                                                                                            04/24/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs December 20, 2016

                 JOSH L. BOWMAN v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Knox County
                      No. 104880 Steven Wayne Sword, Judge
                      ___________________________________

                             No. E2016-01028-CCA-R3-PC
                        ___________________________________


The Petitioner, Josh L. Bowman, was convicted by a jury of three counts of first degree
felony murder, one count of especially aggravated kidnapping, one count of especially
aggravated robbery, two counts of aggravated burglary, and one count of employing a
firearm during the commission of a dangerous felony. After the verdict, the Petitioner
pled guilty to one count of employing a firearm during the commission of a dangerous
felony when he had previously been convicted of a felony. The trial court merged the
murder convictions, merged the burglary convictions, and merged the firearms
convictions. This court on appeal reversed the especially aggravated kidnapping
conviction and remanded for a new trial, affirming all other judgments. See State v. Josh
L. Bowman, No. E2012-00923-CCA-R3-CD, 2013 WL 4680402, at *3 (Tenn. Crim.
App. Aug. 29, 2013), overruled in part by State v. Teats, 468 S.W.3d 495 (Tenn. 2015).
The Petitioner filed a timely post-conviction petition, alleging that his trial counsel was
deficient in allowing him to enter a guilty plea to the firearms offense and deficient in
failing to object to the racial composition of the jury venire. The post-conviction court
granted relief on the firearms conviction, finding that the Petitioner did not have a
qualifying prior “dangerous felony” and dismissing the charge. The post-conviction
court found that the Petitioner could not show deficiency or prejudice on the jury issue.
Both parties filed notices of appeal in this court. The State asserts that the post-
conviction court misinterpreted Tennessee Code Annotated section 39-17-1324 (2008) in
granting relief and argues that the prior felony need not be a dangerous felony according
to statute. The Petitioner asserts that he is entitled to relief from all his convictions based
on the jury composition. After a thorough review of the record, we affirm the post-
conviction court’s judgment. We remand for the post-conviction court to enter judgment
on the merged conviction which survives the dismissal of the firearms offense.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed;
                                  Case Remanded
JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and JAMES CURWOOD WITT, JR., J., joined.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Charme Allen, District Attorney General; and Ta Kisha M. Fitzgerald, Assistant
District Attorney General, for the appellee, State of Tennessee.

Leslie M. Jeffress, Knoxville, Tennessee, for the appellee, Josh L. Bowman.


                                       OPINION

        The Petitioner’s convictions are the result of a home invasion committed on May
2, 2009, during which the Petitioner and his co-defendants planned to rob the victims,
who were the beneficiaries of a life insurance policy. Josh L. Bowman, 2013 WL
4680402, at *3. The Petitioner and one co-defendant entered the victims’ home with
guns in order to obtain a safe. Id. at *4. Both of the victims apparently attempted to use
guns to defend themselves. Id. The surviving victim testified that she struggled with one
of the Petitioner’s co-defendants while she heard the other attacker shoot her husband.
Id. The offenders took the safe, and the injured victim ultimately died from his wound.
Id. at *5. The Petitioner gave a statement acknowledging his role in the crimes, and the
deceased victim’s blood was discovered on a pair of boots found in the trunk of the
Petitioner’s car. Id. at *3, 5.

        After the jury verdict, the Petitioner pled guilty to the offense which the post-
conviction court dismissed: employing a firearm during the commission of a dangerous
felony when the Petitioner “had a prior felony conviction.” Id. at *1. The trial court
merged various offenses, including the two convictions for employing a firearm during
the commission of a dangerous felony, and the Petitioner received an effective sentence
of life plus sixty years in prison. Id.

       On appeal, in light of the then-recent opinion in State v. White, 362 S.W.3d 559
(Tenn. 2012), this court reversed the especially aggravated kidnapping conviction but
affirmed the remaining convictions. Josh L. Bowman, 2013 WL 4680402, at *16.
According to the findings of the post-conviction court, the Petitioner on remand agreed to
plead guilty to especially aggravated kidnapping in exchange for a fifteen-year sentence
to be served concurrently with his murder conviction. We note that the Tennessee
Supreme Court has since indicated that this court erred in the Petitioner’s direct appeal
when it reversed the conviction, because the kidnapping offense was not committed
against the victim of the underlying felony and the jury did not need to be instructed
pursuant to White. Teats, 468 S.W.3d at 503.
                                          -2-
       The Petitioner filed a timely post-conviction petition, amended by counsel,
challenging his guilty plea to the conviction for employment of a firearm during the
commission of a dangerous felony after having been previously convicted of a felony.
The Petitioner’s challenge is based in part on the indictment, which charged him as
follows:

             And the Grand Jurors aforesaid, upon their oaths aforesaid, do
      further present that JOSH L. BOWMAN, heretofore, to-wit: On or about
      the ____ day of May, 2009, in the State and County aforesaid, did
      unlawfully and knowingly employ a firearm during the commission of a
      dangerous felony, and that said JOSH L. BOWMAN, ALIAS has
      heretofore been convicted of a dangerous felony as follows:

             1. That in Case No. 76454 count 1, on the 6th day of February, 2003,
      in the Criminal Court for Knox County, TN, the said JOSH L. BOWMAN,
      ALIAS, was convicted of the offense of Aggravated Robbery,

             2. That in Case No. 76454 count 2, on the 6th day of February, 2003,
      in the Criminal Court for Knox County, TN, the said JOSH L. BOWMAN,
      ALIAS, was convicted of the offense of Aggravated Robbery,

             3. That in Case No. 76454 count 3, on the 6th day of February, 2003,
      in the Criminal Court for Knox County, TN, the said JOSH L. BOWMAN,
      ALIAS, was convicted of the offense of Aggravated Robbery,

             4, That in Case No. 76454 count 4, on the 6th day of February, 2003,
      in the Criminal Court for Knox County, TN, the said JOSH L. BOWMAN,
      ALIAS, was convicted of the offense of Aggravated Robbery,

             5. That in Case No. 76454 count 5, on the 6th day of February, 2003,
      in the Criminal Court for Knox County, TN, the said JOSH L. BOWMAN,
      ALIAS, was convicted of the offense of Aggravated Robbery,

      in violation of T.C.A. 39-17-1324, and against the peace and dignity of the
      State of Tennessee.

        The Petitioner asserts that aggravated robbery is not a “dangerous felony” under
the statute as charged in the indictment and that his counsel was accordingly deficient for
allowing him to plead guilty. The Petitioner also asserts that his trial counsel was
deficient in failing to object to the racial composition of the jury venire. The petition

                                           -3-
additionally raised a challenge to trial counsel’s investigation into the Petitioner’s mental
health, which is not at issue on appeal.

        The Petitioner testified at the post-conviction hearing that the venire included
only one African American person and that this prospective juror was excused, leaving an
all-white jury. He testified that Knox County used a list provided by the Department of
Safety that included those who had driver’s licenses and other identification cards. The
Petitioner stated that jurors were picked randomly from this list and that no effort was
made to select for gender or race and that the venire accordingly did not represent a
cross-section of the community. On cross-examination, he acknowledged that he never
saw the larger venire, only the prospective jurors who were brought into the courtroom
prior to his trial.

        The Petitioner testified that he had prior convictions for aggravated robbery and
that aggravated robbery was not a dangerous felony under statute. His trial counsel did
not attempt to dismiss the conviction in the trial court or on appeal. The Petitioner agreed
that he pled guilty after having been convicted of the other offenses at trial.

        Jolene Kamper, the jury coordinator for Knox County, testified that sending out a
call to jury duty was an automated process which used the Department of Safety database
and randomly selected jurors from county residents who have a driver’s license or a
State-issued identification card. She testified that there was no way to determine the race
of those selected. She also testified that the court would generally ask for a little over one
hundred notices to be sent for jury selection purposes.

        The Petitioner’s trial counsel testified that he had been practicing criminal law for
eighteen years and had handled approximately two dozen homicide cases. He testified
that he did not raise an issue regarding the jury venire or the weapons offense which the
Petitioner was challenging. Trial counsel testified that he wanted to avoid “the bifurcated
section of the trial at which the state would be allowed to put on his priors without him
testifying.” Trial counsel did not recall any discussion regarding the language in the
indictment stating that the prior felonies were dangerous felonies.

        Trial counsel agreed that he had concerns about the jury venire and testified that
he felt a venire was rarely truly a racial cross-section of the community. Although he felt
that the actual venire did not reflect the community’s racial composition, trial counsel did
not believe he could raise a successful challenge on this basis. He testified that given the
strength of the State’s proof, he did not think that the racial composition of the jury was
determinative in the Petitioner’s case. He testified that there were “a couple” of
minorities in the panel but that the panel did not represent a cross-section of the
community.
                                            -4-
       The Petitioner argued that his trial counsel had provided him the ineffective
assistance of counsel when he allowed the Petitioner to plead guilty despite the fact that
his prior felonies were not statutorily defined as dangerous felonies. He also argued that
the jury selection system should require that race be considered in order to effect a venire
that reflects the racial composition of the county. The State acknowledged that the
indictment referred to a “prior dangerous felony” but argued that the statute did not
require the prior felony to be dangerous.

       The post-conviction court granted relief on the challenge to the firearms offense,
finding that the “inclusion of aggravated robbery as ‘prior felony conviction’ was
contrary to the statute.” The post-conviction court found that trial counsel performed
deficiently in advising the Petitioner to plead guilty because the proceedings would have
been bifurcated and because the felonies were not qualifying due to their exclusion from
the statutory list of “dangerous felonies.” The court concluded that there was a
reasonable probability that the charge would have been dismissed if challenged or that
the jury would have found the Petitioner not guilty. The post-conviction court set aside
the guilty plea and dismissed the charge. We note that the post-conviction court did not
address how the conviction for employment of a weapon in the commission of a
dangerous felony which merged with the challenged conviction would survive the
dismissal.

       The post-conviction court credited the Petitioner’s testimony that all of the
members of the jury were white. Nevertheless, the post-conviction court found that there
was “no proof that the entire panel only included one African American” and that trial
counsel believed there were “a couple of African Americans in the venire.” The post-
conviction court denied relief on the jury issue on both deficiency and prejudice,
observing that there was no evidence that there was a disparity in the number of African
Americans in the jury pool compared to the community and that the evidence at the post-
conviction hearing had established that there was no systematic exclusion of any racial
group. The post-conviction court also found that trial counsel was not deficient in
investigation. The State appeals the dismissal of the firearms conviction, and the
Petitioner appeals the denial of relief on the jury issue.

                                       ANALYSIS

      The Petitioner alleges he received the ineffective assistance of counsel when he
pled guilty to one count of employing a weapon during the commission of a dangerous
felony after having been previously convicted of a dangerous felony and when his
counsel did not object to the racial composition of the jury.



                                           -5-
       A petitioner is entitled to post-conviction relief if his conviction or sentence is
void or voidable due to the abridgment of any constitutional right. T.C.A. § 40-30-103.
The findings of fact made by a post-conviction court are conclusive on appeal unless the
evidence preponderates against them. Ward v. State, 315 S.W.3d 461, 465 (Tenn. 2010).
This court may not substitute its own inferences for those drawn by the post-conviction
court, and questions concerning the credibility of witnesses, the weight and value of the
evidence, and the factual issues raised by the evidence are to be resolved by the post-
conviction court. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001). A claim of
ineffective assistance of counsel raises a mixed question of law and fact which this court
reviews de novo. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001). The trial court’s
legal determinations are reviewed under a purely de novo standard with no presumption
of correctness. Id. at 457.

       The petitioner bears the burden of proving the allegations of fact in the petition by
clear and convincing evidence. T.C.A. § 40-30-110(f); Ward, 315 S.W.3d at 465.
“Evidence is clear and convincing when there is no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.” Grindstaff v. State, 297 S.W.3d
208, 216 (Tenn. 2009) (quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App.
1998)).

       Both the Sixth Amendment to the United States Constitution and Article I, section
9 of the Tennessee Constitution guarantee the accused the right to counsel. This right has
been defined as the right to the reasonably effective assistance of counsel, or assistance
“‘within the range of competence demanded of attorneys in criminal cases.’” Vaughn v.
State, 202 S.W.3d 106, 116 (Tenn. 2006) (quoting State v. Burns, 6 S.W.3d 453, 461
(Tenn. 1999)). The overall standard of effectiveness is “‘whether counsel’s conduct so
undermined the proper functioning of the adversarial process that the trial cannot be
relied on as having produced a just result.’” Id. (quoting Strickland v. Washington, 466
U.S. 668, 686 (1984)).

       In order to establish that he received the ineffective assistance of counsel, a
petitioner must show both that his lawyer’s performance was deficient and that the
deficiency resulted in prejudice. Pylant v. State, 263 S.W.3d 854, 868 (Tenn. 2008).
Deficiency can be shown if the petitioner demonstrates that his attorney’s services were
below an objective standard of reasonableness under prevailing professional norms. Id.
A petitioner must demonstrate deficiency by “showing that counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011) (quoting
Strickland, 466 U.S. at 687). A reviewing court indulges “a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.”
Burns, 6 S.W.3d at 462. There is a presumption that counsel’s acts might be “sound trial
                                           -6-
strategy,” and strategic decisions, when made after a thorough investigation, are
“virtually unchallengeable.” Felts, 354 S.W.3d at 277 (quoting Strickland, 466 U.S. at
689-90).

       To prevail on the prejudice prong, the petitioner “must establish a reasonable
probability that but for counsel’s errors the result of the proceeding would have been
different.” Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007) (quoting Vaughn, 202
S.W.3d at 116). A reasonable probability is “a probability sufficient to undermine
confidence in the outcome.” Id. In order to show prejudice in the context of a guilty
plea, the petitioner must demonstrate “a reasonable probability that, but for counsel’s
errors, he would not have pled guilty and would have insisted on going to trial.”
Grindstaff, 297 S.W.3d at 217 (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). A
claim may be denied for failure to prove either prong, and a court need not address both if
the petitioner has failed to establish either deficiency or prejudice. Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996).

                               I. Qualifying Prior Felonies

        The post-conviction court granted relief based on the reasoning that Tennessee
Code Annotated section 39-17-1324 requires the prior felonies to be dangerous felonies
and that the Petitioner’s prior convictions for aggravated robbery were not dangerous
felonies according to the statute. The post-conviction court accordingly concluded that
trial counsel was deficient in his representation during the guilty plea to this offense. The
State argues that the statute requires only a “prior felony conviction” and that the
qualifying felonies need not be dangerous felonies. We conclude, based on the statutory
language and the history of the legislation, that a “prior felony conviction,” as the term is
used in subsections (f), (g)(2), and (h)(2), must be for a dangerous felony under the
statute, and that accordingly the Petitioner’s convictions for aggravated robbery were not
qualifying prior felonies.

        Issues of statutory construction present questions of law that this court reviews de
novo without a presumption of correctness. State v. Edmonsond, 231 S.W.3d 925, 927
(Tenn. 2007). This court should give effect to the legislative intent without unduly
restricting or expanding a statute’s coverage beyond its intended scope. State v.
Sherman, 266 S.W.3d 395, 401 (Tenn. 2008). “Penal statutes are to be construed giving
fair import of their terms in a way which promotes justice and effectuates the objectives
of the criminal code.” Id. (citing Tenn. Code Ann. § 39-11-104). “Every word in a
statute ‘is presumed to have meaning and purpose, and should be given full effect if so
doing does not violate the obvious intention of the Legislature.’” Waters v. Farr, 291
S.W.3d 873, 881 (Tenn. 2009) (quoting In re C.K.G., 173 S.W.3d 714, 722 (Tenn.
2005)). When the language of a statute is clear and unambiguous, this court “must apply
                                            -7-
its plain meaning in its normal and accepted use, without a forced interpretation that
would extend the meaning of the language and, in that instance, we enforce the language
without reference to the broader statutory intent, legislative history, or other sources.”
Carter v. Bell, 279 S.W.3d 560, 564 (Tenn. 2009). When a statute is ambiguous, the
reviewing court may look to the statutory scheme, the history of the legislation and other
sources to discern the meaning of the legislation. Waters, 291 S.W.3d at 881.

        Tennessee Code Annotated section 39-17-1324(b) (2008) makes it an offense to
employ a firearm during the commission of, attempt to commit, or flight or escape from
the commission of or attempt to commit a “dangerous felony.” The statute contains a
definition of “dangerous felony” as it is used in the section. T.C.A. § 39-17-1324(i)(1).
The definition of “dangerous felony” given in subsection (i)(1) is a list of offenses and
does not include aggravated robbery. Id.

       The Petitioner was convicted under subsection (h)(2), which states that “[a]
violation of subsection (b) is a Class C felony, punishable by a mandatory minimum ten-
year sentence to the department of correction, if the defendant, at the time of the offense,
had a prior felony conviction.” T.C.A. § 39-17-1324(h)(2). The Petitioner urged that this
subsection must be read in conjunction with subsection (i)(2), which defines a “prior
conviction.” Under that section,

              (A) “Prior conviction” means that the person serves and is released
       or discharged from, or is serving, a separate period of incarceration or
       supervision for the commission of a dangerous felony prior to or at the time
       of committing a dangerous felony on or after January 1, 2008;

              (B) “Prior conviction” includes convictions under the laws of any
       other state, government or country that, if committed in this state, would
       constitute a dangerous felony. If a felony offense in a jurisdiction other
       than Tennessee is not identified as a dangerous felony in this state, it shall
       be considered a prior conviction if the elements of the felony are the same
       as the elements for a dangerous felony.

T.C.A. § 39-17-1324(i)(2). We note that in the version of the statute in effect at the time
of the Petitioner’s convictions, the phrase “prior conviction” appears only in the
definition of a “prior conviction.” See T.C.A. § 39-17-1324. Otherwise, the statute uses
the phrase “prior felony conviction.” T.C.A. § 39-17-1324(f), (g)(2), (h)(2).

      The statute was amended in 2012 and currently does contain the phrase “prior
conviction” in mandating separate penalties defined under subsection (j):

                                           -8-
       (j) Any person convicted under this section who has a prior conviction
       under this section shall be sentenced to incarceration with the department of
       correction for not less than fifteen (15) years. A person sentenced under this
       subsection (j) shall serve one hundred percent (100%) of the sentence
       imposed.

See T.C.A. § 39-17-1324(j) (emphasis added). Because the statute is ambiguous, we look
to the legislative history of the statute and to the statutory scheme to determine whether
the phrase “prior conviction” is actually an attempt to define “prior felony conviction” as
it is used in the statute.

        The original bill in the House and Senate was amended three times. See
Tennessee Senate Journal, 2007 Reg. Sess. No. 49, S.B. 1967; Tennessee House Journal,
2007 Reg. Sess. No. 49, H.B. 1835. The first Amendment, which was substituted for the
bill in the early stages of the legislation, required a mandatory minimum sentence of ten
years for employing a firearm in the commission of a dangerous felony if the defendant
had “a prior felony conviction”; this is the language that ultimately survived in subsection
(h)(2) of the statute. However, Amendment No. 1 differs from the final law in the
definition provided in subsection (i)(2):

              “Prior felony conviction” mean[s], for purposes of this section, that
       the person serves and is released or discharged from a separate period of
       incarceration or supervision for the commission of a felony offense prior to
       committing a dangerous felony as defined in subdivision (1).

              “Prior felony conviction” includes convictions under the laws of any
       other state, government or country which, if committed in this state, would
       constitute a felony offense. If a felony from a jurisdiction other than
       Tennessee is not a named felony offense in this state, it shall be considered
       a prior conviction if the elements of the felony are the same as the elements
       for an offense classified as a felony offense in this state.

Accordingly, the bill was initially drafted so that the qualifying prior felony was not
required to be a dangerous felony under the statute and so that the definition in subsection
(i) was for a “[p]rior felony conviction” rather than for a “[p]rior conviction.”
Amendments No. 2 and 3, however, while retaining the phrase “prior felony conviction,”
in subsections (f), (g), and (h), changed the statutory definition from a “[p]rior felony
conviction” in subsection (i) of Amendment No. 1 to a “[p]rior conviction,” the language
which ultimately survives in subsection (i) of the statute:



                                           -9-
               (2) “Prior conviction” means, for purposes of this section, that the
        person serves and is released or discharged from, or is serving, a separate
        period of incarceration or supervision for the commission of a dangerous
        felony prior to or at the time of committing dangerous felony on or after
        January 1, 2008.

               (3) “Prior conviction” includes convictions under the laws of any
        other state, government or country which, if committed in this state, would
        constitute a dangerous felony. If a felony offense in a jurisdiction other
        than Tennessee is not identified as a dangerous felony in this state, it shall
        be considered a prior conviction if the elements of the felony are the same
        as the elements for a dangerous felony.

This definition in Amendments No. 2 and 3 also restricts “prior convictions” to previous
convictions “for the commission of a dangerous felony.” Id.

       It would appear that the Legislature attempted to revise the bill to require the prior
conviction to be for a dangerous felony but neglected to change the language in
subsections (f), (g)(2), and (h)(2) to conform with the revisions. Amendments 2 and 3,
which changed the defined phrase from “prior felony conviction” to “prior conviction”
and which changed the definition from a separate period of incarceration for “a felony
offense” to a separate period of incarceration “for the commission of a dangerous
felony,” were introduced immediately prior to the passage of the bills in the House and
Senate on June 11, 2007. We have surveyed the legislative history of the bill, and there is
no record of a discussion of the changes. Senator Norris, the sponsor in the Senate, stated
that Amendment 3 originated in the Finance, Ways, and Means Committee, and the
history of the bill reveals that it carried a large fiscal note which was successfully reduced
in the early stages of the legislation by limiting the underlying felonies to “dangerous
felonies.”1 See S.B. 1967, Senate Session, 105th Congress (June 11, 2007) (statement of
Sen. Mark Norris).

       We reiterate that every word of a statute is presumed to have meaning and
purpose. Waters, 291 S.W.3d at 881. It would be nonsensical to include in a statute the
definition of a term which had no application to a given statute. We also reiterate that in
the version of the statute in effect at the time of the Petitioner’s convictions, the only
place the phrase “prior conviction” appears is in the definition of that term. Furthermore,

        1
          According to the sponsor of the bill in the House of Representatives, the legislation was aimed
at the incapacitation of violent criminals who would “shoot you between the eyes and sit on your body
and eat a cheeseburger.” Hearing on H.B. 1835, House Finance, Ways, and Means Committee, 105th
Congress (June 11, 2007) (statement of Rep. John J. DeBerry, Jr.).
                                                 - 10 -
subsection (f) directs the trial court to hold a bifurcated hearing if the defendant is
charged with having committed the crime at a time when the defendant had a “prior
felony offense.” T.C.A. § 39-17-1324(f) (2008). Subsection (f) directs the trier of fact to
determine if the defendant has “a qualifying prior felony conviction.” Id. (emphasis
added). Both the fact that the statute contains a definition for a term that is not used and
the fact that subsection (f) directs the trier of fact to determine if the prior felony
conviction was a “qualifying” felony lead to the inference that the prior conviction must
be for a dangerous felony. Therefore, we conclude, based on the statutory language and
the history of the Amendments to the bill, that the Legislature intended that “prior
conviction” would be the statutory definition of “prior felony conviction,” as the term is
used in subsections (f), (g)(2), and (h)(2).

       Because a “prior conviction” under the statute is limited to a prior conviction for a
dangerous felony, we agree with the post-conviction court’s conclusion that aggravated
robbery, which is not a dangerous felony under the statute, cannot be a “qualifying prior
felony.” T.C.A. § 39-17-1324(f). This conclusion is buttressed by the fact that the
pattern jury instructions currently instruct the jury “to determine whether or not the
defendant has a prior conviction for (list an offense in T.C.A. § 39-17-1324(i)(1)).” 7
Tenn. Practice Pattern Jury Instructions - Crim. 36.06(d).

        The State cites to State v. Roy Demond Duncan, in which the trial court failed to
submit the issue of a qualifying prior felony to the jury. No. W2012-00834-CCA-R3-
CD, 2013 WL 2490551, at *7 (Tenn. Crim. App. June 7, 2013). This court remanded for
the determination of whether the defendant’s prior convictions for “aggravated burglary
and robbery” would qualify the defendant for the increased sentencing. Id. The State
suggests that the remand in that case shows that the qualifying felony need not be a
dangerous felony according to statute. However, we observe that the court was not
addressing this issue and that, contrary to the State’s assertion, aggravated burglary is a
statutory dangerous felony. See id.; T.C.A. § 39-17-1324(i)(1)(G). Accordingly, we find
little guidance in Roy Demond Duncan on the issue before us.

        On the other hand, this court has previously concluded that “[t]he statute limits
eligible prior convictions to those ‘for the commission of a dangerous felony.’”2 State v.
Travis Tate, No. W2014-02102-CCA-R3-CD, 2016 WL 7664764, at *11 (Tenn. Crim.
App. May 31, 2016); see also State v. Myron McNeal, No. W2010-01130-CCA-R3-CD,
2012 WL 543054, at *4 n.1 (Tenn. Crim. App. Feb. 16, 2012) (“The jury, in a bifurcated

        2
         We note here that the Petitioner’s citation to State v. Casey Colbert is inapt because the court in
Casey Colbert reversed a conviction based on the fact that the underlying felony, not a prior felony, did
not meet the statutory definition of “dangerous felony.” 2013 WL 3128698, No. W2012-00099-CCA-R3-
CD, at *16, perm. app. denied (Tenn. Nov. 13, 2013) (docket number corrected).
                                                  - 11 -
proceeding, found the appellant guilty of having a prior conviction for a dangerous
felony, making the statutory minimum sentence for the offense ten years at one hundred
percent in the Tennessee Department of Correction.”).

       Accordingly, the Petitioner’s underlying felonies of aggravated robbery are not
“qualifying prior felon[ies]” according to statute because they are not listed within the
statutory definition of “dangerous felonies.” T.C.A. § 39-17-1324(f), (i). The State’s
only argument on appeal is that the statute does not require the qualifying prior felonies
to be dangerous felonies; the State does not otherwise contest the post-conviction court’s
findings regarding deficiency and prejudice. We conclude that trial counsel’s advice to
the Petitioner to plead guilty when he did not have the requisite qualifying prior felonies
was deficient and prejudicial. Accordingly, we affirm the post-conviction court’s
dismissal of the charge.

       We note that the post-conviction court did not address how the conviction for
employment of a firearm in the commission of a dangerous felony, which merged
together with the conviction which has been dismissed, would survive the dismissal of
the charge. Taking judicial notice of the record from the direct appeal, we also observe
that, while the conviction for the employment of a firearm in the commission of a
dangerous felony under subsection (h)(1) should have merged into the conviction for the
employment of a firearm during the commission of a dangerous felony after having been
previously convicted of a dangerous felony under subsection (h)(2), the judgment forms
indicate that the conviction challenged here was in fact merged into the lesser conviction.
The Petitioner was a career offender at the time he was convicted of the offenses.
Accordingly, by statute, he should have been sentenced to a fifteen-year sentence with a
six-year mandatory minimum period of incarceration for the conviction for employing a
firearm during the commission of a dangerous felony. T.C.A. §§ 39-17-1324(h)(2); 40-
35-112(c)(3); 40-35-108(c). We remand for the post-conviction court to correct the
judgment forms to reflect the judgment and sentence for the surviving conviction.

                                      B. Jury Venire

       The Petitioner appeals the post-conviction court’s denial of relief based on his
claim that trial counsel was ineffective in failing to object to the composition of the jury.
We note that both parties filed notices of appeal. The State’s notice of appeal was filed
four days prior to the Petitioner’s, and the State was designated as the appellant. See
Tenn. R. App. P. 13(a) (“Except as otherwise provided in Rule 3(e), any question of law
may be brought up for review and relief by any party. Cross-appeals, separate appeals,
and separate applications for permission to appeal are not required.”). The State’s brief
addresses only the issue regarding the qualifying prior felonies. The Petitioner’s brief
was filed after that of the State and argued that the post-conviction court erred in denying
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relief on the jury issue, and the State submitted no reply to address the issue regarding
jury composition that was raised by the Petitioner.

       The Petitioner argues that his trial counsel provided deficient representation when
he did not challenge the racial composition of the jury venire. He argues that the State
was required to take affirmative steps to assure that the jury reflected the racial
composition of the county at large. The post-conviction court concluded that there was
no evidence that there was a disparity in the number of African Americans in the jury
pool compared to the community. The post-conviction court also found that the evidence
at the post-conviction hearing had established that there was no systematic exclusion of
any racial group because jurors were called through an automated process using driver’s
license and state-issued identification numbers. Accordingly, the court found neither
deficiency nor prejudice.

       The United States Supreme Court has held that the Sixth Amendment requires that
the jury be drawn from a “fair cross section of the community.” Taylor v. Louisiana, 419
U.S. 522, 527-28 (1975). However, “defendants are not entitled to a jury of any
particular composition because the fair cross-section requirement does not impose a
requirement that the jury actually chosen mirror the community or reflect the various
distinctive groups in the population.” State v. Hester, 324 S.W.3d 1, 39 (Tenn. 2010). In
order to establish a prima facie case that the right to trial by jury was violated because the
jury did not represent a fair cross-section of the community, the Petitioner must show:

       (1) that the group alleged to be excluded is a “distinctive” group in the
       community; (2) that the representation of this group in venires from which
       juries are selected is not fair and reasonable in relation to the number of
       such persons in the community; and (3) that this underrepresentation is due
       to systematic exclusion of the group in the jury-selection process.

Id. (quoting Duren v. Missouri, 439 U.S. 357, 364 (1979)). A showing of purposeful
discrimination is not required. Id. While the Petitioner has alleged the exclusion of a
distinctive group based on race, see Lockhart v. McCree, 476 U.S. 162, 175 (1986), he
has not alleged any sort of systematic exclusion, see Hester, 324 S.W.3d at 39. Instead,
the proof at the post-conviction hearing showed that any disparity was the result of
random chance. The post-conviction court also found that the Petitioner did not establish
that there was a disparity in the number of African Americans in the panel compared to
the number of African Americans in the community; in fact, although the Petitioner and
his counsel testified regarding how many African Americans were on the panel, no proof




                                            - 13 -
was introduced regarding what percentage of the community was African American.3
See State v. Stephens, 264 S.W.3d 719, 733 (Tenn. Crim. App. 2007) (“No proof was
offered regarding the population figures of Fentress County or the residency breakdown
of the prospective jurors.”) abrogated on other grounds as stated in State v. Randall T.
Beaty, No. M2014-00130-CCA-R3-CD, 2016 WL 3752968, at *20 (Tenn. Crim. App.
July 8, 2016), perm. app. granted (Tenn. Oct. 19, 2016).

       The Petitioner candidly acknowledges that he can show no prejudice and that he
cannot assert that the jury composition was the result of improper procedures, purposeful
discrimination, or fraud. However, he urges us to hold that the venire that is called must
mirror the racial composition of the community and that counsel was deficient for failing
to object to any disparity. The Petitioner cites no legal authority for this proposition, and
we can find none. Because the Petitioner has not demonstrated that his trial counsel
performed deficiently in failing to challenge the venire and because he acknowledges that
he cannot demonstrate prejudice, we affirm the post-conviction court’s denial of relief.

                                          CONCLUSION

      We affirm the judgments of the post-conviction court and remand for the post-
conviction court’s consideration of the surviving merged firearms conviction.




                                                ____________________________________
                                                JOHN EVERETT WILLIAMS, JUDGE




        3
          The petition posits that 16% of the county was African American, but the report of the trial
judge filed in the direct appeal, of which we take judicial notice, documented that less than 10% of the
county was African American.
                                                - 14 -
