         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs August 20, 2008

           THOMAS EARL BRADSHAW v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Davidson County
                      No. 2004-B-1763    J. Randall Wyatt, Jr., Judge



                    No. M2007-02725-CCA-R3-PC - Filed October 6, 2008


The petitioner, Thomas Earl Bradshaw, appeals from the denial of his petition for post-conviction
relief, wherein he challenged his 2005 Davidson County Criminal Court conviction of especially
aggravated robbery. In this appeal, the petitioner contends that his guilty plea was not knowingly
and voluntarily entered because it was the result of the ineffective assistance of his trial counsel.
Discerning no error, we affirm the judgment of the post-conviction court.

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

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J.,
and CAMILLE R. MCMULLEN , J., joined.

David Hopkins, Nashville, Tennessee, for the appellant, Thomas Earl Bradshaw.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and Lisa Naylor, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                 On January 24, 2005, the petitioner, originally charged with one count of robbery,
four counts of burglary, one count of especially aggravated robbery, three counts of aggravated
robbery, one count of attempted aggravated robbery, and one count of aggravated assault, entered
pleas of guilty to one count of especially aggravated robbery and one count of aggravated burglary.
A plea agreement between the parties provided for an effective sentence of 36 years, 30 years of
which must be served at 100 percent, see T.C.A. § 40-35-501(i)(2)(E) (2003) (setting a 100 percent
release eligibility for offense of especially aggravated robbery), and dismissal of the remaining nine
charges against the petitioner.

               The facts, as summarized by this court on direct appeal from the denial of the
petitioner’s motion to withdraw his guilty pleas, established that the petitioner had been linked to
a series of robberies in the Nashville area which began on April 22, 2004, with the robbery of 72-
year-old Nell Vogel, and included the robberies of four other victims, the youngest of whom was 70
years old. See State v. Thomas Earl Bradshaw, No. M2005-01232-CCA-R3-CD, slip op. at 2-4
(Tenn. Crim. App., Nashville, Mar. 24, 2006). The convictions relate specifically to the especially
aggravated robbery and burglary of 88-year-old Vernice Carpenter. During that offense, the
petitioner entered the victim’s home without her permission, threatened her with a knife, and dragged
her from room to room looking for money and other valuables and “causing some severe injuries to
her arm.” Id., slip op. at 3. In all, the petitioner took $59, some of which was the victim’s church
offering, a bank envelope, and an Avon receipt. Id.

                 On February 16, 2005, the petitioner filed a motion to withdraw his guilty pleas,
arguing that the pleas were not knowingly and voluntarily entered. Id., slip op. at 5. The trial court
denied the motion, concluding that the petitioner’s “plea was voluntary” because the petitioner
“failed to establish that he was in any way coerced, intimidated, pressured, misled or fraudulently
induced into entering a plea of guilty.” Id., slip op. at 7. The court also concluded that the
petitioner’s “feelings of pressure and anxiety fall squarely on his shoulders, and were not the product
of any misconduct of his attorney.” Id., slip op. at 7-8. This court agreed with the conclusions of
the trial court, ruling that the petitioner “did not meet his burden of proving that the plea was not
knowingly, understandingly, or voluntarily entered.” Id., slip op. at 9.

                On June 27, 2005, the petitioner filed a petition for post-conviction relief alleging that
he had been denied the effective assistance of counsel, that his guilty plea was involuntary, that his
conviction was based upon the use of a coerced confession, and that his conviction resulted from the
State’s failure to disclose favorable evidence. On December 19, 2006, the petitioner’s appointed
counsel filed an amended petition for post-conviction relief, alleging that the petitioner’s guilty pleas
were not voluntarily and knowingly entered because they were the product of the ineffective
assistance provided by his trial counsel. After the post-conviction court denied the State’s motion
to dismiss the petition on grounds that the issue of the voluntariness of the petitioner’s plea had been
previously determined, an evidentiary hearing was held on November 7, 2007.

                In the hearing, the petitioner testified that on the day he entered his pleas, he believed
that his case was scheduled for a status hearing and that he did not realize that the trial would begin
that day. He claimed that he was unaware of the details of the plea agreement until the trial court
informed him of “what it would be carrying.” The petitioner complained that his trial counsel failed
to inform him that he could pursue an appeal of the trial court’s denial of his pretrial motion to sever
the eleven offenses contained in the indictment.

                The petitioner testified that prior to the entry of the guilty pleas, trial counsel had not
reviewed with him the discovery material provided by the State and had not apprised him of the
evidence the State intended to offer at trial. The petitioner stated that he reviewed the discovery
materials after pleading guilty and, upon this review, developed the opinion that the State could not
prove that Ms. Carpenter had suffered serious bodily injury during the robbery. The petitioner
claimed that his trial counsel had failed to explain the elements of especially aggravated robbery and


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that this failure resulted in the petitioner’s pleading guilty “to something that [he] shouldn’t a’ never
had pleaded guilty.” The petitioner explained that “a guy” who went with him to the prison library
explained the difference between aggravated robbery and especially aggravated robbery. The
petitioner stated that he would not have pleaded guilty if he had been given this information because
“it would have made all the difference in the world.”

                During cross-examination, the petitioner acknowledged that he had been convicted
of four felonies before incurring the charges in this case and conceded that his trial counsel had
informed him that if he were convicted of any of the charges in the indictment, he would be
sentenced within Range II. The petitioner insisted that although his potential sentence exposure
exceeded 100 years, his lack of understanding of the elements of especially aggravated robbery rather
than the desire for a lesser sentence caused him to plead guilty. The petitioner stated that, despite
his research, he was unaware that pain and disfigurement could be considered serious bodily injury.

                Trial counsel testified that he was appointed to represent the petitioner after his case
had already been set for trial by the petitioner’s previous attorney. Counsel stated that during his first
meeting with the petitioner, he ascertained that the petitioner’s defense was one of mistaken identity.
Despite claiming that he was not the perpetrator of the crimes alleged in the indictment, the
petitioner offered trial counsel no witness or other proof “that would contradict the fact that he was
found near the scene with some of the evidence on him” and that his fingerprints were found “inside
the homes of some of the victims.”

                 Counsel stated that he apprised the petitioner of the potential sentence exposure,
recalling that it “may have been a hundred and forty-eight years, if he was convicted.” Counsel
testified that he “felt like the evidence was very strong in all of the counts.” He recalled that he
interviewed each of the victims and concluded that “not only did . . . they ha[ve] a lot of credibility,
but because of their age . . . they would have had a lot of sympathy.”

               Counsel testified that it was his opinion that the issue of whether the victim had
suffered serious bodily injury “was definitely a jury question.” He elaborated,

                The open wound on her wrist was especially troubling in that it had
                peeled the skin back and . . . due to the length of it, which . . . was at
                least three inches long, that anyone could have inferred that that was
                a very painful injury, in addition to the ringing, or what appeared to
                be ringing of the arm, just above the wrist, that she suffered.

According to counsel, the injury occurred as the defendant dragged the victim from room to room
“looking for more stuff.”

                During cross-examination, trial counsel testified that he met with the petitioner “at
least five if not four times” to discuss “the specifics of the case.” Counsel recalled that his
predecessor had filed an unsuccessful motion to sever the offenses but could not recall whether he


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had discussed with the petitioner the right to pursue an appeal of the denial of that motion. Counsel
stated that although the petitioner had initially insisted upon going to trial, he changed his mind upon
seeing the victims in the courtroom, prepared to testify against him. Counsel explained, “I don’t
believe [the petitioner] believed that all of the victims would show up in court.” Counsel stated that
he did not provide the petitioner with a copy of the discovery materials because predecessor counsel
had done so. He recalled that he did discuss the contents of the discovery packet with the petitioner
“so that [he] could be sure that [the petitioner] had everything.”

                In an order detailing its findings of fact and conclusions of law, the post-conviction
court denied relief, ruling that trial counsel “represented the Petitioner in a competent and thorough
manner” and that there was not “sufficient evidence to support the Petitioner’s claims of ineffective
assistance of counsel.” The post-conviction court accredited the testimony of trial counsel that the
disposition provided by the plea agreement “was significantly more favorable to the Petitioner than
proceeding to trial and receiving numerous felony convictions on the counts” dismissed by the
agreement. The court concluded that counsel “adequately researched the issue of serious bodily
injury regarding Ms. Carpenter.” The post-conviction court found that the petitioner presented “no
substantive proof” to support his claim that trial counsel “failed to discover that the identifications
made by Ms. Carpenter of the Petitioner were inconsistent.”

                The post-conviction petitioner bears the burden of proving his or her allegations by
clear and convincing evidence. T.C.A. § 40-30-110(f) (2006). On appeal, the appellate court
accords to the post-conviction court’s findings of fact the weight of a jury verdict, and these findings
are conclusive on appeal unless the evidence preponderates against them. Henley v. State, 960
S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997).
By contrast, the post-conviction court’s conclusions of law receive no deference or presumption of
correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).

                The petitioner contends that his trial counsel was ineffective and, as a result, his guilty
plea was not knowingly and voluntarily entered. Specifically, he contends that his counsel failed to
adequately investigate the case and, had he done so, he “would have known prior to his guilty plea
that some of the witnesses[] gave conflicting statements to the police regarding the identification of
the [petitioner] . . . and that there was no evidence of any serious bodily injury to support the charge
of especially aggravated robbery.”

                When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, he must first establish that the services rendered or the advice given were below “the
range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975). Second, he must show that the deficiencies “actually had an adverse effect on the
defense.” Strickland v. Washington, 466 U.S. 668, 693 (1984). The error must be so serious as to
render an unreliable result. Id. at 687. It is not necessary, however, that absent the deficiency, the
trial would have resulted in an acquittal. Id. at 695. Should the petitioner fail to establish either
factor, he is not entitled to relief. Our supreme court described the standard of review as follows:



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                               Because a petitioner must establish both prongs of the
               test, a failure to prove either deficiency or prejudice provides a
               sufficient basis to deny relief on the ineffective assistance claim.
               Indeed, a court need not address the components in any particular
               order or even address both if the defendant makes an insufficient
               showing of one component.

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

               On claims of ineffective assistance of counsel, the petitioner is not entitled to the
benefit of hindsight, may not second-guess a reasonably based trial strategy, 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). Such deference to the tactical decisions of
counsel, however, applies only if the choices are made after adequate preparation for the case.
Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

               Claims of ineffective assistance of counsel are regarded as mixed questions of law
and fact. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453,
461 (Tenn. 1999). When reviewing the application of law to the post-conviction court’s factual
findings, our review is de novo, and the post-conviction court’s conclusions of law are given no
presumption of correctness. Fields v. State, 40 S.W.3d at 457-58; see also State v. England, 19
S.W.3d 762, 766 (Tenn. 2000).

                In this case, the petitioner, faced with eleven felony counts and a possible Range II
sentence exceeding 100 years, entered pleas of guilty to especially aggravated robbery and
aggravated burglary in exchange for a 36-year sentence. Although the petitioner claims on appeal
that trial counsel failed to inform him that “there was no evidence of any serious bodily injury” to
support the especially aggravated robbery conviction, photographs admitted during the evidentiary
hearing establish that the victim suffered a serious laceration to her wrist along with bruises to her
face and arms. The photographs support the testimony of trial counsel, which was accredited by the
post-conviction court, that the issue of whether the victim suffered serious bodily injury was “a jury
question.” Moreover, the accredited testimony of trial counsel establishes that the petitioner was
informed of the elements of especially aggravated robbery and that counsel specifically discussed
with the petitioner the fact that proof of the serious bodily injury element was not strong. Finally,
although the petitioner claims that his counsel failed to discover and apprise him of the fact that the
victim had given contradictory statements of identification, he presented no proof to support this
claim at the evidentiary hearing. Under these circumstances, the petitioner has failed to establish that
trial counsel performed deficiently by recommending that he accept a plea agreement providing for
a significantly lower sentence than that he would have faced if convicted of all eleven counts
pending against him.

               Accordingly, the judgment of the post-conviction court is affirmed.



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      ___________________________________
      JAMES CURWOOD WITT, JR., JUDGE




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