         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs September 23, 2003

             JOHN ROBERT TORY, JR. v. STATE OF TENNESSEE

                       Appeal from the Criminal Court for Knox County
                          No. 57399    Richard Baumgartner, Judge



                                  No. E2003-00019-CCA-R3-PC
                                       December 29, 2003

This opinion adjudicates John Robert Tory, Jr.’s appeal from the Knox County Criminal Court’s
denial of his 1994 petition for post-conviction relief. He filed the petition to challenge his 1992 jury
convictions of first degree murder and especially aggravated robbery. Following a hearing in which
counsel argued but no evidence was presented, the post-conviction court rejected the petitioner’s
claims that his especially aggravated robbery conviction violated double jeopardy principles, that the
trial court erred in not instructing the jury as to second degree murder as a lesser included offense
of first degree felony murder, and that trial counsel was ineffective in failing to demand an
instruction on second degree murder as a lesser included offense. Because the record and the
applicable law support the denial of post-conviction relief, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which DAVID H. WELLES and
ROBERT W. WEDEMEYER , JJ., joined.

M. Christopher Coffey, Knoxville, Tennessee, for the Appellant, John Robert Tory, Jr.

Paul G. Summers, Attorney General & Reporter; Braden H. Boucek, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Marsha Selecman, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                              OPINION

                The petitioner received his convictions at the hands of a jury. On direct appeal, the
petitioner challenged his especially aggravated robbery conviction and the imposition of consecutive
sentencing, and this court affirmed that judgment. See State v. John Robert Tory, No. 03C01-9306-
CR-00202 (Tenn. Crim. App., Knoxville, Aug. 3, 1994), perm. app. denied (Tenn. 1994). The
convictions emanate from the 1990 robbery and murder of Michael R. White in his home in Knox
County. Id., slip op. at 2. The defendant was linked to the crimes by the discovery of his
fingerprints in the victim’s house, the discovery of inculpative evidence in the defendant’s home,
and the defendant’s confession to involvement in the crimes. Id.

                The petitioner filed a post-conviction petition, and the lower court conducted a
hearing at which it heard arguments of law but received no evidence. The post-conviction court
rejected the petitioner’s claim that double jeopardy principles precluded his convictions of both first
degree felony murder and especially aggravated robbery. The court held that Tennessee law allows
dual convictions of both felony murder and of the underlying felony. The post-conviction court also
rejected the petitioner’s trial error and ineffective assistance of counsel claims relative to the failure
to instruct on second degree murder as a lesser included offense. The court determined that, at the
time of the petitioner’s trial, second degree murder was not a lesser included offense of first degree
felony murder.

                Concerning the double jeopardy claim, the issue was not raised as error in the
defendant’s trial and direct appeal. In fact, in his direct appeal brief, the defendant acknowledged
that “Tennessee law allows convictions for both felony murder and the underlying felony.” See John
Robert Tory, slip op. at 7. Although the post-conviction court offered sound legal reasons for
rejecting the petitioner’s double jeopardy claim, see generally State v. Blackburn, 694 S.W.2d 934,
936-37 (Tenn. 1985) (double jeopardy principles do not bar prosecution for and conviction of both
felony murder and underlying felony), we are constrained to affirm the ruling based upon the
principle of waiver. Issues that could have been raised previously in a court of competent
jurisdiction are deemed waived when they are knowingly and understandingly eschewed and then
raised for the first time in a post-conviction proceeding. Tenn. Code Ann. § 40-30-112(b) (1990)
(repealed 1995); House v. State, 911 S.W.2d 705, 714 (Tenn. 1995) (“Waiver in the post-conviction
context is to be determined by an objective standard under which a petitioner is bound by the action
or inaction of his attorney.”). The double jeopardy claim is waived.

                Regarding the trial error and ineffective assistance of counsel claims relative to the
failure to instruct the jury on second degree murder, the post-conviction court correctly ruled that
second degree murder was not recognized as a lesser included offense of felony murder at the time
the petitioner’s case was tried, see, e.g., State v. Gilliam, 901 S.W.2d 385, 390-91 (Tenn. Crim. App.
1995) (adjudicating a 1990 offense and holding that second degree murder is not a lesser included
offense of felony murder), and that the case law later establishing second degree murder as a lesser
included offense was not retroactive to affect the petitioner’s case. See State v. Ely, 48 S.W.3d 710,
718-22 (Tenn. 2001) (relying upon State v. Burns, 6 S.W.3d 453, 464 (Tenn. 1999), in establishing
second degree murder as a lesser included offense of first degree felony murder); Anthony Hodges
v. State, M2001-03068-CCA-R3-PC (Tenn. Crim. App., Nashville, Dec. 4, 2002), perm. app.
pending (Tenn. 2003). (“Burns does not offer a constitutional claim for relief cognizant within a
post-conviction proceeding where the defendant’s direct appeal was concluded prior to the filing of
Burns.”). We agree that there was no trial error in omitting an instruction on second degree murder.

                  The post-conviction court, however, did not per se rule upon the petitioner’s claim
that his trial counsel was ineffective in not demanding an instruction on second degree murder. That


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notwithstanding, the tenor of the post-conviction court’s order is dispositive of the ineffective
assistance claim. For purposes of assuring a criminal defendant his constitutional right to effective
representation of counsel, counsel’s performance must dwell “within the range of competence
demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see
Strickland v. Washington, 466 U.S. 668, 678-79, 104 S. Ct. 2052, 2064-69 (1984). We conclude
that the standard for counsel’s performance was met when counsel acceded to the existing law that
second degree murder was not, at the time of the petitioner’s trial, recognized as a lesser included
offense of felony murder. State v. Benny Wallace, No. 86-208-III (Tenn. Crim. App., Nashville,
Aug. 26, 1987) (“[A]ttorneys may not be said to be ineffective for not anticipating rulings that
change or alter existing law.”), perm. app. denied (Tenn. 1987).

               For these reasons, the denial of post-conviction relief is affirmed.




                                                      ___________________________________
                                                      JAMES CURWOOD WITT, JR., JUDGE




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