        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                               December 21, 2010 Session

            CHARLES RAY HARVEY v. STATE OF TENNESSEE

                      Appeal from the Scott County Circuit Court
                        No. 9214     E. Shayne Sexton, Judge


                  No. E2010-00148-CCA-R3-PC - Filed April 29, 2011


The Petitioner, Charles Ray Harvey, appeals from the Scott County Circuit Court’s denial of
his petition for post-conviction relief from his conviction of first degree murder, for which
he is serving a life sentence. He contends that his trial attorneys failed to provide effective
assistance because they did not advise him that accepting a guilty plea offer was in his best
interest and did not accurately advise him of the unlikelihood that he would prevail at trial.
Upon review, we affirm the judgment of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which N ORMA M CG EE O GLE
and D. K ELLY T HOMAS, J R., JJ., joined.

Bruce E. Poston, Knoxville, Tennessee, for the appellant, Charles Ray Harvey.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant
Attorney General; William Paul Phillips, District Attorney General; and John W. Galloway,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

       The facts of the Petitioner’s case were summarized by this court on direct appeal:

                    This case involves the murder of the defendant’s son-in-
              law. The body of the victim, Armando Laredo, was found in the
              New River.

                     Agent Steve Vinsant of the Tennessee Bureau of
              Investigation testified that he assisted the Scott County Sheriff’s
Department in the investigation of the victim’s death. He said
he viewed the victim’s body on July 18, 2003, after it was
recovered from a river. He said he took Vanessa Laredo, who
was the victim’s wife and the defendant’s daughter, the
defendant, and Donna LaBoy into custody and interviewed them
on July 23. He said the defendant initially denied that he had
ever met the victim and that the victim had ever been to his
house. He said the defendant told him that Ms. Laredo had
visited the defendant “in the days prior” with a boyfriend and
had gone to Carmel, Indiana afterwards until her return on July
22. He said after interviewing the defendant for a short time, he
interviewed Ms. Laredo and Ms. LaBoy. He said he then
confronted the defendant with Ms. LaBoy’s statement that the
defendant had admitted to her that he killed the victim and Ms.
Laredo’s statement that she witnessed her father shoot and kill
the victim. He said the defendant then stated that Ms. Laredo
shot the victim.

        Kenneth Robbins testified that he was retired from his
former employment as a jailer but that he still worked part time
when needed. He said he fingerprinted the defendant in August
2002 and identified the fingerprint card. He said the defendant
initiated a conversation with him on July 30, 2003, in which the
defendant said the victim had been assaulting Ms. Laredo and
that when the defendant attempted to separate the two, the
defendant saw the victim had a knife, spun the victim around,
and shot him.

       Robert Carson testified that he was the chief detective for
the Scott County Sheriff’s Department and that he investigated
the victim’s death. He said he received a telephone call on a
Friday afternoon from Gary Burchfield regarding a body Mr.
Burchfield and his friends discovered while fishing. He said he
and Detective Wade Chambers went to the scene at the New
River. He said they located the body, which was submerged in
twelve to eighteen inches of water near the center of the river.
He said that the body was weighted with rocks and cinder blocks
and that it took four people about an hour and a half to remove
the body from the water. He said the body was in “pretty bad
shape” and had signs of fish feeding. He said it appeared to

                                2
have been in the water about a week. He said the body was
taken to the ambulance service in Oneida. He said they cleaned
the body and determined that a chain was locked around the
neck of the body and that the chain was attached to a block or a
rock and that other rocks and blocks were tied to the body, as
well. He said the body was later transported to UT Medical
Center for an autopsy. He said the body was identified through
fingerprinting as that of the victim.

        Detective Carson testified that he was involved with
interviewing the defendant and Ms. Laredo on July 23. He said
the authorities obtained a search warrant for the defendant’s
home after the interviews. He said that the officers encountered
Donna LaBoy at the home and that she gave her consent for the
search, as well. He said that during the search, the officers were
looking for any evidence of the crime, including rope, blue
paint, a boat, a gun, bullets, and casings. He said a gun was not
found but other items were, including rope, string, a barrel with
blue paint, and a boat with blue paint. He explained that blue
paint was of interest because there had been blue paint on some
rocks at the crime scene.

       Detective Carson testified that he returned to the
defendant’s home on July 26 after Ms. LaBoy provided some
additional information to the authorities. He said that Ms.
LaBoy gave consent for a search of the residence and that he
found the “murder weapon,” a shoulder holster, and ammunition
buried in a can behind the well house that was behind the home.
He said the can was a “military ammo can” and was inside two
white garbage bags. He identified the weapon as a nine
millimeter Beretta semiautomatic handgun. He said the
defendant was in jail when this search was conducted.

       Detective Carson testified that Ms. LaBoy brought a key
to the authorities on July 30. He said the key fit the lock that
had been on the chain around the victim’s neck.

       Detective Carson testified that he was involved in the
interview process with respect to Ms. Laredo and that she told
conflicting stories. He said that the conflicts in her statements

                                3
did not pertain to the identity of the person who shot the victim
but that she admitted in her later statement that she knew before
going to the river what was going to happen. He said she was
arrested within a day or two of her second interview.

         Detective Carson identified two letters he received in the
investigation. He said he obtained them from the defendant’s
sisters, Linda Overton and Roshona Crabtree. He read the letter
he received from Ms. Crabtree, in which the defendant asked
Ms. Crabtree to get $8,000 from their mother in order to pay a
hit man to kill Vanessa Laredo and Donna LaBoy. The letter
stated that Ms. LaBoy was going to be killed first because she
was providing information to the district attorney. It also
provided information about where and to whom the money
should be sent. Detective Carson also read the letter the
defendant wrote to Ms. Overton, which stated that she should
send $8,000 and provided a name and address. The letter stated
that the person to whom the money was sent would pay the hit
man. The defendant stated in the letter that he thought Donna
was “going to help work me over in court up there” and then
was going to move on with her life. The defendant stated in the
letter that Vanessa, not he, shot the victim after he had struggled
with the victim.

         David Hoover, a forensic scientist with the Tennessee
Bureau of Investigation, testified as an expert in latent
fingerprint examination. He said he identified a latent
fingerprint on the side of the “ammo box” as matching the
defendant’s left thumb. He said he was unable to find
identifiable fingerprints on any of the items inside the box or the
white plastic garbage bags. He said he also examined two
letters submitted and found the defendant’s latent fingerprints on
them.

       Kelvin Woodby, a forensic scientist with the Tennessee
Bureau of Investigation, testified as an expert in serology and
DNA comparison analysis. He said he recovered human blood
from three places on a boat that was stored at the Scott County
Jail. He was unable to obtain a DNA profile from any of the
samples.

                                4
        Detective Randy Lewallen testified that he was a deputy
with the Scott County Sheriff’s Department. He said he helped
recover the victim’s body from the New River. He said this was
a difficult task due to the rocks that were tied to the body. He
identified the rocks, blocks, ropes, chain, lock, and bullet that
were recovered from the victim’s body. He said that Donna
LaBoy admitted that she had tied a web of knots around one of
the rocks.

        Steve Scott of the Tennessee Bureau of Investigation
testified as an expert in firearms examination, ballistics, and
firearms ammunition comparison. He said he examined a gun
and bullet in connection with the investigation of the victim’s
death. He identified the weapon as a Beretta semiautomatic nine
millimeter pistol. He said the bullet had been fired from the
gun. The bullet had been taken from the victim’s head during
the autopsy, and the gun had been identified as being the one
exhumed during the second search of the defendant’s property.

       Doctor Darinka Mileusnic-Polchan testified as an expert
in forensic pathology. She said she performed the autopsy of the
victim on July 19, 2003. She said the body had strings and chain
around the wrists, neck, and ankles. She said the body was in
poor condition due to having been submerged in water and from
decomposition. She said that the primary injury was a gunshot
wound to the head and that a bullet was recovered from the
victim’s head. She said the bullet entered the back left of the
victim’s head. She said the gun was in close proximity to the
victim’s head when the bullet was fired, although she could not
determine whether it was “loose contact” or “tight contact.”

       Donna LaBoy testified that she met the defendant in
August 2002 and moved into his home later that year. She said
she lived there until the defendant’s arrest in July 2003. She
said she met the defendant’s daughter Vanessa on July 5, 2003,
with Vanessa’s Hispanic boyfriend named Joe. She said
Vanessa claimed to be separated from the victim. She said that
Vanessa and Joe stayed overnight and that she next saw Vanessa
on July 8 when she came to the home with the victim. She said
that on July 7, she had heard the defendant talking on the phone

                               5
with Vanessa and overheard the defendant say “to get him down
here and that they would take care of him and she wouldn’t have
to worry about him anymore.” She said she heard the defendant
tell Vanessa that she should tell the victim that they could come
to live in Tennessee and that the defendant would hire the victim
to work in his garage. She said the defendant hung up the phone
and said to her, “I’ve got to do something really bad,” and then
told her that he was going to kill the victim. He said Vanessa
and the victim arrived at the house about ten minutes later. She
said that after a while, Vanessa and the defendant went outside
alone. She said the defendant, Vanessa, and the victim were
preparing to go camping and fishing when a family arrived
unexpectedly to visit. She said the family stayed for a couple of
hours and that during their visit, she went inside the house and
saw the victim with his hands around Vanessa’s neck. She said
she later observed the two of them coming out of the bathroom
and saw that Vanessa had a handprint on her face. She said
Vanessa told her a few minutes later that the victim was mad
because she had started her period and was not pregnant.

       Ms. LaBoy testified that she, the defendant, Vanessa, and
the victim left in her truck after the visitors left. She said that
they took a boat and supplies and that the defendant had a rifle
and a nine millimeter Beretta with him. She said the defendant
wore the Beretta in a shoulder holster underneath a tee shirt and
a jacket to conceal it from the victim. She identified the Beretta
in evidence as the one the defendant took with him. She said the
defendant told her to pack extra clothes for him because he
would need them after he killed the victim.

        Ms. LaBoy testified that when they got to the river, they
launched the boat. She said that she left and went home and that
the plan was for her to meet them at the same location at nine
o’clock the next morning. She said she was scared and called a
friend in Kentucky that night. She said that she picked up
Vanessa and the defendant the next morning and that the
defendant told her they had killed the victim. She said that after
they returned home, the defendant told her that he shot the
victim in the head and that they had tied rocks to his body and
belt loop and thrown him into the New River. She said that as

                                6
they were eating breakfast, the defendant and Vanessa both
claimed to have killed the victim. She said the defendant and
Vanessa burned the victim’s clothing, some of the camping gear,
life jackets, and the seats from the boat. She said the defendant
put the ashes in a bag and disposed of them in a dumpster.

        Ms. LaBoy testified that Vanessa drove the victim’s car
to Illinois. She said she and the defendant went with Vanessa in
Ms. LaBoy’s truck. She said that Vanessa left the car in a corn
field, that the defendant and Vanessa “wiped it down,” and that
the defendant poured gasoline on it. She said the defendant,
who had a gun, forced her to ignite the car.

       Ms. LaBoy testified that the three of them went to
Vanessa’s apartment in Carmel, Indiana, where they spent the
night, retrieved Vanessa’s possessions, and picked up her
paycheck. She said they drove to Kentucky and disposed of the
license plate from the victim’s car in a river. She said they then
returned home to Scott County.

       Ms. LaBoy testified that the three of them went to the
river with the boat. She said Vanessa and the defendant
attempted to move the body in the river. She said the defendant
told her that Vanessa was unable to “handle it” and insisted that
she must help him. She said that she went with the defendant in
the boat and that the defendant tied concrete blocks to the body
and threw the blocks overboard, almost sinking the boat because
he had tied the body to the boat. She said the defendant took
rope, chain, and a padlock from the house to the river. She said
that the defendant had purchased some of the rope before the
murder and that she had purchased other rope at the defendant’s
request after the murder.

      Ms. LaBoy testified that she and the defendant made
another trip to the river. She said that the defendant wanted to
weight the body if it was floating and that it was. She said the
defendant had her tie ropes into a web around a rock.

       Ms. LaBoy testified that the defendant and Vanessa
discussed saying that Vanessa’s boyfriend Joe killed the victim

                                7
in Indiana and brought the body to Tennessee and disposed of
it in the river. She said Vanessa also discussed saying that the
victim was involved with drugs and had been killed by a drug
dealer.

       Ms. LaBoy testified that she and the defendant were in
Clinton taking Vanessa to her mother’s apartment when the
defendant was arrested. She said she was allowed to drive her
truck to the Campbell County Jail, where she was interviewed
but not arrested.

        Ms. LaBoy said that she visited the defendant in jail and
that he drew a map and told her and the defendant’s sister where
the gun was buried. She said he asked them to take the gun out
of state and destroy it. She said that the map indicated the gun
was behind the well house and that she had not known this. She
said the defendant ate the map. She said that they agreed to
dispose of the gun but that she called the 9-1-1 center and
requested that the authorities meet her at her house because she
knew where the gun was located. She said the authorities
arrived and found the gun in the location the defendant had
identified. She said she found some keys and some of the
victim’s belongings and provided those to the authorities.

       Ms. LaBoy testified that she continued to visit the
defendant while he was in jail and that they wrote letters to each
other. She said she acted like she was “madly in love” with the
defendant but that he had “messed up [her] whole life.”

        Ms. LaBoy testified that she and the defendant learned
that the victim’s body had been discovered by fishermen when
they heard it on a police scanner. She said they had planned to
buy Quikrete later that day and take it to the river to weight
down the body.

       Ms. LaBoy read portions of letters she received from the
defendant. In one, he asked her to say that she was at the river
when the victim was killed. He proposed that she either say that
Vanessa shot the victim or that the defendant did so when the
victim attacked Vanessa and him with a knife. In another, he

                                8
asked Ms. LaBoy to help him in court. He said he did not kill
the victim. He proposed that they say that Ms. LaBoy was
present for the murder but that she had a panic attack and that
none of them planned for it to happen. In a third letter, the
defendant told Ms. LaBoy that she should say that the victim
attacked Vanessa at the river, leaving a tooth mark on her, and
that Vanessa killed the victim. In another excerpt, the defendant
expressed his consternation with Ms. LaBoy for telling the
authorities about the gun. He stated that Vanessa had her own
gun at the river that night. In another letter, the defendant asked
whether Ms. LaBoy was willing to lie on the stand for him and
requested that she write back using a numerical code to answer
the question.

        On cross-examination, Ms. LaBoy maintained that she
saw the defendant with the nine millimeter Beretta before he left
with the victim and Vanessa, despite her inconsistent testimony
at the preliminary hearing. She said that the defendant had been
so insistent that she had been at the river that he “pretty much
had [her] to the point that he was making [her] believe anything
he said.” She maintained, however, that she had not been at the
river. She said she wanted to believe that the defendant would
not kill anyone. She admitted that she took medication for
anxiety and panic attacks but claimed she did not have memory
problems unless she was having a panic attack. She admitted
that she had taken medicine for her anxiety on the day Vanessa
and the victim came to her house and that she drank one or two
beers. She said she was “overmedicated” with six to twelve
Hydroxypam pills on the day of the preliminary hearing because
she was claustrophobic and had been “closed up back there in a
room.” She said the prescribed dosage was three pills a day.

       Ms. LaBoy testified that she had been charged in
connection with the victim’s murder. She said, however, that
the state had not promised her anything in exchange for her
testimony. She said she did not call the police after dropping off
the defendant, the victim, and Vanessa at the river because the
defendant told her that if the police came to the river he would
come to the house and kill her. She denied that she was the
person who buried the gun. She admitted that she wrote letters

                                9
to the defendant in jail expressing her love for him and blamed
it on “[s]tupidity.” She admitted she had testified at the
preliminary hearing that Vanessa had an opportunity to go inside
the house and retrieved the defendant’s gun before going to the
river, but she said she knew the defendant had the gun on his
person when they left.

       Ms. LaBoy testified that the defendant had placed his
nine millimeter gun and his ammunition in an “ammo box” and
had her get two garbage bags in which to place the box. She
said that night she was awakened by the defendant, who told her
not to go outside or look out the windows. She said she stayed
in bed. She said that later the defendant confronted her and
questioned whether she had watched him.

       Ben Johnson testified that he was driving in Jefferson
County, Illinois on July 10, 2003, when he was nearly hit by a
white Chevrolet truck that drove out of a field without stopping.
He said there were three people inside the truck. He noticed a
fire down the lane but proceeded on to his father’s house for
dinner. He said he told his father about the fire and that his
father went to the fire on his four-wheeler.

        Bill Johnson testified that his son and his son’s girlfriend
came to his house for dinner on July 10, 2003. He said that after
speaking with his son, he rode his four-wheeler up the road and
saw a burning car, which he described as having two doors and
being bluish gray. Jefferson County, Illinois Sheriff’s Deputy
Scott Smith testified that he responded to the scene of a car fire
on July 10, 2003. He said the car was on a dead-end road and
that it was so badly burned that he was unable to find a vehicle
identification number. Fred Brown testified that he was an
investigator with the Illinois Secretary of State Police and that
he assisted in the investigation of the burned car. He said that
he located the vehicle identification number and that it matched
a 2003 two-door Chevrolet Cavalier registered to the victim.

       The defendant’s sister, Linda Overton, testified on his
behalf. She said she received two letters from the defendant but
did not open them. She said she had received and opened other

                                10
letters from the defendant but that she had not picked up her
mail to retrieve the two letters until after she was questioned by
the authorities. She said the officers who questioned her
humiliated her in her workplace. She said she told the officers
she would retrieve and turn over the letters. She identified the
handwriting in a third letter as looking like the defendant’s.

        The defense recalled Detective Lewallen, who testified
that he transported the defendant to Riverbend Prison on
October 2, 2003. He said that he attempted to prevent the
defendant from talking to him but that the defendant was
insistent upon doing so. He said the defendant told him that his
daughter Vanessa was the person who shot the victim. He said
the defendant stated that his gun was damaged when Vanessa
was startled and dropped the gun on rocks. He said the
defendant requested that he ask Detective Carson to check the
gun for the damage. He said the defendant stated that the gun
was an expensive, limited edition weapon and that if he were
going to shoot someone, he would not use it. He said the
defendant stated that he did not know the gun was at the scene
until his daughter pulled it out. He said the defendant told him
that he had recently become acquainted with his daughter after
many years of not having contact with his children.

        Vanessa Laredo testified that she was married to the
victim. She said the victim had been physically abusive to her
when he was drinking. She said that they had been separated at
times due to his abusiveness and that he had been arrested once
for the abuse. She said her parents divorced when she was
twelve or thirteen and that visitation with the defendant ceased
after an incident between her parents in which the defendant ran
her mother off the road. She said she next saw her father when
she was about nineteen years old. She said she talked to the
defendant by telephone after her brother told her the defendant
had changed and that she saw the defendant on July 5, 2003,
when she was with Joel Comingo. She said she was separated
from the victim at the time. She said after she returned to her
home in Indiana, the victim broke into her apartment and
assaulted and raped her on July 6 or 7. She said that she called
the defendant and that he said he would “take care of it” if she

                               11
would bring the victim to Tennessee. She said the defendant did
not explain what he meant. However, she admitted that she
came to understand that he meant he was going to kill the victim
and that she did nothing to stop him.

       Ms. Laredo testified that she thought she arrived in Scott
County with the victim on July 7. She said that she and the
defendant did target shooting that day. She said she shot the
defendant’s shotguns but not a pistol. She said that while they
were at the defendant’s house, the victim choked her for
wearing a pair of shorts of which he disapproved and slapped
her for refusing to have sexual relations with him.

        Ms. Laredo testified that she went to the river with the
defendant and the victim. She said Ms. LaBoy drove them to
the river and left in her truck. She said that as they were putting
the boat in the water, the defendant told her that her problems
would be over in a few hours. She said they went down the
river in the boat. She said that they set out fishing poles and that
the defendant and the victim drank beer and ate watermelon.
She said they stayed in the same location for an hour or two and
then went down the river. She said they went to shore but did
not set out fishing poles this time. She said that at about 7:30
a.m., she and the victim were skipping rocks when the defendant
shot the victim. She said she turned and saw the defendant
putting a pistol into a holster under his shirt. She said she had
known there was a shotgun on the trip, but she had not known
about a pistol. She denied that she had ever told anyone that she
was the person who shot the victim. She said there was no
altercation during the trip to the river in which the victim was
abusive to her. She denied that either she or the defendant had
struggled with the victim. She said the victim did not have a
knife. She said that she had bite marks on her chest but that they
were from the sexual assault that had taken place in Indiana.

       Ms. Laredo testified that after the defendant shot the
victim, the defendant told her to get into the boat. She said the
defendant washed blood off the bank and put the victim’s body
and some rocks into the boat. She said the defendant covered
the victim’s body with a blanket and said, “Look at him. That’s

                                12
the kind of man that would have killed you one day.” She said
the defendant tied rocks to the victim’s body and pushed him
into the river. She said they paddled down the river to a bridge,
where they took the boat out of the water and waited for Ms.
LaBoy to pick them up. She said Ms. LaBoy did not ask about
the victim’s whereabouts.

        Ms. Laredo testified that they did not talk about what
happened when they returned to the defendant’s house. She said
that the defendant told her they needed to dispose of the victim’s
possessions and that they burned them in the back yard. She
said that she thought she called Mr. Comingo several times that
day and told him she wanted to come back to Indiana but that
she did not tell him what had happened.

       Ms. Laredo testified she gave a statement on July 23 and
gave a second statement a few days later. She said her first
statement was not truthful. She said that she was charged with
the defendant and that she was pleading guilty. She denied that
she shot the victim.

        Ms. Laredo testified that she went with the defendant and
Ms. LaBoy to Illinois to burn the victim’s car and that they also
went to Indiana. She said that on this trip, the defendant threw
the license plate from the victim’s car into a river in Kentucky.

       The defendant testified that he was honorably discharged
from the Army and had worked various jobs until becoming a
truck driver. He said that he met Donna LaBoy in August 2002
and that she moved into his home in March 2003. He said he
had seven children, one of whom was deceased. He said he had
divorced Vanessa Laredo’s mother when Vanessa was twelve or
thirteen years old and that other than going to visit Vanessa at
her workplace one time, he had no relationship with her until
Father’s Day, 2003. He said Vanessa called him on Father’s
Day and they discussed going fishing. He said he and Vanessa
talked again and made arrangements to see each other when
Vanessa planned to be in Tennessee for July Fourth.




                               13
        The defendant testified that Vanessa and her boyfriend
Joel visited overnight on July 5. He said that Vanessa and Joel
slept in the bedroom he normally shared with Ms. LaBoy and
that his nine millimeter Beretta was kept in the nightstand in that
room. He said he was unaware at this time that Vanessa was
married to the victim.

       The defendant testified that Vanessa called him on July
8 and said she had been fired from her job because she had
returned late from her trip to Tennessee. He said she inquired
whether she could stay with him for a while and look for a job
in Tennessee. He said that he agreed and that she arrived that
evening about 8:30 p.m. with a man she introduced as her
husband, Armando Laredo. She said that Vanessa pulled Ms.
LaBoy aside and talked to her and that Ms. LaBoy later told him
that Vanessa said not to mention to the victim the other man
with whom she had visited previously. She said the four of
them sat around drinking beer and talking. He said that he and
Vanessa walked around his garage talking and that Vanessa
asked if he would teach the victim how to do automotive body
repair work in his garage. He said he later went to the garage
with the victim and talked to him about learning to do
automotive work.

        The defendant testified that a family came to visit that
evening but eventually left because Vanessa kept insisting that
she wanted to go fishing. He said they gathered the fishing
equipment and went to a grocery store. He said Ms. LaBoy
dropped them at the river and went back to the house. He said
he had a rifle to kill snakes and other equipment for fishing and
camping. He said they paddled down the river and went to
shore to fish. He said they talked, drank beer, and ate
watermelon. He said that the fish were not biting and that they
decided to go downstream. He said the fishing was no better in
the second location. He said that the victim and Vanessa talked
in “Mexican” and that it sounded like they were arguing and
discussing “Joe.” He said that the victim had consumed eight to
twelve beers and that he had consumed six or seven. He said
that he went into the bushes to relieve himself and that Vanessa
screamed for him to help her. He said he ran back and found

                                14
Vanessa on the ground and the victim on top of her hitting her.
He said the victim was biting Vanessa’s chest. He said he was
unable to pull the victim from Vanessa and hit the victim two or
three times. He said he and the victim rolled around in the mud
and rocks and hit each other. He said the victim got to his feet
and started kicking and stomping him. He said the victim pulled
a knife and said, “I’m gonna kill you and your d--- b---- of a
daughter also.” He said that he grabbed the hand in which the
victim had the knife and that the victim started hitting him with
a rock. He said that he hit the victim and that they were both
bleeding. He said their struggle lasted no more than two
minutes and was halted when a shot rang out and the victim fell
away from him. He said he saw Vanessa with the gun in her left
hand and saw the gun drop to the rocks. He said after two or
three minutes, he checked the victim’s pulse and found none.
He said he suggested that they call the authorities, but Vanessa
insisted that they not because she had an order of protection
against the victim and thought the authorities would not believe
them. He said that it was Vanessa’s idea to put the victim in the
water, and that although he disagreed, he acquiesced. He said
that the two of them loaded the victim’s body into the boat and
that Vanessa tied rope from a tackle box to rocks. He said that
he tied the ropes to the victim’s body and that they pushed the
body into the water. He said the victim was shot about 5:15 or
5:30 a.m.

        He said Ms. LaBoy was not at the place where she was
supposed to pick them up at 9:00 a.m. but eventually arrived.
He said that she inquired where the victim was and that he told
her something bad had happened, which he could not discuss at
that time. He said they went home and unloaded the boat. He
said he had to put air in the tires of the victim’s car because Ms.
LaBoy had let the air out of them. He denied that he admitted
shooting the victim to Ms. LaBoy. He said Vanessa called her
boyfriend Joel repeatedly, which he said was reflected on the
telephone bill. He said he did not know what Vanessa said to
Joel because she spoke in “Mexican.” He said he went to bed
and woke up to find Ms. LaBoy and Vanessa smoking
marijuana. He said there was no discussion of disposing of
evidence until later that evening. He denied burning any of the

                                15
items but said that the women did so and that he hauled the
ashes to the landfill.

        The defendant testified that on July 10, the women
suggested driving the victim’s car to Chicago and abandoning
it on a back street. He said that he agreed but that once they set
out and stopped for gas along the way, Vanessa suggested that
they do something with it there. He said he agreed because the
truck was using a lot of gas. He said they took the car to a corn
field. He said he poured gas on it and Ms. LaBoy started a fire.
He said burning the car was Ms. LaBoy’s idea. He said the
three of them went to Vanessa’s apartment in Carmel, Indiana.
He said that Vanessa visited Joel, that they spent the night at
Vanessa’s apartment, and that they gathered Vanessa’s
belongings. He said that they traveled home and that on the
way, he threw the license plate from the victim’s car off a
bridge.

        The defendant testified that a couple of days after
returning to Tennessee, the three of them went to the river to
check on the victim’s body. He said Vanessa wanted him to cut
off the victim’s hands and head so that he could not be identified
but he refused. He said he and Ms. LaBoy tied cinder blocks
and rocks to the victim’s body. He said he and Ms. LaBoy went
to the river another time without Vanessa and Ms. LaBoy put the
chain around the victim’s neck. He said the lock on the chain
was Ms. LaBoy’s.

         The defendant testified that before his arrest, Ms. LaBoy
had buried the gun. He said he was home at the time but did not
participate and did not know the location. He said that after he
was arrested, he had a conversation with Ms. LaBoy at the jail
in which she told him the authorities had searched the yard with
metal detectors and dug holes but had not found the gun. He
said Ms. LaBoy whispered to him about the gun’s whereabouts
but he could not hear her. He said that she drew a map and that
he still could not understand and that he drew a map to help him
understand. He said he ate the map at Ms. LaBoy’s direction.




                               16
        The defendant testified that he had written letters to
various women while in jail. He admitted writing the letters that
had been received as evidence. He acknowledged that some of
the letters instructed Ms. LaBoy to testify falsely and that some
of them discussed hiring a hit man. He said he was mad at Ms.
LaBoy for cooperating with the state. He said he wrote the
letters out of anger but “meant nothing by them.” He admitted
writing a letter in which he claimed Vanessa had her own gun at
the river and acknowledged that this was not true. The
defendant admitted his prior convictions for domestic assault
and carrying a weapon in his truck.

        The defendant testified that he was wearing a t-shirt that
“fit pretty good” the night he went to the river with Vanessa and
the victim. He denied that he was wearing a shoulder holster or
a jacket. He said he did not check the night stand for his pistol
before he left and did not know that Vanessa had it with her.

        On cross-examination, the defendant admitted that Ms.
LaBoy had not been present when the victim was killed. He
stated he was unaware of any plan to kill the victim before going
to the river. He said that Vanessa told him she had taken the
pistol to the river just to shoot it and that he did not believe she
planned to kill the victim. He denied that he told Ms. LaBoy he
was going to kill the victim at the river. He admitted that he had
been untruthful with Agent Vinsant when he was interviewed on
July 23 by denying that he knew the victim. He said his words
did not come out correctly when Agent Vinsant understood him
to say Vanessa shot the victim while the victim was squatting
down using the bathroom. He said what he meant to say was
that the way in which Vanessa shot the victim was “s-----” but
that he did not get the chance to correct himself because Agent
Vinsant walked away. The defendant admitted telling Kenneth
Robbins that he had pulled the victim off Vanessa, slung him
around, and “popped” him.

        The defendant testified that he told Vanessa in the
beginning that he would take the blame for the victim’s death
because she was only twenty-two years old and had her whole
life ahead of her. He said that he did not recall telling inmates

                                17
              Billy Gunter and Brandon Green he shot the victim. He
              admitted saying to inmate Mitchell Green that he had revealed
              the location of the weapon to someone and was concerned that
              person would turn it over to authorities.

                      Walter Jackson testified on rebuttal that he, his wife, and
              his toddler son went to the defendant’s house in early July 2003.
              He said he wanted to see about buying some automotive parts
              from the defendant. He estimated it was after 9:00 p.m. He said
              the defendant, his girlfriend, his daughter, and his daughter’s
              husband were at the defendant’s home. He said they stayed
              “[a]bout 30 minutes, maybe a little longer.” He said they left
              after the defendant’s daughter came out and said they had to go
              to the store. He said the defendant did not ask him to go fishing
              with them. He acknowledged having previously told counsel he
              did not remember what had been discussed.

                     After receiving the evidence, the jury found the defendant
              guilty of first degree murder. The trial court imposed a life
              sentence.

State v. Charles Ray Harvey, No. E2006-00882-CCA-R3-CD, Scott County, slip op. at 1-12
(Tenn. Crim. App. Mar. 4, 2008).

        Through counsel, the Petitioner filed his petition for post-conviction relief on March
3, 2009. The petition alleged that trial counsel were ineffective in failing to advise the
Petitioner that he should accept the State’s plea offer and that he had no realistic chance of
prevailing at trial. The petition also alleged that counsel were ineffective in waiving an
opening statement, not raising an objection to admission of the “‘killer for hire’ letters,”
failing to voir dire the State’s DNA expert about his qualifications, and failing to meet with
him for sufficient time to prepare him adequately to testify at trial.

        At the post-conviction hearing, the Petitioner testified that he was represented briefly
by appointed attorneys but that he retained the services of his trial attorneys. He said he met
with his trial counsel “a little bit” to prepare for trial. He stated that his attorneys
communicated the State’s plea offer to him but said only that they were obligated to convey
it to him. He said there were three alternatives in the plea agreement: a twenty-year
sentence, a sentence between fifteen and twenty-five years to be determined by the trial court,
and a fifteen-year sentence consecutive to a ten-year sentence. He said he had a good reason



                                              18
to reject the plea agreement because his attorneys advised him that they would “give [him]
a fifty-fifty chance” at trial.

        The Petitioner acknowledged that the State’s evidence included his fingerprint on the
box containing the murder weapon, that there was blood evidence, and that he assumed his
co-defendant, who was his daughter, was going to testify against him. He said he knew that
the State had letters he wrote about hiring a hit man to kill witnesses and requesting that his
girlfriend lie in her trial testimony. When asked if he and his attorneys discussed why he
should take the case to trial and how they could win, he said, “Not too much.” He said, “I
just went on what the attorneys said, you know, we had a pretty good chance of winning the
case on what evidence we had.” He admitted, however, that he had no favorable evidence.

       The Petitioner said his attorneys never discussed the State’s plea offer with him except
when they told him they were obligated to show him the offer. He said this conversation
lasted no more than two to three minutes.

       The Petitioner acknowledged that his attorneys visited him in prison before the trial.
He said that he only recalled two occasions when they visited and that two of the three came
each time. He recalled his initial appointed attorney giving him discovery materials at a court
appearance and later visiting him in prison, but he did not recall discussing the plea offer
with this lawyer. He acknowledged that he also wrote letters to his trial attorneys and that
he talked to them by telephone. He said he received a few letters from his trial attorneys.

        The Petitioner identified a letter from lead counsel, John Mitchell. The three-page
letter was dated November 19, 2004, and stated that it was written to address numerous
letters and questions from the Petitioner. The letter detailed the strengths and weaknesses
of the State’s case against the Petitioner:

              The strengths of your case are the fact that you had no reason to
              kill Armando and Vanessa did. However, the weaknesses in
              your case are the many, many statements that you have made,
              both orally and in writing, concerning the different ways the
              murder occurred, who did it, why it was done, etc. The worst
              parts of your case are the two “hit men” letters which you sent
              to Linda. I would have thought you knew that all letters going
              in or out of the Tennessee penal system are opened, read and
              photocopied, if necessary.

              ...



                                              19
                      You have assisted the State with all of your various
              letters so they have a fairly strong case as far as the murder is
              concerned, but they do not have an extremely strong case as to
              who actually “pulled the trigger.” They are depending on
              Vanessa to testify on that and how she holds up under cross-
              examination, etc., will be critical. The weaknesses of the
              prosecution’s case are that they do not have anyone who knows
              who “pulled the trigger” except you and Vanessa. First degree
              murder is not as likely as second degree murder but, yes, a
              conviction for first degree murder could be obtained by the State
              if the jury believes there was sufficient premeditation by virtue
              of the fact a gun was taken on a fishing trip. Actually, we do not
              have to prove that Vanessa killed her husband; we simply need
              to show there was insufficient proof to show that you did it.

              ...

              . . . [R]est assured that we are going to give you the best defense
              we can in spite of the fact that the State has 80 plus letters from
              you in various stages of denial, admission, story changes, etc.

The letter also referred to counsel’s reasons for not representing the Petitioner in an
Anderson County case, an earlier discussion about a change of venue, counsel’s upcoming
conversation about the case with the District Attorney, the Petitioner’s bond, out-of-state
witnesses suggested by the Petitioner, the unlikelihood of a successful motion to suppress,
and counsel’s advice that the Petitioner refrain from writing additional letters to anyone other
than counsel.

       The Petitioner identified a plea offer that he signed noting his rejection on December
9, 2004. The offer states three alternatives: (1) a guilty plea to second degree murder with
a twenty-year sentence, (2) a guilty plea to second degree murder with the trial court to
determine a sentence between fifteen and twenty-five years after conducting a sentencing
hearing, or (3) a guilty plea to voluntary manslaughter and theft over $1,000 with consecutive
sentences of fifteen and ten years to be served at forty-five percent release eligibility. It
stated above the Petitioner’s signature that the defendant had read the offer, that he
understood its contents, and that his attorney had explained any questions he had. The
Petitioner stated that his attorneys did not provide advice about whether the offer was a good
one and whether he should accept it. He restated that they only told him they were obligated
to inform him of it.



                                              20
        The Petitioner acknowledged that while he was in prison before trial, he began
corresponding with Angela Brown, whom he met when they were inmates at the county jail.
He acknowledged a letter he wrote to Ms. Brown in which he reported his rejection of the
plea offer, his refusal to take any plea, and his desire to go to trial. When asked about his
statement in the letter that he had “many real good reasons” to go to trial, he explained that
his attorneys told him he had a fifty-fifty chance of “winning.” He said he did not remember
the factual basis recited by his attorneys for his likelihood of a favorable outcome. He denied
telling his attorneys that he could not plead guilty because he did not kill the victim.

        The Petitioner denied believing that he would not be convicted by a Scott County jury
for killing an illegal alien from Mexico. He said his attorneys told him they would “get the
letters [he wrote about hiring someone to kill witnesses] dismissed under Rule 16.” He
denied that he insisted on testifying and stated that his attorneys told him he was one of their
key witnesses who wanted to testify. He said that his attorneys did not talk to him much
about his testimony and that he did not have the opportunity to review all of the discovery
materials in detail.

       The Petitioner acknowledged a letter he wrote to Ms. Brown in which he stated that
he had three attorneys who were “the best money can buy,” that the attorneys had never lost
a case, that he trusted them one hundred percent, and that he expected to be out of jail by
July. He said that when he wrote the letter, he believed his attorneys had never lost a case.
He said he did not know at the time that his daughter would testify for the State.

         Darwin Colston testified for the State that at the time of the Petitioner’s trial, he was
an associate at the law firm that represented the Petitioner and was now a partner. He said
that at the time, the firm’s caseload was approximately ninety percent criminal cases. He said
he met the Petitioner at Riverbend prison at least three times and that he had extensive
meetings with the Petitioner when there were hearings in Scott County. He said that trial
counsel was with him two of the three times when he went to the prison, that co-counsel was
there every time, and that Valerie Maleug was there once.

       Mr. Colston testified that the Petitioner received a large amount of discovery before
his firm was retained. He said that additional discovery, such as Tennessee Bureau of
Investigation (TBI) lab reports, were received after the firm began representation.

        Mr. Colston testified that the November 19 letter trial counsel wrote to the Petitioner
fairly summarized the strengths and weaknesses of the case. He said trial counsel, co-
counsel, and possibly Ms. Maleug were present when the written settlement offer was
conveyed to the Petitioner. He said they advised the Petitioner that they were required to
convey the offer and that it was the Petitioner’s decision whether to accept it or go to trial.

                                               21
He said that they discussed the offer and that he was concerned whether the Petitioner
understood that the jury could believe his testimony completely yet still convict him of first
degree murder. He said he talked to the Petitioner extensively to try to make him understand
that he could be found criminally responsible for first degree murder even if the jury believed
the Petitioner’s version of events, which was that he did not know his co-defendant was
going to kill the victim but that he helped her conceal the crime afterwards.

        Mr. Colston did not recall whether his firm recommended that the Petitioner accept
one of the alternatives in the plea offer. He testified that he advised the Petitioner about the
time he would be required to serve with the various alternatives in the plea offer. He said he
explained the process of sentencing for the alternative that afforded a sentencing hearing.
He believed they discussed sentencing reduction credits but said he could not specifically
recall the discussion. He said the discussion about the plea offer took “maybe half an hour.”
He said that the discussion was relatively short but that the Petitioner was given the chance
to ask questions. He said the Petitioner maintained that he could not plead guilty.

        Mr. Colston acknowledged that Mr. Mitchell may have told the Petitioner he had a
fifty-fifty chance once or twice. He said this advice was based upon the caveat of the “hit
man” letters being excluded. He said that contrary to the Petitioner’s allegation, counsel filed
a motion to suppress these letters. He said that they thought the motion would be denied and
that they were surprised when the trial court initially ruled in their favor. He said, however,
that the trial court reversed its ruling the following morning. He recalled that someone
mentioned to the Petitioner that they could approach the State at this point and request
another plea offer but that the Petitioner maintained he could not plead guilty if he did not
shoot the victim. Mr. Colston said there were no further plea negotiations.

        Mr. Colston testified that because he was concerned whether the Petitioner understood
that he might be found guilty even though he did not shoot the victim, he discussed the matter
with Mr. Mitchell. He said they decided to request a mental examination of the Petitioner.
The Petitioner was later evaluated by Ridgeview Mental Health and found competent and not
insane.
        Mr. Colston testified that the day after the Petitioner rejected the plea offer on
December 9, 2004, Mr. Mitchell wrote to the prosecutor, stating that the Petitioner wanted
to discuss the matter with his family. He said that the deadline for accepting the plea was
January 4, 2005, and that they hoped the Petitioner would reconsider during this time. He
said the Petitioner never changed his mind. He said that he would have preferred that the
State offered a voluntary manslaughter plea agreement but that the offer they extended was
not unreasonable.




                                              22
       Mr. Colston testified that Mr. Mitchell made the decision to waive the opening
statement and that he was not privy to the rationale behind that decision. He said that
waiving the opening statement or closing argument was a tactic that Mr. Mitchell used
successfully in other cases and that Mr. Mitchell’s decision was based on the facts and
circumstances of each case. He said that he could not speak for Mr. Mitchell, but that
perhaps the prosecutor did not state things in the opening statement that the defense
anticipated.

        Mr. Colston testified that they did not try to dissuade the Petitioner from his desire to
testify at the trial. He said that the co-defendant was going to testify that the Petitioner shot
the victim and that in such a scenario, the jury would want to hear the Petitioner deny this.
He acknowledged that the Petitioner had given different stories about what happened and that
these had to be reconciled. He said that both the co-defendant and the Petitioner’s girlfriend
were credible State’s witnesses and that he did not believe there was “any chance” without
the Petitioner testifying. He said that the defense tried to anticipate the questions the
Petitioner would receive and that they met with the Petitioner to prepare him for his
testimony.

        On cross-examination, Mr. Colston acknowledged that Mr. Mitchell’s November 19
letter outlining the strengths and weaknesses of the case did not mention the Petitioner’s
girlfriend, Donna LaBoy, who later testified that the Petitioner admitted killing the victim.
He agreed that Ms. LaBoy was never charged criminally and that she was a better witness
for the State than the defense had anticipated. He admitted they did not impeach Ms. LaBoy
about whether she received a deal in exchange for her testimony. When asked about the
letter’s failure to mention the Petitioner’s various accounts of the crime or the forensic
evidence that might challenge the Petitioner’s stories, he noted that the letter was written in
response to the Petitioner’s letters and that these matters were discussed with the Petitioner
later. He disagreed that the forensic proof showing that the victim was shot at close range
in the back of the head would disprove the Petitioner’s explanation to counsel that he had the
victim on the ground hitting him when the co-defendant walked up and shot the victim. He
knew there was information in the discovery materials of the Petitioner talking to a prison
guard about self-defense.

       Mr. Colston acknowledged that it was a fair statement that he was never sure the
Petitioner understood criminal responsibility. He said they never tried to force the Petitioner
to take the plea offer because the decision was the Petitioner’s. He said they told the
Petitioner that his chances were less than fifty-fifty if the “hit man” letters were admitted.
He acknowledged no issue was raised in the motion to suppress about the State’s basis for
intercepting the Petitioner’s prison mail. He later recalled that the State obtained the letters
through the Petitioner’s sister, not the Department of Correction.

                                               23
        Edward Holt testified that he formerly practiced with the firm that represented the
Petitioner at trial. He said his criminal law practice had been about ninety-nine percent of
his caseload. He said he met with the Petitioner four times at Riverbend prison, as well as
other times in Scott County when there were hearings. He said that on each occasion, the
Petitioner’s position was that he did not shoot the victim and could not plead guilty. He said
that their first meeting lasted about three hours, during which the Petitioner explained the
circumstances of the offense to him in detail. He said each subsequent meeting “was like
rehashing the same information.”

        Mr. Holt testified that counsel tried to impress upon the Petitioner the gravity of the
letters the Petitioner wrote about obtaining a hit man and instructing his co-defendant how
to testify. He said, “I felt like we tried the best we could to make him understand how
important the letters and the various statements that he had made were [going to] be when
his case came up, and . . . he just never wavered from his position.” He said that whenever
they mentioned a plea agreement, the Petitioner acted as if he did not want to hear it. He said
this was the case when they mentioned the offer from the State. He said that one of the bases
for the motion for a mental evaluation was that the Petitioner did not understand some of the
things they tried to communicate to him.

         Mr. Holt testified that although counsel advised the Petitioner that he did not have to
testify, he did not think there had been an issue about whether the Petitioner would testify.
He said they believed that in order to get the Petitioner’s version of events into evidence and
to explain that the Petitioner’s letters were written in a panic, the Petitioner would have to
testify.

       On cross-examination, Mr. Holt testified that counsel tried to predict the questions the
State would ask the Petitioner when they were preparing him for his testimony. He
acknowledged that they never practiced his direct examination with him. He said he never
conducted a “practice direct” because he did not want to put words into a witness’s mouth.
He said he prepared them to tell their story the best they could and to do their best with their
answers.

        Mr. Holt testified that the Petitioner “had stories all over the [prison] lot” about what
happened when the victim was killed and whether he acted in self-defense. He said that there
was a point at which it became obvious the Petitioner was not willing to listen to any
reasoning about a plea bargain and that they felt they were wasting time to pursue this
discussion further. He said, “I don’t think we ever – I’m not sure that we recommended that
he take a particular offer because at some point, it was obvious to us he was just not [going
to] listen to it.” He agreed it was not unusual for a client to lie to his attorneys about his
involvement in a crime. He said he considered the circumstances “extremely bleak” once the

                                               24
“hit man” letters were admitted. He said that before this point, he never considered the
evidence against the Petitioner overwhelming because it pitted the Petitioner’s word against
his co-defendant’s word. He said there was never any dispute that the victim was shot with
the Petitioner’s gun, which explained the Petitioner’s fingerprint on the box containing the
gun. He said that they thought they would be able to impeach Ms. LaBoy’s testimony and
that although they tried, the jury did not agree they did a good job. He said he “could not
answer” why they never looked the Petitioner in the eye and told him he was going to lose
and must make a plea deal with the prosecution.

        On redirect examination, Mr. Holt testified that they realized the victim’s status as an
illegal alien from Mexico could be a favorable factor in a case tried in the rural South. He
also said the fact the victim abused the co-defendant might be a factor in their favor. He said
that taking into account these factors, counsel believed that the jury might convict the
Petitioner of second degree murder and that the State’s plea offer included sentences that
were essentially equivalent to a second degree murder sentence. On recross-examination,
he reiterated that “there was no convincing [the Petitioner] of anything,” despite the fact that
the plea offer was essentially equivalent to a second degree murder verdict, which the
defense thought would have been a good outcome. He stated no one ever told the Petitioner
he would not be convicted of any offense.

       After receiving the evidence, the trial court found the Petitioner’s trial attorneys’
testimony more credible than the Petitioner’s proof. The court found that it was very clear
from an early point that the Petitioner refused to plead guilty. The court found that the
Petitioner’s statements in his letters to Ms. Brown about his attorneys having never lost a
case were merely boasting and not credible. The court also found that the Petitioner failed
to show that he would have taken any plea offer. The court likewise rejected that the
Petitioner would have accepted the agreement if he had known all of the details about when
he might be released. The court noted that defense counsel had to walk a line between
advocating a guilty plea and maintaining credibility and civility with their client. The court
found that the Petitioner failed to show that counsel’s performance was deficient. The court
did not address prejudice, stating that an analysis was unnecessary based upon its finding that
there was no deficient performance. The trial court denied the petition.

       On appeal, the Petitioner contends that he demonstrated by clear and convincing
evidence that his attorneys were ineffective because they did not advise him he should accept
the State’s pretrial plea offer. The State contends that the trial court properly denied relief.
We hold that the Petitioner has not shown that he is entitled to relief.

       The burden in a post-conviction proceeding is on the Petitioner to prove his
allegations of fact by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006);

                                              25
Dellinger v. State, 279 S.W.3d 282, 294 (Tenn. 2009). On appeal, we are bound by the trial
court’s findings of fact unless we conclude that the evidence in the record preponderates
against those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). Post-conviction
relief may only be given if a conviction or sentence is void or voidable because of a violation
of a constitutional right. T.C.A. § 40-30-103 (2006). Because they relate to mixed questions
of law and fact, we review the trial court’s conclusions as to whether counsel’s performance
was deficient and whether that deficiency was prejudicial under a de novo standard with no
presumption of correctness. Fields, 40 S.W.3d at 457.

        Under the Sixth Amendment to the United States Constitution, when a claim of
ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that
counsel’s performance was deficient and (2) that the deficiency was prejudicial. Strickland
v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72
(1993). A petitioner will only prevail on a claim of ineffective assistance of counsel after
satisfying both prongs of the Strickland test. See Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997). The performance prong requires a petitioner raising a claim of ineffectiveness
to show that counsel’s representation fell below an objective standard of reasonableness or
“outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690.
The prejudice prong requires a petitioner to demonstrate that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. In the context of a guilty plea, in order to prove prejudice,
a petitioner “‘must show that there is a reasonable probability that, but for counsel’s error,
he would not have pleaded guilty and would have insisted on going to trial.’” House v. State,
44 S.W.3d 508, 516 (Tenn. 2001) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

        Our supreme court has held that attorneys should be held to the general standard of
whether the services rendered were within the range of competence demanded of attorneys
in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Further, the court
stated that the range of competence was to be measured by the duties and criteria set forth
in Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974), and United States v.
DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). See id. Also, in reviewing counsel’s
conduct, a “fair assessment of attorney 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. “Thus, the fact that a particular strategy or tactic failed or even
hurt the defense does not, alone, support a claim of ineffective assistance.” Cooper v. State,
847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). Deference is made to trial strategy or tactical
choices if they are informed ones based upon adequate preparation. Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982); see DeCoster, 487 F.2d at 1201.



                                              26
        The record reflects that the Petitioner refused to consider a guilty plea because he
claimed he did not shoot the victim. Mr. Holt testified that he attempted to explain the
Petitioner’s likelihood of conviction to him but that the Petitioner never appeared to
understand. He said that the Petitioner’s lack of understanding was one of the reasons the
defense team obtained a mental evaluation of the Petitioner, in which it was determined that
the Petitioner was competent and not insane. He said that he informed the Petitioner of the
plea offer and that it was pointless to continue the conversation because the Petitioner acted
like he did not want to hear about a plea offer, as he had in past discussions of a plea bargain.
Mr. Holt acknowledged that they never told the Petitioner he should accept the plea offer,
and Mr. Colston could not recall whether they advised the Petitioner he should accept the
plea. Both testified, however, that they spent time on several occasions discussing the
Petitioner’s case with him and trying to convince him that he faced the likelihood of a
conviction if he went to trial.

        The proof was undisputed that the Petitioner adamantly refused to consider a guilty
plea and that he was adamant in his desire to go to trial. Although the Petitioner testified that
he believed he could prevail based upon Mr. Mitchell’s statement that he had a fifty-fifty
chance to win the case, Mr. Colston testified that this advice was predicated upon the
Petitioner’s letters being excluded from evidence. Further, the Petitioner never testified that
if counsel had advised him that he should accept the plea offer, he would have done so. In
fact, the evidence is to the contrary and supports the trial court’s conclusion in that regard.

        This court notes the lack of proof that the Petitioner was ever advised that in counsel’s
professional opinion, he should accept the State’s plea offer. As the trial court concluded,
however, the Petitioner failed to show that he would have accepted the offer had counsel
advised him it was the better course. In addition, the record reflects that counsel discussed
the possibility of a plea bargain with the Petitioner before the offer was made and that the
Petitioner had always insisted on going to trial. The record also reflects that trial counsel
repeatedly advised the Petitioner about the many weaknesses of his case and the likelihood
that he would be convicted of first degree murder, particularly if the trial court admitted his
jailhouse letters. During their representation, trial counsel met with the Petitioner at length,
and Mr. Mitchell wrote the letter introduced at the hearing in response to specific questions
the Petitioner had about his defense. The Petitioner nevertheless persisted in unrealistic
expectations of an acquittal, focusing on only part of counsel’s advice about a fifty-fifty
chance, rather than accepting the totality of counsel’s advice about the realities of the case
as a whole. When counsel became concerned that the Petitioner did not understand the
gravity of the State’s case against him, counsel secured a mental evaluation of the Petitioner.




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        We conclude that the evidence does not preponderate against the trial court’s factual
findings. We also conclude that based upon the particular facts of the case, the trial court did
not err in holding that the Petitioner failed to show that counsel’s performance was deficient.
Although the trial court did not address the prejudice prong of Strickland, the evidence
demonstrates that the Petitioner made no showing that had counsel given him additional
advice, he would have accepted the plea offer. Thus, the Petitioner failed to establish that
he was entitled to post-conviction relief.

        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.


                                               ____________________________________
                                               JOSEPH M. TIPTON, PRESIDING JUDGE




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