         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     August 5, 2003 Session

               FLOYD LEE PERRY, JR. v. STATE OF TENNESSEE

                    Direct Appeal from the Circuit Court for Obion County
                           No. 2-130 William B. Acree, Jr., Judge



                   No. W2002-02303-CCA-R3-PC - Filed January 21, 2004


The petitioner, Floyd Lee Perry, Jr., filed a petition for post-conviction relief in the Obion County
Circuit Court. In his petition, the petitioner raised several issues, with his two chief complaints
being that the trial court erred by failing to charge the jury on the lesser-included offenses of felony
murder and that trial counsel was ineffective. Subsequent to an evidentiary hearing, the post-
conviction court dismissed the petition and the petitioner timely appealed. Upon review of the
record and the parties’ briefs, we affirm the judgment of the post-conviction court.

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

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which THOMAS T. WOODALL and
ROBERT W. WEDEMEYER , JJ., joined.

John M. Miles, Union City, Tennessee, for the appellant, Floyd Lee Perry, Jr.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
and Thomas A. Thomas, District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

                                      I. Factual Background

       The petitioner was convicted on February 24, 1999, of second degree murder, felony murder,
and especially aggravated robbery. The trial court properly merged the petitioner’s conviction for
second degree murder into his conviction for felony murder and sentenced the petitioner to life
imprisonment for that conviction. The trial court also imposed a concurrent twenty-three year
sentence for the petitioner’s especially aggravated robbery conviction.

        On January 27, 2000, the petitioner, acting through counsel, filed his brief in support of his
direct appeal in this court. We have gleaned the following facts regarding the offenses from our
opinion on direct appeal:
                   In this case, Mr. Yates [the victim] left his house [on April 16, 1998,]
                   with a large amount of cash and was seen with the money later in the
                   day. He went to Alice Fay Shields’s house looking for crack cocaine,
                   and he showed Ms. Shields about twelve-hundred dollars ($1200.00)
                   while he was there. The [petitioner] was present when Mr. Yates
                   showed Ms. Shields the money. Mr. Yates left Ms. Shields’s house
                   with the [petitioner], and they went to find crack cocaine in Mr.
                   Yates’s car. The [petitioner] saw a friend[, Cassandra Shields,] and
                   told her that he was going to take Mr. Yates’s money. Witnesses
                   heard a few shots fired, and Mr. Yates was found near his car
                   bleeding to death from four (4) gunshot wounds in the back. Mr.
                   Yates had no money, and his personal belongings were scattered all
                   over the street. The [petitioner] was gone. Although the [petitioner]
                   initially denied even being in the area, he eventually admitted that he
                   shot Mr. Yates [in self-defense].

State v. Floyd Lee Perry, Jr., No. W1999-01715-CCA-R3-CD, 2000 WL 1671451, at *6 (Tenn.
Crim. App. at Jackson, Oct. 23, 2000). On direct appeal, this court upheld the petitioner’s
convictions. Id. at **6-7. On November 7, 2000, this court allowed the petitioner’s appellate
counsel to withdraw from representing the petitioner. Thereafter, on December 19, 2000, the
petitioner, acting pro se, filed an application for permission to appeal to our supreme court, which
permission was denied on May 21, 2001.

        Subsequently, on April 17, 2002, the petitioner, again acting pro se, filed for post-conviction
relief. Finding that the petitioner raised colorable grounds for relief, the post-conviction court
appointed counsel for the petitioner and held an evidentiary hearing.1 The petitioner testified that
during his trial, the trial court failed to charge the jury regarding any lesser-included offenses of
felony murder. Additionally, the petitioner complained that his trial counsel failed to question
State’s witnesses Alice Fay Shields and Cassandra Shields regarding any plea agreements they may
have entered into with the State in consideration for their testimony against the petitioner. The
petitioner noted that Alice Fay Shields testified at trial that at the time of her testimony she was
incarcerated for selling crack cocaine. The petitioner believed that this testimony indicated a secret
agreement between the State and Alice Fay Shields.

        The petitioner’s trial counsel testified that he filed a motion for discovery prior to the
petitioner’s trial. In the motion, counsel requested any information regarding plea bargains between
the State and the State’s witnesses. The State did not divulge the existence of any such agreements.


         1
            In fact, the post-conviction court held hearings on two separate days. On A ugust 9, 200 2, the d ate originally
scheduled for the hearing, the petitioner’s post-conviction counsel failed to arrange for the petitioner to be present.
Therefore, counsel only made arguments regarding those issues which were clear from the record. On August 16, 2002,
a full evidentiary hearing was held with the petitioner present. In our recitation of the facts, we reference proof which
was presented to the court on A ugust 16, 20 02, as no proof was ad duced at the earlier hearing.

                                                            -2-
Accordingly, counsel did not question Alice Fay Shields or Cassandra Shields regarding any alleged
plea bargains.

       District Attorney General Thomas A. Thomas informed the court that there was no record
of any plea bargain having been made between Alice Fay Shields or Cassandra Shields in
consideration for their testimony against the petitioner. The trial court examined the file of Alice
Fay Shields and observed that she was serving a nine-year sentence for selling crack cocaine.
Although she had originally been charged with a Class A felony, she entered a guilty plea to a Class
B felony on September 14, 1998.

         The post-conviction court entered an order dismissing the petition, finding that the petitioner
had failed to prove that counsel was ineffective. Moreover, the post-conviction court determined
that the petitioner was not entitled to relief regarding the trial court’s failure to charge lesser-included
offenses of felony murder. The petitioner appealed to this court.

                                                     II. Analysis

         To be successful in his claim for post-conviction relief, the petitioner must prove all factual
allegations contained in his post-conviction petition by clear and convincing evidence. See Tenn.
Code Ann. § 40-30-210(f) (1997).2 “‘Clear and convincing evidence means evidence in which there
is no serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999) (quoting Hodges v. S.C.
Toof & Co., 833 S.W.2d 896, 901 n.2 (Tenn. 1992)). Issues regarding the credibility of witnesses,
the weight and value to be accorded their testimony, and the factual questions raised by the evidence
adduced at trial are to be resolved by the post-conviction court as the trier of fact. See Henley v.
State, 960 S.W.2d 572, 579 (Tenn. 1997). Therefore, we afford the post-conviction court’s findings
of fact the weight of a jury verdict, with such findings being conclusive on appeal absent a showing
that the evidence in the record preponderates against those findings. Id. at 578.

                                                A. Jury Instructions

        The petitioner first complains regarding the trial court’s failure to charge the jury on the
lesser-included offenses of felony murder.3 However, we conclude that this issue was waived

         2
           Since the po st-conviction he aring in the instant case, this provisio n has b een codified at Tennessee Code
Annotated section 40-3 0-11 0(f) (2003 ).

         3
           The p etitioner cites State v. Jason Thomas Beeler, No. W1999-01417-CCA-R3-CD, 2000 WL 1670945
(Tenn. Crim. App. at Jackson, No v. 2, 20 00), as the main authority in support of this issue. However, on July 16, 2001,
our supreme court designated the aforementioned opinion “N ot for Citation” when denying Beeler’s application for
permission to appea l. Rule 4(F) of the R ules of the Supreme Co urt of Tenn essee pro vides:

                  (1) If an applicatio n for permission to appeal is hereafter denied by this C ourt with
                  a “Not for Citation” designation, the opinion of the intermediate appellate court has
                                                                                                            (continued...)

                                                           -3-
because the petitioner “personally or through an attorney failed to present it for determination in any
proceeding before a court of competent jurisdiction in which the ground could have been presented.”
See Tenn. Code Ann. §§ 40-30-206(g) (1997) and 40-30-106(g) (2003).

         We note that the post-conviction court correctly observed that “[a]t the time the case was
tried, the case law was to the effect or held very unequivocally that there were no lesser-included
offenses [of felony murder].” See State v. Gilliam, 901 S.W.2d 385, 390-91 (Tenn. Crim. App.
1995); John Robert Tory, Jr. v. State, No. E2003-00019-CCA-R3-PC, 2003 WL 23021389, at *2
(Tenn. Crim. App. at Knoxville, Dec. 29, 2003). However, in State v. Burns, 6 S.W.3d 453 (Tenn.
1999), our supreme court redefined the test for determining which offenses were lesser-included
offenses of a charged offense. The Burns opinion was filed on November 8, 1999. The petitioner
filed his appellate brief in support of his direct appeal in this court on January 27, 2000. Therefore,
the petitioner’s direct appeal was in the “pipeline” when Burns was filed; thus, Burns could have
been held applicable to the petitioner’s case. See State v. Clifford Coleman, Sr., No. M2000-01916-
CCA-R3-CD, 2002 WL 125694, at *7 (Tenn. Crim. App. at Nashville, Jan. 31, 2002), perm. to
appeal denied, (Tenn. 2002) (“The decision in Burns has been consistently applied to cases within
the appellate pipeline at the time of filing.”).

         Regardless, the petitioner failed to raise the issue of lesser-included offenses in his direct
appeal. “The opportunity to raise the issue during a direct appeal of the conviction, coupled with the
failure to pursue that appeal or a failure to raise the issue during that appeal, constitutes a waiver of
the issue pursuant to Code section 40-30-206(g) for purposes of a post-conviction relief proceeding.”
State v. Townes, 56 S.W.3d 30, 35-36 (Tenn. Crim. App. 2000), overruled on other grounds by State
v. Terry, 118 S.W.3d 355, 359 (Tenn. 2003). Accordingly, as we noted earlier the petitioner waived
this issue by failing to raise it on direct appeal. See Tenn. Code Ann. §§ 40-30-206(g) (1997) and
40-30-106(g) (2003); Townes, 56 S.W.3d at 36; Kong C. Bounnam v. State, No. W2001-02603-
CCA-R3-PC, 2002 WL 31852865, at *6 (Tenn. Crim. App. at Jackson, Dec. 20, 2002), perm. to
appeal denied, (Tenn. 2003). Thus, we decline to address this issue.

                                        B. Ineffective Assistance of Counsel

        The petitioner next claims that his counsel was ineffective in failing to determine whether
two of the State’s witnesses, Alice Fay Shields or Cassandra Shields, were offered a plea agreement
in exchange for their testimony against the petitioner. A claim of ineffective assistance of counsel
is a mixed question of law and fact. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will
review the post-conviction court’s findings of fact de novo with a presumption that those findings
are correct. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). However, we will review the
post-conviction court’s conclusions of law purely de novo. Id.

        3
            (...continued)
                     no precedential value.

                    (2) An opinion so designated shall not be . . . cited . . . by any litigant in any b rief,
                    or other material presented to any court . . . .

                                                               -4-
        “To establish ineffective assistance of counsel, the petitioner bears the burden of proving
both that counsel’s performance was deficient and that the deficiency prejudiced the defense.” Goad
v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064 (1984)). In evaluating whether the petitioner has met this burden, this court
must determine whether counsel’s performance was within the range of competence required of
attorneys in criminal cases. See Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).

        At the post-conviction hearing, the petitioner did not testify that he had any personal
knowledge of a plea agreement between the State and Alice Fay Shields or Cassandra Shields. The
petitioner’s trial counsel testified that he requested information regarding any plea agreements during
discovery. However, the State at no time revealed the existence of any agreements. Moreover,
District Attorney General Thomas informed the court that he was unaware of a plea agreement
between the State and Alice Fay Shields. The post-conviction court noted that Alice Fay Shields’
files revealed that she entered a guilty plea on September 14, 1998, prior to the petitioner’s trial.
However, her files did not indicate that plea had any connection with Alice Fay Shields’ testimony
against the petitioner. The petitioner provided absolutely no proof regarding a plea involving
Cassandra Shields.

        In sum, there was no proof adduced at the post-conviction hearing supporting the petitioner’s
claim of a plea agreement between the State and Alice Fay Shields or Cassandra Shields. Thus, there
was no proof that counsel was ineffective in failing “to determine whether the prosecutor had
promised [the two witnesses] any consideration in exchange for their testimony.” “For purposes of
proving an ineffective assistance of counsel claim, proof of deficient representation by omission
requires more than a speculative showing of a lost potential benefit.” Owens v. State, 13 S.W.3d
742, 756 (Tenn. Crim. App. 1999). Accordingly, we conclude that the petitioner failed to meet his
burden of proving by clear and convincing evidence that his trial counsel was ineffective. This issue
is without merit.

                                          III. Conclusion

       We affirm the judgment of the post-conviction court.

                                                       ___________________________________
                                                       NORMA McGEE OGLE, JUDGE




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