        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs April 9, 2013

                  OSCAR THOMAS v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                    No. 1102189 James C. Beasley, Jr., Judge


                 No. W2012-01646-CCA-R3-PC - Filed June 28, 2013


Oscar Thomas (“the Petitioner”) filed a petition for post-conviction relief from his guilty-
pleaded convictions for carjacking and employing a firearm during the commission of a
dangerous felony. After an evidentiary hearing, the post-conviction court denied relief, and
this appeal followed. On appeal, the Petitioner contends that his plea was constitutionally
invalid due to the ineffective assistance of counsel. He also contends that his employing a
firearm during the commission of a dangerous felony conviction violates Tennessee Code
Annotated section 39-17-1324(c). Upon our thorough review of the record and applicable
law, we affirm the judgment of the post-conviction court.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J OHN E VERETT W ILLIAMS
and D. K ELLY T HOMAS, J R., JJ., joined.

Gregory D. Allen, Memphis, Tennessee, for the appellant, Oscar Thomas.

Robert E. Cooper, Jr., Attorney General & Reporter; Renee W. Turner, Senior Counsel; Amy
Weirich, District Attorney General; and Pamela Fleming, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                         OPINION

                          Factual and Procedural Background

      The Petitioner was indicted in April 2011 for one count of carjacking and one count
of employing a firearm during the commission of a dangerous felony, to wit: carjacking. On
August 1, 2011, the Petitioner entered a “best interest” plea1 to the indicted offenses.
Pursuant to the plea agreement, the trial court sentenced the Petitioner as a Range II offender
to thirteen years on his carjacking conviction and to ten years on his employing a firearm
during the commission of a dangerous felony conviction, to be served consecutively, for an
effective sentence of twenty-three years.

                                                Guilty Plea

        At the guilty plea hearing, the State recited the factual basis for the Petitioner’s plea
as follows:

        [O]n July 5th, 2009, Ms. Viola Dotson was carjacked by two males at the BP
        Gas Station at Chelsea and Thomas here in Memphis, Shelby County. Shortly
        after midnight on that day she was attempting to get gas for her vehicle when
        two persons did approach her, produce a weapon and ask for her valuables and
        her keys to her car and they drove off in her car which was valued at $18,000.

               She did make that report. Nobody was apprehended that same day.
        July 11th . . . the carjacked vehicle was spotted[] . . . by Memphis Police
        Department Officers. At that point they did identify [the Petitioner] as the
        driver. They did arrest him at that time and place him on a hold.

                A photo-spread was shown on that same day to the victim in which she
        identified [the Petitioner] as the person who had held the gun at her and taken
        the keys to her car and driven off in her car with the other person.

       The Petitioner’s lawyer (“Trial Counsel”) stipulated that “that would have been the
[S]tate’s proof had the matter gone to trial.” However, Trial Counsel also stated,

        Throughout my dealings with [the Petitioner], he’s all times vehemently denied
        the allegations as such but upon discussing it with him, his sentencing range,
        quite frankly, the [c]ourt could sentence him to forty-five years.

                There’s also implications that regardless of what may happen here that
        there is federal interest in the case which his exposure is even greater. I think
        that we’ve discussed the fact that he has a young child that he wants to be


        1
           See North Carolina v. Alford, 400 U.S. 25, 37-38 (1970) (holding that, when the prosecution
demonstrated a strong factual basis for the defendant’s guilt, the trial court committed no constitutional error
in accepting a guilty plea from the defendant who, while protesting his innocence, deemed the plea to be in
his best interest).

                                                      -2-
       involved with and he thinks at this point because of all the exposure that this
       would be his best interest but still would like to say that he believes that he is
       not guilty of these charges.

       The trial court accepted the Petitioner’s “best interest” plea and entered the judgments
against the Petitioner, sentencing the Petitioner to twenty-three years’ incarceration.

                                        Post-Conviction

        The Petitioner subsequently filed for post-conviction relief in February 2012, alleging
that his guilty plea was constitutionally infirm due to the ineffective assistance of counsel and
that his conviction for employing a firearm during the commission of a dangerous felony
must be set aside because it contravenes Tennessee Code Annotated section 39-17-1324(c)
(2010). Regarding his first claim, the Petitioner focuses his appeal on Trial Counsel’s advice
to him regarding potential federal prosecution. We will limit our recitation of the facts
adduced at the post-conviction hearing accordingly.

         The Petitioner testified that he and Trial Counsel had determined that the Petitioner
would proceed to trial on his charges. On his trial date, however, the Petitioner claimed that
Trial Counsel told him that there was “a possibility that you will be found not guilty in your
case, but the State is going to turn your case over to the Feds and they [were] going to
prosecute you based on your past history; and it’s a possibility that you can get more time.”
The Petitioner stated that this information “had [him] in a position where [he] felt like [he]
. . . needed to change . . . [his] decision” about proceeding to trial. The Petitioner added, “My
decision was to go on through trial . . . . But, when he told me that, it was like, I was going
to be charged based on my past history. So, it throwed [sic] me for a loop.” Thereafter, he
decided to enter a “best interest” plea to the indicted charges. He stated, “My decision to
plead was based on the fact that I ain’t [sic] want to mess around and get sent over to the
Feds and get more time based on my past history.”

        The Petitioner testified that, after he had pleaded guilty, he had a “chance to study
more and [he] learned that everything that [Trial Counsel] was telling [him] wasn’t true.”
In this regard, he stated, “I found out . . . I couldn’t even had [sic] been charged like that” and
that “there wasn’t any evidence, or any facts that could prove me guilty on my case in the
first place.” He further maintained that he wanted to proceed to trial and that he believed that
he could have “beat[en] this charge” because “the charge was really rigged up. It didn’t
really happen.”

        On cross-examination, the Petitioner agreed that, when Trial Counsel told him on his
trial date that even if he was found not guilty at trial the federal government could prosecute
him, that “spooked” him and “made [him] not want to go to trial.” He stated that he was

                                                -3-
“thinking that [he] could get rail roaded through the Federal Courts.” He also agreed that he
knew what convictions he had on his prior record and that “the Feds count all that against
[him.]”

        The Petitioner acknowledged that he had “been through the process over here a goodly
[sic] number of times.” He stated, however, that he “ain’t [sic] never been this far” because
he “mostly had guilty pleas when [he] came through here.” He believed that Trial Counsel
“fooled” him into pleading guilty because the federal government was not going to “pick
[his] case up.” He knew that the federal government was not going to prosecute him because
he had been studying his case and “since [he had] been down in the penitentiary, [he] had a
chance to talk to other people legal advisors.” He agreed, however, that he was aware of the
“safe street’s task force,” that they “specifically exist for joint Federal and State prosecution
on car[]jackings and business robberies,” and that his charges involved carjacking. The
Petitioner again stated, “[Trial Counsel] had me believing that the Feds were gonna [sic] take
over the case and they would be able to convict me just because of my past history and I
could receive more time than I’m being offered.” The Petitioner testified, “I decided that I’d
probably come out better if I pled guilty.”

        The post-conviction court then asked the Petitioner, “Well, what is it then you, you
wanted to plead guilty so that you wouldn’t have to go do Federal time?” The Petitioner
responded, “No, I wanted to plead guilty because I ain’t want to get rail roaded in a Federal
case.” The post-conviction court next asked, “Now, you wanted to plead guilty over here so
you wouldn’t have to go get Federal time. Is that what you’re saying?” He responded, “I just
wanted a fair trial.” The post-conviction court then asked, “Okay, then why did you plead
guilty[,]” and he responded, “Because, [Trial Counsel] had me believe that just because of
my past history . . . it’s a possibility that they was gonna just use that and just give me time
off that, because of my past history.” He added that Trial Counsel told him that “they could
convict you alone with your past history and give you more time.”

       The Petitioner called no other witnesses. The State put on no proof.

       After the hearing, the post-conviction court denied the Petitioner’s claims for relief.
The post-conviction court stated that it had not “heard anything that gives [it] any reason to
doubt that [the Petitioner’s] plea was anything other than freely and voluntarily entered, with
full knowledge of what he had to anticipate.” In its subsequent written order, the post-
conviction court reaffirmed its oral findings and concluded that the Petitioner “failed to carry
his burden of proof that his plea was involuntary based upon ineffective assistance of
counsel.” The post-conviction court did not address the Petitioner’s allegation that his
conviction for employing a firearm during the commission of a dangerous felony was void
or voidable.



                                               -4-
       The Petitioner timely appealed.

                                             Analysis

                                       Standard of Review

        Relief pursuant to a post-conviction proceeding is available only where the petitioner
demonstrates that his or her “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 (2006). To prevail on a post-conviction
claim of a constitutional violation, the petitioner must prove his or her allegations of fact by
“clear and convincing evidence.” Tenn. Code Ann. § 40-30-110(f) (2006); see also Momon
v. State, 18 S.W.3d 152, 156 (Tenn. 1999). This Court will not overturn a post-conviction
court’s findings of fact unless the preponderance of the evidence is otherwise. Pylant v.
State, 263 S.W.3d 854, 867 (Tenn. 2008); Sexton v. State, 151 S.W.3d 525, 531 (Tenn. Crim.
App. 2004). We will defer to the post-conviction court’s findings with respect to the
witnesses’ credibility, the weight and value of their testimony, and the resolution of factual
issues presented by the evidence. Momon, 18 S.W.3d at 156. With respect to issues raising
mixed questions of law and fact, however, including claims of ineffective assistance of
counsel, our review is de novo with no presumption of correctness. See Pylant, 263 S.W.3d
at 867-68; Sexton, 151 S.W.3d at 531.

                                Ineffective Assistance of Counsel

       The Petitioner contends that his plea is constitutionally invalid due to the ineffective
assistance of counsel. Specifically, the Petitioner claims that he “was under a belief that
without the traditional procedures afforded to an accused, [he] could be convicted in Federal
Court solely because he had a prior criminal history.” The Petitioner maintains that “his
misunderstanding of the plea” “resulted from deficient performance [of Trial Counsel] and
but for that deficiency [the Petitioner] would not have entered into the plea.”

         The Sixth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel
at trial.2 Both the United States Supreme Court and the Tennessee Supreme Court have
recognized that this right is to “reasonably effective” assistance, which is assistance that falls
“within the range of competence demanded of attorneys in criminal cases.” Strickland v.
Washington, 466 U.S. 668, 687 (1984); see also Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.


       2
         The Sixth Amendment right to counsel is applicable to the States through the Fourteenth
Amendment to the United States Constitution. See Gideon v. Wainwright, 372 U.S. 335, 342 (1963); State
v. Howell, 868 S.W.2d 238, 251 (Tenn. 1993).

                                                 -5-
1975). The deprivation of effective assistance of counsel at trial presents a claim cognizable
under Tennessee’s Post-Conviction Procedure Act. See Tenn. Code Ann. § 40-30-103;
Pylant, 263 S.W.3d at 868.

        In order to prevail on a claim of ineffective assistance of counsel, the petitioner must
establish two prongs: (1) that counsel’s performance was deficient; and (2) that the deficient
performance prejudiced the defense. See Strickland, 466 U.S. at 687; Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996). The petitioner’s failure to establish either prong is fatal to
his or her claim of ineffective assistance of counsel. Goad, 938 S.W.2d at 370. Accordingly,
if we determine that either prong is not satisfied, we need not consider the other prong. Id.

        To establish the first prong of deficient performance, the petitioner must demonstrate
that his lawyer’s “acts or omissions were so serious as to fall below an objective standard of
‘reasonableness under prevailing professional norms.’” Vaughn v. State, 202 S.W.3d 106,
116 (Tenn. 2006) (quoting Strickland, 466 U.S. at 688). Our Supreme Court has explained
that:

       [T]he assistance of counsel required under the Sixth Amendment is counsel
       reasonably likely to render and rendering reasonably effective assistance. It
       is a violation of this standard for defense counsel to deprive a criminal
       defendant of a substantial defense by his own ineffectiveness or incompetence.
       Defense counsel must perform at least as well as a lawyer with ordinary
       training and skill in the criminal law and must conscientiously protect his
       client’s interest, undeflected by conflicting considerations.

Baxter, 523 S.W.2d at 934-35 (quoting Beasley v. United States, 491 F.2d 687, 696 (6th Cir.
1974)). When a court reviews a lawyer’s performance, it “must make every effort to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
conduct, and to evaluate the conduct from the perspective of counsel at that time.” Howell
v. State, 185 S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689).
Additionally, a reviewing court “must be highly deferential and ‘must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.’” State v. Honeycutt, 54 S.W.3d 762, 767 (Tenn. 2001) (quoting Strickland, 466
U.S. at 689). We will not deem counsel to have been ineffective merely because a different
strategy or procedure might have produced a more favorable result. Rhoden v. State, 816
S.W.2d 56, 60 (Tenn. Crim. App. 1991). We recognize, however, that “deference to tactical
choices only applies if the choices are informed ones based upon adequate preparation.”
Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992) (citing Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982)).




                                              -6-
       As to 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.” Vaughn,
202 S.W.3d at 116 (citing Strickland, 466 U.S. at 694). In the context of a guilty plea, our
analysis of this prong

       focuses on whether counsel’s constitutionally ineffective performance affected
       the outcome of the plea process. In other words, in order to satisfy the
       “prejudice” requirement, 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 Calvert v. State, 342 S.W.3d 477, 486
(Tenn. 2011).

         As set forth above, the Petitioner claims that his plea is constitutionally invalid due
to the ineffective assistance of counsel. Specifically, the Petitioner alleges that, on the day
of trial, Trial Counsel misinformed him about the possibility of federal prosecution based on
his prior record alone to such an extent that the Petitioner changed his mind about proceeding
to trial. However, the post-conviction court rejected the Petitioner’s testimony, finding that
the Petitioner “failed to carry his burden of proof that his plea was involuntary based upon
ineffective assistance of counsel” and that the court had not “heard anything that gives [it]
any reason to doubt that [the Petitioner’s] plea was anything other than freely and voluntarily
entered, with full knowledge of what he had to anticipate.” The post-conviction court’s
ruling included an implied finding that the Petitioner was not credible. This Court does not
reassess credibility findings. Momon, 18 S.W.3d at 156. Because the Petitioner offered no
proof other than his own testimony at the post-conviction hearing, and because the post-
conviction court clearly found the Petitioner’s testimony not credible, the Petitioner failed
to prove the fact of trial counsel’s alleged error by clear and convincing evidence.
Accordingly, the Petitioner is entitled to no relief on this issue and we need not proceed to
the Strickland two-prong analysis. See, e.g., Dellinger v. State, 279 S.W.3d 282, 293-94
(Tenn. 2009) (“[T]he Petitioner is required to prove the fact of counsel’s alleged error by
clear and convincing evidence. If that burden of proof is met, the court then must assess
under Strickland whether that error ‘fell below an objective standard of reasonableness.’”)

                              Statutorily Prohibited Conviction

        The Petitioner also contends that his conviction for employing a firearm during the
commission of a dangerous felony must be set aside because it violates an express provision
of Tennessee Code Annotated section 39-17-1324 (2010). The relevant provision provides
as follows:



                                              -7-
               A person may not be charged with [employing a firearm during the
       commission of a dangerous felony] if . . . employing a firearm is an essential
       element of the underlying dangerous felony as charged. In cases where . . .
       employing a firearm [is an] element[] of the charged offense, the state may
       elect to prosecute under a lesser offense wherein . . . employing a firearm is
       not an element of the offense.

Tenn. Code Ann. § 39-17-1324(c) (2010). The Petitioner asserts that, in his case, employing
a firearm was an essential element of the underlying dangerous felony of carjacking.
Accordingly, he claims that his conviction of employing a firearm during the commission of
a dangerous felony is void. The Petitioner relies on this Court’s decision in Anthony D.
Byers v. State, No. W2011-00473-CCA-R3-PC, 2012 WL 938976, at *8-9 (Tenn. Crim. App.
Mar. 15, 2012), perm. app. denied (Tenn. Aug. 15, 2012).

        We initially address the fact that, other than denying the Petitioner’s petition for post-
conviction relief in its entirety, the post-conviction court specifically did not address this
issue. The Petitioner asserts that “because the post-conviction court, in its order denying
post-conviction relief, did not address this matter, [the Petitioner] requests relief by
overturning the conviction or relief as deemed appropriate.” Pursuant to Tennessee Code
Annotated section 40-30-111(b) (Supp. 2009), the post-conviction judge is required to “enter
a final order” and “set forth in the order . . . all grounds presented, and shall state the findings
of fact and conclusions of law with regard to each ground.” This requirement has been
deemed mandatory. State v. Swanson, 680 S.W.2d 487, 489 (Tenn. Crim. App. 1984).3
Nevertheless, because the purpose of this requirement is to facilitate appellate review of the
post-conviction court’s decision, “the failure of the [post-conviction] judge to abide by the
requirement does not always mandate a reversal of the [post-conviction] court’s judgment”
when the record is otherwise adequate for review. Id. (citations omitted). Moreover, “the
failure to meet the requirement neither constitutes constitutional abridgement nor renders the
conviction or sentence of the [Petitioner] void or voidable.” Id. Here, because the
Petitioner’s claim is purely a legal issue which we review de novo with no presumption of
correctness, see Pylant, 263 S.W.3d at 867-68, the post-conviction court’s failure to make
specific findings on this issue does not preclude appellate review.

       Although the Petitioner does not explain the precise nature of any alleged
constitutional violation occasioned by a conviction that contravenes section 39-17-1324(c),
we construe his claim as grounded in due process concerns. By promulgating this statutory
provision, our legislature barred the criminal prosecution of violations of section 39-17-1324
when the underlying dangerous felony included, as an essential element, the use of a firearm.


       3
        The substance of the statute at issue in Swanson is the same as that codified in Tennessee Code
Annotated section 40-30-111(b) (Supp. 2009).

                                                  -8-
The practical result is that, when the underlying dangerous felony includes the use of a
firearm as an essential element, the separate crime of employing a firearm during the
commission of the dangerous felony does not exist. In such an instance, this Court
previously has recognized, “due process does not countenance the conviction of a nonexistent
crime.” State v. Michael L. Powell, No. E2011-00155-CCA-R3-CD, 2012 WL 1655279, at
*15 (Tenn. Crim. App. May 10, 2012) (citing Adams v. Murphy, 653 F.2d 224, 225 (5th Cir.
1981)).

        Nevertheless, we disagree with the Petitioner that his conviction of employing a
firearm during the commission of a dangerous felony is void. The offense of carjacking may
be committed in either of two ways: by use of a deadly weapon or by force or intimidation.
Tenn. Code Ann. § 39-13-404(a) (2010). The Petitioner was charged with committing
carjacking by force or intimidation, not by use of a deadly weapon. The Petitioner contends
that, regardless of the verbiage contained in the indictment, the State’s statement of proof
upon which he entered his “best interest” plea included his use of a firearm. Accordingly,
he argues that his conviction cannot stand.

       This Court, however, previously has rejected this same argument. See State v.
Jeremiah Dawson, No. W2010-02621-CCA-R3-CD, 2012 WL 1572214, at *7 (Tenn. Crim.
App. May 2, 1012), perm. app. denied (Tenn. Sept. 20, 2012). In Dawson, a jury convicted
the defendant of aggravated robbery, carjacking, and employing a firearm during the
commission of a dangerous felony. Id. at *1. On direct appeal, the defendant argued that his
“dual convictions for carjacking and employing a firearm during the commission of a
dangerous felony violate[d] double jeopardy.” Id. at *5. As in this case, the defendant had
been charged with carjacking by use of force or intimidation. Id. The defendant premised
his double jeopardy argument on the basis that the proof adduced at trial demonstrated that
he used the firearm to intimidate his victims. Id.

        In rejecting the defendant’s argument, this Court focused on the statutory language
of section -1324(c), emphasizing that the statute prohibits prosecution when “‘possessing or
employing a firearm is an essential element of the underlying dangerous felony as charged.’”
Jeremiah Dawson, 2012 WL 1572214, at *6 (quoting Tenn. Code Ann. § 39-17-1324(c))
(emphasis added in Dawson). This Court concluded that the legislature’s use of the term “as
charged” indicated that “the legislature was authorizing, even encouraging, the State
strategically to indict a defendant for both felonies.” Id. at *7. Thus, we held that “the
State’s charging carjacking by use of force or intimidation and employing a firearm was not
in direct contravention to Tennessee Code Annotated section 39-17-1324(c).” Id.

        We recognize that, in the Byers case, this Court granted post-conviction relief on the
basis that section -1324(c) directly had been contravened by the defendant’s dual convictions
of especially aggravated kidnapping and possessing a firearm during the commission of a

                                             -9-
dangerous felony, thereby rendering the latter conviction void. See Anthony D. Byers, 2012
WL 938976, at *8-9. In that case, however, the defendant was indicted for committing the
underlying dangerous felony by use of a deadly weapon. Id. at *8. The State argued that
there was a substantive distinction between “deadly weapon” and “firearm.” Id. This Court
rejected the State’s argument as follows:

       If the State could avert the constraints of the statute by always using the term
       “deadly weapon” instead of “firearm” when the deadly weapon at issue was
       clearly and solely a firearm, then section 1324(c) would essentially become
       meaningless because the State would never use the term “firearm” in an
       indictment. We cannot believe that it was our legislature’s intent to draft a
       statute that could so easily be circumvented with a simple change of
       phraseology in the indictment.

Id. at *9.

        Contrary to Byers, in the instant case, the State was not playing “fast and loose” with
the language with which it charged the Petitioner with carjacking. Cf. Anthony D. Byers,
2012 WL 938976, at *9. Rather, the State had an option, expressly provided by the statutory
language, as to how it charged the Petitioner with carjacking. It chose, legitimately, to
charge the Petitioner with having committed carjacking by force or intimidation. The use of
a firearm is not an essential element of a carjacking alleged to have been committed by force
or intimidation. That a firearm may have been the means of accomplishing the force or
intimidation in a particular case does not transform the use of the firearm into an essential
element of the carjacking. Accordingly, the Petitioner’s conviction of employing a firearm
during the commission of a dangerous felony does not contravene section -1324(c).
Therefore, he is not entitled to post-conviction relief on this basis.

                                      CONCLUSION

       For the foregoing reasons, the Petitioner has failed to establish that he is entitled to
post-conviction relief. Therefore, we affirm the judgment of the post-conviction court
denying relief.




                                                    ______________________________
                                                    JEFFREY S. BIVINS, JUDGE




                                             -10-
