        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT KNOXVILLE
                        Assigned on Briefs February 19, 2015

            HARRY JOSEPH CHASE v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Greene County
                       No. 13CR384     John F. Dugger, Jr., Judge


                 No. E2014-01375-CCA-R3-PC – Filed May 29, 2015


The Petitioner, Harry Joseph Chase, appeals as of right from the Greene County Criminal
Court’s denial of his petition for post-conviction relief. In this appeal, the Petitioner
asserts that he received ineffective assistance of counsel because lead trial counsel was
not present when he pled guilty, did not review the Petitioner’s discovery with him, and
did not fully discuss a possible self-defense claim with the Petitioner. Following our
review, we conclude that the record supports the post-conviction court’s conclusion that
the Petitioner received the effective assistance of counsel, and we therefore affirm the
judgment of the post-conviction court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ROBERT H. MONTGOMERY, JR., JJ. joined.

Alex A. Chestnut, Greeneville, Tennessee, for the Appellant, Harry Joseph Chase.

Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; C. Berkeley Bell, District Attorney General; and Cecil Clayton Mills,
Jr., Assistant District Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

                              FACTUAL BACKGROUND

       On May 1, 2012, a Greene County grand jury returned an indictment charging the
Defendant with two counts of attempted first degree murder and two counts of especially
aggravated kidnapping. The charges arose from the shooting of Chastity Morton and
Brian Shackleford on August 22, 2010. Ultimately, the trial court accepted the
Petitioner’s guilty pleas for two counts of criminal attempt to commit first degree murder
and sentenced the Petitioner to seventeen years as a Range I offender at thirty-percent
release eligibility.

                               I. Guilty Plea Submission Hearing

       The trial court held a guilty plea submission hearing on September 4, 2012. At the
hearing, the State did not present factual bases for the pleas; rather, the trial court
accepted the facts set forth in the discovery materials, which were made part of the
record. Those materials, largely in the form of police reports, revealed the following
facts underlying the Petitioner’s arrest.

        On August 22, 2010, the Petitioner rode his motorcycle to the home of Ms.
Morton and Mr. Shackleford, entered the house, and told both victims that he was going
to kill them. The Petitioner refused to let the victims leave and threatened them with a
gun. He then shot both victims multiple times with each victim sustaining a gunshot
wound to the head. The Petitioner also suffered a gunshot wound to his left arm during
the altercation.

       Ms. Morton later identified the Petitioner as her assailant. On August 24, 2010,
the Greeneville Police Department was notified that the Petitioner was at an attorney’s
office and wished to turn himself in. Shortly thereafter, he was taken into custody and
received medical treatment for his gunshot wound at a local hospital.

       At the guilty plea submission hearing, the Petitioner testified that he was forty-six
years old and had a tenth-grade education. He testified that he was able to read and write
with no difficulty. The Petitioner denied using any alcohol or drugs in the last twenty-
four hours.

       The Petitioner indicated that he was aware of the charges against him, as well as
the potential range of punishment associated with those charges. He further indicated
that he understood the elements underlying the charges and knew that the State carried
the burden of proving each element beyond a reasonable doubt. The Petitioner testified
that he understood that if he went to trial, the jury would be charged with lesser included
offenses.

        The trial court went over the rights that the Petitioner was waiving by pleading
guilty, and the Petitioner indicated that he understood the rights he was guaranteed and
that he was waiving those rights by pleading guilty. The Petitioner indicated that his
lawyer had explained the “Waiver of Rights and Plea of Guilty” document, that he had
read and understood the document, and that he had signed it. The trial court asked co-

                                            -2-
counsel whether it was “his case” or “[lead counsel’s] case.”1 Co-counsel indicated that
“[they] both worked on it.”

       The Petitioner thereafter agreed that he was pleading guilty because he was guilty
and that he was doing so freely and voluntarily. He denied being forced, threatened, or
pressured into pleading guilty. When asked whether his guilty pleas were the result of
negotiations between his lawyers and the District Attorney General’s office, he answered,
“Yes.” He further agreed that he was satisfied with his lawyers and that they did
everything he wanted them to do.

      The trial court asked co-counsel whether he and lead counsel had “gone over the
prosecution reports and discovery” with the Petitioner, and he replied, “Yes. We have.”
The court asked the Petitioner whether the contents of the discovery file were a “fair
statement of what the State’s evidence would be against [him],” and he answered, “Yes,
sir.”
                                 II. Post-Conviction Hearing2

        On July 19, 2013, the Petitioner filed a timely pro se petition for post-conviction
relief, alleging that his guilty pleas were unknowing and involuntary and that he received
ineffective assistance of counsel. In support of his claim that he received ineffective
assistance of counsel, the Petitioner made thirty-eight allegations, apparently all against
lead counsel. Thereafter, post-conviction counsel was appointed, and an amended post-
conviction petition was filed on March 25, 2014. The amended petition adopted the
issues presented in the pro se petition, although some of the specific allegations were
consolidated and reworded.

        A post-conviction hearing was held on May 23, 2014. The Petitioner testified that
he was initially charged with two counts of attempted first degree murder and two counts
of especially aggravated kidnapping for his involvement in the August 22, 2010 shooting
of Ms. Morton and Mr. Shackleford. The Petitioner hired lead counsel after being
referred to him by another attorney. At the Petitioner’s initial meeting with lead counsel,
co-counsel was “sitting in the back [of lead counsel’s office], like in a chair.” He
testified that it was his understanding that he hired lead counsel to represent him.
However, when the Petitioner pled guilty, only co-counsel was present. He further


1
  Although the Petitioner asserts that he hired only one attorney, for purposes of clarity we will refer to
the attorneys who worked on his case as “lead counsel” and “co-counsel.” Both attorneys worked at the
same law firm, and it is undisputed that both did in fact work on the Petitioner’s case.
2
  The Petitioner has apparently abandoned the bulk of his allegations against trial counsel on appeal.
Accordingly, we will recount only those facts from the post-conviction hearing which are relevant to the
issues presented in this appeal.
                                                   -3-
testified that prior to his guilty pleas, he had met with co-counsel on approximately two
occasions, not including the initial meeting in lead counsel’s office.

       The Petitioner testified that he hired lead counsel because he was a “murder trial
expert” and that he did not know who co-counsel was until arriving at lead counsel’s
office for the initial consultation. Furthermore, the Petitioner denied even knowing
whether co-counsel was an attorney, saying, “I didn’t know what he did. I guess he’s an
attorney because he’s in the office.”

        The Petitioner alleged that lead counsel never discussed his guilty pleas with him
and “didn’t show up for court that day.” His understanding of the guilty pleas, after
discussions with co-counsel, was that he “was going to get [seventeen] years and get
[thirty] percent – or get out in [thirty] percent or something. . . . But if I fought it, I’d get
[thirty-four] - - probably [thirty-four] years or more.” The Petitioner recalled that co-
counsel went over the plea agreement with him “somewhat,” but he stated that, with
respect to the waiver of rights he signed, co-counsel did not go over that document with
him, telling the Petitioner only that “it would be in [his] best interest to take the plea for
[seventeen] years.”

        The Petitioner agreed that no one explained to him that lead counsel could no
longer represent him or that co-counsel “would have to step in.” The Petitioner denied
asking co-counsel why lead counsel was not present because, on one occasion, “[co-
counsel] copped an attitude because [the Petitioner] wanted to get [his] motion of
discovery,” but co-counsel refused to give it to him. The Petitioner clarified that he was
eventually provided with a discovery file but that no one went over the contents of the
file with him, and co-counsel was unable to answer his questions about the file.

       The Petitioner testified that, at the guilty plea submission hearing, he was
“instructed not to discuss” the fact that he had been shot during the altercation with the
victims or that the victims had drugs at their house. According to the Petitioner, co-
counsel also told him to “agree that he went over the motion of discovery and all of that.”
However, at the post-conviction hearing, the Petitioner alleged that co-counsel gave him
only two days to look at the discovery.

       The Petitioner opined that lead counsel was not present during his guilty pleas
because “[lead counsel] was mad because he wanted [the Petitioner] to take the plea[s]
and [the Petitioner] wanted to go to trial.” The Petitioner alleged that he did not want to
take the plea deal, but his mother’s brother had just died and “she was already upset
because she [had] lost her brother,” so he decided to take the plea deal, “which [he] could
kick [himself] in the butt for doing.”

                                               -4-
        The Petitioner testified that he met with lead counsel “[p]robably about four”
times, not including the initial meeting in his office. He further testified that, with respect
to a plea deal, lead counsel told him, “No, we’re going to go to trial.” The Petitioner
claimed that he paid lead counsel “$25,000 to go to trial. And if I’m going to [take a plea
deal], [I would] hire a public defender or defend myself.”

       According to the Petitioner, after his initial consultation with lead counsel, it was
his understanding that they would present a self-defense claim at trial. However, he
claimed that there was never “any evidence obtained or presented to [him]” that would
have supported a self-defense claim and that no one ever discussed any evidence that
might be used to support such a claim, despite the fact that he sustained a gunshot wound
during the victims’ shooting.

       On cross-examination, the Petitioner denied meeting with lead counsel more than
four times. He testified that co-counsel was present in lead counsel’s office at the initial
consultation, but that “[he] didn’t meet with [co-counsel].” However, he agreed that he
was “familiar with” co-counsel “from the beginning” and that co-counsel and lead
counsel visited him together at the jail after the initial meeting. He recalled the initial
consultation lasting between fifteen to twenty minutes.

        The Petitioner contended that he was unaware that he had been charged with
aggravated kidnapping until he received his discovery file. The Petitioner testified that
he had a preliminary hearing and that he was satisfied with the hearing. He
acknowledged that lead counsel was able to elicit favorable testimony that supported his
theory of self-defense, but he also admitted that lead counsel advised him that it would
still be a difficult case.

        The Petitioner recalled his guilty plea submission hearing, and when asked
whether he was truthful that day, he responded, “Some I was.” He alleged that he was
“told to say yes to every question” or the judge might not accept his pleas. The Petitioner
agreed that he “wanted to be truthful with the [c]ourt,” but added, “I had to lie to take the
plea[s].”3 He elaborated, “[My attorneys] just said the judge may not accept my guilty
plea if I didn’t agree to all the questions and say yes to stuff that they did.”



3
 At this point, the Petitioner’s counsel requested that the post-conviction court advise the Petitioner of his
Fifth Amendment right against self-incrimination. The court obliged, explaining to the Petitioner that he
had a right not to incriminate himself and that he could potentially be charged with aggravated perjury if
he admitted that his previous testimony was not truthful. The Petitioner indicated that he understood, but
he continued to assert that he lied at the guilty plea submission hearing because his attorneys instructed
him to do so.
                                                     -5-
        The Petitioner testified that on August 8, 2012, he signed a statement expressing
his desire to plead guilty, although he asserted that he did not want to. He admitted that
he handwrote the statement “[d]own in the attorney room” and that co-counsel was
present. The handwritten statement read as follows: “I, [the Petitioner], agree to accept
the plea agreement offered by the District Attorney’s Office which is 17 (seventeen)
years at [thirty percent] RED [with] both sentences to run concurrently. I agree to accept
this sentence in exchange for my [g]uilty plea[s].” However, the Petitioner further
testified that he wrote the statement because he “figured [his attorneys] wasn’t [sic] going
to do nothing for [him] anyways” and insisted that he told co-counsel that he still wanted
to go to trial.

       Next, the Petitioner’s father, John Chase, testified. Mr. Chase testified that he was
present at the initial consultation with lead counsel and that co-counsel was also present.
He recalled meeting with the attorneys for thirty minutes to one hour before lead counsel
took the Petitioner in another room to speak with him privately. As best he could recall,
lead counsel and the Petitioner talked in private for an additional thirty minutes to one
hour. According to Mr. Chase, co-counsel was the person who called the police so that
the Petitioner could turn himself in. When asked whether co-counsel was introduced to
him or his son during this initial meeting, Mr. Chase answered, “I’m sure he was.”
Additionally, Mr. Chase testified that lead counsel interviewed him, his wife, and the
Petitioner’s girlfriend about the case. He remembered co-counsel being present at some
of these meetings as well.

      Mr. Chase testified that lead counsel took a full account of the Petitioner’s version
of events, including the fact that he had been shot during the altercation. According to
Mr. Chase, lead counsel discussed a self-defense claim with him and expressed his
opinion that the Petitioner had a “good self-defense claim.” He added that lead counsel
had obtained the victims’ hospital reports, which showed that “they had a strange
concoction of drugs in their system.” However, Mr. Chase also said that “as [the case]
proceeded[,] [lead counsel] thought he was doing the best by trying to make a plea
agreement.” According to Mr. Chase, the Petitioner repeatedly asked his attorneys for his
discovery file before finally receiving the file.

       Mr. Chase testified that he paid lead counsel “to go to sessions court,” which he
did, and that he was to pay lead counsel an additional $25,000 when the case went to
criminal court. When asked what he understood co-counsel’s role to be at that point, he
replied, “[Co-counsel] wasn’t in it.” However, he added that lead counsel “got sick” and
co-counsel subsequently accompanied the Petitioner to court. Mr. Chase testified that he
discussed a plea agreement with both lead counsel and co-counsel. According to Mr.
Chase, co-counsel represented the Petitioner at the time of the guilty pleas because “[co-
counsel] didn’t know where [lead counsel] was.”
                                            -6-
        The Petitioner rested, and the State called lead counsel to the stand. Lead counsel
testified that he had practiced law for almost forty years and that he had tried almost 200
jury trials, both civil and criminal. Lead counsel testified that another attorney referred
the Petitioner to him. Thereafter, the Petitioner’s mother and father came to his office
and told him that the Petitioner wanted to turn himself in but was “afraid that he was
going to be shot and killed” because he was the subject of an ongoing “manhunt” by local
law enforcement agencies. Lead counsel suggested that the Petitioner come to his office
and that he would help ensure that the Petitioner surrendered safely to the police. He
estimated that he spoke with the Petitioner’s parents for an hour and that after the
Petitioner arrived, lead counsel spoke with him separately for an additional hour. Lead
counsel testified that co-counsel helped facilitate the Petitioner’s surrender to the police
and accompanied the Petitioner to a local hospital where he was treated for his gunshot
wound.

        Lead counsel recalled that he next met with the Petitioner several days later at the
jail and that they discussed developments in the case. Lead counsel testified that there
was a preliminary hearing and that he was able to elicit favorable testimony for the
Petitioner. In particular, one of the investigating officers testified that Ms. Morton said
that she instructed Mr. Shackleford “to get the gun” during the altercation with the
Petitioner and that gun had in fact been used to shoot the Petitioner. Lead counsel opined
that this testimony was very helpful to the self-defense theory.

       Nevertheless, lead counsel recalled that there were still problems with the case; in
particular, the Petitioner had two aggravated kidnapping charges in addition to the
attempted first degree murder charges. He testified that he discussed the possibility that
the Petitioner’s self-defense claim would be rejected and the potential for consecutive
sentencing. According to lead counsel, the Petitioner gave him permission to discuss a
plea offer with the State, which he did. After some negotiation, the State offered
seventeen years at thirty percent, which lead counsel relayed to the Petitioner and his
family. After the offer was made, lead counsel did not recall the Petitioner telling him
that he wanted to take the case to trial.

       According to lead counsel, he informed the Petitioner that he would not be able to
attend the guilty plea submission hearing because he had a previous obligation.
However, he testified that he told the Petitioner that co-counsel would accompany him to
the guilty plea submission hearing. Lead counsel also testified that, at this point, the
Petitioner had already signed the August 8, 2012 handwritten note indicating his desire to
accept the plea offer. According to lead counsel, the Petitioner did not object to this
arrangement.

                                            -7-
        On cross-examination, lead counsel testified that the Petitioner received a copy of
the preliminary hearing transcript three or four days after the hearing and that he and the
Petitioner discussed the testimony that would be beneficial to his self-defense claim at
that time. Several months after the preliminary hearing, the Petitioner gave lead counsel
permission to discuss a plea offer with the State. Lead counsel estimated that, between
the time of the preliminary hearing and the Petitioner’s decision to pursue a plea
agreement, he visited the Petitioner in jail “dozens” of times.

       With respect to the plea offer from the State, lead counsel testified that he left the
decision whether to take the plea offer entirely in the hands of the Petitioner. According
to lead counsel, once the Petitioner decided to take the plea offer, there was no further
discussion of taking the case to trial because the Petitioner “was so happy with that
option[,] that was it.”

       Lead counsel testified that he told the Petitioner he would be unable to attend the
guilty plea submission hearing in early August. Additionally, he testified that he told the
Petitioner that if the Petitioner did not feel comfortable attending the guilty plea
submission hearing with only co-counsel, lead counsel would cancel his conflicting
obligation. However, according to lead counsel, the Petitioner “had no problem with [co-
counsel],” and “he was happy with [co-counsel].” Lead counsel characterized the
Petitioner’s testimony about “not even knowing who [co-counsel] was” as a “farce.”

       Lead counsel recalled going over discovery with the Petitioner “multitudes of
times.” He testified that both he and co-counsel provided the Petitioner with discovery as
it became available from the District Attorney General’s office. Lead counsel testified
that co-counsel visited the Petitioner in jail, and he denied that the Petitioner ever
objected to co-counsel’s representation. According to lead counsel, the Petitioner’s
family spoke frequently with co-counsel on the phone about the Petitioner’s case.

       On June 19, 2014, the post-conviction court entered a “Memorandum Opinion and
Order” denying the Petitioner relief. As is pertinent to our review, the post-conviction
court found that the Petitioner failed to prove by clear and convincing evidence the
factual allegations in support of his contention that lead counsel’s assistance was
ineffective.4 This timely appeal followed.




4
 The post-conviction court also rejected the Petitioner’s claim that his guilty pleas were not knowing and
voluntary. However, the Petitioner has not challenged that finding on appeal; accordingly, we will not
address it.
                                                   -8-
                                           ANALYSIS

        In this appeal, the Petitioner contends that he received ineffective assistance of
counsel because lead counsel was not present when he entered his guilty pleas, did not
review his discovery file with him, and did not discuss or follow through with a theory of
self-defense. The State responds that the post-conviction court properly determined that
the Petitioner received the effective assistance to counsel and is therefore not entitled to
relief.
        Post-conviction relief is available when a “conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103.
Criminal defendants are constitutionally guaranteed the right to effective assistance of
counsel. Dellinger v. State, 279 S.W.3d 282, 293 (Tenn. 2009) (citing U.S. Const.
amend. VI; Cuyler v. Sullivan, 446 U.S. 335, 344 (1980)). When a claim of ineffective
assistance of counsel is made under the Sixth Amendment to the United States
Constitution, the burden is on the petitioner to show (1) that counsel’s performance was
deficient and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S.
668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993).

       Deficient performance requires a showing that “counsel’s representation fell
below an objective standard of reasonableness,” despite the fact that reviewing courts
“must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 688-89. Prejudice requires
proof of “a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at 694. “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.” Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996). The Strickland standard has been applied to the right to
counsel under article I, section 9 of the Tennessee Constitution. State v. Melson, 772
S.W.2d 417, 419 n.2 (Tenn. 1989).

       In the context of a guilty plea, the effective assistance of counsel is relevant only
to the extent that it affects the voluntariness of the plea. Therefore, to satisfy the second
prong of Strickland, the petitioner must show that “there is a reasonable probability that,
but for counsel’s errors, he would not have pleaded guilty and would have insisted on
going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also Walton v. State, 966
S.W.2d 54, 55 (Tenn. Crim. App. 1997).

       The burden in a post-conviction proceeding is on the petitioner to prove his
allegations of fact supporting his grounds for relief by clear and convincing evidence.
Tenn. Code Ann. § 40-30-110(f); see Dellinger, 279 S.W.3d at 293-94 (Tenn. 2009). On
                                             -9-
appeal, we are bound by the trial court’s findings of fact unless we conclude that the
evidence in the record preponderates against those findings. Fields v. State, 40 S.W.3d
450, 456 (Tenn. 2001). Additionally, “questions concerning the credibility of the
witnesses, the weight and value to be given their testimony, and the factual issues raised
by the evidence are to be resolved” by the post-conviction court. Id. Because they relate
to mixed questions of law and fact, we review the trial court’s conclusions as to whether
counsel’s performance was deficient and whether that deficiency was prejudicial under a
de novo standard with no presumption of correctness. Id. at 457.

        In its order denying the Petitioner relief, the post-conviction court specifically
accredited lead counsel’s testimony that he and co-counsel “talked to witnesses that were
available, represented [the] Petitioner in a [p]reliminary hearing[,] and elicited favorable
testimony for a possible claim of self[-]defense.” The post-conviction court further found
that lead counsel and co-counsel “negotiated a favorable plea agreement for the
Petitioner” and “obtained the best resolution that could be had.” The court found that the
Petitioner was not a credible witness, in contrast to its determination that lead counsel’s
credibility was “e[x]cellent.” The post-conviction court concluded that the Petitioner
failed to prove his factual allegations by clear and convincing evidence.

       Lead counsel admitted that he was not present at the Petitioner’s guilty plea
submission hearing but testified that he discussed his absence with the Petitioner one
month before the hearing. According to lead counsel, the Petitioner knew that co-counsel
would accompany him to the hearing and did not object to that arrangement. The
Petitioner, Mr. Chase, and lead counsel all testified that co-counsel was involved in the
Petitioner’s case from the beginning. The Petitioner also signed a handwritten statement
indicating that he wished to accept the plea agreement offered by the State.

        Furthermore, lead counsel testified that he provided the Petitioner with discovery
as it became available from the District Attorney’s office. Additionally, lead counsel
testified that both he and co-counsel reviewed the contents of the file with the Petitioner
“multitudes of times.” Although the Petitioner disputes these facts and asserts that he
only had two days to review his file, the post-conviction court specifically found that the
Petitioner was not a credible witness, a determination that we defer to on appeal. See
Fields, 40 S.W.3d at 456.

       Finally, lead counsel testified that he discussed the possibility of a self-defense
claim with the Petitioner. Both Mr. Chase and the Petitioner testified likewise, although
the Petitioner asserts that lead counsel did not adequately investigate or pursue a theory
of self-defense. However, it is undisputed that lead counsel conducted a preliminary
hearing, during which he was able to elicit favorable testimony for the Petitioner.
Nevertheless, he explained his concern that the Petitioner was still facing the possibility
                                            -10-
of conviction and was particularly concerned about the aggravated kidnapping charges.
The Petitioner gave lead counsel permission to discuss a plea agreement with the State,
and the Petitioner ultimately decided to accept the State’s offer.

       At the guilty plea submission hearing, the Petitioner indicated that he was happy
with the representation he received from his attorneys and that they had done everything
he asked them to do. The record supports the post-conviction court’s finding that the
Petitioner failed to prove the factual allegations underlying his ineffective assistance
claim by clear and convincing evidence; therefore, the Petitioner is not entitled to relief.

                                         CONCLUSION

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


                                                   _________________________________

                                                   D. KELLY THOMAS, JR., JUDGE




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