        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs January 7, 2014

                  RICHARD PRICE v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                     No. 07-06939     W. Otis Higgs, Jr., Judge


                 No. W2012-02192-CCA-R3-PC - Filed April 16, 2014


The Petitioner, Richard Price, appeals as of right from the Shelby County Criminal Court’s
dismissal of his petition for post-conviction relief. The Petitioner contends that his trial
counsel was ineffective (1) for failing to communicate a plea offer from the State; and (2)
for failing to request a curative jury instruction after a police officer testified that he
“attempted to talk to” the Petitioner about the offense. Following our review, we affirm the
judgment of the post-conviction court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which A LAN E. G LENN and
R OGER A. P AGE, JJ., joined.

James E. Thomas, Memphis, Tennessee, for the appellant, Richard Price.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Amy
P. Weirich, District Attorney General; and David Michael Zak, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                               FACTUAL BACKGROUND

        In 2008, the Petitioner was convicted of aggravated robbery, see Tenn. Code Ann. §
39-13-402, and sentenced to twenty years as a Range II, multiple offender. The evidence at
trial established that the Petitioner feigned ordering from a Wendy’s drive-thru in order to
rob the cashier at the service window. The Petitioner pointed a gun at the cashier and
demanded “all the money.” The cashier was able to identify the Petitioner out of
photographic line-up and later identified him at trial. The Petitioner’s car also matched the
cashier’s description of the car driven by the robber. State v. Richard Price, No. W2008-
02590-CCA-R3-CD, 2009 WL 2767161, at *1-2 (Tenn. Crim. App. Sept. 1, 2009), reh’g
denied, (Mar. 29, 2010). This court affirmed the Petitioner’s conviction and sentence on
direct appeal. Id.

        The Petitioner filed a timely pro se petition for post-conviction relief, as well as two
pro se amended petitions, alleging numerous instances of ineffective assistance of trial
counsel. The post-conviction court appointed counsel to represent the Petitioner in this
matter, and an amended petition was filed. The amended petition incorporated the
Petitioner’s pro se petitions by reference but focused on the allegations that trial counsel
failed to request a curative jury instruction after a police officer testified that he “attempted
to talk to” the Petitioner about the offense and that trial counsel “failed to properly
investigate and prepare the case for trial.”

        With respect to the Petitioner’s claim regarding the curative instruction, at trial, a
police officer was asked if he interviewed anyone other than the victim during his
investigation. The officer responded that he interviewed the victim and the Petitioner’s
girlfriend and that he “attempted to talk to the [Petitioner].” Price, 2009 WL 2767161, at *3.
Trial counsel “immediately asked for a bench conference and requested a mistrial.” Id. The
trial court denied the mistrial but offered to give a curative instruction to the jury instead.
Trial counsel declined to have the curative instruction given, stating that “bringing attention
to it would make it worse.” Id. On direct appeal, this court affirmed the trial court’s decision
not to grant the Petitioner’s motion for a mistrial. Id. at *3-4.

        At the post-conviction hearing, trial counsel testified that had practiced law for over
twenty-five years and had tried over one hundred jury trials. Trial counsel recalled that he
reviewed the discovery materials as well as the range of punishment and potential sentences
with the Petitioner. Trial counsel testified that the State initially offered the Petitioner a ten-
year sentence but that he was able to negotiate the offer down to eight years. Trial counsel
further testified that he was “positively sure” he communicated the State’s eight-year offer
to the Petitioner and that he was “quite certain” that he spoke with the Petitioner about it “on
more than one occasion.”

        With respect to the curative instruction, trial counsel testified that he “considered the
instruction” but “thought it was probably best to leave it alone.” Trial counsel explained that
the instruction “would just further emphasize the fact” that his client did not want to talk to
the police officer. Trial counsel continued that he thought the instruction would have given
the officer’s testimony “greater importance” and “would have done as much harm as the
testimony itself.” Trial counsel concluded that if he “had to do it all over again, [he] would
have made the same decision.”

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       The Petitioner testified that he received a copy of his discovery materials but that trial
counsel never reviewed them with him. The Petitioner further claimed that he and trial
counsel never had any discussions regarding the strategy for trial or what his potential range
of punishment was. The Petitioner testified that trial counsel presented him with the State’s
ten-year offer but never communicated the eight-year offer to him. The Petitioner insisted
that he would have accepted the eight-year offer. The Petitioner also testified that he was
unaware that trial counsel rejected the trial court’s offer of a curative instruction regarding
the officer’s testimony. On cross-examination, the Petitioner claimed that he was innocent
but insisted that he would have accepted the eight-year plea offer. The Petitioner also
admitted that he actually did review the discovery materials with trial counsel.

        The post-conviction court entered a written order dismissing the Petitioner’s petition
for post-conviction relief.1 The post-conviction court’s order focused on the Petitioner’s
claim concerning the curative instruction. The post-conviction court found that trial
counsel’s “decision to pass on the curative instruction” was “one of strategy” and that it “was
constitutionally acceptable.” The post-conviction court also found that there was no evidence
that the Petitioner was prejudiced by trial counsel’s action “given the other evidence in this
case.” The post-conviction court further found that the Petitioner’s “remaining claims raised
in the pro se petition [were] without merit and also denied.”

                                              ANALYSIS

       The Petitioner contends that the post-conviction court erred in dismissing his petition
for post-conviction relief. The Petitioner argues that the post-conviction court made no
findings of fact or conclusions of law regarding his claim that trial counsel failed to
communicate the State’s eight-year offer and that the evidence supported the claim. The
Petitioner also argues that trial counsel’s decision not to request the curative jury instruction
was not a reasonable tactical decision and prejudiced him. The State responds that the trial
court implicitly accredited trial counsel’s testimony over the Petitioner’s in its “general denial
of the petition.” The State further responds that trial counsel’s decision regarding the
curative instruction was a reasonable tactical decision and did not prejudice the Petitioner.

                                        I. Standard of Review

       The burden in a post-conviction proceeding is on the petitioner to prove his
allegations of fact supporting his grounds for relief by clear and convincing evidence. Tenn.
Code Ann. § 40-30-110(f); see Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009).


1
 The Petitioner’s pro se petition raised several other issues. However, the Petitioner has not raised those
issues in his appellate brief; therefore, he has waived review of those issues in this court.

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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 (Tenn. 2001). Additionally, “questions concerning the credibility of the witnesses, the
weight and value to be given their testimony, and the factual issues raised by the evidence
are to be resolved” by the post-conviction court. Id. Because they relate to mixed questions
of law and fact, we review the post-conviction 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.

       Under the Sixth Amendment to the United States Constitution, 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 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72
(1993). In other words, a showing that counsel’s performance falls below a reasonable
standard is not enough; rather, the petitioner must also show 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).

                           II. Failure to Communicate Plea Offer

        The post-conviction court made no findings of fact or conclusions of law with respect
to the Petitioner’s claim that trial counsel failed to communicate to him the State’s eight-year
offer. However, this ground was not raised in the original petition for post-conviction relief
or in any of the amended petitions. It has long been held that a post-conviction petitioner
may not raise grounds on appeal that were not alleged in the petition for post-conviction
relief. See Long v. State, 510 S.W.2d 83, 85 (Tenn. Crim. App. 1974). Accordingly, we
conclude that the Petitioner has waived our review of this issue.

                                III. Curative Jury Instruction

        In determining whether trial counsel’s performance was deficient, this court has held
that a “petitioner is not entitled to the benefit of hindsight, may not second-guess a
reasonably based trial strategy by his counsel, and cannot criticize 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). “[D]eference to tactical choices only applies if the
choices are informed ones based upon adequate preparation.” Cooper v. State, 847 S.W.2d
521, 528 (Tenn. Crim. App. 1992). An attorney’s performance must be measured against the
general standard of whether the services rendered were “within the range of competence

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demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975).

        Here, trial counsel testified that he made a tactical decision not to accept the trial
court’s offer for a curative jury instruction because he felt the instruction “would just further
emphasize the fact” that his client did not want to talk to the police officer and possibly give
“greater importance” to the officer’s testimony. As noted in this court’s direct appeal
opinion, the officer’s testimony did not explain “when or why” he attempted to talk to the
Petitioner and his answer could have meant that he simply was unable to locate the Petitioner,
rather than implicating the Petitioner’s right to remain silent. Price, 2009 WL 2767161, at
*4. As such, trial counsel’s decision was a reasonable and informed tactical decision that we
will not second-guess. Furthermore, given the overwhelming evidence of the Petitioner’s
guilt, there is no evidence the Petitioner was prejudiced by trial counsel’s decision.
Accordingly, we affirm the findings of the post-conviction court in this regard.

                                       CONCLUSION

       Upon consideration of the foregoing and the record as a whole, the judgment of the
post-conviction court is affirmed.




                                                     _________________________________
                                                     D. KELLY THOMAS, JR., JUDGE




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