        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                    Assigned on Briefs at Knoxville June 23, 2015


        MICHAEL EUGENE WALLACE v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                  No. 2013-D-2742    J. Randall Wyatt, Jr., Judge




                  No. M2014-02148-CCA-R3-PC – Filed July 17, 2015
                         _____________________________

Petitioner, Michael Eugene Wallace, appeals the denial of his petition for post-conviction
relief claiming ineffective assistance of trial counsel. Because Petitioner knew of the
statute of limitations when he entered his plea and made a strategic decision not to rely on
its protection, he did not receive ineffective assistance. Accordingly, the decision of the
post-conviction court is affirmed.

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

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which ALAN E. GLENN and
ROBERT H. MONTGOMERY, JR., JJ., joined.

Jeffrey T. Daigle, Nashville, Tennessee, for the appellant, Michael Eugene Wallace.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Assistant
Attorney General; Victor S. Johnson III, District Attorney General; and Amy Hunter,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                         OPINION

      This is the Petitioner‟s appeal from the Davidson County Criminal Court‟s
dismissal of his ill-fated petition for post-conviction relief attacking a guilty plea entered
pursuant to plea agreement entered on January 30, 2014.

                            Facts and Procedural Background
        On October 18, 2013, a Davidson County grand jury indicted Petitioner for
possession of a controlled substance with intent to sell or deliver .5 grams or more of
cocaine and for tampering with evidence. Those crimes allegedly occurred on November
19, 2003 (the “2003 charges”). On January 30, 2014, Petitioner entered a guilty plea to
the reduced charge of simple possession, a Class E felony.1 He received a three-year
sentence as a Range II, multiple offender, to be served on unsupervised probation after
one year of confinement. The tampering with evidence charge and another drug offense
in a different case were dismissed in exchange for the guilty plea.

        After Petitioner filed a pro se petition for post-conviction relief, appointed counsel
filed an amended petition on July 15, 2014. Petitioner argued, among other things,2 that
he received ineffective assistance of counsel when entering his guilty plea because his
trial counsel failed to raise the statute of limitations as a defense. The post-conviction
court held an evidentiary hearing on August 21, 2014.

        At the hearing, Petitioner testified that the offense to which he pled arose out of a
traffic stop in 2003. He was detained and questioned by police, but he was not arrested
or charged with a crime until 2012. During the intervening period of time, Petitioner was
convicted of a federal crime and spent several years in federal custody before being
released on parole on November 10, 2010.

        When Petitioner was indicted in this case, trial counsel was appointed. Petitioner
told trial counsel during their first meeting that “this case was an old case and that it
should probably have a statute of limitations” defense. Trial counsel told Petitioner that
the State “could still pursue the charge” and did not present the statute of limitations as a
viable defense.

       In addition to the 2003 charges, Petitioner also faced another possession charge in
a different case for an incident in November 2012 (the “2012 charges”). Petitioner was
concerned that the 2012 charges might cause him to violate the terms of his federal
parole. Petitioner admitted that he “spoke with [trial counsel] about how it would benefit
[him] to plead guilty to the [2003 charges] that occurred prior to [his] . . . committing the
federal offense” because that crime could not be counted as a parole violation. When
Petitioner pled guilty in this case, the State dismissed the 2012 charges.



        1
            Petitioner had two prior convictions for simple possession. See T.C.A. § 39-17-418(e) (2003).
        2
           Because Petitioner does not pursue on appeal any of the additional issues raised in his amended
petition, those issues are deemed abandoned and are not before this Court. See Ronnie Jackson, Jr. v.
State, No. W2008-02280-CCA-R3-PC, 2009 WL 3430151, at *6 n.2 (Tenn. Crim. App. 2009), perm. app.
denied (Tenn. Apr. 16, 2010).
                                                   -2-
        Trial counsel testified the he represented Petitioner in both cases that were pending
in 2013. He discussed the facts of each case with Petitioner and also discussed “his
federal parole . . . and how one case versus another would advantage or disadvantage
him.” Trial counsel discussed these cases with Petitioner‟s federal public defender
because he was “trying to fashion a [plea] deal that would not violate [Petitioner‟s]
federal parole.” Trial counsel was aware of the statute of limitations defense available
for the 2003 charges and discussed that issue with Petitioner and the federal public
defender. Trial counsel “engaged in a lot of negotiations with the State around this
statute of limitations and [the 2012 charges] . . . trying to work out the best deal for
[Petitioner] where he wouldn‟t be looking at additional time on his federal sentence.”
However, trial counsel could not recall discussing the statute of limitations specifically
with the prosecutor because they primarily discussed the 2012 charges.

        Trial counsel stated that he did not expressly discuss the plea agreement with
Petitioner in terms of waiving the statute of limitations defense. However, he did discuss
with Petitioner that the only way that the State would agree to dismiss the 2012 charges,
thereby avoiding a federal parole violation, was for Petitioner to plead guilty to the 2003
charge. Trial counsel said Petitioner knew that the statute of limitations defense was
available because trial counsel had discussed it with him before the plea agreement was
negotiated. Trial counsel maintained that foregoing the statute of limitations defense was
“a strategic decision,” which he continued to stand by.

       On September 26, 2014, the post-conviction court entered an order denying relief.
Petitioner filed a timely notice of appeal.

                                          Analysis

       Petitioner argues that he is entitled to post-conviction relief because his right to
effective assistance of counsel was violated when trial counsel failed to raise the statute
of limitations as a defense to his conviction. The State maintains that trial counsel did
not provide ineffective assistance because he discussed the statute of limitations with
Petitioner, who made a strategic decision to plead guilty in this case, without relying on
the statute of limitations, in exchange for the dismissal of another case that could have
resulted in a violation of his federal parole. We agree with the State.

       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). “Evidence is clear and convincing when there is no serious or

                                             -3-
substantial doubt about the correctness of the conclusions drawn from the evidence.”
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).

       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).

       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). A defendant in a criminal case is not entitled to
perfect representation, only constitutionally adequate representation. Denton v. State,
945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of
ineffective assistance of counsel, „we address not what is prudent or appropriate, but only
what is constitutionally compelled.‟” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting
United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)). 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). “The fact that a particular strategy or tactic failed or hurt the defense does
not, standing alone, establish unreasonable representation.” House v. State, 44 S.W.3d
508, 515 (Tenn. 2001) (quoting Goad, 938 S.W.2d at 369). 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).


                                           -4-
        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. Prejudice is shown where “there is a reasonable probability 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). This reasonable probability must be
“sufficient to undermine confidence in the outcome.” Id.

        Whether a petitioner has been denied the effective assistance of counsel presents a
mixed question of law and fact. Burns, 6 S.W.3d at 461. 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.

        Petitioner argues that his trial counsel should have raised the statute of limitations
as a defense for the 2003 charges. “A prosecution for a criminal offense generally must
be commenced within a certain statutory period of time following the commission of the
offense.” State v. Nielsen, 44 S.W.3d 496, 499 (Tenn. 2001). Petitioner was indicted for
a Class B felony and a Class C felony, but he pled guilty to a Class E felony. The
applicable statute of limitations for the Class B felony was eight years and four years for
the Class C felony. See T.C.A. § 40-2-101(b)(2)-(3). The criminal statute of limitations
is not a jurisdictional bar to prosecution. State v. Pearson, 858 S.W.2d 879, 887 (Tenn.
1993). Because “the protection of the defendant is a primary purpose of the statute of
limitations,” a “defendant who believes that a criminal statute of limitations no longer
works to his advantage should be allowed to enter a knowing, voluntary, and intelligent
waiver” thereof. Id. at 886-87.

       In this case, waiver of the statute of limitations defense worked to Petitioner‟s
advantage. Petitioner was able to avoid violating his federal parole by negotiating the
dismissal of the more recent criminal case in exchange for a guilty plea for the 2003
charges, despite the available protection of the statute of limitations. The record clearly
demonstrates that Petitioner knew this. Both Petitioner and trial counsel testified at the
post-conviction hearing that they had discussions about the statute of limitations and were
aware that it was available in the 2003 charges. Trial counsel testified that he and
Petitioner discussed the impact that each of the pending cases would have on Petitioner‟s
                                             -5-
federal parole after discussing the situation with the federal public defender. The post-
conviction court accredited that testimony of trial counsel. Ultimately, Petitioner made a
tactical decision not to rely on this defense in order to secure the best possible outcome
that he could manage among the pending state cases and his federal parole. We agree
with the post-conviction court that trial counsel‟s performance on this matter was “a
perfectly reasonable strategic decision” and was not deficient. Therefore, Petitioner is
not entitled to post-conviction relief on his claim of ineffective assistance.

        Petitioner treats his issue on appeal as a claim of ineffective assistance of counsel,
but he also suggests that his conviction is infirm because Petitioner never made an
affirmative waiver of his statute of limitations defense when he entered his guilty plea.3
In Pearson, our supreme court held that the “same standard [that] applie[s] in
determining whether there has been an effective waiver as to fundamental rights” also
applies to a defendant‟s waiver of the statute of limitations. 858 S.W.2d at 887.
Accordingly, the waiver must be “knowingly and voluntarily entered” and “will not be
presumed where there is no evidence in the record to indicate that the defendant was
made aware of the issue.” Id. We acknowledge that the transcript of the guilty plea entry
does not provide any record of Petitioner‟s affirmative waiver of the statute of
limitations. However, the record as a whole clearly supports the post-conviction court‟s
finding that Petitioner was aware of the statute of limitations defense when he entered his
guilty plea. Cf. id. (“In this case, there is no evidence in the record to indicate that the
defendant entered a knowing and voluntary waiver. In fact, there was no discussion at all
of the expiration of the statute of limitations in the trial court.”). Indeed, he admits just
that. Therefore, Petitioner is not entitled to post-conviction relief.

                                             Conclusion

        For the foregoing reasons, the judgment of the post-conviction court is affirmed.



                                                        _________________________________
                                                        TIMOTHY L. EASTER, JUDGE




        3
          We note that this aspect of the issue was not raised in the post-conviction court. Although not
argued by the State, it could be deemed waived. Walsh v. State, 166 S.W.3d 641, 645-46 (Tenn. 2005)
(citing Rickman v. State, 972 S.W.2d 687, 691 (Tenn. Crim. App. 1997)) (“Issues not addressed in the
post-conviction court will generally not be addressed on appeal.”).
                                                   -6-
