IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 14, 2011

RONALLEN HARDY v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Rutherford County

No. F64422 David M. Bragg, Judge

No. M2011-00497-CCA-R3-PC - Filed January 9, 2012

The petitioner, Ronallen Hardy, filed a petition for post-conviction relief from hisfour felony

convictions and the accompanying effective sentence of life plus twenty-two years, alleging

that his counsel were ineffective. The post-conviction court denied the petition, and the

petitioner now appeals. Upon review, we affirm the judgment of the post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JERRY L. SMITH and

JAMES CURWOOD WITT, JR., JJ., joined.

Sean G. Williams, Murfreesboro, Tennessee, for the appellant, Ronallen Hardy.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney

General; William C. Whitesell,Jr., District Attorney General; and Trevor H. Lynch, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

Following a jury trial, the petitioner was convicted of first degree premeditated

murder, first degree felony murder, especially aggravated robbery, aggravated burglary,

conspiracy to commit especially aggravated robbery, and conspiracy to commit especially

aggravated burglary. The petitioner’s murder convictions were merged, and his conspiracy

convictions were also merged. On direct appeal, this court summarized the proof as follows:

The [petitioner’s] convictions resulted from his

involvement in the robbery and shooting death of Randy Betts
in December 2005. Before trial, the [petitioner] filed motions

to suppress a taped statement he made to police in which he

admitted that he, Aldrick “Scoot” Lillard, and Vanessa Claude

went to the victim’s house to take the victim’s guns. According

to the [petitioner’s] statement, he and Claude waited in the car

while Lillard knocked on the door of the victim’s home. Shortly

thereafter, the [petitioner] heard two gunshots and left the car to

look into the house. The [petitioner] described the victim’s

appearance, injury, and location; however, he claimed that he

only looked into the house. He said that he did not go into the

house because his foot was bleeding from a prior gunshot

wound he had received and that he did not want to leave his

DNA at the scene. The [petitioner] said that Claude pulled the

car into the yard and that Lillard spent around forty-five minutes

loading guns from the victim’s home into the car. Lillard told

the [petitioner] that he shot the victim because the victim was a

“snitch.”

State v. Ronallen Hardy, No. M2008-00381-CCA-R3-CD, 2009 WL 2733821, at *1 (Tenn.

Crim. App. at Nashville, Aug. 31, 2009). The petitioner received a total effective sentence

of life without parole plus twenty-two years.

Thereafter, the petitioner filed a petition for post-conviction relief, alleging that his

counsel were ineffective. Specifically, the petitioner alleged that one of his attorneys

(hereinafter “pretrial counsel”) was ineffective by failing to adequately communicate with

him and by withdrawing prior to trial. The petitioner alleged that the attorney who actually

represented him at trial (hereinafter “trial counsel”) was ineffective by failing to call

witnesses or present mitigation evidence during the sentencing phase.

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At the post-conviction hearing, pretrial counsel testified that she and trial counsel

were both appointed to represent the petitioner. She said that the petitioner had two codefendants and that each co-defendant was appointed two attorneys. She acknowledged that

she had never before tried a murder case.

Pretrial counsel recalled that meeting with the petitioner “face to face” was difficult

because she resided in Rutherford County and he was incarcerated in Davidson County.

Pretrial counsel asked that the petitioner be transferred to Rutherford County. However, the

In his post-conviction petition, the petitioner raised additional claims of ineffective assistance that

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he did not pursue on appeal. 

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move upset and angered the petitioner,so pretrial counsel requested the petitioner be returned

to Davidson County. Pretrial counsel said the petitioner was difficult to represent because

he was uncooperative and “would fuss and carry on.” Pretrial counsel recalled that she also

spoke with the petitioner’s mother.

Pretrial counsel said that there was extensive discovery and several court dates. She

and trial counsel discussed the discovery materials with each other and with the petitioner.

She recalled that she presented all plea offers to the petitioner, but none were accepted. She

said that she may have spent five hours or less speaking directly with the petitioner but that

she spent fifty hours or more on trial preparations.

Pretrial counsel stated that during the approximately six or eight months she

represented the petitioner, she filed two motions to withdraw. Her first motion was due to

her trouble communicating with the petitioner. She explained that the petitioner was angry

and unhappy with the proceedings. However, that motion to withdraw was denied. Shortly

before the scheduled trial date, “a tragic episode” occurred which necessitated that pretrial

counsel withdraw; specifically, her son and his life-long best friend were robbed, and the

friend was shot and killed during the robbery. The incident caused “emotional issues” for

her, and she had to seek psychiatric help for her son. Concern for her son forced her to

“back[] off” of her law practice for about a month. She stated that the facts of her son’s

robbery were similar to the facts of the petitioner’s case and that she therefore did not “think

[she] could have sat in the courtroom” during the petitioner’s trial. Accordingly, she

believed it was in the petitioner’s best interest for her to withdraw. Pretrial counsel’s second

motion to withdraw was granted, and trial counsel filed a motion to continue.

Trial counsel testified that the majority of his practice was not devoted to criminal law

but that he occasionally represented criminal clients. Trial counsel said that he was

appointed to represent the petitioner at trial and on direct appeal. Trial counsel said, “I feel

like I did everything possible that I could have done for [the petitioner].”

Trial counsel said that he met with the petitioner approximately twelve times, that he

met with the petitioner’s parents, and that he made himself available to the petitioner. Trial

counsel said that the petitioner was usually cooperative with him. However, the petitioner

ignored trial counsel’s advice by refusing to stand to show respect when the judge and jury

entered and exited the courtroom.

Trial counsel agreed that he and pretrial counsel “did a substantial amount of work”

prior to pretrial counsel’s withdrawal from the case. Trial counselsaid that he was concerned

about being the petitioner’s sole attorney because he had never tried a murder case.

Regardless, he did not file a motion to have co-counsel appointed because only one attorney

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was appointed in a noncapital crime. Additionally, trial counsel said that he had experience

in trying other types of cases.

Trial counsel said that the petitioner’s extensive statements to police were the greatest

obstacles of the case. Trial counsel spent hours reviewing the petitioner’s statements. He

also filed a motion to suppress the statements, but the motion was denied. Trial counsel

stated that the petitioner chose not to testify at the trial or at the sentencing hearing.

Trial counsel stated that the petitioner turned eighteen years old shortly before the

crimes were committed. Trial counsel, the petitioner, and the petitioner’s parents discussed

the petitioner’s school work, activities, and any potential character evidence that could be

offered in mitigation. Trial counsel also weighed “the pros and cons” of presenting witnesses

and subjecting them to cross-examination. Trial counsel stated that if there had been any

mitigation proof, he would have presented it at the sentencing hearing. He said, “The only

way I would have intentionally not presented mitigation proof on his behalf is if it had been

at his request or at his direction.” Trial counsel specifically recalled the petitioner’s family

suggesting a potential mitigation witness that the petitioner did not want trial counsel to call.

The petitioner’s mother, Connie Hardy, testified that she repeatedly called pretrial

counsel to try to arrange a “three-way call” with the petitioner, who was incarcerated.

However, she was successful in reaching pretrial counsel only one time, and the resulting

“three-way call” lasted no more than fifteen minutes.

Mrs. Hardy stated that about two or three weeks prior to trial, she learned that trial

counsel was also representing the petitioner. She repeatedly called trial counsel. Trial

counsel returned the calls but was usually unable to make contact with Mrs. Hardy due to

differences in their schedules.

Mrs. Hardy said that she and her husband met with trial counsel in person one time

to discuss a plea offer made by the State; however, they never discussed the petitioner’s

childhood. Trial counsel asked Mrs. Hardy to recommend potential character witnesses, and

she complied with the request. Mrs. Hardy was unable to attend the petitioner’s sentencing

hearing, but Mr. Hardy was there.

Following the hearing, the post-conviction court entered an order denying the petition

for post-conviction relief. The post-conviction court accredited the testimony of trial counsel

regarding the petitioner’s decision to not testify at the sentencing hearing. Additionally, the

courtstated that trial counsel investigated the petitioner’s background for potential mitigating

evidence and discovered none. The court noted that the petitioner did not present proof of

any mitigating evidence that could have been presented by trial counsel.

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The post-conviction court observed that pretrial counsel’s motion to withdraw was

granted because Tennessee Supreme Court Rule 13 authorized the appointment of only one

attorney in a non-capital case and because of the “tragic event” that occurred involving

pretrial counsel’s son. The post-conviction court found that the petitioner had presented no

proof that counsel’s withdrawal “fell below an attorney’s professional standard of conduct.”

Further, the court accredited pretrial counsel’s testimony that she believed her withdrawal

was in the petitioner’s best interest. The court also accredited pretrial counsel’s testimony

regarding the petitioner’s uncooperative and angry nature. Moreover, the court noted that

trial counsel was granted a continuance to give him additional time to prepare and that trial

counsel “spent a substantial amount of time preparing the case.” Additionally, the court

accredited trial counsel’s testimony that he considered and rejected presenting witnesses

because such witnesses “might also have to give unfavorable character testimony or

otherwise be impeached on cross-examination.” Therefore, the post-conviction court found

that counsel were not deficient and that the petitioner was not prejudiced by the actions or

inactions of counsel. On appeal, the petitioner challenges the post-conviction court’s ruling.

II. Analysis

To be successful in his claim for post-conviction relief, the petitioner must prove all

factual allegations contained in his post-conviction petition by clear and convincing

evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means

evidence in which there is no serious or substantial doubt about the correctness of the

conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.

App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).

Issues regarding the credibility of witnesses, the weight and value to be accorded their

testimony, and the factual questions raised by the evidence adduced at trial are to be resolved

by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579

(Tenn. 1997). Therefore, the post-conviction court’s findings of fact are entitled to

substantial deference on appeal unlessthe evidence preponderates against those findings. See

Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

A claim of ineffective assistance of counsel is a mixed question of law and fact. See

State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s

findings of fact de novo with a presumption that those findings are correct. See Fields, 40

S.W.3d at 458. However, we will review the post-conviction court’s conclusions of law

purely de novo. Id.

When a petitioner seeks post-conviction relief on the basis of ineffective assistance

of counsel, “the petitioner bears the burden of proving both that counsel’s performance was

deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363,

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369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish

deficient performance, the petitioner must show that counsel’s performance was below “the

range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d

930, 936 (Tenn. 1975). To establish prejudice, the petitioner must show that “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Moreover,

[b]ecause a petitioner must establish both prongs of the

test, a failure to prove either deficiency or prejudice provides a

sufficient basis to deny relief on the ineffective assistance claim.

Indeed, a court need not address the components in any

particular order or even address both if the [petitioner] makes an

insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).

As we noted earlier, the petitioner alleges that pretrial counsel was ineffective by

failing to adequately communicate with him and by withdrawing prior to trial. The petitioner

alleges that trial counsel was ineffective by failing to call witnesses or present mitigation

evidence during the sentencing phase. However, the petitioner does not explain how he was

prejudiced by the alleged deficiencies of counsel or what witnesses could have been called.

Generally, “[w]hen a petitioner contends that trial counsel failed to discover, interview, or

present witnesses in support of his defense, these witnesses should be presented by the

petitioner at the evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim.

App. 1990). We may not speculate on what benefit a witness might have offered to the

petitioner’s case, nor may we guess as to what evidence further investigation may have

uncovered. Id.

As the post-conviction court found, both pretrial counsel and trial counsel spent a

substantial amount of time preparing for the petitioner’s case. Due to a family tragedy,

pretrial counsel was compelled to withdraw. Trial counsel filed suppression motions and

cross-examined witnesses. Trial counsel said that he “ did everything possible” for the

petitioner and only declined to present proof at the petitioner’s behest. The petitioner did not

present proof at the post-conviction hearing regarding the effect of additional meetings with

counsel, of the benefit of pretrial counsel’s continued representation, or of any mitigating

evidence that could have been presented at the sentencing hearing. We agree with the postconviction court that the petitioner failed to carry his burden of establishing that his counsel

were deficient or that he suffered prejudice from their representation.

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III. Conclusion

In sum, we conclude that the petitioner failed to establish that his counsel were

ineffective. Accordingly, we affirm the judgment of the post-conviction court.

_________________________________

NORMA McGEE OGLE, JUDGE

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