         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs October 28, 2003

                MICHAEL C. ADAMS v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Sullivan County
                           No. C46,200     R. Jerry Beck, Judge



                                  No. E2003-00658-CCA-R3-PC
                                       December 22, 2003

The petitioner, Michael C. Adams, appeals the denial of his petition for post-conviction relief from
his conviction for second degree murder and four counts of aggravated assault. He argues that he
was denied effective assistance of counsel because his trial counsel failed to properly advise him of
his right to testify and failed to properly communicate a plea offer and recommended that he proceed
to trial. Following our review, we affirm the post-conviction court’s denial of the petition.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JOSEPH
M. TIPTON, J., joined.

Michael J. LaGuardia, Kingsport, Tennessee, for the appellant, Michael C. Adams.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; and
H. Greeley Wells, Jr., District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                              FACTS

        We first will set out the facts which were the basis for the prosecution of the petitioner. On
the evening of May 31, 1997, a series of threatening telephone calls were made to the Commerton
residence in Sullivan County. Mary Commerton, her two children, Chris and Melissa, and two of
Chris’s friends, Scott Berry and Travis Freese, decided to confront the caller and drove to his
location. They were unarmed. When they arrived, a confrontation ensued, which resulted in several
shots being fired at Mrs. Commerton’s vehicle. One of the shots hit and killed Mr. Freese. Mrs.
Commerton and the other children fled the scene on foot. They later returned to the scene with a
sheriff’s deputy, and the petitioner and several others were taken into custody. A jury convicted the
petitioner of second degree murder and four counts of aggravated assault, and he received a total
sentence of forty-nine years. On direct appeal, his convictions were affirmed, but his sentence was
reduced to forty years, twenty-four years for the second degree murder conviction and four years for
each of the aggravated assault convictions, the sentences to run consecutively. State v. Adams, 45
S.W.3d 46, 50 (Tenn. Crim. App. 2000), perm. to appeal denied (Tenn. 2001). The petitioner then
filed a pro se petition for post-conviction relief, which was amended twice after counsel was
appointed.

        At the post-conviction hearing, the petitioner testified that he only met with his attorneys
twice prior to trial, and that these meetings lasted “for about three (3) minutes each time.” He said
that his attorneys did not keep him informed and did not advise him of their trial strategy. He also
said that his attorneys often spoke “amongst themselves” and described his involvement in the case
as merely being “present.”

         The petitioner stated that he not did testify at trial and did not discuss his right to testify with
his attorneys either before trial, during trial, or after the close of all the proof. He recalled, at some
point before the prosecution rested, being removed from the courtroom and placed in a holding cell
during a court recess. He said that, during this time, his attorneys also did not explain his right to
testify, although admitting that his attorneys told him, prior to trial and sometime near preliminary
motions, that, because of a statement to law enforcement officers, it would not be in his best interest
to testify.

        The petitioner further testified that, while he was in the holding cell, his attorneys presented
him a plea offer that he serve twenty-five years at eighty-five percent. However, he did not specify
whether this offer was for all of the charges or for the murder charge only. He said that junior trial
counsel advised him not to take the plea because he felt they had a strong case, and he told junior
trial counsel to reject the plea agreement.

         Lead trial counsel testified that he and his son represented the petitioner at trial. After the
petitioner was arrested, lead counsel interviewed him at the jail at least ten times and discussed
various matters during these visits. The petitioner had made three statements, two of which were
incriminating. In the first statement, the petitioner said that he went to Wal-Mart and purchased two
Remington single-shot shotguns and six boxes of ammunition. He returned to Billy Thrift’s trailer,
and “all the guys fired the guns.” In the second statement, the petitioner admitted that he and two
other individuals began shooting at a car in the driveway of the trailer. Lead trial counsel said that
he did not file a motion to suppress the statements because he had an agreement with the prosecution
that they would not be used at trial, unless the petitioner chose to testify. Lead trial counsel testified
that he discussed with the petitioner, on multiple occasions, about his right to testify and whether he
should testify. He told the petitioner that very few people are acquitted in murder cases unless they
testify. He said that the petitioner did not want to testify because he was afraid of cross-examination,
and that he had a particular problem about being cross-examined about the statements he made to
police. He said that he went over these incriminating statements with the petitioner several times
prior to trial, and that the petitioner expressed fear about being cross-examined because he thought
he might get confused and admit to things he did not do.



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        During trial, and while the petitioner was in the holding cell, lead counsel again explained
to the petitioner his right to testify. During this conversation, he explained that Amanda Hurt was
the prosecution’s key witness, and her testimony was “most probative on the issue of guilt of [the
petitioner].” He explained to the petitioner the need to rebut her testimony, and, after the prosecution
closed its proof, he again told the petitioner that it would be hard to get an acquittal without his
testimony and urged him to testify:

                I told him that I’d been in fifty (50) or sixty (60) Murder cases and
                it’s tough to get an acquittal unless a defendant testifies. I told him
                a jury wants to know. If you say you didn’t kill somebody, stand up
                and tell me that. But I explained the theories of the law, presumption
                of innocence and all that, and he didn’t have to testify, couldn’t be
                made to, that there’s some pros and cons to it. He, from day one,
                always told me he did not want to testify. And he was frightened that
                he could never be prepared to withstand cross examination based,
                probably, on two things. His mental capacity and the facts of the
                case. And statements he had made incidental to the facts of the case.
                And I certainly wasn’t going to put him on the witness stand
                unprepared should he, at the last minute, change his mind. So as best
                I was able to, I tried to prepare him to testify. And as recently as the
                last recess, I told him, words to the effect, you may improve your
                chance by testifying.

        He said that the petitioner made a “fully informed” decision not to testify. At the close of
all the proof, he told the court that he had consulted with the petitioner many times, before trial,
during trial, and in “in the last hour,” and it was the petitioner’s decision not to testify. He explained
that “in the last hour” referred to the conversations he had with the petitioner during the court’s
recess and at the counsel table. He said the court then questioned the petitioner, and the petitioner
told the court that it was his decision not to testify.

         He recalled that, prior to trial, there was some discussion with the petitioner about pleading
guilty to second degree murder in exchange for a sentence of twenty-five years. However, there was
no plea offer from the prosecution for such a sentence:

                There was some discussion that a plea offer would have to originate
                [i]n effect from the [petitioner]. And of course [the district attorney
                general] tried the case with [the assistant district attorney general].
                It always indicated [the plea] would have to be something that
                satisfied [the prosecution], and that [the prosecution] would have to
                take it up with the family. The plea proposal, as occurs on about
                every case, something’s offered. But there was never, never an offer
                of less than First Degree Murder.



                                                   -3-
He testified that he discussed this proposal with the petitioner, but the petitioner would not accept
such a lengthy sentence. He also said that the twenty-four-year sentence was for the murder charge
only and did not include the aggravated assault charges.

        Junior trial counsel testified that his father was lead counsel for the petitioner, but he assisted
with the preparation of the case. He said that after the trial began, the prosecution offered the
petitioner a plea of life with parole, which the petitioner turned down. He could not recall the
specifics of the offer but remembered that it was for first degree murder. He said that after the State
closed its proof and the court recessed, he and his father met with the petitioner in a holding cell.
He specifically recalled speaking with the petitioner about his right to testify. He said the petitioner
did not want to testify. He also recalled that his father communicated to the petitioner the benefits
of him testifying and explained to him the burden of proof. There were also similar discussions
during trial, both before and after the prosecution put on its proof.

        The district attorney general, the lead prosecutor at trial, testified that he was responsible for
any plea agreement that would have been made to petitioner. He said that he never made a plea offer
for less than first degree murder. He specifically denied making an offer that would have allowed
the petitioner to plead guilty to second degree murder, nor did he make an offer for “twenty-five (25)
years on anything.” He stated that although he and lead counsel discussed the possibility of allowing
the petitioner to plead guilty to second degree murder, he never made such an offer.

        Lead counsel was then recalled to the stand and testified that the State had not offered to
allow the petitioner to plead to second degree murder:

                [W]e [referring to himself and the district attorney general] talked
                several times about the trial prior to the trial; severance, whatever.
                And I always, in every case, try to negotiate if I can. I was steadfastly
                told that First Degree Murder is the only acceptable verdict to the
                State. And the ramifications of the total sentence, the General wanted
                to confer with Mr. Freese, he being the father of the deceased. And
                I always had the impression they would not accept a lesser plea. I
                discussed this talk about [the petitioner] and twenty-five (25) years
                and that, you know, you talk to your client about, well, what would
                suit you if we could talk the other side into it? But we could never
                talk the other side into it, so that was all wasted conversation, in a
                sense.

He also stated that he did not have any specific recollection of a plea agreement that would enable
the petitioner to serve twenty-five years at eighty-five percent, but unsuccessfully spoke with the
prosecution about reducing the charges.




                                                   -4-
                                             ANALYSIS

                                       I. Standard of Review

        The post-conviction petitioner bears the burden of proving his allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-210(f). When an evidentiary hearing is held
in the post-conviction setting, the findings of fact made by the trial court are conclusive on appeal
unless the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d 497, 500 (Tenn.
1996). Where appellate review involves purely factual issues, the appellate court should not reweigh
or reevaluate the evidence. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However,
review of a trial court’s application of the law to the facts of the case is de novo, with no presumption
of correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issues of deficient
performance of counsel and possible prejudice to the defense are mixed questions of law and fact
and, thus, subject to de novo review by the appellate court. See State v. Burns, 6 S.W.3d 453, 461
(Tenn. 1999).

        To determine the competence of counsel, Tennessee courts have applied standards developed
in federal case law. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that
the same standard for determining ineffective assistance of counsel that is applied in federal cases
also applies in Tennessee). The United States Supreme Court articulated the standard in Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which is widely accepted
as the appropriate standard for all claims of a convicted petitioner that counsel’s assistance was
defective. The standard is firmly grounded in the belief that counsel plays a role that is “critical to
the ability of the adversarial system to produce just results.” Id. at 685, 104 S. Ct. at 2063. The
Strickland standard is a two-prong test:

                First, the defendant must show that counsel’s performance was
                deficient. This requires showing that counsel made errors so serious
                that counsel was not functioning as the “counsel” guaranteed the
                defendant by the Sixth Amendment. Second, the defendant must
                show that the deficient performance prejudiced the defense. This
                requires showing that counsel’s errors were so serious as to deprive
                the defendant of a fair trial, a trial whose result is reliable.

Id. at 687, 104 S. Ct. at 2064. The Strickland Court further explained the meaning of “deficient
performance” in the first prong of the test in the following way:

                In any case presenting an ineffectiveness claim, the performance
                inquiry must be whether counsel’s assistance was reasonable
                considering all the circumstances. . . . No particular set of detailed
                rules for counsel’s conduct can satisfactorily take account of the
                variety of circumstances faced by defense counsel or the range of



                                                  -5-
                legitimate decisions regarding how best to represent a criminal
                defendant.

Id. at 688-89, 104 S. Ct. at 2065. The petitioner must establish “that counsel’s representation fell
below an objective standard of reasonableness under prevailing professional norms.” House v. State,
44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

         As for the prejudice prong of the test, the Strickland Court stated: “The defendant must
show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” 466 U.S. at 694, 104 S. Ct. at 2068; see also Overton v.
State, 874 S.W.2d 6, 11 (Tenn. 1994) (concluding that petitioner failed to establish that “there is a
reasonable probability that, but for counsel’s errors, the outcome of the proceedings would have been
different”).

        Courts need not approach the Strickland test in a specific order or even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S. at 697,
104 S. Ct. at 2069; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency
or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”).

        We note that when post-conviction proceedings have included a full evidentiary hearing, as
was true in this case, the trial judge’s findings of fact and conclusions of law are given the effect and
weight of a jury verdict, and this court is “bound by the trial judge’s findings of fact unless we
conclude that the evidence contained in the record preponderates against the judgment entered in the
cause.” Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). The reviewing court must
indulge a strong presumption that the conduct of counsel falls within the range of reasonable
professional assistance, see Strickland, 466 U.S. at 690, 104 S. Ct. at 2066, and may not second-
guess the tactical and strategic choices made by trial counsel unless those choices were uninformed
because of inadequate preparation. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

       By written order, the trial court denied the petition for post-conviction relief, making the
following findings:

                The court gives credit to the testimony of petitioner’s original
                counsel, and specifically finds that:

                (A) The discussion of the wisdom of the defendant/petitioner
                testifying was raised on several occasions, and up until the time at
                trial where the [petitioner] elected not to testify.

                (B) Prior to the decision being made not to testify, the petitioner’s
                original counsel had made attempts to prepare his client to testify and
                this fact is set out in the testimony of [lead trial counsel][.]


                                                  -6-
                (C) The transcript from the original trial . . . clearly and beyond any
                doubt establishes that the trial judge advised the [petitioner] of his
                right to testify or not testify, and the question or statements of [the
                trial judge] in many respects mirror the language contained in the
                later arising case of State v. Momon.

                (D) The petitioner has failed to establish that he is entitled to Post
                Conviction Relief by clear and convincing proof. Further, although
                not presently the law, the petitioner has failed to establish, by a
                preponderance of the evidence, that his is entitled to Post Conviction
                Relief.

                (E) Considering the cases of Strickland v. Washington, 466 U.S. 668,
                104 S[.] Ct. 2052 (1984), and Baxter v. Rose, 523 SW2d 930 (Tenn.
                1975), and other applicable law, the petitioner has failed to establish
                that he had ineffective assistance of counsel at his original trial or on
                appeal. The court specifically finds that the petitioner had effective
                counsel at trial and on appeal.

                (F) The petitioner has failed to establish that counsel failed to convey
                a plea offer.

                                          A. Right to Testify

         The petitioner argues that trial counsel did not comply with the procedural requirements
concerning his right to testify, as outlined in Momon v. State, 18 S.W.3d 152 (Tenn. 1999), saying
that, prior to trial, “he was advised by trial counsel that it was not in his best interest to testify,” and
that “there was no further conversation concerning the right to testify other than the colloquy at the
defense table at the end of the State’s proof.” The petitioner also notes that trial counsel stated that
he had spoken with the petitioner prior to and sometime during trial, but he never made reference
to a discussion in which he advised the petitioner of his right to testify after hearing all of the State’s
proof.

        At the post-conviction hearing, the petitioner testified that he did not have any conversation
with his trial counsel about his right to testify either before or after the trial, although, according to
the petitioner, lead counsel told him that it was not in his best interest to testify because he could be
cross-examined about the statements he made to the police. Conversely, lead counsel testified that
he advised the petitioner of his right to testify on multiple occasions before and during trial, and that,
in his opinion, few defendants were acquitted of murder unless they testified. He said that the
petitioner stated he was afraid of being cross-examined and elected not to testify.

        In the dismissal order, the post-conviction court set out a portion of the interchange between
the petitioner and the trial court as to the petitioner’s testifying in his behalf at the trial:


                                                    -7-
[LEAD COUNSEL]: Your Honor, I’ve consulted with [the
petitioner] many times, and more recently, just before this trial and
during this trial, and in the last hour, and it is the decision of [the
petitioner] not to testify in this case. [The petitioner] understands he
has a full right to testify. Is that right [the petitioner]?

[THE PETITIONER]: Yes, sir.

THE COURT: Thank you. But, . . . you have heard during the course
of the trial, in the opening instructions I gave to this Jury, that the
[petitioner] does not have to testify. You have an absolute right not
to testify. If you chose to testify, you may do so, and the Jury would
consider your testimony in light of all the facts and circumstances in
the case. This being an absolute right, it is your choice, and a choice
that, that only you, with the advi[c]e of your attorneys, can make.
And, . . . let me take [the codefendant] first. Do I understand that
you, you understand fully, that you do have the right to testify or not
testify, as you choose?

[CODEFENDANT]: Yes, sir, Your Honor.

THE COURT: And that in your choosing not to testify, this Jury will
be instructed by the Court that they cannot hold that against you?

[CODEFENDANT]: Yes, sir, Your Honor.

THE COURT: Because you have that right. And is it your decision
and your choice not to testify in this case?

[CODEFENDANT]: Yes, sir.

THE COURT: [The petitioner], likewise.

[THE PETITIONER]: Yes, sir.

THE COURT: Do you understand that right?

[THE PETITIONER]: Yes, sir.

THE COURT: And is it your decision not to testify in your defense
in this case?

[THE PETITIONER]: Yes, sir.


                                  -8-
                THE COURT: Well, the Court will find that they each
                understandably and knowingly have made that decision and just place
                that on the record at this point in time.

        The petitioner argues that he is entitled to post-conviction relief under the holding of Momon
v. State, 18 S.W.3d 152, 161-62 (Tenn. 1999), wherein our supreme court held that a criminal
defendant’s right to testify is a fundamental constitutional right that may be waived only by the
defendant and requiring that the defendant’s waiver be made on the record. However, the court
explained that its holding was not retroactive, stating: “[T]he procedures adopted herein do not
establish a new constitutional rule which must be retroactively applied.” Id. at 163.

        As to this issue, the post-conviction court found that trial counsel had discussed on several
occasions up until the time of trial and that the petitioner elected not to testify, although counsel had
attempted to prepare his trial testimony. Further, the post-conviction court determined that the trial
court had adequately explained to the petitioner his right to testify or decline to do so. We conclude
that the record supports these determinations.

                                            B. Plea Offer

        The petitioner argues that trial counsel improperly communicated to him a sentence range
associated with a plea offer and thereafter advised him to reject the offer and proceed to trial. He
further contends that under Deon Braden v. State, No. 01C01-9708-CC-00351, 1998 Tenn. Crim.
App. LEXIS 744 (Tenn. Crim. App. July 15, 1998), a trial counsel’s failure to advise his client of
a range of punishment associated with a guilty plea should be considered in determining whether the
petitioner received ineffective assistance of counsel.

        At the post-conviction hearing, lead counsel testified that there was never an offer for less
than first degree murder. He also said that he was informed by the prosecution that any plea offer
would have to originate with the petitioner, and that the prosecution would have to clear any plea
agreement with the victim’s family. He further stated that, prior to trial, there was “some discussion”
about the petitioner pleading guilty to second degree murder in exchange for a twenty-five-year
sentence, but these discussions did not go anywhere.

        Similarly, the district attorney general who prosecuted the case testified that there was no
plea offer for any charge less than first degree murder:

                I’m certain that we discussed, at [lead counsel’s] instigation, the
                possibility of allowing the [petitioner] to plead guilty to Second
                Degree Murder. An offer was never made by me, or [the assistant
                district attorney general], to allow [the petitioner] to plead guilty to
                Second Degree Murder to any sentence. The only offer was made by
                my office, by myself, or by [the assistant district attorney general]



                                                  -9-
               was for him to enter a guilty plea to a charge of First Degree Murder.
               That was the only thing we would accept.

        As to this claim, the post-conviction court accredited the testimony of the district attorney
general and petitioner’s lead trial counsel, that the only plea offer made as to the homicide charge
was that he plead guilty to first degree murder, which is punishable only by death, life without
parole, or life with the possibility of parole. The record supports this determination by the post-
conviction court.

                                         CONCLUSION

        Based upon the foregoing authorities and reasoning, we affirm the post-conviction court’s
denial of the petition for post-conviction relief.


                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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