                                                                                         04/13/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                          Assigned on Briefs April 3, 2018

             ANTONIO CRENSHAW v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                     No. 12-05228       Lee V. Coffee, Judge
                     ___________________________________

                          No. W2017-00940-CCA-R3-PC
                      ___________________________________


Antonio Crenshaw (“the Petitioner”) appeals the Shelby County Criminal Court’s denial
of post-conviction relief from his conviction of robbery, for which he was sentenced to
fifteen years’ incarceration. On appeal, the Petitioner contends that he was denied the
effective assistance of counsel during trial. Upon review, we affirm the judgment of the
post-conviction court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and J. ROSS DYER, JJ., joined.

Ernest J. Beasley, Memphis, Tennessee, for the appellant, Antonio Crenshaw.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Alanda Dwyer and
Kevin McAlpin, Assistant District Attorneys General, for the appellee, State of
Tennessee.


                                       OPINION

                         Factual and Procedural Background

                                          Trial

      On direct appeal, this court summarized the facts presented at trial as follows:
       Cyrine Howard testified that on February 17, 2012, she was the store
manager of a Roses Department Store in Memphis. On the morning of
February 17, 2012, Monica Foster, one of the office managers, informed
Howard that a man, later identified as [the Petitioner], had “got[ten]
something,” which meant that [the Petitioner] was attempting to steal
merchandise. Although Howard did not know [the Petitioner’s] name, she
recognized him as a regular customer at the store. Howard said that when
she had seen [the Petitioner] in the store on prior occasions, he was
“walking real slow, and he’d just look around. So I thought he was on
medication or something.” When Howard was asked if she believed [the
Petitioner] was “up to something” on those previous occasions, Howard
responded, “No ma’am. I just thought he was sick or something, he was on
medication.” She added, “He had been in the store lots of times, so I didn’t
think anything about it. I just thought he was a regular customer.”

       When Foster informed Howard that [the Petitioner] was attempting
to take some merchandise without paying for it, Howard looked up from
the work she was doing. The store’s cashier, Mary Blaire, approached [the
Petitioner], who had a trash can full of clothing, and told him to leave it
there. When Howard saw that [the Petitioner] was not going to leave the
items, she ran to the entrance of the store to stop him from leaving the store
with the store’s merchandise, which included both the trash can and the
clothing. As soon as she got there, Howard told [the Petitioner] to leave the
merchandise, and [the Petitioner] informed her that he was not going to
leave it. Howard said that at that point “[the Petitioner] pushed the trash
can up against me, and we went to tussling over the trash can.” She added,
“I thought [the Petitioner] was going to turn loose and hit me, but he
didn’t.” Howard said she believed [the Petitioner] was going to hit her
when he attempted to exit the store’s second door to the outside.

        [The Petitioner] refused to release the trash can and informed
Howard that he was going to keep the trash can and its contents. During
the struggle over the trash can, Foster approached them, and Howard asked
her if she was going to help her. Howard said she was unable to hold her
grip on the trash can because [the Petitioner] was relentlessly pulling on it.
Finally, [the Petitioner] snatched the trash can from Howard, ran out of the
store, and threw the trash can and its contents into the back seat of a black
Chrysler 300 that was waiting nearby. [The Petitioner] jumped inside the
passenger seat of the car, which immediately drove away from the scene.
Howard identified [the Petitioner] at trial as the man who had taken the
merchandise from the store on February 17, 2012. A surveillance
                                    -2-
videotape, which depicted [the Petitioner] during the incident on February
17, 2012, was shown to the jury.

       Howard later identified [the Petitioner] from a police photographic
lineup. Several days after Howard identified [the Petitioner] in this lineup,
[the Petitioner] approached Howard at the store, told her his name was
Tony, and asked her not to press charges against him. Because Howard
was frightened that [the Petitioner] might hurt her, she began talking to him
about turning his life around. A few days later, Howard told the prosecutor
about [the Petitioner] returning to the store and about the details of their
conversation.

       Near the end of Howard’s testimony, the trial court relayed the
following question to Howard from a juror: “What made you feel as though
[the Petitioner] was going to hit you?” Howard replied, “He said he wasn’t
going to let [the trash can with the merchandise] go when I asked him to
leave it. And as me being a woman and him being a male, I assumed he
would try to hit me. But he didn’t.”

       Monica Foster testified that on February 17, 2012, she was working
at the Roses Department Store in Memphis when she observed [the
Petitioner] pulling a garbage can full of merchandise. She told Howard that
[the Petitioner] “ha[d] something,” and Blaire, the cashier, told [the
Petitioner] to stop, although he continued with the merchandise to the front
of the store. Howard approached [the Petitioner], and Foster followed
behind. Foster said Howard told [the Petitioner] to drop the garbage can,
and he refused. At that point, [the Petitioner] and Howard began fighting
over the garbage can. Foster said that she was unable to grab onto the
garbage can because of the way they were fighting over it.

       When asked if she thought [the Petitioner] was going to hurt
Howard, Foster replied, “The way I was looking—I was like—I didn’t
know what [the Petitioner] was going to do, but he was determined to get
the garbage can.” When asked if she was afraid or was watching what was
happening, she said, “Well, I [was] watching. I was hoping he wasn’t
going to do anything to her, you know.” Foster said that during the
altercation, nearly six hundred dollars of clothing fell out of the garbage
can. Despite this, Foster said the garbage can was still nearly full of
merchandise when [the Petitioner] exited the store with it. After [the
Petitioner] fled with the merchandise, Foster notified the police that [the
Petitioner] had dropped his hat and a business card during the incident.
                                    -3-
               Nancy Trentham, an officer with the Memphis Police Department,
       testified that she collected a black hat and a business card with Officer
       Croom’s name on it from the Roses Department Store when she
       investigated this case on February 17, 2012. She later contacted Officer
       Croom to notify him that his business card was found at the crime scene.

               Joshua Croom, an officer with Organized Crime Unit of the
       Memphis Police Department, testified that he first met [the Petitioner]
       during a traffic stop just prior to midnight on February 16, 2012. During
       this stop, [the Petitioner] told Officer Croom that he needed a job to make
       some money, and Officer Croom made him an offer to work as a
       confidential informant for his unit and gave him his business card. Officer
       Croom identified the card collected by Officer Trentham as one of his
       business cards. When he gave [the Petitioner] his business card, he wrote
       down [the Petitioner’s] name and date of birth. A few hours later, he
       received a call from Officer Trentham that his business card had been found
       at the scene of a robbery. Officer Croom later reviewed a surveillance
       videotape from the Roses Department Store and identified [the Petitioner]
       as the man in the videotape and as the man to whom he gave his card
       during the traffic stop. He noted that [the Petitioner] was wearing the same
       clothes in the videotape as he had been wearing during the traffic stop.

               Dexter Moses, a lieutenant with the Memphis Police Department,
       testified that in February 2012 he worked in the Robbery Bureau. When he
       learned that Officer Croom’s business card had been found at the scene of a
       robbery at the Roses Department Store on February 17, 2012, he contacted
       Officer Croom to see if he had recently talked to someone about being a
       confidential informant. He then asked Officer Croom to look at the
       surveillance videotape from the robbery. Based on Officer Croom’s
       information, Lieutenant Moses compiled a photographic lineup, which he
       presented to Howard. He stated that Howard immediately identified [the
       Petitioner] in the lineup and that he later issued an arrest warrant for [the
       Petitioner].

State v. Antonio Crenshaw, No. W2014-01367-CCA-R3-CD, 2015 WL 2447717, at *1-3
(Tenn. Crim. App. May 22, 2015) (footnote omitted), perm. app. denied (Tenn. Sept. 18,
2015). Based on this evidence, the jury convicted the Petitioner of robbery, and the trial
court sentenced the Petitioner, as a Range III persistent offender, to fifteen years. Id. at
*1. This court affirmed the Petitioner’s judgment of conviction on direct appeal, and the
Tennessee Supreme Court denied the Petitioner’s application for further review. Id.
                                           -4-
                               Post-Conviction Proceedings

      The Petitioner filed a timely pro se petition for post-conviction relief. Following
the appointment of counsel, the Petitioner filed an amended petition. At the post-
conviction hearing, the post-conviction court initially explained:

              My recollection is this case was transferred from Division X. I
       believe [the Petitioner] had actually entered a guilty plea in Division X to a
       much lesser sentence. [The Petitioner] [c]onvinced Judge Beasley that he
       wanted to withdraw his guilty plea. Judge Beasley allowed [the Petitioner]
       to withdraw this guilty plea. The case was transferred to this court for trial.
       And [the Petitioner] has filed a variety of post-conviction, post-sentencing
       motions in this Court since this case has been affirmed on appeal by the
       Court of Criminal Appeals.

        The Petitioner testified that trial counsel was appointed to represent him while his
cases were pending in Division X and that it was originally set for trial. The Petitioner
eventually entered a guilty plea in exchange for a four-year sentence, but he later filed a
motion to set aside the guilty plea. The Petitioner explained that he filed the motion to
set aside the guilty plea because it had been his understanding that another case, in which
the Petitioner was charged with forgery, was dismissed with prejudice as part of the plea
agreement. The Petitioner was serving his sentence at the penal farm when he learned
that he had been indicted on the forgery charge.

        The Petitioner stated that, on the Friday before his trial, he was never told that the
State again offered a four-year sentence, plus the time served, nor was he told that the
offer would not be available on Monday—the day the trial was originally scheduled to
begin. During the trial, trial counsel did not call any witnesses, and the Petitioner did not
testify. The Petitioner stated that trial counsel failed to file a written request to include a
lesser-included offense of shoplifting in the jury instructions. However, the Petitioner
testified that trial counsel “did the best that he [could] do[.]” The Petitioner testified, “I
came in this courtroom set for trial. . . . That offer wasn’t brought to me.” The Petitioner
did not recall the trial court’s discussing the State’s offer with him and explaining to the
Petitioner his range of punishment and “what could happen to [the Petitioner] after trial.”
The Petitioner said that if he “had that offer at first, four years and dismiss the other
charge. That’s the same offer. I would have [taken] that.”

       The Petitioner agreed that trial counsel requested a jury instruction on shoplifting,
which was denied by the trial court, and that trial counsel raised the issue on direct
appeal. However, because the request was not made in writing, the issue was reviewed
                                             -5-
only for plain error. The Petitioner stated that, other than trial counsel’s failure to make a
written request for the shoplifting instruction, trial counsel “did a good job” on his case.

        Trial counsel testified that he had practiced law since 2011 and, at the time of his
appointment to the Petitioner’s case, his practice was seventy percent criminal defense.
He recalled that the Petitioner’s case was initially set for trial. Trial counsel explained
that the Petitioner had two cases initially:

              He had a theft of property case . . . that involved a car, and the
       argument of the [S]tate was that he had stolen a car, and I believe we had
       documentation to show [the Petitioner] had purchased it from somebody for
       a reduced price. The car was not working. [I] [d]id not believe that there
       was anything inappropriate with his conduct as far as obtaining the car. So,
       that was case number one.

       ....

               Then the second case we had was this robbery, which involved [the
       Petitioner] obtaining merchandise in the store, placing it in the cart,
       trashcan, and that being a robbery. So we had those two cases that [were] .
       . . before the Court.

        Trial counsel explained that the Petitioner also had a forgery case, but the trial
court entered an order dismissing the case based on the prosecutor’s comments that it
would not be pursued. Ultimately, the State offered the Petitioner an effective four-year
sentence to resolve the theft and the robbery charge. Trial counsel recalled that, when the
State later indicted the Petitioner on the forgery charge, the Petitioner filed a motion to
withdraw his guilty plea, which the trial court granted. Trial counsel testified that he
explained to the Petitioner that he was facing “a lot more time” if he took the cases to
trial. He recalled that, on the Friday before trial, the trial court brought the Petitioner into
the courtroom and “asked the State what the offer was, and after being told what the offer
was, Judge Coffee looked at the jacket, and discussed [] his potential range of
punishment, and clarified that the State would have to prove the range of punishment.”
The Petitioner rejected the State’s offer and proceeded to trial. However, on the first day
of trial, the Petitioner told trial counsel that he wanted to accept the State’s offer. Trial
counsel testified that the offer was no longer available at that time.

        At the conclusion of the hearing, the post-conviction court specifically accredited
trial counsel’s testimony and discredited the Petitioner’s testimony. The post-conviction
court stated:

                                             -6-
       For the record, as the court had indicated earlier, this case has a lot
of history. The case started in Criminal Court Division X. [The Petitioner]
had entered a guilty plea before Judge Beasley, and [the Petitioner] decided
he wanted to withdraw the guilty plea.

        [Trial counsel] filed a motion in Division X to set aside his guilty
plea, alleging that the [Petitioner] had entered a guilty plea to an effective
sentence of four years, range one. [The Petitioner] [t]hought he was
disposing of all his cases, putting his legal problems behind him. . . .
Representations were made on and off the record that the [S]tate and the
[Petitioner] were attempting to resolve all of the [Petitioner’s] legal matters.

        After pleading guilty, [the Petitioner] was indicted on a new arrest,
which was previously dismissed, apparently, by Judge Beasley. The new
arrest was indictment 13-02389. [The Petitioner] [i]ndicated that he did not
know that it was possible to be indicted on this matter, because he believed
that these cases had, in fact, been dismissed.

....

        [Trial counsel] . . . convinced Judge Beasley to set aside this guilty
plea[.] And Judge Beasley entered a written order on July 18th, 2013,
indicating that [the Petitioner] pled guilty on May 17th, 2013, [and] filed a
motion to set aside his plea on June 6th, 2013, pursuant to Rule 32 of the
Rules of Criminal Procedure. The hearing was conducted on July 18th.
The Court determined that the plea had been entered based upon the
[Petitioner’s] opinion that all of his cases were disposed. In fact, he had
another case pending, unknown to him. The [Petitioner] testified that he
would not have pled if he knew the other case was pending. The [trial
c]ourt [found] that a manifest injustice would occur if the pleas were
allowed to stand. The [trial c]ourt, therefore, set aside the above guilty
pleas pursuant to Rule 32, and the case [was] set for trial.

....

        [The Petitioner’s] case was transferred to this Court. . . . I had that
conversation with [the Petitioner]. [The Petitioner] and everyone else in
this courtroom never have and never will proceed to a trial unless I have
that discussion with a defendant themselves, saying, “This is what your
offer is. This is what your range of punishment is.” I need to make sure --
and I do make sure that [the Petitioner] understands that he’s making an
                                     -7-
informed and intelligent decision when he tells me that he’s rejecting the
[S]tate’s offer, and he’s insisting on a trial.

       [The Petitioner] understood that. I’m finding that he clearly
understood that. And I find that [the prosecutor] did, with [trial counsel’s]
consent, talk to [the Petitioner], emphasizing again what his offer was. And
[the Petitioner] turned down that offer again.

        . . . [W]hen the jury was in the hallway being selected, he changed
his mind, and said, “I’ll take that offer,” even though [the Petitioner] now
says, “I never had that offer.” And I find that [trial counsel’s] testimony is,
in fact, true. I find that [the Petitioner’s] statements are either intentionally
false, or he’s hiding behind, “I don’t remember. I have a bad memory.”

       And [the Petitioner], after he demanded that his four-year guilty plea
be vacated, this case was tried. This Court informed [the Petitioner] of the
possible consequences of that plea, telling [the Petitioner] he was a range
three offender, he was facing a minimum of ten years in prison to a
maximum of fifteen years in prison. And, notwithstanding the Court’s
admonitions, [the Petitioner] insisted on trying this case to a jury.

       And, when [the Petitioner] was convicted by a jury, this Court set
[the Petitioner’s] punishment at fifteen years’ confinement in the Tennessee
Department of Correction as a persistent range three offender for the
offense of robbery. This conviction was ordered to be served consecutively
to a two-year sentence, 12-02489, theft of property, D felony, for which he
entered a guilty plea on November 19th, 2014.

....

       [The Petitioner], as indicated earlier, is the architect of his own
predicament. [The Petitioner] made the decisions to go to trial. He made
the decisions to voluntarily reject the offer that he had agreed to in Division
X, to reject the State’s offer that they allowed to be on this table until
Tuesday when that jury was in the hallway. [The Petitioner] made these
decisions.

        [The Petitioner] is suffering from a classic case of buyer’s remorse,
in that [the Petitioner] went to trial thinking that he could be convicted of a
lesser charge of theft of property, or theft of merchandise, or shoplifting,
rolled the dice, and he came up with this predicament that I told him that,
                                      -8-
       “If you’re convicted, and based on your record . . . you’re facing a lot more
       time in prison than what the [S]tate has allowed you to enter a guilty plea
       to.” That’s the decision that he made. That the decision that he made
       intelligently, knowingly, freely, voluntarily.

       ....

              And the proof in this case was overwhelming. It was recovered --
       recorded, rather, on video tape, and all these issues as to whether or not the
       video tape should have been admitted, the definition of theft of property,
       whether or not theft of merchandise should have been charged, all of that
       has been previously determined to the detriment of [the Petitioner].

       ....

                [The Petitioner] has wholly failed to establish that he was prejudiced
       by the alleged ineffective representation of [trial counsel]. [Trial counsel]
       is . . . one of the most thorough lawyers I’ve ever met. He is one of the
       most argumentative lawyers I’ve ever met. Persistent. Very pleasant, but
       very persistent, and very argumentative.

       ....

               But I will find for the record that, not only was he effectively
       represented, he has failed to prove that he was prejudiced by [trial
       counsel’s] representation, and [trial counsel] did a great job in representing
       [the Petitioner]. [Trial counsel] could not make [the Petitioner] do
       something that was reasonable, do something that was prudent, do
       something that would have been wise, to say, “Let me take this four-year
       offer,” and [the Petitioner] made these decisions.

      The post-conviction court subsequently entered a written order denying post-
conviction relief. This timely appeal follows.

                                         Analysis

        On appeal, the Petitioner contends that trial counsel’s representation fell below the
standard set forward in Strickland v. Washington, 466 U.S. 668, 687 (1984). The
Petitioner asserts that, due to counsel’s representation, he was “confused about the nature
of his case[,]” and he “received more time than he should have[,] had he pled guilty.”

                                            -9-
        In order to prevail on a petition for post-conviction relief, a petitioner must prove
all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828,
830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and
fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Appellate courts are bound
by the post-conviction court’s factual findings unless the evidence preponderates against
such findings. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015). When reviewing
the post-conviction court’s factual findings, this court does not reweigh the evidence or
substitute its own inferences for those drawn by the post-conviction court. Id.; Fields, 40
S.W.3d at 456 (citing Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997)). Additionally,
“questions concerning the credibility of the witnesses, the weight and value to be given
their testimony, and the factual issues raised by the evidence are to be resolved by the
[post-conviction court].” Fields, 40 S.W.3d at 456 (citing Henley, 960 S.W.2d at 579);
see also Kendrick, 454 S.W.3d at 457. The trial court’s conclusions of law and
application of the law to factual findings are reviewed de novo with no presumption of
correctness. Kendrick, 454 S.W.3d at 457.

         The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.
art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel,
a petitioner must prove: (1) that counsel’s performance was deficient; and (2) that the
deficiency prejudiced the defense. Strickland 466 U.S. at 668, 687; see State v. Taylor,
968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same standard for
ineffective assistance of counsel applies in both federal and Tennessee cases). Both
factors must be proven in order for the court to grant post-conviction relief. Strickland,
466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State, 938 S.W.2d 363, 370 (Tenn.
1996). Accordingly, if we determine that either factor is not satisfied, there is no need to
consider the other factor. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007) (citing
Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)). Additionally, review of
counsel’s performance “requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S.
at 689; see also Henley, 960 S.W.2d at 579. We will not second-guess a reasonable trial
strategy, and we will not grant relief based on a sound, yet ultimately unsuccessful,
tactical decision. Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).
As to the first prong of the Strickland analysis, “counsel’s performance is effective if the
advice given or the services rendered are within the range of competence demanded of
attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that
counsel was deficient, the petitioner must demonstrate “that counsel’s acts or omissions
were so serious as to fall below an objective standard of reasonableness under prevailing

                                            - 10 -
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see
also Baxter, 523 S.W.2d at 936.

        Even if counsel’s performance is deficient, the deficiency must have resulted in
prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong
of the Strickland analysis, 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.” Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks
omitted).

       Trial counsel has a duty to timely communicate formal plea offers to a defendant,
see Missouri v. Frye, 566 U.S. 134, 145 (2012), and to render effective assistance in
advising a defendant whether to accept a plea offer, see Lafler v. Cooper, 566 U.S. 156,
162 (2012).

       In this case, the proof at the post-conviction hearing established that trial counsel
and the prosecutor discussed the four-year plea offer with the Petitioner on the Friday
before the Petitioner’s trial. The Petitioner was told that, if he did not accept the offer
that day, it would no longer be available to him. Additionally, the trial court engaged in a
colloquy with the Petitioner and advised the Petitioner of the offer and the potential
sentence that the Petitioner could receive if convicted at trial. The Petitioner decided to
proceed to trial. At trial, the Petitioner inquired about the availability of the plea offer,
but he was told it was no longer available. Although the Petitioner testified that he could
not recall the advice from trial counsel and the trial court regarding the four-year offer
and his potential sentence if convicted at trial, the post-conviction court specifically
discredited the Petitioner’s claim, noting that the Petitioner’s prior declarations under
oath before trial conflicted with his testimony at the post-conviction hearing. The
Petitioner has not established that trial counsel’s performance was deficient in any
respect. Accordingly, the post-conviction court properly denied relief. Strickland, 466
U.S. at 687.

                                        Conclusion

       For the aforementioned reasons, the judgment of the post-conviction court is
affirmed.

                                          ____________________________________
                                          ROBERT L. HOLLOWAY, JR., JUDGE



                                           - 11 -
