IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

November 20, 2008 Session

JOE TYREE v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Marshall County

No. 07-CR177 Robert Crigler, Judge

No. M2008-01273-CCA-R3-PC - Filed August 21, 2009

The petitioner, Joe Tyree, appeals the denial of his petition for post-conviction relief. The petitioner

submitted a guilty plea to one count of violation of the sex offender registry. On appeal, he contends

that: defense counsel provided ineffective assistance of counsel; his plea was not knowingly and

voluntarily entered; and the post-conviction court failed to comply with the statute that requires the

court to set forth findings of fact and conclusions of law with regard to each issue. After careful

review, we conclude no reversible error exists and affirm the judgment from the post-conviction

court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID H. WELLES and

NORMA MCGEE OGLE, JJ., joined.

Emeterio R. (Terry) Hernando, Lewisburg, Tennessee, for the appellant, Joe Tyree.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General;

Frank Crawford, Jr., District AttorneyGeneral; and WeakleyE. Barnard, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

The petitioner entered a guilty plea to one count of violation of the sex offender registry. The

petitioner testified during the post-conviction hearing that he received ineffective assistance of

counsel leading to the entry of his guilty plea. Specifically, he stated that counsel did not investigate

his case and that he believed he was being prosecuted under a defective indictment. The petitioner

testified that he requested the discoverymaterials both orallyand in writing from his counsel and that

he also provided counsel with a list of potential witnesses to call at trial. The petitioner testified that

he told counsel that there were important documents in his truck that could be used at trial. He said

that he did not receive a response to his written inquiries and that, to his knowledge, no one ever

went to check on the documents in his vehicle. 
The petitioner also sent a letter to counsel raising several issues concerning the validity of

the indictment. An attorney with the public defender’s office replied to the petitioner’s letter

concerning the indictment and sent it along with a copy of the discovery materials. The petitioner

testified that he was later charged with aggravated robbery and was also represented by the public

defender’s office on that charge. He believed that, when the aggravated robbery arose, counsel put

the violation of the sex offender registry charge “on the back burner.” 

The petitioner testified that the witnesses he proposed were not investigated or brought to

court on the day of his trial. He contended that counsel did not file pretrial motions because he said

the case was “cut and dried.” The petitioner testified that counsel did not communicate with him

about any possible defenses and that they did not develop any defenses together. Counsel told him

that he would not file any pretrial motions because they would be frivolous. He said that counsel

told him that he could “post-convict” him about his issues with the indictment. 

Counsel testified that he worked with the public defender’s office and was appointed to

represent the petitioner. He said that he met with the petitioner at least four or five times regarding

the violation of the sexual offender registry. He said that his office sent a request to their

investigators to look into the petitioner’s inquiries from his letters and his proposed witnesses. He

said that they could find no record of the truck being impounded and they were unable to make

contact with one of the proposed witnesses. They spoke to the petitioner’s prior landlord, who

confirmed everything that the State’s case alleged. The police became aware that the petitioner

moved without updating his address when they were called to his new residence to investigate an

incident of domestic violence. Counsel testified that he put together a time line of the events and

did not see a need to request a bill of particulars. He said that the time line reflected that the

petitioner had not registered his new address for more than a month. 

Counsel said the initial plea offer was approximately one year and six months as a Range I

offender. The petitioner was actually a Range II or III offender with several prior convictions that

were not in the computer system. Counsel wanted to keep those other convictions from the State. 

The petitioner eventually entered a guilty plea to serve one year as a Range I offender. Counsel said

he did not recall advising a client to enter a plea and file a petition for post-conviction relief. He told

the petitioner that he was looking at five to six years at forty-five percent if he went to trial and was

convicted. 

The post-conviction court determined that counsel provided effective assistance to the

petitioner and that the petitioner entered his guilty plea knowingly and voluntarily. 

Analysis

On appeal, the petitioner contends that the post-conviction court improperly determined that

counsel provided effective assistance. Specifically, the post-conviction court determined that:

counsel adequatelymet with and communicated with the petitioner; counsel properlydetermined that

there were no defects in the indictment; counsel properly determined that the pretrial motions

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requested by the petitioner were without merit; counsel was not ineffective for failing to tell the

petitioner he had a right to be sentenced by a jury; and the petitioner failed to show that he was

deprived of a fair proceeding.

When a claim of ineffective assistance of counsel is made under the Sixth Amendment, the

petitioner bears the burden of proving that (1) counsel’s performance was deficient and (2) the

deficiency was prejudicial in terms of rendering a reasonable probability that the result of the trial

was unreliable or the proceedings were fundamentally unfair. Strickland v. Washington, 466 U.S.

668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). This standard has also been applied to

the right to counsel under Article I, Section 9 of the Tennessee Constitution. State v. Melson, 772

S .W.2d 417, 419 n.2 (Tenn. 1989). When a petitioner claims ineffective assistance of counsel in

relation to a guilty plea, the petitioner must prove that counsel performed deficiently, and, but for

counsel’s errors, the petitioner would not have pled guilty but, instead, would have insisted upon

going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985). 

In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court required that the

services be rendered within the range of competence demanded of attorneys in criminal cases. In

reviewing counsel’s conduct, a “fair assessment of attorney performance 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. at 689, 104 S. Ct. at 2065; see also Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). 

The petitioner bears the burden of proving by clear and convincing evidence the factual

allegations that would entitle the petitioner to relief. T.C.A. § 40-30-210(f) (2006). This court is

bound bythe post-conviction court’s findings of fact unless the evidence preponderates against those

findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001).

The petitioner raised five areas in which he claimed counsel was deficient. He contends that

counsel improperly advised the petitioner regarding possible defenses and that counsel did not

properly communicate and advise the petitioner, properly investigate the case, file the proper pretrial

motions, and advise the petitioner that he had a right to be sentenced by a jury. 

First, the petitioner contends that counsel failed to properly advise him about the case. 

However, the evidence reflects that counsel communicated with the petitioner on several occasions

and participated in plea negotiations with the State during his representation of the petitioner. 

Counsel testified that he informed the petitioner that he was facing five or six years at forty-five

percent as a Range III offender if convicted. The post-conviction court found that the petitioner’s

testimony was “extremely vague” and, in turn, accredited the testimony of counsel. The petitioner

merely asserts that counsel did not properly advise him. He has not demonstrated that counsel failed

to meet with and instruct him adequately. This issue is without merit.

Next, the petitioner contendsthat counsel failed to properlyinvestigate specificwitnesses that

he recommended for his defense. Counsel testified that he tried to find the witness proposed by the

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petitioner. “When 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); see also Scott

v. State, 936 S.W.2d 271, 273 (Tenn. Crim. App. 1996). As a general rule, this is the only way the

petitioner can establish that (1) a material witness existed who could have been discovered but for

counsel’s negligent investigation of the case; (2) a known witness was not interviewed; (3) the

failure to discover or interview the witness caused him prejudice; or (4) the failure to present a

known witness resulted in the denial of critical evidence which caused the petitioner prejudice. 

Black, 794 S.W.2d at 757. Neither the trial court nor this court can speculate on what a witness’s

testimony might have been if introduced by counsel. Id. The petitioner failed to call any such

witnesses at the post-conviction hearing; thus, this issue is without merit.

Next, the petitioner contends that counsel was ineffective for incorrectly advising him

regarding possible defenses and failing to challenge the validity of the indictment. The postconviction court determined that the petitioner failed to demonstrate that counsel was ineffective for

not challenging the validity of the indictment. Defense counsel testified that he did not file pretrial

motions because they would have been without merit. Counsel did not file any motion with regard

to the indictment because he believed that it contained all the pertinent information. He testified that

the defense compiled a time line to reconstruct the events alleged by the State. His review reflected

that the petitioner was in violation of the registration requirements of the sexual offender registry. 

Counsel testified that the indictment contained enough evidence that he could prepare for a defense

or that the court could properly enterjudgment against the petitioner. The Tennessee Supreme Court

has held that the purpose of an indictment is to provide the defendant with notice of the offense

charged, provide the court with an adequate ground upon which a judgment may be entered, and

provide the defendant with protection against double jeopardy. See State v. Byrd, 820 S.W.2d 739,

741 (Tenn. 1991). Because, as found by the post-conviction court, the indictment in this case did

that, this issue is without merit.

Next, the petitioner contends that counsel was ineffective for failing to file the pretrial

motions requested by the petitioner. As previously stated, counsel testified that he did not file any

pretrial motions, specifically, a motion for a bill of particulars, because he felt it had no merit. 

Counsel testified that he would have filed a bill of particulars if the information contained in the

indictment was not adequate to assist him in preparing a defense. He knew the time line regarding

the period alleged by the State and did not deem a bill of particulars to be necessary. The petitioner

has not demonstrated on appeal that he was prejudiced by counsel’s decision not to request a bill of

particulars nor has he shown that he would have proceeded to trial if the motion had been filed. This

issue is without merit, and the petitioner is entitled to no relief.

Next, the petitioner argues that counsel was ineffective when he did not advise him that he

had a right to be sentenced by a jury rather than the judge. Specifically, the petitioner argues that the

line of cases beginning with Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000),

including State v. Gomez, 239 S.W.3d 733 (Tenn. 2007), stands for the proposition that a jury, rather

than a judge, must impose a sentence in Tennessee. The State argues on appeal that this is a

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misreading of Gomez II, and we agree. In Gomez II, our supreme court held that a trial court’s use

of enhancement factors based on facts not found by a jury were a violation of a defendant’s Sixth

Amendment right. Gomez II, 239 S.W.2d at 740. The Gomez II decision does not state that a jury

must sentence a defendant; therefore, counsel can not be ineffective for failing to so advise the

petitioner. The petitioner is not entitled to relief on this issue.

Next, the petitioner argues that his guilty plea was entered involuntarily and unknowingly. 

Basically, the petitioner argues that this issue is intertwined with his argument that counsel was

ineffective. The State argues that this issue is waived because the petitioner failed to include a

transcript of the guilty plea hearing. The petitioner bears the burden of preparing a record “that

presents a complete and accurate account of what transpired in the trial court with respect to the issue

on appeal. The failure to do so results in a waiver of such issues and a presumption that the ruling

of the trial court was correct.” State v. Thompson, 958 S.W.2d 156, 172 (Tenn. Crim. App. 1997)

(citing Tenn. R. App. P. 24(b), which requires an appellant to file a transcript of all proceedings at

issue on appeal); see also State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991); State v.

Draper, 800 S.W.2d 489, 493 (Tenn. Crim. App. 1990). Because the petitioner has failed to

introduce a transcript of the hearing, this issue is waived.

Finally, the petitioner argues that the post-conviction court failed to comply with the

requirements of Tennessee Code Annotated section 40-30-111(b), that requires a court to set forth

findings of fact and conclusions of law. The relevant statute reads:

Upon the final disposition of every petition, the court shall enter a final order, and

except where proceedings for delayed appeal are allowed, shall set forth in the order

or a written memorandum of the case all grounds presented, and shall state the

findings of fact and conclusions of law with regard to each ground. 

T.C.A. § 40-30-111(b) (2006). 

Although this requirement is mandatory, reversal is not always warranted when a trial judge

fails to include written findings of fact and conclusions of law in the order dismissing a postconviction petition. State v. Swanson, 680 S.W.2d 487, 489 (Tenn. Crim. App. 1984). The

legislative intent of the statute is to aid the appellate court’s review of post-conviction proceedings. 

Id.; George v. State, 533 S.W.2d 322, 326 (Tenn. Crim. App. 1975). Where the court orally

pronounces its findings from the bench, failure to state findings of fact and conclusions of law in the

final order may be harmless error. State v. Higgins, 729 S.W.2d 288, 290-91 (Tenn. Crim. App.

1987). 

In the instant case, the post-conviction court’s order incorporates by reference the oral

findings of fact and conclusions of law that are contained in the record of the post-conviction

hearing. The petitioner has not demonstrated on appeal that he was prejudiced because the trial court

did not issue detailed findings of fact in his written order with regard to each issue raised in his

petition. The petitioner is not entitled to relief on this issue. 

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Conclusion

Based on the foregoing and the record as a whole, we affirm the judgment from the postconviction court.

___________________________________ 

JOHN EVERETT WILLIAMS, JUDGE

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