        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned On Briefs January 18, 2012

             JIMMY LEE WHITMIRE v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Marshall County
                           No. 10CR25 Robert Crigler, Judge



                  No. M2011-00955-CCA-R3-PC - Filed January 3, 2013


Petitioner, Jimmy Lee Whitmire, was convicted of one count each of especially aggravated
kidnapping, aggravated assault, and aggravated burglary. He received an effective sentence
of eighteen years. State v. Jimmy Lee Whitmire, No. M2007-01389-CCA-R3-CD, 2009 WL
2486178, at *7 (Tenn. Crim. App., at Nashville, Aug. 13, 2009). He subsequently filed a
petition for post-conviction relief arguing that he was afforded ineffective assistance of
counsel. After conducting a hearing on the matter, the post-conviction court denied the
petition. On appeal, Petitioner argues that he was denied effective assistance of counsel
because trial counsel failed to properly advise him regarding testifying at trial. After a
thorough review of the record, we conclude that Petitioner has not shown that trial counsel
was ineffective or that if trial counsel was ineffective that he suffered prejudice from such.
Therefore, we affirm the denial of the petition for post-conviction relief.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT, J R.,
and C AMILLE R. M CM ULLEN, JJ., joined.

Hershell D. Koger, Pulaski, Tennessee, for the appellant, Jimmy Lee Whitmire.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; Charles Crawford, District Attorney General; and Weakley E. Barnard, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                         OPINION

                                    Factual Background

       Petitioner was arrested at the victim’s home in the early morning hours of March 23,
2006. Jimmy Lee Whitmire, 2009 WL 2486178, at *5. Petitioner had knocked on the
victim’s front door and asked to use the telephone. The victim knew Petitioner’s parents and
had dealt with him a few months before when she purchased a truck. Id. at *2-3. The victim
let him in the house to use telephone. He acted like he dialed a telephone number. Petitioner
squeezed the victim’s shoulder and got out a knife. He told her that they were going to her
bedroom to talk for a while. Id. *2. The victim was able to secretly dial 911 as she put the
telephone down. When they arrived in her bedroom, Petitioner told the victim about his
troubled past. He did not harm her in any way, but the victim was still scared because
Petitioner had a knife. Id. Eventually, the victim convinced Petitioner to give her the knife
and she threw it in the garbage can. Shortly after she threw the knife away, she heard a
knock on the front door and ran out of the bedroom to the door. The officers at the door
gathered the knife from the garbage can and arrested Petitioner. Id. at *3.

        After a jury trial, Petitioner was convicted of one count each of especially aggravated
kidnapping, aggravated assault, and aggravated burglary. He received an effective sentence
of eighteen years. Id. at *7. Petitioner appealed to this Court. He was unsuccessful on all
issues except regarding sentencing which resulted in a modification of his sentence from
eighteen years to fifteen years. Id. at * 25. On January 25, 2010, the Tennessee Supreme
Court denied Petitioner’s application for appeal to that court from this Court’s opinion on
direct appeal.

      Petitioner filed a timely pro se petition for post-conviction relief on March 1, 2010.
On September 2, 2010, Petitioner filed an amended petition through appointed counsel. On
September 8, 2010, Petitioner filed “Petitioner’s Notice of Voluntary Withdrawal of Post-
conviction Petition.”

       Petitioner subsequently filed a second petition for post-conviction relief on January
14, 2011. On February 1, 2011, the trial court filed the following order concerning
Petitioner’s original petition: “[T]he defendant announcing in open court the voluntary
withdrawal of his post-conviction petition which announcement is documented by his written
notice of voluntary withdrawal attached. IT IS THEREFORE ORDERED that the post-
conviction petition in this case be dismissed without prejudice.”

       The trial court held an evidentiary hearing to address issues raised in the second
petition for post-conviction relief. Petitioner and his father were the sole witnesses at the

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hearing. At the conclusion of the hearing, the post-conviction court denied the petition.
Petitioner filed a timely notice of appeal.

                                        ANALYSIS
                            Post-conviction Standard of Review

       The post-conviction court’s findings of fact are conclusive on appeal unless the
evidence preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).
During our review of the issues raised, we will afford those findings of fact the weight of a
jury verdict, and this Court is bound by the post-conviction court’s findings unless the
evidence in the record preponderates against those findings. See Henley v. State, 960 S.W.2d
572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). This
Court may not reweigh or re-evaluate the evidence, nor substitute its inferences for those
drawn by the post-conviction court. See State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn.
2001). However, the post-conviction court’s conclusions of law are reviewed under a purely
de novo standard with no presumption of correctness. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001).

                                   Voluntary Withdrawal

       Initially, we will address the effect of Petitioner’s voluntary withdrawal of his petition.
Under the Post-conviction Procedure Act, a petition for post-conviction relief must be filed
within one year of the date of the final action of the highest state appellate court to which an
appeal is taken, or if no appeal is taken, within one year of the date on which the judgment
became final. T.C.A. § 40-30-102(a). The Act also states that, “The petitioner may
withdraw a petition at any time prior to the hearing without prejudice to any rights to refile,
but the withdrawn petition shall not toll the statute of limitations set forth in § 40-30-102.”
T.C.A. § 40-30-109(c).

        On January 25, 2010, our supreme court denied permission to appeal from this Court’s
opinion on direct appeal. Therefore, Petitioner had one year from January 25, 2010, to file
a new petition. Petitioner filed his initial petition on March 1, 2010. The second petition was
filed on January 14, 2011. The post-conviction court granted the withdrawal of the petition
by written order on February 1, 2011. We acknowledge that this withdrawal was allowed
after the second petition was filed, however, Petitioner requested the voluntary withdrawal
on September 8, 2010. There was no hearing concerning the request for the voluntary
dismissal and the granting of such. There is an order filed January 13, 2011, that Petitioner’s
counsel had assured the post-conviction court that an order for dismissal would be filed and
counsel had not done so up to that point. However, it appears that the post-conviction court
was satisfied with the sequence of events. Therefore, as did the post-conviction court, we

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will address the petition on merits based upon the timely filing of the second petition filed
on January 14, 2011.

                             Ineffective Assistance of Counsel

        Petitioner argues that his trial counsel was ineffective because “trial counsel fail[ed]
to sufficiently advise Petitioner with respect to whether he should testify at trial.” The State
argues that the post-conviction court did not err in denying the petition.

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, the petitioner bears the burden of showing that (a) the services rendered by trial
counsel were deficient and (b) that the deficient performance was prejudicial. See Powers
v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient
performance, the petitioner must show that the services rendered or the advice given was
below “the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975). In order to demonstrate prejudice, the petitioner must
show that there is a reasonable probability that, but for counsel’s deficient performance, the
result of the proceeding would have been different. See Strickland v. Washington, 466 U.S.
668, 694 (1984). “Because a petitioner must establish both prongs of the test to prevail on
a claim of ineffective assistance of counsel, failure to prove either deficient performance or
resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley v. State,
960 S.W.2d 572, 580 (Tenn. 1997).

       As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record
preponderates against the court’s findings. See id. at 578. However, our supreme court has
“determined that issues of deficient performance by counsel and possible prejudice to the
defense are mixed questions of law and fact . . . ; thus, [appellate] review of [these issues]
is de novo” with no presumption of correctness. Burns, 6 S.W.3d at 461.

        Furthermore, on claims of ineffective assistance of counsel, the petitioner is not
entitled to the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. 1994).
This Court may not second-guess a reasonably-based trial strategy, and we cannot grant relief
based on a sound, but unsuccessful, tactical decision made during the course of the
proceedings. See id. However, such deference to the tactical decisions of counsel applies
only if counsel makes those decisions after adequate preparation for the case. See Cooper
v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

       At the conclusion of the hearing, the post-conviction court stated the findings on the
record. With regard to the issue at hand, the post-conviction court stated that, “My

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understanding of the law and my finding is that the attorney is not supposed to insist that the
defendant testify. The correct advice is to say it is your decision whether to testify or not
testify. Here is the pros and cons of it.” The trial court also stated that Petitioner testified
that he “freely and voluntarily decided on his own, which it is his personal decision, not to
testify.”

         As stated above, Petitioner and his father were the sole witnesses at the evidentiary
hearing. Petitioner acknowledged that trial counsel explained the ramifications of testifying
at trial and told him he must make the decision. As preparation for the decision, trial counsel
conducted a mock trial to determine what kind of witness Petitioner would be on the stand.
In addition, a “Client Acknowledgment” letter, which was signed by Petitioner included the
following statement, “My attorney has explained to me that while she can advise me as to her
opinion, the final decisions on matters affecting my case are solely mine. This includes but
is not limited to . . . whether I will testify or not at my trial.” Furthermore Petitioner testified
that he could not recall the reasons why at the time he thought he should not testify at trial,
but he “recalled [ ] being scared and sick and rehabilitating off of the medicines. [He] was
a really sick person. Weak without sleeping and weak without eating. At the time [his]
decision was based on that.” He also stated that trial counsel left the decision up to him. In
addition, the record on direct appeal demonstrates that the trial court examined Petitioner as
to the voluntariness of his decision not to testify as required under State v. Momon, 18
S.W.3d 159, 161-62 (Tenn. 1999).

       We conclude that Petitioner has not shown that trial counsel was ineffective in
advising him concerning testifying at trial. Petitioner testified that he and trial counsel fully
discussed whether he should testify. Trial counsel held a mock trial to determine whether
Petitioner would be an effective witness. Trial counsel correctly left the decision to
Petitioner as to whether he would testify. Also, the record on direct appeal reflects that
Petitioner told the trial court that he voluntarily decided not to testify in his own behalf.

        Even assuming Petitioner could show deficiency, he has not shown prejudice.
Petitioner argues that he was prejudiced because he was unable to present information
regarding his poor mental health. However, at trial, three witnesses testified about
Petitioner’s attempts at suicide, and he was allowed to show the injury he sustained from his
attempt to shoot himself. Furthermore, Petitioner declined the use of an expert witness to
testify regarding his mental history because he decided it was too expensive. This
information was included in a letter that was an exhibit at the hearing. We conclude that
substantial evidence of Petitioner’s mental history was placed into evidence and that any lack
of further proof was the result of Petitioner’s own decision.




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       Because we have determined that Petitioner has been unable to satisfy both prongs to
demonstrate that trial counsel’s representation was deficient, we affirm the post-conviction
court’s denial of the petition for post-conviction relief.

                                     CONCLUSION

       For the foregoing reasons, we affirm the decision of the post-conviction court.




                                          ___________________________________
                                          JERRY L. SMITH, JUDGE




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