                                                                                      11/28/2017
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                              October 17, 2017 Session

     JAMES MCKINLEY CUNNINGHAM v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Grundy County
                     No. 6751     Larry B. Stanley, Jr., Judge
                     ___________________________________

                          No. M2017-00348-CCA-R3-PC
                      ___________________________________


Petitioner, James McKinley Cunningham, was convicted of first degree murder after
shooting his father. The conviction was affirmed on direct appeal. State v. James
McKinley Cunningham, No. M1999-01995-CCA-R3-CD, 2000 WL 1520247, at *1
(Tenn. Crim. App. Oct. 13, 2000), perm. app. denied (Tenn. Apr. 23, 2001). Petitioner
initially sought post-conviction relief in 2002 and amended the petition in 2015. Nearly
fourteen years after the original petition was filed, the post-conviction court held a
hearing and denied relief. We affirm the denial of post-conviction relief.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which D. KELLY THOMAS,
JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Robert S. Peters, Winchester, Tennessee, for the appellant, James McKinley
Cunningham.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Mike Taylor, District Attorney General; and David Shinn, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                      OPINION

       Nearly twenty-one years ago, Petitioner shot and killed his father. He loaded the
body into the trunk of his mother’s car, drove to a remote location near Monteagle,
Tennessee, and dumped the body in a ravine. Then, he burned a sofa, disposed of his
father’s clothing, and got rid of the murder weapon. Id. at *1. Shortly thereafter,
Petitioner, his girlfriend, and his mother fled to Oklahoma. Id. All of these facts have
never been disputed by Petitioner.

       After a jury trial, Petitioner was convicted of first degree murder and sentenced to
life imprisonment. His conviction was affirmed on direct appeal and the Tennessee
Supreme Court denied permission to appeal on April 24, 2001.

        Petitioner filed a lengthy pro se petition for post-conviction relief. The petition
certified that it was given to prison authorities for mailing on April 18, 2002, but the
petition was not filed until April 24, 2002.1 The rambling petition spanned nearly forty
pages and raised various grounds for relief, including allegations that Petitioner’s
confession was coerced, his arrest was unlawful, his conviction was based on a violation
of the privilege against self-incrimination, the State failed to disclose evidence favorable
to the defense, his conviction was based on illegal evidence, his conviction was based on
the action of an unconstitutionally impaneled grand jury, he received ineffective
assistance of trial counsel, and “other grounds.” Post-conviction counsel was appointed
to represent Petitioner in August of 2002.

       On June 19, 2002, the State answered the petition, arguing that it was barred by
the statute of limitations. That same day, a transport order was filed to transport
Petitioner to the Circuit Court of Grundy County for a hearing on August 7, 2002. For
reasons unbeknownst to this Court, nothing appears in the technical record after the
transport order until a Motion to Set Aside Order of Dismissal was filed by Petitioner
through post-conviction counsel on April 2, 2015. According to the motion, Petitioner
sought to have the “order of dismissal” set aside to consider an amended petition for post-
conviction relief in which Petitioner wished to raise a Sixth Amendment violation
alleging ineffective assistance of trial counsel in the plea bargaining process. We have




        1
            Rule 49(d)(1) provides the following with regard to “Service by Pro Se Inmate”:

        (1) When Deemed Filed. If a paper required or permitted to be filed pursuant to the rules
        of criminal procedure is prepared by or on behalf of a pro se litigant incarcerated in a
        correctional facility and is not received by the court clerk until after the deadline for
        filing, the filing is timely if the paper was delivered to the appropriate individual at the
        correctional facility within the time set for filing. This provision also applies to service
        of papers by such litigants pursuant to the rules of criminal procedure.

Therefore, even though the petition at issue herein was stamped filed by the trial court one day
past the one-year statute of limitations, the petition was timely delivered to the appropriate person
at the correctional facility. Thus, the petition was timely.
                                                      -2-
been unable to locate an order of dismissal in the technical record.2 Thus, it appears that
the petition for post-conviction relief languished in the post-conviction court for fourteen
years until Petitioner filed an amended petition for post-conviction relief. The amended
petition, filed on April 20, 2015, adopts the allegations raised in the original petition and
raises additional grounds for relief including the ineffective assistance of counsel in the
plea bargaining phase of trial.3

       At the hearing on the petition for post-conviction relief, pretrial counsel testified
that he represented Petitioner prior to trial. At the time of the hearing, he was seventy-
two years of age. Pretrial counsel served as the District Public Defender of the 12th
Judicial District in 1989 and practiced law for approximately forty years, retiring in 2012.
Several other attorneys in the Public Defender’s Office represented Petitioner prior to the
time pretrial counsel became involved in the case. Pretrial counsel met with Petitioner
several times to discuss the case.

       Pretrial counsel explained that the common procedure in the district was to have a
“discussion day” in each case prior to trial. The discussion day was the equivalent of a
settlement conference. He represented Petitioner for a short period of time before he
withdrew from the case. Pretrial counsel could not recall the reason for the withdrawal
but recalled that in June of 1998, prior to his withdrawal, he extended a written offer of
settlement to the Assistant District Attorney General. In the letter, Petitioner offered to
enter a plea to voluntary manslaughter in exchange for a six-year sentence. Pretrial
counsel did not recall the receipt of a counteroffer and testified that in “rare” cases, there
are no settlement offers from the State prior to trial.

       A handwritten note from December 8, 1997, was introduced for identification
purposes. The unsigned note memorialized a meeting at the courthouse during which the
State made an offer of second degree murder in exchange for a twenty-year sentence.
Pretrial counsel testified that he had never seen the note and did not recall receiving or
communicating an offer of second degree murder to Petitioner but testified that
“regardless of [his] opinion about [a plea offer,] it’s the client’s decision.”




        2
          According to the State’s brief, the State “took steps to supplement the record with the order of
dismissal but a review of the court docket report of the case showed that a copy of the order was mailed to
post-conviction counsel but never filed.”
        3
           The record also contains a petition for writ of error coram nobis filed on December 7, 2015,
alleging ineffective assistance in the plea bargaining phase. It is unclear from the technical record if or
how the trial court ruled on the petition for writ of error coram nobis. Thus, the issues raised in the
petition for writ of error coram nobis are not part of the present appeal.
                                                     -3-
       Trial counsel was appointed after the withdrawal of pretrial counsel.4 Trial
counsel started practicing law in 1987, and his practice consisted of approximately fifty
percent criminal law at the time he was appointed to represent Petitioner. Trial counsel
did not “have a recollection” of plea negotiations happening prior to being appointed to
represent Petitioner. Trial counsel had some discussions about the case with pretrial
counsel but could not “specifically remember [the content of] any conversations.”

        Trial counsel explained that, ordinarily, “the State makes an offer and the defense
says yes or no, or comes out with a counteroffer.” Trial counsel recalled a discussion
with the State that occurred in the courtroom prior to trial. He remembered “something
along the lines that if you would make a second degree offer to us[,] we would take a
hard look at it, or we would probably accept it, or something like that. I took it to be the
equivalent of a second degree offer.” Trial counsel recalled Petitioner said he could “do
better than that.” Trial counsel explained that was the end of the exchange and that no
further plea negotiations ensued. Trial counsel admitted that he “should have” brought
the matter up again with Petitioner but that he did not revisit the issue prior to trial. Trial
counsel agreed that he should have made a “greater effort” to settle the case. Trial
counsel commented that he “did not at that time totally appreciate the impact that the fact
that the victim was [Petitioner’s] father was going to have on the jury.” In hindsight, he
“would have had a serious heart to heart with him about recommending the offer” but
thought that there was a “shot at [a] voluntary manslaughter [conviction].”

        The Assistant District Attorney involved in the prosecution of Petitioner testified
at the hearing. He started working at the District Attorney’s Office in 1990. Petitioner’s
case was originally handled by someone else in the District Attorney’s Office who
became sick and died prior to Petitioner’s trial.

        The Assistant District Attorney testified that it was his practice to make written
plea offers but that any formal offer was first approved by the District Attorney General.
He did not recall a specific meeting with trial counsel with regard to settlement but did
not dispute that the conversation may have occurred. The Assistant District Attorney
recognized the handwriting on the note referencing the meeting and second degree
murder offer as that of one of the investigators in his office. However, the Assistant
District Attorney testified that any formal offer would have been conveyed in the form of
a letter. He further testified that there was no letter in the file in which a plea offer was
extended to Petitioner prior to trial. He recalled Petitioner’s case as “just one of those
cases that was going to have to be tried.” The Assistant District Attorney explained that

        4
          Trial counsel testified that there was at least one other attorney appointed to represent Petitioner
for a short time, but he could not recall when this attorney was appointed or for what length of time he
actually represented Petitioner. According to pretrial counsel, this other attorney represented Petitioner
after his withdrawal but prior to the appointment of trial counsel.
                                                      -4-
Petitioner “was [willing to plead guilty to] voluntary [manslaughter], and . . . [when the
State did not accept his offer, the Assistant District Attorney did not] recall any further
discussions.” He testified that the State “never extended an offer in this case at all.”

        Petitioner testified that he was forty-one years of age at the time of the hearing.
He admitted responsibility for killing his father and never insisted that he was innocent.
In fact, Petitioner claimed that he was “provoked” by his father because of the things his
father was doing to his girlfriend and the “years and years” of his father’s beating
Petitioner’s mother and stepmother. Petitioner wanted to settle the case prior to trial and
thought “it was the law” that the State would “offer a plea bargain.”

       Petitioner explained that he had five attorneys over the course of the two years
leading up to his trial. Petitioner recalled that pretrial counsel submitted a letter to the
State in which Petitioner offered to plead guilty to voluntary manslaughter. According to
Petitioner, pretrial counsel did not inform Petitioner whether the offer was accepted or
rejected and actually withdrew from representation soon thereafter. However, Petitioner
recalled telling pretrial counsel that he would “take second degree murder.” Petitioner
“want[ed] to say” that pretrial counsel communicated his intent to the State but could not
be certain. Petitioner recalled having “at least three” discussions about a plea negotiation
with pretrial counsel before he was replaced by trial counsel. Trial counsel told
Petitioner that there was “never” a plea offer from the State. Petitioner recalled trial
counsel being “confident” about the case, but Petitioner never wanted to go to trial.
Petitioner explained that he was guilty and he “didn’t want to get the maximum time.”
He wanted to “plead out and get it over with.” Petitioner “wouldn’t say [that he was]
confident” in trial counsel’s ability, even though he acknowledged that trial counsel had
previously represented his father and “got him off a murder case.”

        The post-conviction court entered an order denying relief. In the order, the post-
conviction court recounted Petitioner’s complaint that “his attorney did not pass on an
offer from the State to settle the case, and/or did not attempt to negotiate a plea for him
with the State.” The post-conviction court determined that there was “no conclusory
evidence from the proof that [Petitioner’s] attorneys ever received an offer from the State
of which they did not inform [Petitioner].” In other words, trial counsel was not
ineffective. Petitioner now appeals the denial of post-conviction relief.

                                         Analysis

        On appeal, Petitioner argues that the post-conviction court erred by determining
that trial counsel was effective. Specifically, Petitioner argues that trial counsel made no
attempt to obtain a response to his original offer of settlement and failed to negotiate a
plea. Moreover, Petitioner argues that the State should “bear some responsibility” for
                                            -5-
failing to enter into plea negotiations. The State disagrees, insisting that the State is
“under no obligation to settle a case or engage in settlement talks.”

                                   A. Standard of Review

        Post-conviction relief is available for any conviction or sentence that is “void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. In order to
prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations
by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d
152, 156 (Tenn. 1999). On appeal, this Court will review the post-conviction court’s
findings of fact “under a de novo standard, accompanied with a presumption that those
findings are correct unless the preponderance of the evidence is otherwise.” Fields v.
State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13(d); Henley v. State,
960 S.W.2d 572, 578 (Tenn. 1997)). This Court will not re-weigh or re-evaluate the
evidence presented or substitute our own inferences for those drawn by the trial court.
Henley, 960 S.W.2d at 579. Questions concerning witness credibility, the weight and
value to be given to testimony, and the factual issues raised by the evidence are to be
resolved by the post-conviction court. Momon, 18 S.W.3d at 156 (citing Henley, 960
S.W.2d at 578). However, the post-conviction court’s conclusions of law and application
of the law to the facts are reviewed under a purely de novo standard, with no presumption
of correctness. Fields, 40 S.W.3d at 458.

                         B. Ineffective Assistance of Trial Counsel

       Both the Sixth Amendment to the Constitution of the United States and article I,
section 9 of the Tennessee Constitution guarantee the right of an accused to the effective
assistance of counsel. In order to sustain a claim of ineffective assistance of counsel, a
petitioner must demonstrate that counsel’s representation fell below the range of
competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975). Under the two prong test established by Strickland v. Washington, 466
U.S. 668, 687 (1984), a petitioner must prove that counsel’s performance was deficient
and that the deficiency prejudiced the defense. See Burnett v. State, 92 S.W.3d 403, 408
(Tenn. 2002). Because a petitioner must establish both elements in order to prevail on a
claim of ineffective assistance of counsel, “failure to prove either deficient performance
or resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley,
960 S.W.2d at 580. “Indeed, a court need not address the components in any particular
order or even address both if the [petitioner] makes an insufficient showing of one
component.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466
U.S. at 697).

                                             -6-
       The test for deficient performance is whether counsel’s acts or omissions fell
below an objective standard of reasonableness under prevailing professional norms.
Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the
questionable conduct from the attorney’s perspective at the time, Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and “should indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” State v.
Burns, 6 S.W.3d 453, 462 (Tenn. 1999). This Court will not use hindsight to second-
guess a reasonable trial strategy, Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.
1994), even if 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). However, this
deference to the tactical decisions of trial counsel is dependent upon a showing that the
decisions were made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528
(Tenn. Crim. App. 1992).

        Even if a petitioner shows that counsel’s representation was deficient, the
petitioner must also satisfy the prejudice prong of the Strickland test in order to obtain
relief. The question is “whether counsel’s deficient performance renders the result of the
trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S.
364, 372 (1993). A petitioner must show that there is a reasonable probability “sufficient
to undermine confidence in the outcome” that, “but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Burns, 6 S.W.3d at 463 (quoting
Strickland, 466 U.S. at 694).

        We note that a criminal defendant is entitled to the effective assistance of counsel
throughout the plea negotiation process. See Harris v. State, 875 S.W.2d 662, 666 (Tenn.
1994); see also Hill v. Lockhart, 474 U.S. 52, 57 (1985) (applying the two-part Strickland
test to claims of ineffective assistance of counsel during plea negotiations). “[A]s a
general rule, defense counsel has the duty to communicate formal offers from the
prosecution to accept a plea on terms and conditions that may be favorable to the
accused.” Missouri v. Frye, 566 U.S. 134, 145 (2012). “‘[A] lawyer must abide by his
client’s decision [to accept or reject a plea] only after having provided the client with
competent and fully informed advice, including an analysis of the risks that the client
would face in proceeding to trial.’” Nesbit v. State, 452 S.W.3d 779, 800 (Tenn. 2014)
(quoting Burt v. Titlow, 134 S.Ct. 10, 19 (2013)).

       [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

                                            -7-
       of the offer, such that the penalty under its terms would have been less
       severe than the penalty actually imposed.

Id. at 800-01 (citing Lafler v. Cooper, 566 U.S. 156, 163 (2012)).

        In this case, the post-conviction court determined that Petitioner failed to show
that the State ever actually extended a plea offer. According to the testimony at the
hearing, pretrial counsel extended an offer to the State that Petitioner was willing to enter
a plea to voluntary manslaughter. There was no testimony at the hearing showing that the
State responded to the offer or extended a counteroffer with the exception of a
handwritten note referencing second degree murder. The Assistant District Attorney
testified that the common practice was for any offer to be extended in a formal letter to a
defendant. He testified that no offer was extended in Petitioner’s case. The evidence
does not preponderate against the determination of the post-conviction court. Certainly,
trial counsel cannot be found ineffective for failing to communicate an offer to Petitioner
that never existed. Moreover, we note that the State was under no obligation to enter into
plea negotiations with Petitioner. Tenn. R. Crim. P. 11(c)(1) (“The district attorney
general and the defendant’s attorney, or the defendant when acting pro se, may discuss
and reach a plea agreement.”) (emphasis added). When the State rejected Petitioner’s
original offer to plead guilty to voluntary manslaughter, trial counsel rightfully prepared
for trial. Petitioner has failed to show that trial counsel’s actions were ineffective.

                                        Conclusion

       Based upon the foregoing, we affirm the judgment of the post-conviction court.



                                          ____________________________________
                                          TIMOTHY L. EASTER, JUDGE




                                            -8-
