        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs December 11, 2013

          CHRISTOPHER LEE PIRTLE v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                     No. 2005-D-3036     Monte Watkins, Judge


                 No. M2012-00627-CCA-R3-PC - Filed March 6, 2014


The petitioner, Christopher Lee Pirtle, appeals the denial of his petition for post-conviction
relief, arguing that the post-conviction court erred in finding that he failed to show that he
received ineffective assistance of trial counsel. Following our review, we affirm the
judgment of the post-conviction court denying the petition.

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

A LAN E. G LENN , J., delivered the opinion of the Court, in which J ERRY L. S MITH and
C AMILLE R. M CM ULLEN, JJ., joined.

Ashley Preston, Nashville, Tennessee, for the appellant, Christopher Lee Pirtle.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel;
Victor S. Johnson, III, District Attorney General; and Roger Moore, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                          FACTS

       The petitioner was convicted in 2007 by a Davidson County Criminal Court jury of
aggravated robbery, a Class B felony, and was sentenced by the trial court as a Range I
offender to ten years at 30% in the Department of Correction. His conviction and sentence
were affirmed by this court on direct appeal, and our supreme court denied his application
for permission to appeal. State v. Christopher Lee Pirtle, No. M2007-02577-CCA-R3-CD,
at *1 (Tenn. Crim. App. Apr. 23, 2009), perm. app. denied (Tenn. Sept. 28, 2009).

       Our direct appeal opinion reveals that the petitioner’s conviction was based on his
August 2, 2005 use of a gun to steal a woman’s vehicle and purse as the victim and her young
son were in front of their apartment complex’s central mailbox area picking up their mail.
Id. Evidence presented against the petitioner at trial included his having been stopped and
arrested on August 17, 2005, while driving the victim’s vehicle; the fact that several of the
victim’s compact discs and other belongings were found in the petitioner’s residence; store
surveillance tapes that showed the petitioner was with several females who used the victim’s
credit cards at various locations after the robbery; and the fact that the victim made an
unequivocal courtroom identification of the petitioner as the perpetrator, testifying that she
recognized his eyes and that she had “no doubt” about her identification. Id. at * 2-3.

        On March 16, 2010, the petitioner filed a pro se petition for post-conviction relief.
Following the appointment of post-conviction counsel, he filed two amended petitions in
which he raised claims of ineffective assistance of counsel. Specifically, he alleged that his
trial counsel provided ineffective assistance by: failing to file appropriate pretrial motions;
failing to properly and adequately investigate the facts of the case, including failing “to
properly utilize investigative services”; failing to adequately and properly meet with and
communicate with the petitioner; failing to fully and adequately advise the petitioner with
regards to defense strategy and the pros and cons of accepting a plea agreement; failing to
properly voice objections and cross-examine witnesses; and failing to properly raise all issues
in the motion for new trial and on direct appeal.

        At the evidentiary hearing, the petitioner testified that his mother retained trial counsel
to represent him after his arraignment. In the beginning, counsel came to see him in the jail
often, bringing copies of discovery and transcripts of the preliminary hearings, which he used
to review with him the State’s evidence in the case. Counsel, however, never discussed any
possible trial defense strategy with him but instead kept trying to convince him to accept a
plea bargain offered by the State, despite the fact that he told counsel at each of their
meetings that he wanted to go to trial. The petitioner said that counsel told him that there
was a good chance he would lose the case if he went to trial. He claimed that counsel did not
have any discussions with him about his possible trial testimony until the day of trial, when
he advised him not to take the stand because the State could inquire into his similar pending
charges. The petitioner said that, had he known that he could not be cross-examined about
pending charges, he would have ignored counsel’s advice and testified in his own defense.
He stated that counsel represented him on his motion for new trial but withdrew before his
direct appeal. Counsel discussed with him the issues he was raising in the motion for new
trial but did not raise every issue he requested, such as the admission of evidence of the
“guns and the bandan[n]as” which did not belong to him. Counsel also failed to raise any
objections at trial to the admission of the evidence.




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        On cross-examination, the petitioner testified that, had he taken the stand, he would
have told the jury that his friends brought the stolen items to his house and that he had
nothing to do with the crime. He acknowledged that counsel “did good” on his cross-
examination of the State’s witnesses. He further acknowledged that counsel told him that
if he testified, he ran the risk of opening the door for the State to be allowed to introduce
evidence of his pending charges in other similar crimes. He said, however, that it was a risk
he wanted to take.

       Trial counsel, who said he had been licenced to practice law since 2002 and that his
practice from 2005 until 2009 or 2010 was comprised of sixty to seventy percent criminal
defense, testified that the petitioner had three or four other pending cases, including another
aggravated robbery, at the time he represented him on the instant case. He said he met with
the petitioner on “a number of occasions” while he was housed at the criminal justice center
and that he reviewed with him the State’s evidence against him. He agreed that the petitioner
expressed his desire to go to trial but that he advised against it, testifying that he “was
adamant with [the petitioner]” that he thought there was a strong likelihood that he would be
convicted at trial. For that reason, he encouraged the petitioner to accept the State’s plea
offer.

       Trial counsel testified that, although he could not recall the specifics, he was confident
he discussed the pros and cons of testifying with the petitioner not just on the day of trial but
also well before the day of trial because he “would need to know that in planning” his
defense strategy and “would not leave that until the day of trial.” He said he advised the
petitioner not to testify, informing him that he ran the risk of incriminating himself in his
pending cases and of opening the door to the introduction of evidence of those other cases.
He explained:

       And I think what I would [have] expressed to [the petitioner] was that, I
       thought his . . . likelihood of conviction, in this [case,] was high.

              I think, perhaps, the other cases – without specific recollection –were,
       maybe, not quite as strong as this one. If there was [a] reason for him to get
       on the stand and potentially open the door and make statements that would
       further incriminate himself in those cases, thereby leading to, possibly, a
       significant amount of additional time, which could run concurrent or
       consecutive, but could greatly increase the amount of time he was facing in the
       Department of Correction[].

       Trial counsel testified that he raised in the motion for new trial all the issues that he
believed held any merit. He said he considered, but opted against, filing a motion in limine

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to exclude evidence of the bandannas and guns because he did not believe his likelihood of
success was high. He stated that he chose not to object to the introduction of the evidence
during the course of the trial because he thought he would be overruled and he did not want
to “make a bigger issue” of it in front of the jury.

        On cross-examination, trial counsel estimated that he met with the petitioner five to
seven times before the trial. He said that he reviewed with the petitioner the range of
punishment he faced if convicted at trial and that he was still trying, on the morning of trial,
to convince the petitioner to accept the State’s eight-year offer. He testified that when he
asked the petitioner for any information he could provide to help in his defense, he told him
to talk to a witness named “Brandi” and that he had gotten the victim’s car from a “junkie
named Fly.” The petitioner, however, was unable to provide any more information about
“Fly,” and when counsel talked to “Brandi,” he learned that the testimony she could provide
would not have been helpful to the petitioner.

       On February 1, 2012, the post-conviction court entered an order denying the petition
on the basis that the petitioner failed to show that he received ineffective assistance of trial
counsel. This appeal followed.

                                         ANALYSIS

        Post-conviction relief “shall be granted when the 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 (2012). The
petitioner bears the burden of proving factual allegations by clear and convincing evidence.
Id. § 40-30-110(f). When an evidentiary hearing is held in the post-conviction setting, the
findings of fact made by the court are conclusive on appeal unless the evidence
preponderates against them. See Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006). When
reviewing factual issues, the appellate court will not reweigh the evidence and will instead
defer to the post-conviction court’s findings as to the credibility of witnesses or the weight
of their testimony. Id. However, review of a post-conviction court’s application of the law
to the facts of the case is de novo, with no presumption of correctness. See Ruff v. State, 978
S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel, which presents
mixed questions of fact and law, is reviewed de novo, with a presumption of correctness
given only to the post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

      To establish a claim of ineffective assistance of counsel, the petitioner has the burden
to show both that trial counsel’s performance was deficient and that counsel’s deficient
performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S.

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668, 687(1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting
that same standard for determining ineffective assistance of counsel that is applied in federal
cases also applies in Tennessee). The Strickland standard is a two-prong test:

       First, the defendant must show that counsel’s performance was deficient. This
       requires showing that counsel made errors so serious that counsel was not
       functioning as the “counsel” guaranteed the defendant by the Sixth
       Amendment. Second, the defendant must show that the deficient performance
       prejudiced the defense. This requires showing that counsel’s errors were so
       serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The
reviewing court must indulge a strong presumption that the conduct of counsel falls within
the range of reasonable professional assistance, see Strickland, 466 U.S. at 690, and may not
second-guess the tactical and strategic choices made by trial counsel unless those choices
were uninformed because of inadequate preparation. See Hellard v. State, 629 S.W.2d 4, 9
(Tenn. 1982). The prejudice prong of the test is satisfied by showing a reasonable
probability, i.e., a “probability sufficient to undermine confidence in the outcome,” that “but
for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.

        On appeal, the petitioner argues that counsel was deficient in his representation,
thereby prejudicing the outcome of his case by, among other things, failing to adequately
meet with him, failing to investigate or prepare for the case, and failing to discuss or plan any
trial defense strategy. In support, the petitioner cites his own testimony about trial counsel’s
alleged shortcomings, along with counsel’s admission that he continued to advise the
petitioner, up until the morning of trial, to accept the State’s plea bargain.

       In its order denying relief, the post-conviction court found that the petitioner’s
testimony was not credible and concluded that the petitioner had not met his burden of
demonstrating that counsel was deficient or that he was prejudiced by any of counsel’s
alleged deficiencies in representation. We conclude that the record fully supports the
findings and conclusions of the post-conviction court. Trial counsel explained that he
investigated the case to the best of his ability given the limited information that the petitioner
was able to provide. He also explained why he continued to advise the petitioner, up until

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the last moment, to accept the State’s plea bargain offer. The petitioner himself
acknowledged that trial counsel met with him “often,” at least in the beginning, that counsel
provided him with copies of discovery and preliminary hearing transcripts, that counsel
reviewed the evidence against him, and that counsel did a good job in his cross-examination
of witnesses. The petitioner has simply not shown that counsel was in any way deficient in
his representation.

                                     CONCLUSION

       Based on our review, we conclude that the petitioner has failed to meet his burden of
showing that he was denied the effective assistance of trial counsel. Accordingly, we affirm
the judgment of the post-conviction court denying the petition for post-conviction relief.




                                                   _________________________________
                                                   ALAN E. GLENN, JUDGE




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