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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs January 18, 2001

WILLIAM RONALD JORDAN v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Giles County

No. 7706 Jim T. Hamilton, Judge

No. M1999-01360-CCA-R3-PC - Filed May 2, 2001

The petitioner, William Ronald Jordan, was convicted by a jury in the Giles County Circuit Court

of driving under the influence of an intoxicant (“DUI”) and attempted robbery. The trial court

sentenced Petitioner as a multiple Range II offender to six years for the attempted robbery conviction

and to eleven months and twenty-nine days for the DUI conviction, with the sentences to be served

concurrently. This court affirmed Petitioner’s convictions on direct appeal, and Petitioner

subsequently filed a pro se petition, with two amendments, for post-conviction relief alleging

ineffective assistance of counsel. The post-conviction court denied Petitioner relief. In this appeal,

Petitioner asserts that he received ineffective assistance of counsel on the following grounds: (1)

counsel failed to submit adequate evidence at the hearing on his motion to dismiss based upon denial

of his right to a speedy trial; (2) counsel’s advice to Petitioner not to testify at trial deprived him of

a jury instruction on renunciation as a defense; and (3) counsel failed to object when the State filed

an untimely motion for enhanced punishment under Tenn. R. Crim. P. 12.3. After a review of the

record and applicable law, we affirm the post-conviction court’s judgment.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which DAVID H. WELLES and

ROBERT W. WEDEMEYER, JJ., joined.

Hershell D. Koger, Pulaski, Tennessee (on appeal); and William Bright, District Public Defender,

Pulaski, Tennessee, (at trial) for the appellant, William Ronald Jordan.

Paul G. Summers, Attorney General and Reporter; R. Stephen Jobe, Assistant Attorney General;

Mike Bottoms, District Attorney General; and Richard Dunavant, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION
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I. Background

The facts leading to the underlying conviction are taken from the post-conviction hearing

record and a review of this Court’s opinion in the direct appeal. See State v. William Ronald Jordan,

No. 01C01-9703-CC-00100, 1998 WL 270297, Giles County (Tenn. Crim. App., Nashville, May

28, 1998), no perm. to app. filed. On May 23, 1994, Petitioner entered the Bank of Frankewing to

inquire about a loan. Petitioner met with Billy Kennedy, a loan officer, who assisted him in filling

out a loan application. Petitioner smelled of alcohol. When the meeting concluded, Petitioner went

to a teller window and gave the teller, Sue Coggins, a folded-up note. The note stated that Petitioner

wanted money and would kill her if she did not cooperate. When Coggins told Petitioner that she

did not “have any,” Petitioner took the note and walked out of the bank. Coggins also smelled

alcohol on Petitioner. When Kennedy learned from Coggins that Petitioner had given her a “holdup

note,” he wrote down the license plate number and the make of Petitioner’s car and then telephoned

the police. Deputy Kyle Helton of the Giles County Sheriff’s Department apprehended Petitioner

approximately forty-five minutes later. Helton noticed a strong odor of alcohol on Petitioner’s breath

and observed that Petitioner was unsteady on his feet. Petitioner was arrested. Shortly thereafter,

he registered 0.22 on an intoximeter test.

Special Agent Robert Childs of the FBI and Investigator Michael Chapman of the Giles

County Sheriff’s Department interviewed Petitioner the next day, on May 24, 1994. Petitioner told

them that he had spent the previous day drinking whiskey at a rock quarry with the quarry’s owner,

Steve Houston, and could not recall the events of that day clearly since he was “wild on booze” at

the time. Although Petitioner recalled applying for a loan sometime during the afternoon, he claimed

to have no recollection of the attempted robbery or of writing the robbery note. 

Petitioner gave Agent Childs a second statement on June 2, 1994. In marked contrast to his

previous statement, Petitioner then claimed to recall the events of May 23, 1994. Petitioner told

Childs that he and Houston had been drinking together that day. At some point, Petitioner told

Houston that he had previously spent time in jail for robbing a bank in Nashville, but Houston did

not believe him. Petitioner then wrote a note similar to the one he had used to rob the bank and

showed it to him. Afterward, Petitioner placed the note in his pocket. Later that day, a man and

woman who were also at the quarry went with Petitioner to the bank. Petitioner did not recall their

names, but testified that the man drove Petitioner’s car and the woman followed them in another

vehicle because they had somewhere else to go afterward. When they arrived at the bank, the couple

left Petitioner with his car. Petitioner went inside. When he concluded his loan business, Petitioner

approached one of the tellers to obtain a roll of quarters, but he mistakenly gave the teller the

“holdup” note instead of the ten-dollar bill which was located in the same pocket. Defendant

claimed that when he realized what he had done, he snatched the note away from the teller and left

the bank. 

Indictments against Petitioner for driving under the influence of an intoxicant and attempted

robbery were filed on August 1, 1994. Petitioner filed a pro se motion for speedy trial on October

10, 1994, and a pro se motion to dismiss based upon the deprivation of his right to a speedy trial on
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March 13, 1995. Petitioner was appointed counsel shortly before his arraignment in June 1995.

Following a hearing on July 24, 1995, his motion to dismiss was denied. 

Petitioner’s trial was held on August 8, 1995, during which Agent Childs testified that he had

been unable to locate “Steve Houston.” However, Childs located the owner of the rock quarry, a

man named Houston Lewis Smith. Smith testified at trial that he did not have any discussion with

Petitioner regarding a robbery in Nashville and that Petitioner never showed Smith a robbery note.

Smith did see Petitioner on May 23, the day of the robbery, as well as the two previous days. Smith

also confirmed that, on the day of the robbery, Petitioner was drinking at the quarry. Petitioner left

for approximately twenty to thirty minutes that afternoon. After he returned, Smith heard that a bank

had been robbed by a man driving a car similar to Petitioner’s. Smith then called the police. 

Petitioner did not testify during his trial. At the conclusion of proof, the trial court denied

Petitioner’s request to instruct the jury on the defense of renunciation as to the attempted robbery

charge because it considered renunciation “inapplicable.” Thereafter, the jury returned guilty

verdicts against Petitioner for both DUI and attempted robbery.

On appeal, Petitioner claimed that he was denied a speedy trial and that the trial court

erroneously failed to instruct the jury on the affirmative defense of renunciation. See State v.

William Ronald Jordan, 1998 WL 270297 at *1. Concerning the latter issue, this Court held that the

proof presented by Petitioner “fairly raised” the affirmative defense of renunciation and that the trial

court erred when it refused to instruct the jury on same. However, this Court also found that “no

rational jury could conclude by a preponderance of the evidence that [Petitioner] renounced his

crime.” Furthermore, because the trial court’s failure to instruct on renunciation did not

affirmatively appear to affect the result of the trial, the failure was deemed “harmless error beyond

a reasonable doubt.” Id. at *4. 

As for Petitioner’s issue concerning a speedy trial, this Court noted that a delay of one year

marks the point at which a delay is “presumptively prejudicial,” i.e., unreasonable enough to trigger

further inquiry. Id. at *5 (citations omitted). Consequently, the balancing test set forth in Barker v.

Wingo, 407 U.S. 524 (1972) (adopted by the Tennessee Supreme Court in State v. Bishop, 493

S.W.2d 81 (Tenn. 1973)), was applied to determine the merits of Petitioner’s speedy trial issue. Our

Court assigned the most significant weight to the factor which required a showing of prejudice,

finding that Petitioner suffered no prejudice based on the following facts: (1) Petitioner was

incarcerated for another conviction prior to his trial: (2) his allegations of administrative deprivations

were unproven; (3) Petitioner presented no proof as to what the alleged exculpatory witness who

died during the delay would have testified to; and (4) even if the case was not delayed, in all

likelihood the witness would have died prior to trial. Thereafter, Petitioner filed a pro se petition for

post-conviction relief wherein he alleged, among other things, ineffective assistance of counsel for

myriad reasons.

II. Post-conviction Hearing
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The post-conviction hearing occurred on June 29, 1999. Petitioner’s proof consisted solely

of his testimony. The State’s proof consisted only of the testimony of the attorney who represented

Petitioner during trial. 

At the post-conviction hearing, Petitioner testified that a man named Jack Farrar drove him

to the Bank of Frankewing on May 23, 1994, the day of the attempted robbery. Farrar was present

at the rock quarry earlier that day while Petitioner was drinking and shooting pool with Houston

Smith, the quarry’s owner. Petitioner reiterated that he and Smith had a conversation concerning

Petitioner’s recent whereabouts, after which Petitioner replied that he had “been doing time for a

bank robbery in Nashville” and then “wrote out a note showing him exactly how [he] robbed that

bank.” As stated above, Smith denied in his testimony at trial that Petitioner told him about any

robbery or ever showed him a robbery note. 

Petitioner further testified that after May 23, 1994, he was incarcerated at South Central

Correctional Facility on charges unrelated to the bank incident and in June 1995, he was appointed

counsel. Prior to the July 24, 1995 hearing on Petitioner’s motion to dismiss, Petitioner informed

Counsel that one of his witnesses was rendered unavailable because he had died in December 1994.

Petitioner was referring to Jack Farrar, the man who allegedly drove him to and from the bank on

the day of the incident. Petitioner claimed that if Farrar had been alive to testify at trial, he would

have corroborated Petitioner’s story that he went to the bank to obtain a loan and never mentioned

a plan to rob the bank. Farrar also would have testified that Petitioner told him of the incident with

the teller as they left the bank and Farrar’s testimony could have been used to undermine the

credibility of Smith, whose testimony was damaging at trial.

During the post-conviction hearing, Petitioner admitted that he and his counsel met a

sufficient number of times so that Petitioner felt they “were ready to proceed” with his trial. They

based their trial strategy on renunciation as a defense until “the day of trial,” when “Judge Cain

denied [Petitioner] the right to use renunciation . . . .” Petitioner also claimed that he would have

testified if a renunciation defense had been available. Counsel told Petitioner that the decision

whether or not to testify at trial was his, but Counsel wanted Petitioner to testify that he was too

intoxicated to recall what happened at the bank. Because this was not true, Petitioner refused.

Counsel then suggested that he not testify at all and Petitioner followed his advice.

Petitioner also claimed that his two statements to Agent Childs were not “inconsistent” as

argued by the State. Instead, his first statement, wherein he claimed not to recall the incident, was

merely his way of “stopping” the interview. The second statement was simply a continuation of the

first, given at a later time in order to “finish telling them everything that happened.” 

Counsel for Petitioner testified at the post-conviction hearing that he first met Petitioner at

one of Petitioner’s court appearances. When they discussed the upcoming hearing on Petitioner’s

motion to dismiss, Petitioner wanted counsel to argue deprivation of his right to a speedy trial,

drawing attention to the fact that a witness had died during the delay. But, from what Counsel had

been able to glean from Petitioner’s description of the dead witness’ testimony, he would have
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testified only that Petitioner was drunk, had previously robbed a bank, and had written the “holdup

note.” Because Counsel was “uncomfortable with the proof on that issue,” he subsequently searched

for alternative legal arguments to present and at the pre-trial hearing on Petitioner’s motion to

dismiss, he argued that Petitioner was denied prison privileges.

Counsel admitted that he did not present the matter of the dead witness at the hearing on

Petitioner’s motion to dismiss. Counsel stated that his decision to keep public discussion of

Petitioner’s previous bank robbery conviction to a minimum was a matter of strategy, and this

included arguments at pre-trial hearings. Counsel advised Petitioner that a defense which relied on

his previous bank robbery conviction was, in his opinion, unwise. Since Petitioner agreed with him,

Counsel did not argue that the dead witness would have testified about Petitioner’s bank robbery

note or previous conviction.

Counsel testified that he spent a total of approximately thirty to forty pre-trial hours working

on Petitioner’s case. Counsel informed Petitioner of his legal right to testify and that, ultimately,

whether or not he testified was his decision. Counsel reminded Petitioner that his basic defense

strategy relied upon renunciation and Petitioner’s state of intoxication. Since Petitioner could add

no facts to those already presented, Petitioner’s testimony was unnecessary. Moreover, if Petitioner

testified, evidence of his prior convictions other than that for bank robbery might be admissible, i.e.,

his prior conviction for tax evasion and possibly others. Petitioner’s demeanor during his testimony

presented another potential pitfall–it was impossible to predict whether a jury would consider him

a credible witness or not. In sum, Counsel cautioned Petitioner that his testimony would probably

include a rehashing of the bank robbery conviction and impeachment by other convictions, all of

which could seriously damage Petitioner’s case. After discussing the matter at length with Counsel,

Petitioner decided not to testify.

Counsel testified that he never insisted on a defense which ran contrary to Petitioner’s wishes

and that he did not file a motion to suppress Petitioner’s statements to police because he “had an

ethical duty as an attorney to the Court not to file a motion . . . [where] a good basis or a good reason

to file it [did not exist].” During cross-examination, Counsel testified that Petitioner’s testimony

contained no new facts to support Petitioner’s renunciation defense and that, in his opinion, any

possible advantage gained by Petitioner’s testimony was substantially outweighed by the danger of

impeachment.

Petitioner presently appeals the dismissal of his post-conviction petition by the Giles County

Circuit Court, asserting claims of ineffective assistance of counsel regarding the following issues:

(1) counsel failed to submit adequate evidence at the hearing on his motion to dismiss based upon

denial of his right to a speedy trial; (2) counsel’s advice to Petitioner not to testify at trial deprived

him of a jury instruction on renunciation as a defense; and (3) counsel failed to object when the State

filed an untimely motion for enhanced punishment under Tenn. R. Crim. P. 12.3. For the reasons

following, we affirm the post-conviction court’s denial of relief.

III. Analysis
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In State v. Burns our supreme court held that a claim of ineffective assistance of counsel

raised on direct appeal is a mixed question of law and fact and, thus, is subject to a de novo review.

State v. Burns, 6 S.W.3d 453, 461 (Tenn.1999); see Jehiel Fields v. State, ___ S.W.3d ___ , No.

E1999-00915-SC-R11-PC, 2000 WL 166381 (Tenn. February 20, 2001). The de novo review of a

trial court’s factual findings by an appellate court are entitled to a presumption of correctness, which

is overcome only when the preponderance of the evidence is contrary to the trial court’s findings of

fact. Fields, ___ S.W.3d at ___; see also Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). By

contrast, when reviewing the trial court’s application of law to its factual findings “to determine

whether counsel’s performance was deficient or whether the defendant was prejudiced by that

deficiency, appellate courts conduct a purely de novo review, according to the trial court’s

conclusions of law no deference or presumption of correctness.” Fields, ___ S.W.3d at ___. 

A defendant alleging ineffective assistance of counsel must prove the allegations of fact

underlying his claim by clear and convincing evidence. See Tenn. Code Ann. § 40-30-210(f) (1997);

Fields, ___ S.W.3d at ___. This standard of proof is required regardless of whether a petitioner is

bringing the claim in a direct appeal or a post-conviction petition. See Burns, 6 S.W.3d at 461 n.5.

To determine whether counsel provided effective assistance, this Court must decide whether

counsel’s performance was within the range of competence demanded of attorneys in criminal cases.

Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a claim that his counsel was

ineffective, a petitioner bears the burden of proving two elements. First, he must prove his counsel

made errors so serious that he was not functioning as counsel as guaranteed by the Sixth

Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984); Cooper v. State, 849 S.W.2d

744, 747 (Tenn. 1993). This element is proved by showing that counsel’s representation fell below

an objective standard of reasonableness. Strickland, 466 U.S. at 688. Second, the petitioner must

prove that he was prejudiced by his counsel’s unprofessional errors, such that there is a reasonable

probability that, but for counsel’s errors, the result of the proceeding would have been different.

Strickland, 466 U.S. at 694; Butler v. State, 789 S.W.2d 898, 900 (Tenn. 1990). Petitioner’s failure

to prove either element, deficient performance or prejudice, requires dismissal of his petition. See

Strickland, 466 U.S. at 697.

When reviewing a defense attorney’s actions, this Court may not use "20-20" hindsight to

second-guess counsel's decisions regarding trial strategy and tactics. Hellard v. State, 629 S.W.2d

4, 9 (Tenn. 1982). Counsel's alleged errors should be judged at the time they were made in light of

all the facts and circumstances. Strickland, 466 U.S. at 690; Cooper, 849 S.W.2d at 746.

In this appeal, Petitioner asserted that his trial attorney rendered ineffective assistance of

counsel in three specific areas. First, Petitioner argues that his trial attorney was ineffective because

he failed to submit “adequate evidence” at the hearing on his motion to dismiss due to the denial of

his right to a speedy trial. Specifically, Petitioner alleges that his trial attorney failed to present

evidence that the deceased witness would have testified that he (1) rode with Petitioner to the bank,

(2) had knowledge that Petitioner’s purpose in going to the bank was to obtain a loan, (3) drove

Petitioner back to the rock quarry after Petitioner left the bank and (4) was told Petitioner’s version
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of the events that transpired at the bank. Petitioner further asserts that his trial attorney should have

presented a newspaper notice of the witness’s death which he had in his possession at the hearing

on his motion to dismiss. Even if we were to assume that Petitioner’s attorney was deficient for

failing to present crucial evidence at the motion to dismiss, Petitioner has failed to prove by clear

and convincing evidence that he was prejudiced by any deficiency. See Tenn. Code Ann. § 40-30-

210(f) (1997). The record reveals that Defendant was indicted on August 1, 1994. The witness died

four months later, in December 1994, and Petitioner submitted no proof at the post-conviction

hearing that the trial could or would have been held prior to the witness’s death.

Secondly, Petitioner argues that his trial attorney rendered ineffective assistance of counsel

when he advised Petitioner not to testify at trial; Petitioner asserts that his testimony would have

resulted in a “reasonable probability” that the trial court would have granted Petitioner’s request to

give the jury an instruction on renunciation as a defense. In the direct appeal from Petitioner’s

conviction, our Court held that the trial court erred by not charging renunciation based upon the

proof actually presented at trial. However, our Court further held that the error was harmless. Even

if we assume, arguendo, that the trial attorney rendered ineffective assistance of counsel in this

matter, Petitioner has again failed to prove prejudice. Petitioner’s testimony at the post-conviction

hearing concerning the substance of his proposed testimony essentially mirrored his second

statement to the police. Since this statement was introduced during the State’s case-in-chief, the

evidence in issue was effectively presented to the jury.

Lastly, Petitioner asserts that his trial attorney rendered ineffective assistance of counsel

because he did not object to the State’s late-filed notice of intent to seek enhanced punishment within

Range II. It is undisputed that the notice was filed one day late. However, under Tenn. R. Crim. P.

12.3, the remedy for untimely filing, where an objection is properly made, is typically a continuance.

Yet again, Petitioner has failed to show prejudice resulting from any alleged deficiency in the

representation by his trial attorney. 

In sum, because Petitioner has failed to prove by clear and convincing evidence that he

suffered prejudice from any of the alleged deficiencies in his trial attorney’s performance, he is not

entitled to relief on the issues presented in this appeal. 

IV. Conclusion 

The judgment of the trial court dismissing the petition for post-conviction relief is

AFFIRMED.

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THOMAS T. WOODALL, JUDGE