        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs September 5, 2012

             MONTORIUS G. HERRON v. STATE OF TENNESSEE

               Direct Appeal from the Circuit Court for Madison County
                        No. C-11-297    Roy B. Morgan, Judge




               No. W2012-00482-CCA-R3-PC - Filed November 6, 2012


Petitioner, Motorius G. Herron, appeals from the post-conviction court’s dismissal of his
post-conviction petition following an evidentiary hearing. In his post-conviction proceeding,
Petitioner challenged his conviction following a jury trial for identity theft. The sole issue
for appeal is whether Petitioner’s trial counsel rendered ineffective assistance of counsel by
failing to make a written request for the inclusion of the crime of fraudulent use of a credit
or debit card as a lesser included offense of identity theft. Since the crime of fraudulent use
of a credit or debit card is not a lesser included offense of identity theft, trial counsel did not
render ineffective assistance of counsel. We accordingly affirm the judgment of the post-
conviction trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which C AMILLE R.
M CM ULLEN and J EFFREY S. B IVINS, JJ., joined.

Mike Mosier, Jackson, Tennessee, for the appellant, Montorius G. Herron.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; James G. Woodall, District Attorney General; and Rolf Hazelhurst, Assistant
District Attorney General, for the appellee, the State of Tennessee.

                                           OPINION

       Because of the legal basis for disposition of this case, we do not need to set forth all
the facts which led to Petitioner’s conviction for identity theft. Petitioner used the victim’s
bank debit card in an attempt to obtain money from the bank’s ATM shortly after 2:00 a.m.
on August 30, 2008. A detailed statement of the facts can be found in this Court’s opinion
in Petitioner’s direct appeal. See State v. Montorius G. Herron, No. W2009-02493-CCA-R3-
CD, 2010 WL 4674260 (Tenn. Crim. App. Nov. 16, 2010) perm. app. denied (Tenn. April
14, 2011).

        Trial counsel did not file a written request for the trial court to give the jury an
instruction that the crime of fraudulent use of a credit or debit card is a lesser included
offense of identity theft. Trial counsel testified at the post-conviction hearing that she
believed from her legal research that fraudulent use of a credit or debit card is not a lesser
included offense of identity theft. She thus did not make a written request for that jury
charge. She raised the issue on direct appeal, however, because Petitioner was adamant for
the issue to be addressed. This Court held that the issue was waived for plenary review,
pursuant to Tennessee Code Annotated section 40-18-110(c) (“Absent a written request, the
failure of a trial judge to instruct the jury on any lesser included offense may not be presented
as a ground for relief either in a motion for a new trial or on appeal.”). Montorius G. Herron,
2010 WL 4674260, at *4. This Court further held that the issue could not be addressed under
“plain error” review because at least one of the required factors for “plain error” review had
not been met. Id. at *5 (“the [Petitioner] has not shown that he did not waive the issue for
tactical reasons.”).

        The burden in a post-conviction proceeding is on the petitioner to prove his grounds
for relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006). 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). 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. Id. at 457.
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).

        Under the Sixth Amendment, 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, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113
S. Ct. 838, 122 L. Ed. 2d 180 (1993). In other words, a showing that counsel’s performance
fell below a reasonable standard is not enough because the petitioner must also show a
reasonable probability that but for the substandard performance, “the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. The Strickland standard has been
applied to the right to counsel under article I, section 9 of the Tennessee Constitution. State
v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).



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        A petitioner will only prevail on a claim of ineffective assistance of counsel after
satisfying both prongs of the Strickland test. Henley v. State, 960 S.W.2d 572, 580 (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. A reasonable probability means a “probability sufficient
to undermine confidence in the outcome.” Id.

        This Court has recently held that the crime of fraudulent use of a credit or debit card,
as defined in Tennessee Code Annotated section 39-14-118(b) is not a lesser included
offense of identity theft. State v. Tehren Carthel Wilson, No. W2010-02613-CCA-R3-CD
(Tenn. Crim. App. May 11, 2012), perm. app. denied (Tenn. Sept. 20, 2012). Petitioner
acknowledges the existence of this case. However, Petitioner urges this Court to rely upon
the dissent in State v. Ronald Bowman, W2003-02389-CCA-R3-CD, 2005 WL 94365 (Tenn.
Crim. App. Jan. 13, 2005) perm. app. denied (Tenn. May 23, 2005). The court in Wilson
relied on the majority opinion in Bowman. We respectfully decline to follow the dissent in
Bowman.

         As fraudulent use of a credit or debit card is not a lesser included offense of identity
theft, trial counsel did not render deficient performance by not filing a written request to the
trial court to give that charge to the jury. Petitioner is not entitled to relief in this appeal.

                                       CONCLUSION

       The judgment of the post-conviction trial court is affirmed.

                                                     _________________________________
                                                     THOMAS T. WOODALL, JUDGE




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