did not request an instruction on facilitation because his
defense strategy consisted of attempting to show that the petitioner had no knowledge of
Croom’s theft of items from the store. He explained:

              Right; and there wasn’t any lesser offense to it because she claimed she
       didn’t know, she picked up the co-defendant on the way to Walmart. They get
       out at Walmart. They both go in. They have cameras on them and, of course,
       the jury believed that they got together at various times because the co-
       defendant would push her buggy back to where [the petitioner’s] buggy was
       and then they would swap stuff in the buggies.

       Trial counsel testified that, after the trial, Lenon and the petitioner told him that they
were discharging him and hiring attorney Jim Webb to handle the appeal. Webb, however,
never filed an appeal, which trial counsel believed was due to his not having been paid.

       On April 19, 2011, the post-conviction court entered a written order denying the
petition in which it found, among other things, that trial counsel provided effective
representation and that the issue regarding the lack of a jury instruction on facilitation should
have been raised on direct appeal and, thus, was not properly before the post-conviction
court. This appeal followed.

                                         ANALYSIS

       The post-conviction petitioner bears the burden of proving his allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2006). 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 Tidwell v. State,
922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely factual issues,
the appellate court should not reweigh or reevaluate the evidence. See Henley v. State, 960
S.W.2d 572, 578 (Tenn. 1997). However, review of a trial 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 issues of deficient performance of counsel and possible
prejudice to the defense are mixed questions of law and fact and, thus, subject to de novo
review by the appellate court. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

       In order to determine the competence of counsel, Tennessee courts have applied
standards developed in federal case law. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn.
Crim. App. 1997) (noting that the same standard for determining ineffective assistance of
counsel that is applied in federal cases also applies in Tennessee). The United States
Supreme Court articulated the standard in Strickland v. Washington, 466 U.S. 668 (1984),

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which is widely accepted as the appropriate standard for all claims of a convicted petitioner
that counsel’s assistance was defective. The standard is firmly grounded in the belief that
counsel plays a role that is “critical to the ability of the adversarial system to produce just
results.” Id. at 685. 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.

Id. at 687. The Strickland Court further explained the meaning of “deficient performance”
in the first prong of the test in the following way:

       In any case presenting an ineffectiveness claim, the performance inquiry must
       be whether counsel’s assistance was reasonable considering all the
       circumstances. . . . No particular set of detailed rules for counsel’s conduct
       can satisfactorily take account of the variety of circumstances faced by defense
       counsel or the range of legitimate decisions regarding how best to represent a
       criminal defendant.

Id. at 688-89. The petitioner must establish “that counsel’s representation fell below an
objective standard of reasonableness under prevailing professional norms.” House v. State,
44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

        As for the prejudice prong of the test, the Strickland Court stated: “The defendant
must show that there is 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.” 466 U.S. at 694; see also
Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994) (concluding that petitioner failed to
establish that “there is a reasonable probability that, but for counsel’s errors, the outcome of
the proceedings would have been different”).

       Courts need not approach the Strickland test in a specific order or even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S.
at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency or
prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”).




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        We note that when post-conviction proceedings have included a full evidentiary
hearing, as was true in this case, the trial judge’s findings of fact and conclusions of law are
given the effect and weight of a jury verdict, and this court is “bound by the trial judge’s
findings of fact unless we conclude that the evidence contained in the record preponderates
against the judgment entered in the cause.” Black v. State, 794 S.W.2d 752, 755 (Tenn.
Crim. App. 1990). The reviewing court must indulge a strong presumption that the conduct
of counsel falls within the range of reasonable professional assistance, see Strickland, 466
U.S. at 690, and may not second-guess the tactical and strategic choices made by trial counsel
unless those choices were uninformed because of inadequate preparation. See Hellard v.
State, 629 S.W.2d 4, 9 (Tenn. 1982). The fact that a strategy or tactic failed or hurt the
defense does not alone support the claim of ineffective assistance of counsel. See Thompson
v. State, 958 S.W.2d 156, 165 (Tenn. Crim. App. 1997). Finally, a person charged with a
criminal offense is not entitled to perfect representation. See Denton v. State, 945 S.W.2d
793, 796 (Tenn. Crim. App. 1996). As explained in Burns, 6 S.W.3d at 462, “[c]onduct that
is unreasonable under the facts of one case may be perfectly reasonable under the facts of
another.”

        The petitioner frames her issue on appeal as whether “the failure to charge the jury
on lesser included offenses [is] an issue that can be raised for the first time in a Petition for
Post-Conviction Relief.” Essentially, though, she argues two separate issues in her brief:
first, whether she was denied the right to a fair trial and due process by the trial court’s
failure to charge the jury on facilitation; and, second, whether trial counsel was deficient in
his representation, thereby prejudicing the outcome of her case, by his failure to request the
instruction.

       The petitioner contends that she had no opportunity to raise the lack of a jury
instruction on facilitation as an issue in any prior proceeding because trial counsel failed to
request the instruction in writing, as required for direct appeal review under Tennessee Code
Annotated section 40-18-110(c). The State disagrees, arguing that the post-conviction court
properly found that the issue was waived for post-conviction review because it could have
been litigated on direct appeal. We agree with the State.

       As the State points out, trial counsel’s failure to request the instruction would not have
precluded the petitioner from seeking plain error review of the issue on direct appeal.
Furthermore, the petitioner did not offer any evidence, either in the form of her own
testimony or that of her appellate counsel, as to why she did not file a direct appeal of her
conviction. We, therefore, agree with the State that there is no proof that the petitioner, a
woman with multiple prior convictions who was unquestionably familiar with the judicial
system, was denied the right to a direct appeal such as would warrant the granting of a
delayed appeal in the case.

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        The petitioner further contends that trial counsel provided ineffective assistance by
his failure to request that the jury be instructed on facilitation as a lesser-included offense of
theft. With respect to this issue, the post-conviction court found that, under the facts of the
case, counsel’s failure to request the instruction “could have been a logical determination by
an attorney,” and, thus, did not constitute a deficiency in representation. The record fully
supports the findings and conclusions of the post-conviction court. Trial counsel explained
that his trial defense strategy consisted of attempting to show that the petitioner had no
knowledge of her companion’s theft of items from the store. Under such circumstances, a
facilitation instruction would not have been warranted. The petitioner has not, therefore,
shown either a deficiency in counsel’s representation or that she was prejudiced as a result.

                                       CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the denial of the petition
for post-conviction relief.


                                                     _________________________________
                                                     ALAN E. GLENN, JUDGE




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