                                                                                         08/24/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs August 8, 2017

     STEVEN WOODROW JOHNSON v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                    No. 2010-B-977      Mark Fishburn, Judge


                           No. M2016-02363-CCA-R3-PC


A Davidson County jury convicted the Petitioner, Steven Woodrow Johnson, of first
degree felony murder, especially aggravated burglary, aggravated burglary, aggravated
assault, and possession of a firearm during the commission of a dangerous felony, and the
trial court sentenced him to an effective sentence of life in prison. This court affirmed
the Petitioner’s convictions on appeal, save the especially aggravated burglary
conviction, which we modified to aggravated burglary. State v. Steven Woodrow
Johnson, M2011-00859-CCA-R3-CD, 2012 WL 3877787, at *1 (Tenn. Crim. App., at
Nashville, Sept. 7, 2012), perm. app. denied (Tenn. Feb. 13, 2013). In 2013, the
Petitioner filed a petition for post-conviction relief alleging that he had received the
ineffective assistance of counsel. The post-conviction court held a hearing on the petition
and denied relief. On appeal, we affirm the post-conviction court’s judgment.

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

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

Manuel B. Russ, Nashville, Tennessee, for the appellant, Steven Woodrow Johnson.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Glenn R. Funk, District Attorney General; and Janice Norman, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION
                            I. Facts and Procedural History

       This case arises from the death of the victim, John Young, inside his home during
a home invasion. For this offense, a Davidson County grand jury indicted the Petitioner
for first degree felony murder, especially aggravated burglary, attempted especially
aggravated robbery, aggravated burglary, aggravated assault, and possession of a firearm
during the commission of a dangerous felony.

                                        A. Trial

       In our opinion on the Petitioner’s first appeal, this court summarized the facts
presented at trial as follows:

             Officer Eric Bacon with the Metropolitan Nashville Police
      Department testified that in the early morning hours of November 23, 2008,
      he responded to a shooting call at a residence located at 524 Wesley
      Avenue in East Nashville. Upon entering the residence through the front
      door, Officer Bacon briefly spoke with George Young, the victim’s
      roommate and brother. He then went to the rear bedroom where the victim,
      John Young, was “near death,” lying on the bed with a gunshot wound to
      his head. Upon entering the bedroom, Officer Bacon discovered a revolver
      on the floor next to the victim’s foot and secured it. Paramedics soon
      arrived to transport the victim, and Officer Bacon was able to conduct a
      walk-through of the residence. He observed that the back door had been
      forced open, shell casings were scattered on the floor, and bullet holes were
      in the walls.

             George M. Young, Jr. testified that he resided at 524 Wesley Avenue
      with the victim. On the night of November 22, 2008, they watched a
      football game and went to bed around 10:30 p.m. A few moments later,
      Mr. Young heard a knock at the back door. The victim went to the
      bathroom window through which he could see two men standing on the
      back porch; Mr. Young stood beside the victim. The victim told the two
      people to leave, and they complied. From the front door of the residence,
      Mr. Young then observed the two men walking west down the street. The
      victim told Mr. Young that the men stated that “Dewayne” sent them to
      borrow money. After Mr. Young returned to bed, a noise in the home
      awakened him, and he discovered a man in his room, pointing a gun at his
      face. The man told him to get up. When Mr. Young stood up, the man hit
      him in the back of the head with his gun, knocking him to the floor.
      Gunshots began to ring out, and Mr. Young lay face down on the floor.
      Mr. Young then heard glass breaking, which the shooter caused by jumping
      through the bedroom window. Mr. Young called 9-1-1 and called out to his
      brother. However, he “never could hear anything.” Mr. Young testified
      that he kept some money in the back of his closet, but the intruder did not
      take anything from the home that night.

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       Richard Allen testified that he resided at 308 Dinwiddie Drive with
Robert Taylor and Mr. Taylor’s wife, Crystan Shawn Taylor. On the
evening of November 22, 2008, Allen was in possession of Crystan’s
cellular phone. He received a call from [the Petitioner] in which he asked if
Allen “wanted to go out and do something.” [The Petitioner] thereafter
drove to Allen’s residence with [the Petitioner’s] brother, Richard Johnson,
and another man whom Allen had never met before. The men all got into
[the Petitioner’s] vehicle, and Allen had a conversation in the back seat of
the vehicle with the man whom he did not know. Allen testified that the
man “[w]anted to hit a lick. They were going to do a robbery.” Allen
stated that the man wanted $60,000 that was in a shoe box in the home of
“two old guys.” Allen was not certain if [the Petitioner] could hear the
conversation, but Allen asked [the Petitioner] what he thought about the
conversation. However, Allen could not recall how [the Petitioner] replied.
Allen then stepped out of the vehicle and returned to his house, not wanting
to participate in the robbery. Allen left instructions with Crystan “to just
answer the phone and say no[,]” if [the Petitioner] called. Allen and Robert
Taylor then left the residence to go to a tattoo shop. After hearing about the
home invasion and murder on the news, Allen contacted [the Petitioner] the
next day and asked [the Petitioner] if he had been involved. [The
Petitioner] responded that he had no involvement in the reported incident.

        Crystan Shawn Taylor testified that on November 22, 2008, Allen
was in possession of her cellular phone at their residence while she was at a
tattoo shop with a friend. When Crystan returned home, Allen was leaving
the residence with Robert Taylor, and Allen stated to Crystan that “[the
Petitioner] may call. If he calls, tell him I’m not here and I said no.” After
midnight, Crystan received a call from [the Petitioner], asking for “Ricky.”
Crystan responded that “Ricky said to tell you he’s not here and he said
no,” although she did not know the meaning of her response. [The
Petitioner] then replied, “[T]hat’s all I need to know.”

       Alicia Catherine Johnson, [the Petitioner’s] wife, testified that in
2008, she and [the Petitioner] resided with [the Petitioner’s] parents in their
home at 1221 London Bridge Road. [The Petitioner’s] brother, Richard
Johnson, also resided there. She stated that she and [the Petitioner] were
arguing constantly, and their marriage was “falling apart.” On the evening
of November 22, 2008, she was at a family dinner at church with [the
Petitioner], Wendy Johnson, Richard Johnson, and other family members.
Also in attendance was a man named Francisco Ancona, whom Alicia knew

                                      3
as “Brobro,” and Gail Barber. At the dinner, Alicia overheard [the
Petitioner] and Ancona talking about “hitting a lick.” Although she did not
think they were referring to committing a robbery, she knew this term could
refer to a robbery. She stated that she thought [the Petitioner] said the term,
but she was “not positive.” She stated that, although she did not know what
they were referring to, it made her feel “sick” because “anything that has to
do with hitting a lick would be somebody getting in trouble.” After the
dinner, she and [the Petitioner] returned home with their children in his
vehicle. Alicia got into an argument with [the Petitioner], and [the
Petitioner] left the home. Alicia began calling [the Petitioner] on his
cellular phone, but he did not answer. Later that night, [the Petitioner]
returned home with Richard Johnson. They were carrying Ancona into the
home. Ancona had a cut on his leg, and the two men put him into the
shower. Alicia testified that she knew something was wrong because [the
Petitioner] was very upset. Wendy Johnson and Barber also appeared at the
home between 3:00 a.m. and 6:00 a.m. [The Petitioner] would not tell
Alicia what had happened, but later [the Petitioner] turned on the news,
which was broadcasting a story about the victim, and stated, “[T]hat’s it.”

        Alicia Johnson further testified that [the Petitioner] and [the
Petitioner’s] fiancee, Tangia Tobitt, contacted her and attempted to
“intimidate” her about testifying. She stated that she was afraid of them.
Alicia spoke to Detective Curtis Hafley with the Metropolitan Nashville
Police Department about the incident on two occasions, but she gave
different statements each time. She said she was scared the first time, and
the second time she “felt more comfortable” with Detective Hafley. In her
first statement on May 28, 2009, Alicia told Detective Hafley that she was
asleep when [the Petitioner] and the other men came to the home that night,
and a loud noise awakened her. However, she did not mention Wendy
Johnson and Barber being in the home or that she saw any blood. She gave
her second statement to Detective Hafley on March 28, 2010, in which she
proffered this additional information. However, she did not tell Detective
Hafley about the conversation she overheard between [the Petitioner] and
Ancona at the family dinner about “hitting a lick” because she “didn’t want
to get in trouble.” She only revealed that information shortly before trial.

       Elizabeth Gail Barber testified that on November 22, 2008, she and
her son went to the Walmart parking lot in Madison, Tennessee, to meet
[the Petitioner], Richard Johnson, and Ancona, whom she knew as “Frank.”
Wendy Johnson was also at the meeting. [The Petitioner] asked Barber if
she “wanted to make some money, about a thousand dollars.” They wanted

                                      4
to use her vehicle, a Chevrolet S-10 truck, “[g]oing to the robbery.” She
stated that she followed [the Petitioner] in his vehicle to a side street off
Trinity Lane, where they exchanged vehicles, and she saw [the Petitioner]
remove a gun from the middle console of his vehicle. She stated that she
thought “that they were going to use [the gun] to go do the robbery,”
meaning she thought Ancona was going to take the gun into the home when
he committed the robbery. Richard Johnson and Ancona then took her
truck “to go by and do the robbery.” After Richard Johnson and Ancona
took Barber’s vehicle, she and Wendy Johnson went with [the Petitioner] in
his vehicle.

       [The Petitioner] then drove to a White Castle restaurant and waited
in the parking lot. Barber heard [the Petitioner] talking on the phone to
someone, asking “if that was gunshots” approximately twenty to twenty-
five minutes after the meeting on Trinity Lane. Richard Johnson and
Ancona then approached them in Barber’s truck, and Ancona got into [the
Petitioner’s] vehicle. [The Petitioner] drove them to his parents’ home,
where she saw Alicia Johnson come out on the porch.

       Barber further testified that she did not tell Detective Hafley that her
two-year-old son was with her that night because she was “afraid that [she]
would lose her child.” She also told Detective Hafley during her interview
that she saw [the Petitioner] with a gun while at the Walmart parking lot,
but she actually saw it on Trinity Lane “[b]ecause after thinking about it,
that’s where I actually seen [sic] it the first time.” She further stated that
while at the Walmart parking lot, [the Petitioner] was sitting in his vehicle
with the door open when Ancona, who was standing outside, and [the
Petitioner] agreed that Ancona would be the one to enter the home and
commit the robbery.

       Detective Paul Harris with the Metropolitan Nashville Police
Department testified that he assisted Detective Hafley in the investigation.
Approximately eighty-eight hours after the incident occurred, Detective
Harris arrested a suspect named Francisco Ancona. At the time of arrest,
Ancona told police he was waiting on a ride from [the Petitioner], and
Ancona gave [the Petitioner’s] address as his place of residence. Detective
Harris considered [the Petitioner] a potential suspect because “there was a
fair amount of speculation that someone would have assisted Francisco
Ancona in the homicide. . . .” Detective Harris spoke with [the Petitioner]
on November 24, 2010, about his relationship with Ancona. That was [the
Petitioner’s] first interview with police concerning this incident. [The

                                      5
Petitioner] stated that he took Ancona to an Express Market at
approximately 8:30 p.m. on November 22, 2008, and did not have any more
contact with Ancona until around noon the next day. [The Petitioner]
stated that he was sick that evening and had been at home sleeping all
night. After the interview, [the Petitioner] was not placed under arrest and
was allowed to leave the station.

       Kevin Carroll, an investigator with the Davidson County Sheriff’s
Office, testified that Ancona’s visitation report indicated that [the
Petitioner] visited Ancona in jail seven times between November 30, 2008,
and January 25, 2009. Ancona’s visitation report also showed that [the
Petitioner] was listed as “sibling.” Carroll further testified about Ancona’s
recorded telephone calls, and he identified five calls that were played for
the jury.

       Special Agent Richard Wesley Littlehale, Assistant Special Agent in
charge of the technical services unit for the Tennessee Bureau of
Investigation, testified that Detective Hafley and the District Attorney
General’s office contacted him to assist in analyzing telephone records
pertaining to the case and in preparing a visual aid to present to the jury.
He explained the process of collecting and analyzing cellular phone data,
and he created a map based on call records and addresses that Detective
Hafley provided him.

        Detective Curtis Hafley with the Metropolitan Nashville Police
Department testified that he was the lead detective in the case and
responded to the crime scene at 524 Wesley Avenue at 2:30 a.m. on
November 23, 2008. Detective Hafley determined that the rear door of the
victim’s residence was the point of entry and that George Young’s bedroom
window was the suspect’s point of exit. After the police took Ancona into
custody on November 23, 2008, Detective Hafley obtained a search warrant
on November 24 for 1221 London Bridge Road because Ancona listed that
address as his place of residence. Detective Hafley also obtained Ancona’s
jail telephone call records and cellular phone records of [the Petitioner] and
Ancona, among other potential suspects.

       A few weeks later, a member of the Young family contacted
Detective Hafley regarding a letter that Josh Young, the victim’s son, had
sent. Josh Young was incarcerated in the Cheatham County Jail with
Richard Allen, and Allen claimed to have information about the incident.
Detective Hafley interviewed Allen at the jail, and Allen supplied Detective

                                      6
Hafley with details about [the Petitioner’s] attempt to get Allen involved in
the robbery. Detective Hafley corroborated the information with cellular
phone records. Detective Hafley later received recordings of Ancona’s
telephone calls from prison to [the Petitioner]. He discovered that from the
time of Ancona’s arrest on November 23, 2008, and [the Petitioner’s] arrest
on January 26, 2009, there were about a dozen calls between Ancona and
[the Petitioner].

       Detective Hafley formally interviewed [the Petitioner] on January
26, 2009, which was [the Petitioner’s] second interview with police. [The
Petitioner] first told Detective Hafley the same story he told Detective
Harris, stating that on the night of the incident he had been sick, had slept
all night, and he had not seen Ancona until the next day. As the interview
progressed, [the Petitioner] changed different aspects of his story. At first,
[the Petitioner] denied knowing anything about the incident until after it
occurred, but then [the Petitioner] informed Detective Hafley that Ancona
previously told him “he was going to hit a good lick.” [The Petitioner] then
stated that Wendy Johnson contacted him on behalf of a man named
Dewayne Vaughan to commit a robbery, but he and Ancona never
discussed the robbery. However, when interviewing Vaughan “a day or
two” after [the Petitioner], Vaughan denied meeting [the Petitioner], and no
cellular phone records indicated that they had communicated. Later, [the
Petitioner] stated that he, in fact, left his home two times that night to look
for Ancona, who had called him wanting a ride. However, [the
Petitioner’s] story of the events did not correlate with cellular phone
records and other statements, and Detective Hafley confronted [the
Petitioner] about the inconsistencies. [The Petitioner] later stated that he
spoke to Allen about recruiting him to commit the robbery. He said that he
drove to Allen’s house with Richard Johnson and Ancona, where Ancona
attempted to recruit Allen to participate.

        Approximately three hours into the interview, [the Petitioner] added
that Richard Johnson and Ancona drove Barber’s truck to commit the
robbery. After claiming he was at his home when the robbery happened,
[the Petitioner] subsequently stated that he was, in fact, out driving by
himself at the time of the robbery. Approximately four hours into the
interview, [the Petitioner] admitted that he went to the Youngs’ home the
first time with Richard Johnson and Ancona under the pretext that a man
named “Dewayne” sent them in an attempt to get money. [The Petitioner]
stated that he took Richard Johnson and Ancona to a church behind the
Youngs’ residence, and he waited in his vehicle while the other two men

                                      7
went up to the home. [The Petitioner] agreed with Detective Hafley that
had the first attempt gone as planned, he would have been the “getaway
driver.” [The Petitioner] also stated to Detective Hafley that he was not
going to get anything from the robbery and that he did not want any money.
Detective Hafley further testified about the time and location of calls made
by [the Petitioner] and Ancona using cellular phone records.

       Sandra Parrish Thomas, M.D., an assistant medical examiner for the
Davidson County Medical Examiner’s Office, testified that she reviewed
the autopsy of the victim, although she did not conduct the autopsy herself.
She testified that the victim died from a single gunshot wound to the head.

        [The Petitioner] . . . testified that he was not truthful with police in
his interviews because he had received a threatening telephone call warning
him not to testify against Ancona. The telephone call caused him to fear
for the safety of his family. He stated that by the end of his interview with
Detective Hafley, however, he had told the detective everything he knew
about the incident. [The Petitioner] testified that two weeks prior to the
incident, Wendy Johnson took him to meet Dewayne Vaughan, who wanted
him to participate in a robbery, but [the Petitioner] said he was not
interested. [The Petitioner] denied having a conversation with Ancona at
the family dinner the night of the incident about “hitting a lick.” [The
Petitioner] testified that Ancona asked him to take him and [the
Petitioner’s] brother, Richard Johnson, to buy marijuana that night.
Ancona directed them to an area close to 524 Wesley Avenue, although [the
Petitioner] did not know a robbery was going to be attempted at that time.
[The Petitioner] testified that he learned that his brother and Ancona
actually made the first robbery attempt after the robbery attempt had
occurred.

       [The Petitioner] further denied having a gun in his truck the night of
the robbery and stated that he never saw anyone with a gun that night.
However, he stated that he heard Ancona and Allen talking about a gun
while the two men were seated in the back of his vehicle. [The Petitioner]
admitted that he placed the telephone call to Allen after the first failed
robbery attempt, but he stated he handed the telephone to Ancona after
Allen answered because Ancona did not have a phone or any other way of
getting in touch with Allen. [The Petitioner] testified that after the failed
attempt, he drove Richard Johnson and Ancona to meet with Allen at the
Taylor residence. He admitted he was in the car the entire time that Allen
and Ancona were talking about “hitting a lick” and “needing a strap.”

                                       8
       However, [the Petitioner] stated that he was not aware that Ancona was
       planning to return to the Youngs’ residence to attempt the robbery again
       that night.

               [The Petitioner] testified that he was aware Ancona was going to
       commit a robbery on the evening of November 22, but he did not know
       when or where. He admitted driving over to the house of a man named
       “Red,” but he denied knowing that Ancona was attempting to recruit him to
       participate in the robbery. [The Petitioner] was aware that his brother,
       Richard, had driven Ancona to the Young residence to commit the robbery
       and that Ancona killed the victim, but [the Petitioner] only learned of this
       after the incident had occurred. [The Petitioner] further admitted that on
       the day of the incident, Ancona came back to his house injured during the
       early morning hours.

Johnson, 2012 WL 3877787, at *1-6. The jury convicted the Petitioner of first degree
felony murder, especially aggravated burglary, aggravated burglary, aggravated assault,
and possession of a firearm during the commission of a dangerous felony. The trial court
sentenced the Petitioner to life in prison.

                            B. Post-Conviction Proceedings

       The Petitioner filed a petition for post-conviction relief, pro se. The post-
conviction court appointed an attorney, and the attorney filed an amended petition,
alleging that the Petitioner had received the ineffective assistance of counsel on the basis
that, relevant to this appeal, his trial counsel failed to obtain a satisfactory plea
agreement, which in turn led the Petitioner to proceed to trial and become subject to a life
sentence. The post-conviction court subsequently held a hearing, during which the
following evidence was presented: the Petitioner testified that he hired trial counsel
(“Counsel”) when he was released on bond and that he met with Counsel many times
over the course of eight months preparing for trial. He said that Counsel did not review
discovery with the Petitioner nor did he review the witnesses’ statements. Together they
“briefly” reviewed two interviews the Petitioner had participated in but did not discuss
issues of suppression or a defense strategy. The Petitioner asserted that Counsel failed to
discuss with the Petitioner plea offers from the State until the day before trial when he
informed the Petitioner that the State had offered a plea deal of ten to twenty years. The
Petitioner elected to counter with an offer of six years to be served at 100 percent which
the State declined. The Petitioner then decided to offer to serve fifteen years, but
Counsel told him to think about it and think about going to trial. The Petitioner recalled
that his trial began the following day, and he was unsure whether Counsel presented his
offer of fifteen years to the State.

                                             9
       The Petitioner testified that Counsel showed up late on the day of trial looking
disheveled and unprepared. He recalled that Counsel did not discuss the theory of
criminal responsibility with him. Counsel untimely filed post-trial motions on the
Petitioner’s behalf and never discussed the Petitioner’s appeal with him.

       On cross-examination, the Petitioner agreed that he was never identified as the
shooter in this case. He stated that each meeting with Counsel lasted for approximately
twenty to forty minutes. The Petitioner agreed that Counsel’s argument at trial was that
because the Petitioner was not present when the shooting occurred and did not actually
intend for the victims to be murdered, he was not culpable under the theory of criminal
responsibility. He asserted, however, that if he had fully understood the theory of
criminal responsibility, the Petitioner would not have gone to trial based on Counsel’s
argument. It was during the plea negotiations with the State that Counsel convinced the
Petitioner to proceed to trial. The Petitioner stated that his recorded jail calls would
indicate that he wanted to accept the State’s plea offer.

        On the subject of Counsel’s cross-examination of witnesses at trial, the Petitioner
contended that Counsel did not ask the witnesses any new questions and simply repeated
what the State had asked on direct. Counsel did not “defend [the Petitioner] like he
should” and he “should have tried harder” to defend the Petitioner at “a hundred percent.”
Counsel did not ask certain questions of the witnesses the way the Petitioner told him to.
He testified that during most of his meetings with Counsel they simply were “socializing”
or talking about how things were going well with the case.

        Tangia Tobitt, the Petitioner’s wife, testified that the night before the Petitioner’s
trial she received a telephone call from Counsel, and she and the Petitioner listened to the
phone call on speaker phone. She overheard Counsel tell the Petitioner that the State had
offered him a plea deal, and she told the Petitioner that he should take it. Counsel told
the Petitioner that he could “get [the Petitioner] something better” than the State’s offer.
Ms. Tobitt overheard Counsel say, several times over the course of trial preparation, that
the Petitioner could “beat it,” meaning win at trial.

       On cross-examination, Ms. Tobitt explained that she and the Petitioner were just
“hanging out” when his charges were pending and that he did not discuss his case with
her much. However, Ms. Tobitt went over the Petitioner’s discovery file with him and
spoke with him while he was in jail. She also attended his meetings with Counsel and
during those “brief short” meetings, Counsel never discussed anything serious with the
Petitioner and simply told the Petitioner to “enjoy his kids” and not worry about his case.
Ms. Tobitt maintained that the Petitioner wanted to plead guilty, and she said she would
be surprised to learn that the State had not put forth a plea offer.

                                             10
        Counsel testified that he had been a criminal attorney for twenty-one years and
had handled approximately eighteen homicide trials. The Petitioner’s case was referred
to him and he filed for discovery shortly thereafter. Counsel obtained funding for an
investigator who contacted witnesses in an attempt to uncover anything that might be
helpful for the Petitioner’s case. The Petitioner was “very concerned” about his case and
met with Counsel many times. During those meetings, they reviewed discovery together,
and Counsel answered the Petitioner’s questions about different parts of his case.
Counsel did his best to explain the legal side of the Petitioner’s case to him to try and
“put the puzzle together.” Counsel said he explained to the Petitioner the charges and
their ranges of punishment.

       Counsel recalled that the State did not make a plea offer. As the Petitioner’s trial
date drew near, the Petitioner became concerned and discussed with Counsel what they
could possibly offer to the State so that the Petitioner would not have to go trial. Counsel
recalled that he spoke with the Petitioner the night before his trial and that they went
“back and forth as to what [they] thought [they] might be able to settle the case for.”
Counsel reiterated that he did not remember ever receiving an offer from the State.
Counsel stated that the offer the Petitioner alleged had been conveyed by the State, ten to
twenty years, was outside the sentencing range.

       Counsel testified that he told the Petitioner not to worry about the additional cost
of going to trial. Counsel was prepared to go to trial well before the trial date. He had no
idea why the Petitioner thought he looked unkempt or dirty and said he usually wore suits
to court. On the subject of trial preparation, Counsel went over all of his work the day
before trial to make sure everything was in order. For a defense theory, Counsel planned
to argue that the Petitioner knew the other people involved in the crime and had contact
with them on a regular basis but on the occasion of the murder he did not want anything
to do with them and did not know that they were planning a robbery. Through cross-
examination of the other witnesses, Counsel was trying to prove that the other
participants had motives for the killing, and he attempted to show through cross-
examination that the witnesses were giving self-serving testimony.

       Counsel said he communicated his trial strategy with the Petitioner before and
during his trial and throughout the trial checked with the Petitioner to see if he had
anything to add or any comments or questions. Specifically, he told the Petitioner,
“anything that you’re hearing that doesn’t sound right or that you remember different[ly],
write it down,” and Counsel would then check in with the Petitioner before cross-
examining a witness. Counsel testified that he reviewed the Petitioner’s statements and
other recordings, as well as the investigators’ notes, and that he met with the investigators
several times. Counsel did not recall the Petitioner ever asking him to try to negotiate a

                                             11
plea deal during the trial.

       On cross-examination, Counsel testified that, at trial, he had the discovery file and
his work notes. The gist of his trial strategy was to develop questions for witnesses as the
State put them on the stand, by comparing their testimony to what they had said in prior
statements. His defense theory was that the Petitioner had not known his accomplices
were planning to rob or kill the victims. Counsel addressed in front of the jury the fact
that the Petitioner changed his story when talking to police and argued that the Petitioner
was fearful because, without his involvement in the planning, a robbery and murder had
occurred and the Petitioner did not know what to do. He argued that the State had not
proven that the Petitioner was involved in the conspiracy to commit these crimes.

        Regarding a potential plea settlement, Counsel tried to explore negotiating a
settlement with the State, but his and the Petitioner’s position was that the Petitioner did
not have anything to do with the planning of these crimes and that the Petitioner’s
accomplices acted on their own. In that mindset, Counsel was not going to offer for the
Petitioner to plead guilty to any crime. Counsel told the Petitioner that they could
possibly win at trial or get a hung jury. Counsel reiterated that he did not relay a plea
offer from the State to the Petitioner because the State did not make one. At some point
before trial, Counsel relayed to the State that the Petitioner would consider pleading
guilty in exchange for a six-year sentence, and the State rejected that offer. Counsel
stated that “any plea that [the Petitioner] would have wanted to take,” Counsel would
have relayed to the State. Counsel testified that he discussed with the Petitioner the
concept of criminal responsibility.

       Rob McGuire testified that he worked as a prosecutor for the State and that he sat
second chair on the Petitioner’s trial to assist the lead prosecutor. Mr. McGuire recalled
that there were not any internal office discussions at the Davidson County District
Attorney’s Office about offering the Petitioner a plea settlement. He recalled that the
State felt it had a strong case that the Petitioner provided information and planning for the
crimes, including identifying the house to be robbed and organizing the participants. The
State felt that the Petitioner had a lead role in the planning. Mr. McGuire stated that it
was possible that an offer was made for a second-degree murder plea, but his recollection
was that the State knew the Defendant would not consider such an offer, so he believed
one was never made. He testified that the alleged offer of ten to twenty years was an
“illegal sentence” for a homicide offense and would not have been something the State
offered.

       On cross-examination, Mr. McGuire testified he was the team leader of the
division prosecuting the Petitioner’s case, so it was unlikely that the lead prosecutor
would have made an offer to the Petitioner without discussing it with him first. Mr.

                                             12
McGuire could not recall whether any offers were made to the other participants in the
crime. There was a possibility that Counsel approached Mr. McGuire or the other
prosecutor with an offer, but Mr. McGuire did not remember that particularly because he
recalled that the State planned to go forward with a trial. In other words, no
“meaningful” discussions were had about a plea settlement. Mr. McGuire testified that a
six-year sentence in this case was not a realistic offer because it was a significant
departure from the range of punishment. Mr. McGuire stated that a fifteen-year offer
from the Petitioner, if made, would also have been rejected by the State. Again, however,
he did not recall such an offer being made.

        The post-conviction court subsequently denied the Petitioner’s petition and made
the following relevant findings:

             There is no evidence before the Court that [Counsel] failed to
      investigate [the] Petitioner’s case. [Counsel] evaluated discovery and
      discussed discovery with [the] Petitioner. [Counsel] hired a private
      investigator whom he met with six or seven times prior to trial. [Counsel]
      developed a trial strategy based on [the] Petitioner’s own insistence that he
      knew his co-defendants and did not know that a robbery would occur.
      Furthermore, [Counsel’s] decision not to speak with or investigate Norman
      Smith was reasonable since Mr. Smith’s alibi had little bearing on [the]
      Petitioner’s own guilt or innocence.

              Moreover, the Court finds that there is no ground for [the]
      Petitioner’s lack of communication claim. Based on [Counsel] and [the]
      Petitioner’s own testimony, they met weekly beginning eight months before
      trial to discuss the case. [The] Petitioner received discovery and he and
      [Counsel] discussed different [portions] of the discovery weekly. [Counsel]
      explained to [the] Petitioner the range of punishment and his potential
      culpability via criminal responsibility. The trial strategy, which was
      discussed and agreed to by [the] Petitioner, centered around [the]
      Petitioner’s own insistence that [the] Petitioner did not know a robbery
      would take place on the day in question.

             Because no evidence exists to support [the] Petitioner’s contention
      that [Counsel] failed to investigate the case or communicate with [the]
      Petitioner, the first prong of the ineffective assistance of counsel has not
      been satisfied. Consequently, [Counsel] was not ineffective for failure to
      investigate the case or communicate with [the] Petitioner.

             ....

                                           13
               Based on [Counsel] and Mr. McGuire’s testimony, the evidence is
       clear that [the] Petitioner was never offered a plea [deal] by the State. For
       this reason, [Counsel] did not breach a duty and was not deficient in this
       regard. The testimony suggests that [the] Petitioner proposed a six years at
       100% plea, [Counsel] conveyed that offer to the State (after advising his
       client that it would be rejected) and the plea was rejected without a counter-
       offer. A ten to twenty year deal as suggested by [Counsel] certainly would
       have been favorable to [the] Petitioner, yet the evidence indicates [the]
       Petitioner was not agreeable to such offer despite his wife’s desire that he
       accept it. Moreover, even if [the] Petitioner had agreed to [Counsel]
       extending an offer of 10-20 years to the State, the evidence preponderates
       against the State accepting the offer. The evidence in this case establishes
       that the State had little interest in entering into plea negotiations with [the]
       Petitioner because it felt the case against him to be particularly strong and
       [the] Petitioner to be one of the leaders in the commission of the crime.
       Although plea negotiations are an integral part of representing criminal
       defendants, there is no constitutional mandate that the State must
       participate in the process. Consequently, [the] Petitioner has failed to meet
       the Nesbit test for proving ineffective assistance of counsel in plea
       negotiations.

       It is from the post-conviction court’s judgment that the Petitioner now appeals.

                                         II. Analysis

       The Petitioner contends on appeal that the post-conviction court erred when it
denied his petition. He maintains on appeal that he received the ineffective assistance of
counsel because Counsel failed to obtain a “satisfactory” plea agreement, thus forcing the
Petitioner to go to trial and expose himself to a life sentence. The Petitioner also
contends that Counsel conveyed to him an erroneous belief that the Petitioner would be
found not guilty at trial. The State responds that Counsel’s representation of the
Petitioner was not ineffective, and that the record shows that no plea offer was
forthcoming from the State and any offer from the Petitioner would have been rejected by
the State. The State further responds that Counsel proceeded to trial in part based on the
Petitioner’s lack of interest in a realistic plea deal, and that Counsel prepared for trial and
was confident the Petitioner could be acquitted. This, the State contends, does not
amount to ineffective assistance of counsel. We agree with the State.

      In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional

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right. T.C.A. § 40-30-103 (2014). The petitioner bears the burden of proving factual
allegations in the petition for post-conviction relief by clear and convincing evidence.
T.C.A. § 40-30-110(f) (2014). The post-conviction court’s findings of fact are conclusive
on appeal unless the evidence preponderates against it. Fields v. State, 40 S.W.3d 450,
456-57 (Tenn. 2001). Upon review, this Court will not re-weigh or re-evaluate the
evidence below; all questions concerning the credibility of witnesses, the weight and
value to be given their testimony and the factual issues raised by the evidence are to be
resolved by the trial judge, not the appellate courts. Momon v. State, 18 S.W.3d 152, 156
(Tenn. 1999); Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). A post-conviction
court’s conclusions of law, however, are subject to a purely de novo review by this Court,
with no presumption of correctness. Id. at 457.

       The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9, of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The
following two-prong test directs a court’s evaluation of a claim for ineffectiveness:

      First, the [petitioner] 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 [petitioner] by the Sixth
      Amendment. Second, the [petitioner] must show that the deficient
      performance prejudiced the defense. This requires showing that counsel’s
      errors were so serious as to deprive the [petitioner] of a fair trial, a trial
      whose result is reliable. Unless a [petitioner] makes both showings, it
      cannot be said that the conviction or death sentence resulted from a
      breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Melson, 772
S.W.2d 417, 419 (Tenn. 1989).

       In reviewing a claim of ineffective assistance of counsel, this Court must
determine whether the advice given or services rendered by the attorney are within the
range of competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at
936. To prevail on a claim of ineffective assistance of counsel, “a petitioner must show
that counsel’s representation fell below an objective standard of reasonableness.” House
v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369
(Tenn. 1996)). When evaluating an ineffective assistance of counsel claim, the reviewing
court should judge the attorney’s performance within the context of the case as a whole,
taking into account all relevant circumstances. Strickland, 466 U.S. at 690; State v.
Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court should

                                           15
avoid the “distorting effects of hindsight” and “judge the reasonableness of counsel’s
challenged conduct on the facts of the particular case, viewed as of the time of counsel’s
conduct.” Strickland, 466 U.S. at 689-90. In doing so, the reviewing court must be
highly deferential and “should indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462.
Finally, we note that a defendant in a criminal case is not entitled to perfect
representation, only constitutionally adequate representation. Denton v. State, 945
S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of
ineffective assistance of counsel, ‘we address not what is prudent or appropriate, but only
what is constitutionally compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting
United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)). 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). “The fact that a particular strategy or tactic failed or hurt the defense, does
not, standing alone, establish unreasonable representation. However, deference to
matters of strategy and tactical choices applies only if the choices are informed ones
based upon adequate preparation.” House, 44 S.W.3d at 515 (quoting Goad, 938 S.W.2d
at 369).

        If the petitioner shows that counsel’s representation fell below a reasonable
standard, then the petitioner must satisfy the prejudice prong of the Strickland test by
demonstrating there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. Strickland, 466 U.S. at
694; Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability
must be “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at
694; Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994).

      A defendant claiming that trial counsel’s performance was deficient in the
      plea negotiations process has the burden to show by a reasonable
      probability that, but for counsel’s deficient representation, (1) the defendant
      would have accepted the plea, (2) the prosecution would not have
      withdrawn the offer, and (3) the trial court would have accepted the terms
      of the offer, such that the penalty under its terms would have been less
      severe than the penalty actually imposed.

Nesbit v. State 452 S.W.3d 779, 800-01 (Tenn. 2014) (citing Lafler v. Cooper, 566 U.S.
156, 163 (2012)).

       We conclude that the evidence does not preponderate against the trial court’s
findings. Counsel and the State’s attorney testified that there was no plea offer made by
the State in this case and that the offer the Petitioner alleged was made, ten to twenty

                                            16
years, was one that the State would not have conveyed because it did not align with the
sentencing range for the charged offense. Counsel testified that he would have conveyed
to the State whatever offer was proposed by the Petitioner and did so when the Petitioner
proposed a six-year deal that was ultimately rejected. The State’s attorney testified that
the State did not make a plea offer, and was unlikely to accept an offer from the
Petitioner, because of the strong case it developed against the Petitioner as the leader in
this crime. The Petitioner has not met his burden of proof that the State ever made a plea
offer not conveyed to him by Counsel nor has he shown that but for Counsel’s
performance he would have been given a plea offer by the State that he would have
accepted.

        As to his argument that Counsel’s advice to the Petitioner that they could win at
trial influenced his decision not to take a plea offer, the Petitioner has not provided any
evidence that shows that Counsel talked him out of taking a plea by exhibiting confidence
that the Petitioner’s case could be won at trial. We reiterate that no plea offer was
forthcoming and plea negotiations were not likely to produce a mutually agreeable result.
As a result, Counsel adopted the strategy to be confident in the Petitioner’s chances at
trial, as he felt that the State could not prove that the Petitioner had a role in the offenses.
Counsel cross-examined the various co-participants in the crime and attempted to
convince the jury that the Petitioner was not a leader in or planner of the offenses. This
was a reasonable strategic decision based on the evidence presented. Accordingly, we
conclude that the Petitioner has not met his burden of proving that Counsel was
ineffective and is not entitled to relief.

                                       III. Conclusion

       In accordance with the aforementioned reasoning and authorities, we affirm the
post-conviction court’s judgment.


                                                     ________________________________
                                                      ROBERT W. WEDEMEYER, JUDGE




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