                                                                                         04/30/2019
           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs February 12, 2019

           STACEY TYRONE GREEN v. STATE OF TENNESSEE
                    Appeal from the Circuit Court for Marion County
                      No. 10454        Thomas W. Graham, Judge



                              No. M2018-00765-CCA-R3-PC
                        _____________________________

A Marion County jury convicted the Petitioner, Stacey Tyrone Green, of one count of
aggravated robbery, one count of burglary, one count of aggravated assault, and three
counts of facilitation to commit aggravated robbery, burglary, and aggravated assault.
The trial court imposed an effective sentence of fourteen years and six months in the
Tennessee Department of Correction, and this court affirmed the trial court’s judgment
on appeal. State v. Stacey Tyrone Green, No. M2015-003230CCA-R3-CD, 2016 WL
381414, at *1 (Tenn. Crim. App., at Nashville, Feb. 1, 2016), no perm. app. filed. The
Petitioner subsequently filed a petition for post-conviction relief alleging that he had
received the ineffective assistance of counsel at trial, which was heard and denied by the
post-conviction court. The Petitioner here appeals the ruling of the post-conviction court.
After review, we affirm the post-conviction court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which THOMAS T.
WOODALL and TIMOTHY L. EASTER, JJ. joined.

Jared C. Smith, South Pittsburg, Tennessee, for the appellant, Stacey Tyrone Green.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior
Assistant Attorney General; James Michael Taylor, District Attorney General; David O.
McGovern, Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION
                                        I. Facts
                                       A. Trial

      This case arises from an armed robbery that took place in August 2013. In our
opinion on the Petitioner’s direct appeal, we briefly summarized the facts presented at the
Petitioner’s July 2014 trial as follows: James Tucker, Terry Ballard, Paul Turner, Chris
Timberlake, and a man named “Flake” were playing a card game in a garage owned by
Big Daddy’s Fireworks on August 15, 2013 at around 10:00 p.m. The players saw some
men come through a chain link fence toward the garage. Their faces were partially
covered by t-shirts. The men yelled for everyone to get down on the floor. Mr. Tucker
noted that one man was holding a semi-automatic rifle, so he complied with their request.
Mr. Timberlake refused, looking directly at the assailants. The men took money from the
players.

        Mr. Timberlake testified at trial that, before this event, he knew and did not have
any problem with the Petitioner, whom he knew as “Little Stacey.” He recognized the
Petitioner as one of the assailants when the Petitioner pointed a gun at Mr. Ballard. He
heard Mr. Ballard tell the Petitioner, who was robbing him, that they were cousins and
that they knew each other. Mr. Timberlake also identified Mr. Gary as the man who had
put the gun to his head during the robbery. Mr. Timberlake identified the Petitioner from
a photographic lineup. Mr. Ballard also identified the Petitioner as the man who robbed
him. He said that the t-shirt covering the Petitioner’s face fell during the robbery, and he
recognized the Petitioner as his cousin.

        In an interview with law enforcement, the Petitioner claimed that he had been to
Rudder’s Market on the night of the robbery, where he bought chicken and pizza.
However, Detective Matt Blansett of the Montgomery County Sheriff’s Department
testified that, when he looked at the surveillance video from the market and store receipts,
he determined that the Petitioner had not been at the store at the time that the Petitioner
claimed. The detective confirmed that Mr. Timberlake identified the Petitioner’s
photograph from a photographic lineup as being of one of the assailants. Green, 2016
WL 381414, at *3-5.

       Based on this evidence, a Marion County jury convicted the Petitioner of one
count of aggravated robbery, one count of burglary, one count of aggravated assault, and
three counts of facilitation to commit aggravated robbery, burglary, and aggravated
assault. The trial court sentenced the Petitioner as a Range II Multiple Offender to an
effective sentence of fourteen years and six months in the Tennessee Department of
Correction. The Petitioner appealed, contending that the trial court erred when it denied
his motion to suppress evidence relating to the Petitioner’s identification in a
photographic lineup and that the evidence presented at trial was insufficient to support his
convictions. This court affirmed the Petitioner’s convictions. Id. at *1.

                                B. Post-Conviction Facts

       The Petitioner filed a pro se petition for post-conviction relief, in which he alleged
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that he had been denied the effective assistance of counsel because his trial counsel
(“Counsel”) had failed to properly advise the Petitioner of the correct release eligibility
dates during plea discussions and failed to call a key alibi witness, both of which
prejudiced him.

         At a hearing on this petition, the parties presented the following evidence: The
Petitioner testified that Counsel had been appointed to represent him shortly after he was
charged but that Counsel had met with him only “like two days prior to trial.” The
Petitioner said that, at that time, Counsel advised him that in the event he was convicted
at trial, he would face a release eligibility of thirty-five percent. The Petitioner said that
Counsel never mentioned a potential release eligibility date of eighty-five percent. The
Petitioner further recounted a discussion with Counsel of a possible plea to aggravated
robbery, in which they discussed a six-year sentence. The Petitioner alleged that, while
Counsel had not mentioned a release eligibility date in that discussion, Counsel had told
Petitioner that he would be Range II, which to the Petitioner’s knowledge meant a thirty-
five percent release eligibility date. The Petitioner further recounted a discussion with
Counsel about the risks of going to trial versus accepting the plea offer and the
consideration that the Petitioner would likely receive more time if convicted at trial. The
Petitioner then testified that he had agreed to the six-year plea offer but that the offer had
been “struck down” by the trial court.

       The Petitioner identified two exhibits offered in support of his petition, one was
the original judgment and the second was the amended judgment. He said that the
original judgment reflected a thirty-five percent release eligibility date while the amended
judgment reflected an eighty-five percent release eligibility date. The Petitioner further
stated that, had he known that his release eligibility date would be eighty-five percent
instead of thirty-five percent, he would not have proceeded to trial.

      Upon questioning by the trial court, the Petitioner acknowledged that the State
made no other offer other than the six-year offer that was not accepted by the trial court.

       The Petitioner recounted that Counsel had told him that his chances of success at
trial were good because the statements of witnesses Terry Ballard and Christopher
Timberlake were inconsistent with each other. The Petitioner further stated that there
were other witnesses who should have been called as alibi witnesses, two friends of the
Petitioner and the Petitioner’s wife, but Counsel had told the Petitioner that they didn’t
need them because “he felt like we had the case beat, so really didn’t need any
witnesses.” The Petitioner said that, while Counsel had not pressured him to go to trial,
“[h]e just didn’t give me all of the knowledge that he should to make me choose better
than to go to trial.”

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        Asked for details regarding the Petitioner’s statement that he had met with
Counsel only once or twice, the Petitioner recalled that he had met with Counsel “a few
times” in Marion County until December 31, 2013 and then not again until “I think
somewhere in July [2014] like two or three days before trial.” The Petitioner further
testified that at this meeting he never mentioned to Counsel that his wife could testify as
an alibi witness.

        On cross-examination, the Petitioner agreed that Counsel had not affirmatively
told him the six-year plea offer had a thirty-five percent release eligibility. Rather, the
Petitioner testified that, “I figured [thirty-five], because that’s what Range – I was Range
II, so it’s [thirty-five] percent.” The Petitioner then, contradicting his earlier testimony,
said that he in fact declined to take the six-year plea offer by the State. He said that he
declined the offer thinking it was an offer for thirty-five percent release eligibility. He
further stated that he would have declined the offer if it included an eighty-five percent
release eligibility. The Petitioner testified that he would have taken the offer if he had
known he was facing a potential sentence of twelve years at eighty-five percent. The
Petitioner agreed that he was a convicted felon at the time of his plea.

       The Petitioner said that he had been with his wife during the robbery but said that
he did not know if his wife had ever discussed that fact with any law enforcement officer.
When asked for clarification on this point, the Petitioner stated that, while they were
seeing each other at the time, they had not discussed the fact that the Petitioner had been
with her at the time of the robbery, despite the fact that the Petitioner had previously been
convicted of a felony and was now facing a new aggravated robbery charge. The
Petitioner further recounted that Counsel failed to call the Petitioner’s wife, saying “He
said we had the case beat so he didn’t need to call my wife, because she was [in court].
He told her to miss work, that he was going to call her on the stand, but he never did.”

        Asked for specifics on the number of meetings he had with Counsel, the Petitioner
testified that had met with him only “a couple” of times just before the trial and once
after the Petitioner’s probation revocation hearing. In further questioning, the Petitioner
agreed that he had in fact met with Counsel both before and after the revocation hearing.

        On re-direct examination regarding the plea offer, the Petitioner was asked
whether it had been explained to him that he could either accept a plea offer for six years
at eighty-five percent, or go to trial with a potential sentence of twelve to twenty years at
eighty-five percent. The Petitioner responded “I would have never went to trial [twelve]
to [twenty years] at [eighty-five] percent, that’s most of my life, even with [twelve] years
that’s still like nine years.”

       On direct examination the Petitioner’s wife said that she had been with the
                                             4
Petitioner on the day of the robbery and that they had been together for the whole day
except for two periods of time: (1) when the Petitioner left for about ten minutes to pick
up a lottery ticket; and (2) a second period of about twenty minutes when the Petitioner
left to pick up food.

       On cross-examination, the Petitioner’s wife testified that she never told law
enforcement officers that the Petitioner was with her during the time of the crime. She
said that she had told her sister and mother.

       The Petitioner’s wife recalled being present on occasions when Counsel was
discussing the case with the Petitioner, but she said Counsel more often spoke with the
Petitioner than he did with her. While she could not recall specifically what she might
have told Counsel, she was sure that she had told him that the Petitioner could not have
committed the robbery because he had been with her.

     On re-direct examination, the Petitioner’s wife confirmed that she had talked with
Counsel, that she had been present at the trial, but that he had not called her as a witness.

        On direct examination, Counsel testified that he had been a criminal defense
attorney since November 2010 and had done criminal defense work in private practice
and currently with the Public Defender’s Office in Hamilton County. Counsel could not
recall the first time that he met the Petitioner, but he said that he did recall representing
the Petitioner both for the trial and for a parole violation hearing, which was based on the
Petitioner’s arrest for the aggravated robbery. While Counsel could not recall the exact
number of times he and the Petitioner met regarding the parole hearing and subsequent
trial, he was confident that it was more than two or three times and estimated it was eight
to ten times. Counsel could not explain why the Petitioner would say they had met so
infrequently.

        Counsel further confirmed that he had been aware of the percentage release
eligibility required on an aggravated robbery during his representation of the Petitioner,
and he said that he had discussed the possible consequences of a guilty conviction or plea
with the Petitioner.

        Counsel recalled that the State initially offered the Petitioner a ten-year sentence,
to be served at eighty-five percent. He said that he and the State’s attorney discussed a
two-year and a four-year offer, and the State asked Counsel to contact the trial court to
see if he would approve such an agreement. Asked whether Counsel had ever suggested
that the Petitioner could receive a thirty-five percent release eligibility for an aggravated
robbery conviction, Counsel responded “I would not have told him that.” Asked for
further clarification, Counsel testified “You told me that he was saying that I told him
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[thirty-five] percent on an aggravated robbery. I cannot ever recall telling him that, and
that’s something that I would not have told him at the time, because you know, it’s not
the first aggravated robbery I’d ever handled.” Asked whether he discussed release
eligibility with the Petitioner in conjunction with the State’s original ten-year plea offer,
Counsel responded “I would have discussed that. I don’t specifically recall doing it, but
it would have been my practice to cover that information.”

        Counsel was then questioned about alibi discussions and confirmed that he and the
Petitioner had discussed possible alibi witnesses and his activities on the day of the
robbery. Counsel recounted that the Petitioner told him that he had left the house twice
to go to a local convenience store, and once again to pick up food from a fast food
location. Counsel related they had a cash receipt from a fast food location for that day,
but that the receipt just showed that someone had been there, not necessarily the
Petitioner. Counsel testified that he had offered the Petitioner the option to testify about
his location on the day of the robbery at trial and offered the Petitioner’s wife the same
opportunity. He said, however, that he had not called the Petitioner’s wife to testify at
trial for two reasons. First, Counsel testified that he was not comfortable with the story,
in that it seemed contrived; and second, that the Petitioner’s wife had texted Counsel
immediately prior to or during the trial, advising him that she did not want to testify and
was not comfortable in doing so.

       Additionally, Counsel said he had not called the Petitioner’s wife because she was
not able to say that the Petitioner had been with her the whole time, saying “The alibi
involved him leaving, and going off, and so to me it wasn’t even a complete alibi.”
Asked if the Petitioner had suggested the names of any other possible alibi witnesses,
Counsel could recall none.

        On cross-examination, Counsel agreed that he did not remember specific release
eligibility date discussions with the Petitioner, but that it would be his standard practice
to have such discussions. Counsel also confirmed he had no contemporaneous notes or
letters concerning plea discussions, possible sentences, or release eligibility dates with
the Petitioner, and that rather, what Counsel was testifying to was his standard practice
and not specifically his interaction with the Petitioner.

       Counsel confirmed that Exhibit 1 was the original judgment entered in the
Petitioner’s case and that while Counsel had not prepared or seen the document, the
original was marked at a thirty-five percent release eligibility date. Asked if that
supported the Petitioner’s contention that the Petitioner understood the aggravated
robbery conviction was to be at thirty-five percent, Counsel said that he had not seen the
document, but referred to a sentencing memorandum Counsel had filed with the court the
day before the judgment was entered. Counsel agreed that Exhibit 2, the corrected
                                             6
judgment, reflected the correct eighty-five percent release eligibility date.

       Counsel offered the sentencing memorandum he had written the day before the
sentencing hearing and judgment was entered as the best evidence that Counsel was
aware of the eighty-five percent release eligibility date for aggravated robbery, quoting
from paragraph (3) (b) in the memorandum as “[Petitioner] is a Range II Offender on his
most serious conviction, aggravated robbery, he faces a non-probatable sentence of 12 to
20 years which must be served at 85 percent before parole eligibility.”

       Counsel recounted the plea discussions, including that he had not provided the
State’s two- and four-year offers in writing. Counsel also described the plea discussion
as, “Those were the two days before the trial when [Assistant District Attorney]
McGovern was in another trial, and so I’m in here waiting for a break, and he’s writing
me notes, and we’re talking and sort of, chaotic, I guess.”

       With regard to potential testimony from the Petitioner’s wife, Counsel clarified
that his concern was not with her personal comfort, but rather because “I thought [her
testimony] could hurt our chances to win the case. It’s not because I wanted to protect
anybody’s feelings.”

       Responding to a question from the court, Counsel clarified that the Petitioner had
not insisted that his wife take the stand and, after Counsel advised against it, did not ask
Counsel to call her. Counsel stated, “If he had done that I probably would have just told
her to deal with it and I’m calling you.”

       On recross-examination, Counsel confirmed that the Petitioner was incarcerated
before the trial but said that he effectively communicated about cases with many
incarcerated clients by phone. Asked if the decision not to call the Petitioner’s wife had
been a last-minute decision, Counsel confirmed that it was during or right before the trial
that the decision was made not to call her, and therefore it was not a situation in which
the Petitioner would have had a week or two to think about it and contact Counsel.

       The Petitioner’s post-conviction attorney argued it was ineffective of Counsel to
misadvise the Petitioner regarding his release eligibility date. He said that Counsel had
no documentation that “says anything other than specifically what happened with the
Petitioner . . . .”

       The Court questioned the Petitioner’s post-conviction attorney as to whether there
had been another plea offer made after the first had been rejected by the trial court, to
which the eighty-five percent release eligibility would have applied, and the Petitioner’s
post-conviction attorney responded that “there’s still a difference, your Honor, between
                                              7
proceeding to trial when it’s your understanding was it was going to be [thirty-five]
percent anyway, versus continuing to work when you know it’s going to be 85 percent.”
The Court noted that had Petitioner been misdirected as to thirty-five percent, that would
have been more encouraging for him to take the plea offer, had that offer been accepted
by the trial court. The Petitioner’s post-conviction attorney responded that “[the
Petitioner] shut down plea negotiations, because it was his understanding that the release
eligibility date would be 35 percent.” Asked by the Court if the Petitioner would have
taken eighty-five percent, the Petitioner’s post-conviction attorney replied that “He’s
rejecting offers based off of information that’s just incorrect.”

        The Petitioner’s post-conviction counsel then took issue with Counsel’s decision
not to call the Petitioner’s wife as an alibi witness at trial, saying that the Petitioner’s wife
had testified that the Petitioner had been with her the whole day of the robbery, except for
a couple of short periods and for about twenty minutes when the Petitioner went to the
store. The Petitioner’s post-conviction attorney characterized her potential testimony as
“absolutely relevant to a jury’s decision” in weighing the credibility of other witnesses.
The court recounted Counsel’s testimony that the Petitioner had not insisted or demanded
that his wife take the stand and asked if that put the issue of potential testimony from his
wife “back in [the Petitioner’s] ballpark at that point.” The court further asked whether
the decision of whether to put the Petitioner’s wife on the stand was strategic because
“they may cut it off as completely unbelievable or [the witness] may not even say what
[the Petitioner] thinks she’s going to say.” The Petitioner’s post-conviction attorney
opined that, since the Petitioner was facing a significant sentence, Counsel should have
“erred on the side of [the Petitioner] and put [the Petitioner’s wife] on the stand.” The
court acknowledged this opinion but observed that if they had called the Petitioner’s wife
and “what she was saying fell apart, you would be doing your client a disservice by
having her put on the stand.”

       Based upon this evidence, the post-conviction court denied the Petitioner relief,
finding that:

       It is more likely than not that Counsel advised the Petitioner of the 85
       percent release eligibility attached to an aggravated robbery charge.
       Counsel is an experienced criminal attorney whose practice is always to
       advise of the length of sentence and range of punishment, and he stated he
       believes he advised the Petitioner in this case though he doesn’t specifically
       remember. Counsel knows he didn’t affirmatively tell the Petitioner he
       would receive a 35 percent release eligibility date as he certainly knows
       that would be an incorrect statement of law.

       Counsel did not place the Petitioner’s wife on the stand because he
                                               8
       considered her to be a shaky witness at best and her testimony, even if
       believed, left open some gaps in time which might not support the alibi. It
       is further noted that the Petitioner did not insist on her testimony and that
       the witness did not want to testify. Counsel therefore made a tactical and
       strategic decision not to call the Petitioner’s wife.

       The Petitioner contends his attorney told him this was an easy case in an
       apparent effort to encourage the Petitioner not to plea. The Court simply
       finds the Petitioner was not credible on this point.

It is from this judgment that the Petitioner now appeals.

                                       II. Analysis

        On appeal, the Petitioner contends that the post-conviction court erred when it
denied his petition for post-conviction relief because Counsel’s representation fell below
the range of competence demanded of attorneys in criminal cases. Specifically, the
Petitioner argues that Counsel was ineffective by communicating incorrect release
eligibility dates to the Petitioner and overstating the likelihood of success at trial. He
further contends that Counsel erred when he failed to call the Petitioner’s wife as an alibi
witness. The State counters that the Petitioner failed to demonstrate this claim by clear
and convincing evidence. We agree with the State.

       In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional
right. T.C.A. § 40-30-103 (2014). The petitioner bears the burden of proving factual
allegations in the petition for post-conviction relief by clear and convincing evidence.
T.C.A. § 40-30-110(f) (2014). Upon review, this Court will not re-weigh or re-evaluate
the evidence; all questions concerning the credibility of witnesses, the weight and value
to be given their testimony, and the factual issues raised by the evidence are to be
resolved by the trial judge, not the appellate courts. Momon v. State, 18 S.W.3d 152, 156
(Tenn. 1999) (citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997)). A post-
conviction court’s factual findings are subject to a de novo review by this Court;
however, we must accord these factual findings a presumption of correctness, which can
be overcome only when a preponderance of the evidence is contrary to the post-
conviction court’s factual findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001).
A post-conviction court’s conclusions of law are subject to a purely de novo review by
this Court, with no presumption of correctness. Id. at 457.

     The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9 of the Tennessee
                                             9
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The
following two-prong test directs a court’s evaluation of a claim for ineffectiveness:

               First, the [petitioner] 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 [petitioner] by
       the Sixth Amendment. Second, the [petitioner] must show that the
       deficient performance prejudiced the defense. This requires showing that
       counsel’s errors were so serious as to deprive the [petitioner] of a fair trial,
       a trial whose result is reliable. Unless a [petitioner] makes both showings,
       it cannot be said that the conviction or death sentence resulted from a
       breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Melson, 772
S.W.2d 417, 419 (Tenn. 1989).

       In reviewing a claim of ineffective assistance of counsel, this Court must
determine whether the advice given or services rendered by the attorney are within the
range of competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at
936. To prevail on a claim of ineffective assistance of counsel, “a petitioner must show
that counsel’s representation fell below an objective standard of reasonableness.” House
v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369
(Tenn. 1996)).

       When evaluating an ineffective assistance of counsel claim, the reviewing court
should judge the attorney’s performance within the context of the case as a whole, taking
into account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell,
753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court should avoid the
“distorting effects of hindsight” and “judge the reasonableness of counsel’s challenged
conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.”
Strickland, 466 U.S. at 689-90. In doing so, the reviewing court must be highly
deferential and “should indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462. Finally,
we note that a Petitioner 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)). Counsel should not be deemed to have been
ineffective merely because a different procedure or strategy might have produced a
                                             10
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. However, deference to matters of strategy
and tactical choices applies only if the choices are informed ones based upon adequate
preparation.’” House, 44 S.W.3d at 515 (quoting Goad, 938 S.W.2d at 369).

        If the petitioner shows that counsel’s representation fell below a reasonable
standard, then the petitioner must satisfy the prejudice prong of the Strickland test by
demonstrating “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at
694; Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability
must be “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at
668.

        Contrary to the Petitioner’s assertion that Counsel had incorrectly advised him of a
thirty-five percent release eligibility date for aggravated robbery, Counsel testified that
while he did not recall the specific discussion of release eligibility with the Petitioner, his
standard practice was to review all elements of potential sentences with his clients, and
he would have done so for the Petitioner. Counsel was familiar with the release
eligibility date requirements for a conviction of aggravated robbery, and he further
supported his correct understanding of the release eligibility date with a contemporaneous
pre-sentencing memorandum reflecting eighty-five percent release eligibility prepared
just before the Petitioner’s sentencing hearing. The post-conviction court found that
Counsel was credible and that the Petitioner’s testimony was not credible. The Petitioner
has not proven by clear and convincing evidence that Counsel incorrectly told him of his
release eligibility date. We agree that there was a clerical error on the Petitioner’s
original judgment, which was corrected in the amended judgment, but this document was
created after the Petitioner had gone to trial. Further, there was no evidence of an
outstanding plea offer that the Petitioner declined on the basis of his release eligibility
dates, so he therefore did not prove prejudice in going to trial. Accordingly, we conclude
that the post-conviction court did not err when it found the Petitioner was not entitled to
post-conviction relief on these grounds.

        Similarly, the Petitioner is not entitled to relief based on his assertion that Counsel
failed to call the Petitioner’s wife as an alibi witness at trial. Counsel testified that he had
prepared the witness to testify but made a strategic decision not to call her to the stand
because the alibi seemed contrived, included time gaps, and the witness texted him that
she did not want to testify. Further, Counsel testified that had the Petitioner insisted that
this alibi witness be called, Counsel would have done so, but the Petitioner did not insist
that she be called. A petitioner is not entitled to relief on the grounds that a particular
strategy or tactic failed or hurt the defense, if the choices are informed ones based upon
                                              11
adequate preparation. See House, 44 S.W.3d at 515. The decision not to call the
Petitioner’s wife was a strategic choice made by Counsel based upon his concerns
regarding her testimony and her willingness to testify. This strategy did not render
Counsel’s representation ineffective. The Petitioner is not entitled to relief.

                                  III. Conclusion

      In accordance with the foregoing reasoning and authorities, we affirm the post-
conviction court’s judgment.

                                              _________________________________
                                              ROBERT W. WEDEMEYER, JUDGE




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