         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs August 8, 2006

                 EARL RAY TROTTER v. STATE OF TENNESSEE

                   Direct Appeal from the Circuit Court for Bedford County
                                No. 10509 Lee Russell, Judge



                     No. M2005-02905-CCA-R3-PC - Filed October 5, 2006



The petitioner, Earl Ray Trotter, pled guilty in the Bedford County Circuit Court to attempted second
degree murder, especially aggravated burglary, and especially aggravated robbery. He received a
total effective sentence of twenty-five years incarceration in the Tennessee Department of
Correction. Thereafter, the petitioner filed a petition for post-conviction relief, alleging that his trial
counsel was ineffective. The post-conviction court denied the petition, and the petitioner now
appeals. Upon review of the record and the parties’ briefs, we affirm the judgment of the post-
conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR.,
and J.C. MCLIN , JJ., joined.

Karla D. Ogle, Fayetteville, Tennessee, for the appellant, Earl Ray Trotter.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General;
William Michael McCown, District Attorney General; and Michael D. Randles, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                               OPINION

                                       I. Factual Background

        The petitioner was indicted by the Bedford County Grand Jury for attempted second degree
murder, especially aggravated burglary, and especially aggravated robbery. On January 20, 2005,
the petitioner pled guilty to all charges with no agreement regarding sentencing. At the guilty plea
hearing, the State recited the factual basis for the plea. The State contended that the petitioner and
two co-defendants, Kenny Porter and Ellis Baucom, Jr., decided to rob an elderly gentleman, Claude
Thomas, who lived alone in the country. The men believed that the victim had “guns and other
things of value and a large sum of money that he kept in his house.” Late in the evening of June 26,
2004, the men went to the victim’s residence and knocked on his door. When the victim opened the
door, the men went in and demanded money. The victim gave the men his wallet, in which was a
large sum of money, but the men were not satisfied. Baucom held a gun on the victim while the
petitioner searched the house. The victim was “pistol whipped” during the search. At some point,
the victim managed to grab one of his guns. The petitioner fired two shots at the victim, striking him
once in the face causing very serious injuries. Ultimately, the investigation focused on the petitioner
and his co-defendants. The State concluded the recitation of facts by stating:

                  All three [perpetrators] were interviewed and they all implicated
                  themselves and one another including this defendant having given a
                  statement implicating that he did go in with the intent to rob Mr.
                  Thomas. That he – when Mr. Thomas attempted to defend himself,
                  that he did fire a shot that struck Mr. Thomas in the face. He did take
                  some of the money at force from Mr. Thomas.

The petitioner agreed with the State’s recitation, explicitly admitting to the trial court his complicity
in the crimes. At the conclusion of the guilty plea hearing, the trial court scheduled a sentencing
hearing for March 21, 2005.

       On the date of the sentencing hearing, the petitioner agreed to accept a sentence of nine years
each for attempted second degree murder and especially aggravated burglary conviction. The
agreement provided that the petitioner was to serve thirty percent of these sentences in confinement
before becoming eligible for release. Additionally, the petitioner agreed to accept a sentence of
twenty-five years for the especially aggravated robbery conviction, one hundred percent of which
he was to serve in confinement. All three sentences were to be served concurrently with each other
but consecutively to an outstanding sentence in Sumner County. The trial court accepted the
agreement.

        Subsequently, the petitioner filed a petition for post-conviction relief, alleging, among other
things, numerous allegations of ineffective assistance.1 At the post-conviction hearing, the
petitioner’s trial counsel testified that he met with the petitioner three times prior to the entry of the
guilty pleas. Counsel stated that he was appointed to the petitioner’s case after another attorney had
been removed. Counsel reviewed the discovery provided to the previous attorney. The discovery
materials included crime scene photographs and medical records. However, there was no DNA
evidence to connect the petitioner with the crimes. Counsel felt that he had a good understanding
of the State’s case against the petitioner. Counsel discussed in detail with the petitioner the available
defenses, the likelihood of conviction, and the possible punishments the petitioner could receive
upon conviction.




        1
            All issues except the ineffectiveness of counsel have been abandoned on appeal.

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        Counsel conceded that he did not visit the crime scene. He stated that he had planned to
argue for mitigating the petitioner’s sentence at the sentencing hearing, but the petitioner entered into
an agreement regarding his sentences.

        Counsel said that he did not present any character witnesses for the petitioner because the
petitioner did not want “a hearing.” Additionally, counsel did not ask for a mental evaluation of the
petitioner because the petitioner did not seem to need an evaluation. Counsel was aware that the
petitioner used drugs, specifically noting that the petitioner used drugs on the night of the offenses.

        Counsel asked the petitioner about his statement to police. The petitioner stated that he had
been advised of his Miranda rights, he understood those rights, and he waived his rights before
giving the statement. The petitioner did not indicate that he was under the influence of an
intoxicating substance at the time he gave his statement to police. Counsel stated that he could find
no basis on which to file a motion to suppress the statement. Counsel said that he did not file any
other pretrial motions.

         Counsel stated that he knew the victim had been shown a photographic lineup, and counsel
had examined the pictures used in the lineup. Counsel acknowledged that the victim identified
someone other than the petitioner from the lineup; however, counsel said that other than discussing
the issue with the petitioner, he was unsure of how he could have pursued the identification issue
further. Counsel conceded that he did not speak with Stephen Patrick Gossey, the person who had
been identified by the victim. Counsel stated, “It certainly would have been a defense if [Gossey]
did it, but considering [the petitioner] was saying I did it, I didn’t see any need to talk to anyone
else.”

        Counsel said that he did legal research in connection with the petitioner’s case, including
researching the elements of the crimes charged and sentencing. Counsel also said that he would have
investigated any witnesses or pursued any leads suggested by the petitioner. However, the petitioner
never asked counsel to speak with additional witnesses. Counsel asserted, “If he’d asked me to do
something, I usually do it.”

         Counsel stated that he could not recall if he investigated any witnesses who were not
identified by the petitioner, but he was sure that he never spoke with the victim. Counsel did not
speak with the petitioner’s co-defendants, but he did speak with their attorneys. Counsel stressed
that the petitioner never denied his involvement in the crimes; in fact, the petitioner gave a statement
to police detailing his role in the crimes. Counsel maintained that the petitioner never indicated that
he wanted to go to trial. Counsel recalled that the petitioner’s statement to police was a “big part”
of the decision to enter guilty pleas. Counsel asserted that the petitioner “was just looking to get the
best deal he could.”

        Counsel recalled that prior to entry of the petitioner’s guilty pleas, the State offered to allow
the petitioner to plead guilty to the charged offenses in exchange for a sentence of thirty-five years,
one hundred percent of which would be served in confinement. The petitioner rejected that offer and


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countered with an offer to plead guilty to the offenses if the accompanying sentences required that
he serve no more than fifteen years. The State rejected the petitioner’s offer and countered with a
proposal for an accompanying sentence of twenty-five years, with one hundred percent of the
sentence to be served in confinement. The petitioner also rejected that offer and decided to enter
open guilty pleas to the offenses and allow the trial court to determine the length of the sentences.
However, on the day of the sentencing hearing, the petitioner agreed to a total effective sentence of
twenty-five years to be served at one hundred percent. Counsel stated that the petitioner had been
aware of the offer of twenty-five years for at least several days prior to accepting the sentence.

        Counsel recalled that the district attorney’s office sent him a copy of a letter that the
petitioner had submitted to the district attorney after the entry of his guilty pleas but prior to the
sentencing hearing. In the letter, the petitioner asked if the State would agree to a sentence of
twenty-five years, with release eligibility after service of eighty-five percent of the sentence.
Counsel stated that he told the petitioner that with a sentence requiring that one hundred percent be
served in confinement, the petitioner could potentially earn fifteen percent “good time” credits.
Nevertheless, he cautioned the petitioner to assume that a one hundred percent sentence would have
to be served completely in confinement because a fifteen percent reduction in sentence was a
possibility but was not guaranteed.

        The petitioner testified that he spoke with counsel two or three times prior to entering his
guilty pleas. He stated that “all [counsel] did was went over the motion discovery.” Counsel told
the petitioner that the State offered to allow him to plead to a sentence of thirty-five years to be
served at one hundred percent. The petitioner asked counsel to try for a lower sentence. Counsel
then advised the petitioner that a sentence of twenty-five years at one hundred percent was the
shortest sentence the State would accept.

       Regarding the photographic lineup, the petitioner said:

                       The only thing that was missing was that they had pictures or
               a photograph that looked like me and that they showed me a photo
               lineups of me in the photo lineup, but at no point or time did it say
               that the victim could identify me in any picture of me.

The petitioner stated that there was no physical evidence linking him to the crimes. The petitioner
maintained that counsel did not interview the State’s witnesses nor did he file any motions. The
petitioner said that he was relying on counsel’s advice in the case. The petitioner claimed that he
did not feel that he had been adequately represented and would like the opportunity to go to trial.

        The petitioner testified, “I don’t recall telling [counsel] anything about it, but there was an
incident when being questioned in the Sumner County Jail by the TBI agents that I was under the
influence of drugs.” The petitioner alleged that was “the statement that they got on me.” The
petitioner said that counsel asked him if he was under the influence of an intoxicating substance at
the time he gave his statement; however, the petitioner said that he never informed counsel that he


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was under the influence of drugs or alcohol at the time he gave his statement to police. The
petitioner acknowledged that he had been incarcerated for two or three months prior to giving his
incriminating statement to police.

       The petitioner testified that he had only a limited amount of time to consider the State’s offer
of twenty-five years because he was “in court when they presented it to me.” However, on cross-
examination, he admitted that one month before he accepted the offer, he wrote a letter to the district
attorney’s office requesting a sentence of twenty-five years to be served at eighty-five percent.
Thereafter, the petitioner acknowledged that he was not rushed into accepting the sentence.

        The petitioner said that trial counsel advised him that the sentencing agreement called for
service of one hundred percent of the sentence in confinement. The petitioner acknowledged that
counsel never told him that he would be able to serve only eighty-five percent of the sentence in
confinement. The petitioner was not informed that he could potentially earn fifteen percent good
time credits. He said, “[A]s for right now and while I was in court, all I can do was 100 percent.
That’s what I was going to do.”

        At the conclusion of the post-conviction hearing, the post-conviction court denied the petition
for relief. The court found that the petitioner did not meet his burden of establishing the
ineffectiveness of counsel by clear and convincing evidence. On appeal, the petitioner contests the
post-conviction court’s ruling.

                                             II. Analysis

         To be successful in his claim for post-conviction relief, the petitioner must prove all factual
allegations contained in his post-conviction petition by clear and convincing evidence. See Tenn.
Code Ann. § 40-30-110(f) (2003). “‘Clear and convincing evidence means evidence in which there
is no serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999) (quoting Hodges v. S.C.
Toof & Co., 833 S.W.2d 896, 901 n.2 (Tenn. 1992)). Issues regarding the credibility of witnesses,
the weight and value to be accorded their testimony, and the factual questions raised by the evidence
adduced at trial are to be resolved by the post-conviction court as the trier of fact. See Henley v.
State, 960 S.W.2d 572, 579 (Tenn. 1997). Therefore, we afford the post-conviction court’s findings
of fact the weight of a jury verdict, with such findings being conclusive on appeal absent a showing
that the evidence in the record preponderates against those findings. Id. at 578.

        A claim of ineffective assistance of counsel is a mixed question of law and fact. See State
v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s findings of
fact de novo with a presumption that those findings are correct. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001). However, we will review the post-conviction court’s conclusions of law purely
de novo. Id.




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        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, “the petitioner bears the burden of proving both that counsel’s performance was deficient
and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)). To establish
deficient performance, the petitioner must show that counsel’s performance was below “the range
of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). To establish prejudice, the petitioner 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.”
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Additionally,

               [b]ecause a petitioner must establish both prongs of the test, a 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 [petitioner] makes an insufficient showing of one
               component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697, 104 S. Ct. at 2069). Moreover, in the
context of a guilty plea, “the petitioner must show ‘prejudice’ by demonstrating that, but for
counsel’s errors, he would not have pleaded guilty but would have insisted upon going to trial.”
Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998); see also Hill v. Lockhart, 474 U.S.
52, 59, 106 S. Ct. 366, 370 (1985).

         On appeal, the petitioner alleges that counsel was ineffective because he failed to interview
witnesses, investigate the case, follow up on an alternate person being identified from a photographic
lineup, pursue the lack of physical evidence against the petitioner, meet with the petitioner more than
three times, request a hearing, file pretrial motions, ask the petitioner if he was under the influence
at the time of his statement, and advise the petitioner regarding sentencing reductions.

        We note that trial counsel testified that he asked the petitioner if he was under the influence
of any intoxicating substance at the time of his statement, and the petitioner said that he was not.
Additionally, counsel stated that he advised the petitioner that he could potentially earn a fifteen
percent reduction in his sentence but such a reduction was not guaranteed. Moreover, while the
petitioner complains about counsel’s lack of investigation, failure to file motions, failure to meet
more frequently with the petitioner, or request a hearing, the petitioner does not state what could
have been accomplished had such measures taken place. The petitioner did not testify regarding any
witnesses that counsel should have investigated or any proof counsel should have uncovered.
Generally, “[w]hen a petitioner contends that trial counsel failed to discover, interview, or present
witnesses in support of his defense, these witnesses should be presented by the petitioner at the
evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). We may not
speculate on what benefit witnesses might have offered to the petitioner’s case, nor may we guess
as to what evidence further investigation may have uncovered. Id. The petitioner put on absolutely


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no proof to indicate what prejudice he suffered as a result of any alleged deficiency on the part of
counsel. Therefore, the petitioner has failed to establish that he is entitled to relief.

                                         III. Conclusion

       Finding no error, we affirm the judgment of the post-conviction court.


                                                      ___________________________________
                                                      NORMA McGEE OGLE, JUDGE




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