         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs December 10, 2003

               RICKY HILL KRANTZ v. STATE OF TENNESSEE

                Direct Appeal from the Criminal Court for Davidson County
                        No. 94-A-21    J. Randall Wyatt, Jr., Judge



                   No. M2002-02978-CCA-R3-PC - Filed February 27, 2004


The Appellant, Ricky Hill Krantz, appeals the dismissal of his petition for post-conviction relief by
the Davidson County Criminal Court. Krantz is currently incarcerated as a result of his jury
convictions for first degree felony murder and aggravated assault. On appeal, Krantz raises the
single issue of whether he received ineffective assistance of counsel at trial. After review of the
issue, the judgment of the post-conviction court is affirmed.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which GARY R. WADE, P. J., and DAVID
H. WELLES, J., joined.

Michael A. Colavecchio, Easterly & Associates, Nashville, Tennessee, for the Appellant, Ricky Hill
Krantz.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Jennifer L.
Bledsoe, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and
Dan Hamm and Katrin Miller, Assistant District Attorneys General, for the Appellee, State of
Tennessee.


                                            OPINION

                                       Factual Background

        The Appellant is currently incarcerated as a result of his convictions for the felony murder
of Dan Newland and the aggravated assault of Gary Dean Harris. After an evening of socializing
at the Next Door Tavern in Nashville, the Appellant challenged another patron, Kevin Williams, to
arm wrestle him with money being wagered on the contest. Williams won the match. In a rematch,
the Appellant grabbed Williams’ hand and slapped it down on the bar before the match began. The
Appellant then picked up the money and began to leave, but was grabbed by Jack Speakman, a friend
of Williams, and thrown to the floor. Williams recovered his money from the Appellant while the
Appellant was on the floor. Upon leaving the tavern, the Appellant angrily told Speakman, “I’ll be
back to kill you, you S.O.B.” Another witness at the tavern overheard the Appellant exclaim that
he was going to get a gun and, when he came back, he would kill Speakman and Williams.
Approximately thirty to forty minutes later, the Appellant returned with a shotgun. The Appellant
entered the door of the tavern and fired two shots, one fatally striking Newland and the other striking
Harris, resulting in serious bodily injury.

        On direct appeal, this court found in a challenge to the sufficiency of the evidence that the
“evidence establishes beyond a reasonable doubt that the [Appellant] recklessly killed Dan Newland
during the attempted murder of Williams. See Tenn. Code Ann. § 39013-202(a)(2) (1991).”1 State
v. Ricky Hill Krantz, No. 01C01-9406-CR-00207 (Tenn. Crim. App. at Nashville, Jan. 7, 1998).

                                                        Analysis

        The Appellant was charged with felony murder in that he recklessly killed Danny Newland
during the attempt to perpetrate first degree murder. See Tenn. Code Ann. § 39-13-202(a)(2) (1991)
(repealed 1995). On appeal, the Appellant argues that trial counsel was ineffective for failing “to
make clear to the jury that the only way to find a defendant guilty under the felony murder rule was
to find that the [Appellant] killed a person while also either committing, or attempting to commit,
the crime of first degree murder, an act of terrorism, arson, rape, robbery, burglary, theft, kidnapping,
aggravated child abuse, aggravated child neglect, or aircraft piracy.”

        The Appellant’s argument that he “was never found guilty of any of the underlying felonies
proscribed (sic) under the statute” is clearly misplaced. The Appellant was convicted of the
underlying felony of attempting to commit the crime of first degree murder of Kevin Williams.
Again, as noted by this court in the direct appeal, “[based upon the evidence] the jury was entitled
to conclude that the [Appellant] recklessly killed Newland while acting with premeditation and
deliberation in attempting to kill Williams, carrying out his actions with a cool purpose.” Ricky Hill
Krantz, No. 01C01-9406-CR-00207.

       Our supreme court held in Millen v. State, 988 S.W.2d 164, 167-68 (Tenn. 1999), that when
prosecuting an “unintended victim case,” as was the situation in this case, “felony murder would
appear to be the most appropriate application of the [first degree murder] statute.”

         The plain meaning of the felony murder statute is that a killing in the course of an
         attempted first degree murder is first degree felony murder. If the prosecution
         establishes that a defendant attempts to commit the premeditated and deliberate first


         1
           At the time of this offense, first degree felony murder was defined as “[a] reckless killing of another committed
in the perpetration of, or attempt to perpetrate any first degree murder, arson, rape, robbery, burglary, theft, kidnapping
or aircraft piracy.” Tenn. Code Ann. § 39-13-202(a)(2) (1991) (as codified in Tenn. Code Ann. § 39-13-202(a)(2)
(2003), the offense no longer includes the element of “reckless”).

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       degree murder of a specific victim but instead kills an unintended victim, the
       defendant may be guilty of first degree felony murder. This result is plain from the
       statutory definition of the crime, without resort to the legal fiction of transferring the
       defendant’s intent from the intended victim to another.

Id. To succeed on a challenge of ineffective assistance of counsel, the Appellant bears the burden
of establishing the allegations set forth in his petition by clear and convincing evidence. Tenn. Code
Ann. § 40-30-110(f) (2003).

        Before we can find ineffective assistance of counsel, we must first find deficient
performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). In
support of his ineffective assistance claim, the Appellant argues that his conviction for felony murder
was not predicated upon any of the statutorily enumerated felonies of Tennessee Code Annotated
section 39-13-202. As previously noted, this court on direct appeal and the record in this case
establish that this allegation is unfounded. Because we conclude that trial counsel’s representation
was not deficient with regard to the issue presented, we find the allegation of ineffective assistance
without merit. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. Accordingly, no relief is warranted.

                                          CONCLUSION

       Based upon the foregoing, the Davidson County Criminal Court’s dismissal of the
Appellant’s post-conviction petition is affirmed.




                                                        ___________________________________
                                                        DAVID G. HAYES, JUDGE




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