        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs September 9, 2014

                 NELSON V. PLANA v. STATE OF TENNESSEE

                Appeal from the Circuit Court for Montgomery County
                   No. 40100094      Paul Summers, Senior Judge




                No. M2014-00359-CCA-R3-PC - Filed October 29, 2014


The petitioner, Nelson V. Plana, appeals the denial of his petition for post-conviction relief,
which petition challenged the petitioner’s 2004 Montgomery County Circuit Court jury
convictions of two counts of first degree murder. In this appeal, the petitioner claims
entitlement to post-conviction relief based upon the allegedly ineffective assistance of his
trial counsel. Discerning no error, we affirm.

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

J AMES C URWOOD W ITT , J R., J., delivered the opinion of the Court, in which D. K ELLY
T HOMAS, J R., and T IMOTHY L. E ASTER, JJ., joined.

Chase T. Smith, Clarksville, Tennessee, for the appellant, Nelson V. Plana.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Assistant Attorney
General; John W. Carney, District Attorney General; and Helen Young, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

              At the conclusion of a three-day trial in July 2004, a Montgomery County
Circuit Court jury convicted the defendant of two counts of premeditated murder and one
count of felony murder for the January 1, 2001 shooting deaths of Ivelys Miranda and her
six-year-old son, Adan Daniel Rodriguez. See State v. Nelson Vega Plana, No.
M2008-00717-CCA-R3-CD, slip op. at 1 (Tenn. Crim. App., Nashville, June 22, 2009). The
proof adduced at trial established that on that date, officers discovered Ms. Miranda and her
son wounded but alive inside the apartment shared by the petitioner and Radames Melendez.
Both later died from their injuries. Ms. Miranda had ended her relationship with the
defendant shortly before the murders, and the petitioner was angry about the demise of that
relationship. Sometime between 11:00 and 11:30 p.m., Ms. Miranda took her son with her
to the petitioner’s apartment to speak with him, and she told a witness that she was taking her
son “‘so that nothing would happen.’” Id., slip op. at 2. When Mr. Melendez returned to his
apartment at 11:40 p.m. to get some beer, he saw Ms. Miranda seated on a small sofa and her
son playing on the floor. The petitioner was seated on the larger sofa, and no one spoke to
Mr. Melendez while he was in the apartment. Mr. Melendez left and returned to the New
Year’s Eve party being held in a nearby apartment. At approximately 12:04 a.m., Mr.
Melendez again returned to his apartment, and inside he discovered both Ms. Miranda and
her son on the small sofa. Both had been shot, Ms. Miranda a single time in the head and her
son twice in the head. The petitioner was arrested at the bus station, and he later made an
inculpatory statement to police. See id. The jury convicted the defendant as charged but
deadlocked on the issue of punishment, resulting in the defendant’s being sentenced to an
automatic term of life imprisonment for each of the murders. See id., slip op. at 5. The trial
court ordered the sentences to be served consecutively. This court affirmed the petitioner’s
convictions and sentences on direct appeal, see id., slip op. at 13, and our supreme court
denied permission to appeal, see State v. Nelson Vega Plana, M2008-00717-SC-R11-CD
(Tenn. Apr. 16, 2010).

                The petitioner filed a petition for post-conviction relief on October 19, 2009,
alleging, among other things, that he was deprived of the effective assistance of counsel at
trial and on appeal.1 In an amended petition for post-conviction relief filed by appointed
counsel on February 15, 2011, the petitioner again alleged that he had been deprived of the
effective assistance of counsel. In February 2012, the post-conviction court granted the
petitioner’s motion to relieve his appointed counsel and appoint replacement counsel.
Replacement counsel later filed a motion seeking recusal of the post-conviction judge on
grounds that the judge had “once practiced law with [trial counsel] while a practicing lawyer”
and that the judge had indicated that this relationship “would preclude him from potentially
finding [trial counsel] ‘ineffective.’”2 The judge granted the petitioner’s motion, recused
himself from the post-conviction action, and ordered “that a Circuit Court Judge outside of
this judicial district be appointed to preside over any future proceedings associated with this
matter.” The Chief Justice of our supreme court appointed Senior Judge Paul G. Summers
to preside over the petitioner’s post-conviction case.

        1
         We glean from the sparse and disorganized record in this case that the petitioner was granted a
delayed appeal for the limited purpose of seeking discretionary review by our supreme court. This explains
why the denial of the petitioner’s application for permission to appeal came after his initial post-conviction
filing.
        2
         The petitioner’s motion indicates that the trial judge had already recused himself from presiding
over the post-conviction action, but no order of recusal appears in the record.

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                  At the November 27, 2013 evidentiary hearing, trial counsel testified that he
and co-counsel, who had passed away before the hearing, were appointed to represent the
petitioner “early on” in the case and that he “remained with the case until [he] was compelled
to leave due [to] another job that [he] took.” He recalled that the State initially sought the
death penalty against the petitioner but withdrew the death notice “a week or ten days before
the trial . . . and we went to the trial with the State seeking life without” parole. Counsel said
that he and co-counsel utilized the services of an investigator with experience in investigating
death penalty cases. He said that the investigation went on for more than a year.

               Trial counsel characterized the proof against the petitioner as “largely
circumstantial,” consisting mostly of witness statements indicating that the petitioner had
been with the victims at the time of their death. Regarding the petitioner’s claim that counsel
should have produced evidence of an 11:38 p.m. telephone call from the apartment where the
victims were discovered to a woman named Mallory Williams, counsel stated that he did not
believe that proof of the telephone call would have had much impact on the trial because the
proof established that the murders occurred after 11:38 p.m.

              Counsel identified a memorandum prepared by his investigator that purported
to memorialize an interview with Ms. Williams, and in that interview, Ms. Williams said that
she did not know the petitioner. Counsel said that he and co-counsel “looked at those calls
pretty carefully and decided which ones were helpful, hurtful[,] or neutral,” so he felt
confident that the decision not to introduce proof of that call was an intentional one, even
though he had no specific recollection of making the decision.

                Counsel said that he could not recall precisely what testimony Mr. Melendez
had offered at trial, but he opined that “the suggestion that because Mr. M[e]lendez says he
went to get beer and someone else says he didn’t would constitute an attack on his credibility,
seems . . . to be naive.” He stated that “the story about the beer . . . was corroborated by other
witnesses, but whether it was or was not it was not critical to whether [the petitioner] had
done anything wrong that night.”

                With regard to the issue whether the petitioner had a key to the apartment
where the victims were murdered, counsel said that he recalled “the issue of a key coming
up, but also . . . other people were there and . . . may have let him in. . . . [H]is presence in
the apartment was undeniable.”

              During cross-examination, counsel agreed that the proof at trial established that
Ms. Miranda telephoned the petitioner at 11:38 p.m., just before leaving the party to go speak
with the petitioner. A witness later telephoned the apartment where the petitioner was
staying and where the victims were later found dead and asked to speak with Ms. Miranda.

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Although the petitioner did not permit the witness to speak with Ms. Miranda, the witness
testified that she could hear both victims in the background. Both Ms. Miranda’s telephone
call to the petitioner and the later call to the petitioner to check on the victims were
corroborated by telephone records. Telephone records also showed that a telephone call was
placed to Ms. Williams’ number, but the duration of that call was less than a minute.
Counsel said that he did not believe the telephone call to Ms. Williams’ number to be “strong
evidence in favor of the defense, because it’s obvious that whatever happened in that
apartment had happened after the 11:54 call.”

               Upon questioning by the court, trial counsel stated that in his nearly 41 years
of practicing law, he “had handled thousands of matters” and that he had “tried about 150
jury trials to verdict,” including more than 40 murder trials. He stated that he had also
handled a number of death penalty cases.

               Detective Cheryl Anderson testified that, as a result of an interview with an
individual named Jorge Duncan, police came to the conclusion that it was possible that
someone had telephoned Ms. Williams in an attempt to locate Mr. Duncan, who was a friend
of the petitioner. She said that Mr. Duncan did not live in the apartment where the victims
were found and that he had no telephone. Detective Anderson said that Mr. Duncan had been
in the apartment earlier on New Year’s Eve 2000.

               The post-conviction court took the petition under advisement, and in its written
order denying post-conviction relief, determined that the petitioner had failed to establish that
his counsel performed deficiently. The court specifically accredited trial counsel’s testimony
regarding the 11:38 p.m. telephone call to Ms. Williams. The court stated that it would not
speculate what Ms. Williams’ trial testimony might have been and that, based upon the
accredited testimony of trial counsel, the telephone call was “not particularly relevant to any
conceivable defense in this case.” The court also accredited counsel’s testimony “that the
fact that some third party did not see Mr. Melendez leave the party would not constitute an
effective attack on Mr. Melendez’s credibility.” Regarding the petitioner’s claim that
counsel should have presented proof that the petitioner did not have a key to the apartment
where the victims were found, the court noted that the petitioner did not present any proof
to substantiate his claim that he did not have a key. The court also observed that the proof
at trial overwhelmingly established the petitioner’s presence in the apartment with the victims
at the time of their death.

              In this timely appeal, the petitioner reiterates his claim of ineffective assistance
of counsel, claiming that his trial counsel performed deficiently by failing to present proof
of the telephone call to Ms. Williams at 11:38 p.m. The State contends that the post-
conviction court did not err by denying relief.

                                               -4-
              We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence 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 (2006). A post-conviction petitioner
bears the burden of proving his or her allegations by clear and convincing evidence. Id. §
40-30-110(f). On appeal, the post-conviction court’s findings of fact are conclusive unless
the evidence preponderates against them. Henley v. State, 960 S.W.2d 572, 578-79
(Tenn.1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997). By contrast,
the post-conviction court’s conclusions of law receive no deference or presumption of
correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).

                To establish entitlement to post-conviction relief via a claim of ineffective
assistance of counsel, the post-conviction petitioner must affirmatively establish first that
“the advice given, or the services rendered by the attorney, are [not] within the range of
competence demanded of attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975), and second that his counsel’s deficient performance “actually had an
adverse effect on the defense,” Strickland v. Washington, 466 U.S. 668, 693 (1984). In other
words, the petitioner “must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
Should the petitioner fail to establish either deficient performance or prejudice, he is not
entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn.1996). Indeed, “[i]f
it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697.

               When reviewing a claim of ineffective assistance of counsel, we will not grant
the petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or
provide relief on the basis of a sound, but unsuccessful, tactical decision made during the
course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.1994).
Such deference to the tactical decisions of counsel, however, applies only if the choices are
made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).

                In our view, the fact that a telephone call was placed at 11:38 p.m. to Ms.
Williams from the apartment where the petitioner had been staying and where the victims
were found dead would have had little or no impact upon the verdict in this case. As counsel
testified and the proof at trial established, the murders occurred sometime after 11:38 p.m.
and, in fact, after an 11:54 p.m. call to the apartment to check on the victims. Moreover, the
telephone records established that the call lasted less than one minute, and other proof at trial
established that other individuals were in and out of the apartment throughout the evening
prior to the murders. Finally, the petitioner failed to present the testimony of either Ms.

                                               -5-
Williams or Mr. Duncan at the evidentiary hearing; thus, the court is left to speculate about
what testimony those individuals might have offered at trial. See Black v. State, 794 S.W.2d
752, 757 (Tenn. Crim. App. 1990) (“When a petitioner contends that trial counsel failed to
discover, interview, or present witnesses in support of his defense, these witnesses should
be presented by the petitioner at the evidentiary hearing.”). Under these circumstances, the
11:38 p.m. telephone call to Ms. Williams is apparently irrelevant because it does not tend
to make any fact of consequence more or less probable. See Tenn. R. Evid. 401 (“‘Relevant
evidence’ means evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would
be without the evidence.”). In any event, trial counsel did not perform deficiently by failing
to offer evidence of the telephone call at trial.

              Accordingly, the judgment of the post-conviction court is affirmed.


                                                   _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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