         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                    March 14, 2001 Session

    JOHNNY WAYNE GARNER and RICHARD DARRELL MILLER v.
                  STATE OF TENNESSEE

                    Direct Appeal from the Circuit Court for Giles County
                         No. 9155 9171    Stella L. Hargrove, Judge



                      No. M2000-01258-CCA-R3-PC - Filed May 29, 2001


Both Petitioners appeal from the post-conviction court’s denial of their post-conviction relief
petitions. The Petitioners claim ineffective assistance of counsel at trial and on appeal for failing
to object to an erroneous jury instruction and failing to raise the erroneous jury instruction in their
direct appeal. The post-conviction court found the jury instruction to be erroneous; however, it
denied relief. After a thorough review, we conclude that the jury instruction was erroneous and
prejudicial to the Petitioners and find that trial and appellate counsel were ineffective for failing to
object to the erroneous jury instruction at trial and for failing to raise it on direct appeal.
Accordingly, we reverse the post-conviction court’s denial of relief and remand the Petitioners’
cases to the trial court for new trials on the issues of aggravated arson.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
                               Remanded for a New Trial

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and
JAMES CURWOOD WITT, JR., JJ., joined.

Timothy P. Underwood, Pulaski, Tennessee, for the appellant, Johnny Wayne Garner.

Leslie Curry-Johnson, Nashville, Tennessee, for the appellant, Richard D. Miller.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
T. Michel Bottoms, District Attorney General; and Richard H. Dunavant, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                              OPINION


        On November 4, 1996, the Petitioners, Johnny Wayne Garner and Richard Darrell Miller,
were convicted of voluntary manslaughter and aggravated arson. The Petitioners appealed their
convictions and sentences; however, this court upheld their convictions and sentences. Permission
to appeal was denied on March 15, 1999. Pursuant to the Post-Conviction Relief Act the Petitioners
filed timely petitions seeking relief. The Petitioners’ claimed that trial and appellate counsel were
ineffective for failing to object to an erroneous jury instruction at trial and for failing to raise the
erroneous jury instruction on direct appeal The post-conviction court held a post-conviction hearing
and denied the Petitioners’ request for relief. The Petitioners subsequently filed notices of appeal,
and this post-conviction appeal followed.

                                               FACTS

         During the early morning hours of October 27, 1995, the body of the victim in the instant
case, “Bud” Wright, was discovered in his trailer after the Pulaski Fire Department extinguished a
fire that occurred thereto. The day prior to the discovery of the victim’s body, October 26, 1995, the
Petitioners spent at least part of the day with the victim. According to statements made by the
Petitioners, they left the victim’s trailer sometime around six o’clock that evening. Petitioner Miller
claimed that when he and Garner left the victim’s trailer there were three unidentified men with the
victim. Testimony from other witnesses, however, placed both Petitioners at the victim’s trailer until
about 10:30 p.m. that night. One witness testified that approximately ten minutes after the
Petitioners left the victim’s trailer he heard a loud pop and saw a “big glow in the sky.” Due to signs
of a struggle in the trailer the and trauma to the victim arson was suspected.

        A thorough investigation followed and signs of foul play surfaced. Specifically, Dr. Charles
Harlan, a forensic pathologist, found three concurrent causes of death: “blunt trauma to the [victim’s]
chest, inhalation of carbon, and acute ethanolism.” Further, the victim’s trachea was examined and
no soot was present. Since no soot was found in the victim’s trachea, the forensic pathologist
concluded “that [the victim] was not alive at the time the body was burned....”

        On October 27, 1995, Petitioner Garner was arrested for public intoxication and transported
to the police station. On the way to the police station Petitioner Garner told police that he couldn’t
believe he was being arrested for the victim’s death. The Petitioner was advised to discuss the
matter with an investigator. Both Petitioners were subsequently arrested and indicted for first degree
murder and aggravated arson.

        The Petitioners were ultimately convicted of voluntary manslaughter and aggravated arson.
However, the Petitioners contend that if the jury had not been given a faulty jury instruction it is
likely that the jury would not have convicted them of aggravated arson. Specifically, at the end of
the Petitioners’ trial the trial judge instructed the jury that “[i]f the defendant is convicted of ...
aggravated arson, he will be eligible for parole after service of 30 percent of his sentence imposed


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by the court.” The trial court further instructed the jury that “the period of time may be shortened
by sentencing credits that may be earned by the defendant. The defendant may earn and be credited
with between zero and 16 additional days for every 30 days he serves.” Both sides agree that the
jury instruction was erroneous. Tennessee Code Annotated § 40-35-501 (i)(2)(J) provides that a
person committing the offense of aggravated arson on or after July 1, 1995, shall serve one hundred
percent (100%) of the sentence imposed less sentence credits earned and retained. The same section
further provides that no sentence reduction credits shall operate to reduce the sentence imposed by
more than fifteen percent (15%).

        The Petitioners’ filed petitions seeking post conviction relief, which were heard on May 3,
2000. During the hearing counsel of both Petitioners at the jury trial and on direct appeal admitted
that they had missed the erroneous instruction. The post-conviction court ultimately denied the
Petitioners’ petitions for post conviction relief, holding (1) that since the Petitioners failed to raise
the erroneous jury instruction on direct appeal, and since the erroneous jury instruction did not raise
a question of constitutional dimensions, it was not proper under the Post-Conviction Procedure Act,
Tenn. Code. Ann. §40-30-210(f), and (2) that the Petitioners were not denied effective assistance of
counsel.

                                             ANALYSIS

A. Standard of Review

        This court reviews a claim of ineffective assistance of trial counsel and appellate counsel
under the standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Campbell v. State, 904 S.W.2d 594, 596
(Tenn. 1995). The Petitioners have the burden of proving that (1) counsels’ performance was
deficient, and (2) that the deficient performances resulted in prejudice to the Petitioners so as to
deprive them of fair trials. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Goad v. State, 938
S.W.2d 363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State,
789 S.W.2d 898, 899 (Tenn. 1990).

         The test in Tennessee to determine whether counsel provided effective assistance is whether
his performance was within the range of competence demanded of attorneys in criminal cases.
Baxter, 523 S.W.2d at 936. The Petitioners must overcome the presumption that their counsels’
conduct falls within the wide range of acceptable professional assistance. Strickland, 466 U.S. at
689, 104 S. Ct. at 2065; State v. Burns, 6 S.W.3d 453, 462 (Tenn. 1999). Therefore, in order to
prove a deficiency, the Petitioners must show “that their counsels’s acts or omissions were so serious
as to fall below an objective standard of reasonableness under prevailing professional norms.” Goad,
938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688, 104 S. Ct. at 2065).

       In reviewing counsel's conduct, a "fair assessment . . . requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S.


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at 689, 104 S. Ct. at 2065. The fact that a particular strategy or tactic failed or hurt the defense, does
not, standing alone, establish unreasonable representation. However, deference to matters of strategy
and tactical choices applies only if the choices are informed ones based upon adequate preparation.
Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997); Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).


B. Analysis

         Prior to entering into our analysis we pause to note that at the time the Petitioners in the
instant case were convicted, Tennessee Code Annotated § 40-35-201(b)(1) permitted either party to
file a motion with the court that had the effect of requiring the court to charge the jury with the
possible penalties for the offense charged and all lesser included offenses. Further, according to
Tennessee Code Annotated § 40-35-201(b)(2)(A)(i), within such charge the judge was required to
“include an approximate calculation of the minimum number of years a person sentenced to
imprisonment ... must serve before reaching such person’s earliest release eligibility date.” This
provision was repealed by the General Assembly in 1998, and as such, for all non-capital criminal
trials subsequent to May 19, 1998, statutory directives set forth that the “judge shall not instruct the
jury, nor shall the attorneys be permitted to comment at any time to the jury, on possible penalties
for the offense charged nor all lesser included offenses.” 1998 Tenn. Pub. Acts ch. 1041, § 1; Tenn.
Code. Ann. § 40-35-201 (Supp. 1998). As set forth above, the Petitioners in the instant case were
convicted of the crimes set forth herein on November 4, 1996. Thus, the provisions of Tennessee
Code Annotated § 40-35-201 were clearly in force at the time of the Petitioners’ convictions. As
such, it was proper for the trial judge to charge the jury with the possible penalties for the offenses
charged and the minimum sentences the Petitioners would have to serve prior to their earliest release
eligibility dates.

        We continue our analysis by visiting several cases that are directly on point with the issue
raised in the instant case, and which fell under Tennessee Code Annotated § 40-35-201 prior to its
repeal in 1998. In State v. Cook the defendant was convicted of three counts of aggravated rape and
two counts of aggravated sexual battery. The defendant was sentenced to twenty five-years on each
of three aggravated rape convictions and seven years on each of the two aggravated sexual battery
convictions. The judge charged the jury with incorrect sentence ranges for aggravated rape and
aggravated sexual battery. When the case was appealed to the Tennessee Supreme Court, the court
reversed the convictions and remanded the charges to the trial court for a new trial. The Tennessee
Supreme Court held that “T.C.A. 40-35-201(b) gives the defendant a claimable statutory right to
have the jury know the range of punishment applicable to the charges before deciding guilt or
innocence” and to deny this “statutory right constitutes prejudice to the judicial process, rendering
the error reversible under Rule 36(b) T.R.A.P.” State v. Cook, 816 S.W.2d 322, 326-27 (Tenn.
1991).

        Again, in 1999, the Tennessee Supreme Court addressed the issue of erroneous jury
instructions in State v. Meyer. In Meyer the court charged the jury that if the defendant was
convicted of rape of a child, his sentence would range from twenty to forty years, and that his earliest


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release eligibility date would be after serving 5.73 years. In actuality, however, Tennessee Code
Annotated § 40-25-501(i)(1) and (2) (Supp. 1995) set forth that a defendant convicted of rape of a
child is required to serve 100% of a sentence imposed by a court, less sentencing credits earned and
retained, up to 15%. The defendant was subsequently convicted of rape of a child.

        When the Meyer case was taken by the Tennessee Supreme Court, the court made the same
findings as this court, that the “trial court erred by instructing the jury that the Defendant would be
eligible for release following a conviction of child rape upon serving 5.73 years of his sentence.”
State v. Meyer, 994 S.W.2d 129, 131 (Tenn. 1999). This court originally found this erroneous jury
instruction to be harmless error; however, the Tennessee Supreme Court found this error to be
reversible and remanded the case for a new trial. In its opinion the Tennessee Supreme Court echoed
its holding in Cook, and agreed with the defendant that he was prejudiced by the erroneous jury
instruction. It further set forth that “[i]t is conceivable that the defendant would have been convicted
of a lesser offense had the jury known that the Defendant would not be eligible for early release.”
Id. at 132.

        The Tennessee Supreme Court is not the only court to have addressed the issue of erroneous
jury instructions. This court recently addressed this issue in two separate cases, Dean v. State,
C.C.A. No. E1998-00135-CCA-R3-PC, 2000 WL 337552 (Tenn. Crim. App., filed March 21, 2000,
at Knoxville) (a case that raised the issue of an erroneous jury instruction in an ineffective assistance
of both trial counsel and appellate counsel on post-conviction); and State v. Burnett, C.C.A. No.
M1999-00179-CCA-R3-CD, 2000 WL 62110 (Tenn. Crim. App., filed January 26, 2000, at
Nashville) (a case that dealt with the issue of an erroneous jury instruction through plain error in a
direct appeal).

         In Dean the trial court charged the jury that “the sentence range for attempted second degree
murder was three to ten years, when the actual sentence range was twelve to twenty years.” Dean
2000 WL 337552, at *2. This court held in Dean that “the right to effective assistance of counsel
is itself a constitutional issue,” and thus, “a proper issue for post-conviction consideration.” Id. at
*5. This court ultimately concluded that trial counsel’s performance fell below the acceptable range
of competence of attorneys in this state because he failed to recognize Cook “as the current state of
the law and ... fail[ed] to assert the Petitioner’s rights under Cook in the motion for a new trial.” Id.
at *6. This court also found that appellate counsel’s performance fell below the acceptable range
of competence of attorneys in this state because he failed “to assert the Petitioner’s rights under Cook
on direct appeal.” Id. at *7. This court went on to find that the deficiency prejudiced the Petitioner,
setting forth that the “prejudice [was] obvious in this instance ... [and] had [trial and/or appellate]
counsel asserted the Petitioner’s rights under Cook, he would have been granted a new trial ... as
Cook mandates a new trial based on the statutory right to correct [a] charge on the range of
punishment.” Id. Based upon this conclusion, both trial counsel and appellate counsel were found
to be ineffective.

       In Burnett the trial court erroneously charged the jury that if the defendant was convicted of
aggravated arson “he would be eligible for release in 1.07 years.” Burnett, 2000 WL 62110, at *3.


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In actuality, however, the earliest possible release date for the defendant would have been after the
defendant served 12.75 years. The defendant was subsequently convicted of aggravated arson. After
this court heard the case, we held that this error was plain error and reversed the judgment of the trial
court and remanded the case for a new trial.

        We now turn to the Petitioners’ claims of ineffective assistance of counsel in light of these
cases. We first address whether trial counsel’s and appellate counsel’s performance fell below the
acceptable range of competence of attorneys in this state. Clearly the facts in Dean, where trial
counsel’s failure to object to the erroneous jury instruction and appellate counsel’s failure to assert
the Petitioner’s rights on direct appeal are directly in line with the instant case. In the instant case
trial counsel for both Petitioners failed to object to the erroneous jury instruction and appellate
counsel for the Petitioners failed to raise the rights of the Petitioners on direct appeal. Further, both
trail counsel and appellate counsel acknowledged that they completely missed the erroneous jury
instruction. Whether trial counsel or appellate counsel recognized such rights is irrelevant, however.
Counsels’ failure to undertake the aforementioned actions was clearly deficient as is readily
reflected in the growing line of case law on the issue.

        We next turn our attention to address whether counsels’ deficient performance prejudiced
the Petitioners. As this court found in Dean, the “prejudice [was] obvious in this instance ... [and]
had [trial and/or appellate] counsel asserted the Petitioner’s rights under Cook, [the Petitioners]
would have been granted ... new trial[s] ... as Cook mandates a new trial based on the statutory right
to correct [a] charge on the range of punishment.” Dean 2000 WL 337552, at *6. This court is
unable to find any significant differences between Dean and the instant case, and as such the
outcome in the instant case must be identical to the outcome in Dean. The Petitioners have carried
the burden of proving ineffective assistance of both trial counsel and appellate counsel.

                                           CONCLUSION

       The judgment of the post-conviction court is reversed, the Petitioners’ convictions for
aggravated arson are vacated, and this matter is remanded to the trial court for new trials on the issue
of aggravated arson.




                                                        ___________________________________
                                                         JOHN EVERETT WILLIAMS, JUDGE




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