IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

 Assigned on Briefs April 10, 2012

LEON FLANNEL v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 03-07354 Paula Skahan, Judge

No. W2011-00942-CCA-MR3-PC - Filed August 1, 2012

The petitioner, Leon Flannel, appealsthe denial of his petition for post-conviction relief. The

petitioner was convicted by a jury of one count of murder in the perpetration of a theft and

one count of premeditated murder; the convictions were merged, and the petitioner was

sentenced to imprisonment for life. After the denial of his direct appeal, the petitioner filed

a petition for post-conviction relief, asserting ineffective assistance of counsel. Specifically,

the petitioner urges that, because he expressed his dissatisfaction with his trial counsel prior

to trial, his trial counsel should have withdrawn. The trial court found no deficiency in the

petitioner’s trial counsel’s performance and no resulting prejudice. After a thorough review

of the petitioner’s claim, we affirm.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which CAMILLE R.

MCMULLEN and JEFFREY S. BIVINS, JJ., joined.

Patrick E. Stegall, Memphis, Tennessee, for the appellant, Leon Flannel.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant

Attorney General; Amy P. Weirich, District Attorney General; and Doug Carriker, Assistant

Attorney General, for the appellee, State of Tennessee.

OPINION

The petitioner’s convictionsfor murder in the perpetration of a theft and premeditated

murder arose from the killing of David Cooper. The petitioner and victim met while the
petitioner was recovering from a head injury in the facility where the victim was employed

as a nurse. Tammie Robinson, the victim’s close friend, testified that the victim was

homosexual and had previously found sexual partners among men he met through his job.

At the time of his arrest, the petitioner made a statement to police that he was at the victim’s

house drinking beer and that the victim made a sexual advance toward him. The petitioner’s

statement recounted that after the victim made a sexual advance, the petitioner asked to see

the victim’s gun, which had been sitting on the dresser. The petitioner proceeded to shoot

the victim several times, and then he took the victim’s keys and cell phone. The petitioner

stated that he intended to steal the victim’s car but was unable to open it. He threw the

victim’s keys and cell phone away after making calls to his girlfriend, his cousin, and his

brother.

The petitioner’s former girlfriend, Keeiyona Hill, testified that the petitioner called

her from the victim’s cell phone, upset that the victim had made advances toward him.

According to Ms. Hill, however, the petitioner told her that he had pretended to be asleep,

waited until the victim fell asleep, and then found the victim’s gun. The petitioner told her

he intended to kill the victim and steal his car. This version of events was also corroborated

by a letter purportedly written by the petitioner from prison, in which he requested the

recipient to kill his girlfriend because she had talked to the police about the crime. In the

letter, the petitioner wrote that the victim fell asleep, he found the victim’s gun, and he woke

the victim and robbed him before calling his girlfriend to tell her he was about to kill the

victim. This letter was entered into evidence, along with expert testimony identifying the

handwriting as the petitioner’s. The petitioner did not testify at trial, but Dr. Fred Steinberg,

a forensic psychologist, testified on his behalf. Dr. Steinberg testified regarding the

petitioner’s low IQ, poor judgment, impulsive behavior, short attention span, tendency to

favor simple solutions, and third-grade level of reading comprehension. Dr. Steinberg

acknowledged that the letter differed in important respects from the information given to him

by the petitioner and did not suggest impulsive behavior. Dr. Steinberg opined that this

difference could be explained by the fact that the petitioner (who was in jail at the time)

wanted to seem “macho.” State v. Flannel, No. W2007-00678-CCA-R3-CD, 2008 WL

4613829 (Tenn. Crim. App. Oct. 13, 2008). The petitioner was convicted of murder in the

perpetration of a theft and premeditated murder, and the convictions were merged.

The petitioner appealed his convictions on numerous grounds, and this Court

affirmed the judgments. State v. Flannel, 2008 WL 4613829, at *1. The petitioner filed a

pro se petition for post-conviction relief on May 18, 2009, asserting ineffective assistance

of counsel. Specifically, the petitioner asserted that histrial counsel wasineffective in failing

to investigate the case, failing to file an application for review of sentence by a three-judge

panel, and failing to file a motion for modification or reconsideration of his sentence. The

petitioner was appointed counsel, and post-conviction counsel raised the additional claim that

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the petitioner’s trial counsel had been ineffective by virtue of failing to withdraw after the

petitioner expressed dissatisfaction with his representation.

At the post-conviction hearing, the petitioner raised numerous points of dissatisfaction

with his counsel’s performance. The petitioner testified that he had been dissatisfied with

trial counsel’s representation because his counsel had not provided him with certain

discovery, including an affidavit of complaint and the statement given by the victim’s friend,

Tammie Robinson. The petitioner objected to the fact that his trial counsel had allowed his

co-counsel to advise the petitioner to accept a plea offer (of life imprisonment, made during

a time when the prosecution was seeking the death penalty). The petitioner complained both

that trial counsel had tried to force him to take the stand to testify against himself and that

trial counsel had advised him against testifying at trial, resulting in a missed opportunity to

present his story. The petitioner asserted that his trial counsel was deficient for showing the

letter soliciting Ms. Hill’s murder to his expert witness, Dr. Steinberg, as the doctor was

preparing to testify on the petitioner’s behalf. The petitioner further complained that his

lawyer (1) did not meet with him frequently enough; (2) advised him not to give a sample of

his handwriting; (3) refused to file certain motions, including a motion to dismiss based on

delay in bringing the petitioner to trial; (4) failed to adequately investigate his case; (5) failed

to subpoena certain witnesses; and (6) allowed crime scene photos that were not in evidence

to be taken into jury deliberations.

Many of the petitioner’s complaints were memorialized in four letters that the

petitioner wrote prior to trial, two to the Board of Professional Responsibility and two to trial

counsel. In his letters to the Board of Professional Responsibility, the petitioner stated his

belief that his trial counsel’s assistance was ineffective, that he was “fed up” with trial

counsel’s representation, and inquired as to how to go about “getting rid[]” of his trial

counsel. In his letters to trial counsel, the petitioner wrote that he was not satisfied with trial

counsel’s representation and that he intended to contact the Board of Professional

Responsibility. He also complained that a state mental health professional who evaluated

him was a co-worker of the victim.

The Board of Professional Responsibility wrote the petitioner to inform him that the

trial court had the authority to remove his attorney from his case. However, at the

post-conviction hearing, the petitioner acknowledged that, prior to trial, his trial counsel had

convinced him that he had been working hard and had the petitioner’s best interests in mind.

Ultimately, the petitioner told the court that he wished to keep his attorney. The petitioner

further acknowledged that, relying on trial counsel’s advice, he was the one who had made

the decision not to testify at trial.

Trial counsel’s testimony at the petitioner’s post-conviction hearing addressed some

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of the petitioner’s complaints. Trial counsel testified that during hisinterviews with potential

witnesses, it became apparent that the witnessesthat the petitioner wanted to subpoena would

testify that the victim chose “thugs and criminals and people who were violent” as partners;

trial counsel elected not to subpoena them so that this damaging testimony would not be

admitted. He further noted that he did elicit testimony from one witness regarding the victim

finding sexual partners through his job. Trial counsel testified that, after attempting to

exclude the letter soliciting Ms. Hill’s murder, he advised the petitioner that it would be to

his benefit to give a handwriting sample if he had not written the letter, but that it would be

a critical piece of evidence against him if he had written it; trial counsel further advised the

petitioner that refusal to give the sample would delay the trial. The petitioner refused to give

a sample. Trial counsel did not file a motion to dismiss based on delay because he felt the

claim was waived based on the petitioner’s refusal to give a handwriting sample. Trial

counsel testified that the decision not to testify was the petitioner’s and that the petitioner had

not been pressured to plead guilty to a life sentence. He further testified that he showed Dr.

Steinberg the letter soliciting Ms. Hill’s murder in order to prevent him from being surprised

by it while on the stand during the trial. Trial counsel testified he met with the petitioner

numerous times and also spoke with him on the telephone. He testified that, when the

petitioner told him that he was dissatisfied with his representation, he offered the petitioner

the opportunity to express his concerns to the judge; ultimately, however, the petitioner

changed his mind and was satisfied with his representation. Trial counsel testified that he

did not have trouble communicating with the petitioner in order to prepare for trial.

The post-conviction court denied relief, finding that counsel rendered effective

assistance and that the petitioner failed to show any prejudice. On appeal, the petitioner’s

sole assignment of error is that the post-conviction petition should have been granted on the

grounds that trial counsel was deficient in failing to make a motion to withdraw after being

apprised of the petitioner’s dissatisfaction with his representation.

The Sixth Amendment to the United States Constitution and article 1, section 9 of the

Tennessee Constitution guarantee the accused the right to counsel. The right to counsel is

the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686

(1984). To prevail on a claim that a conviction should be reversed due to ineffective

assistance of counsel, the petitioner must show both deficient performance on the part of

counsel and prejudice to the petitioner. Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996).

In assessing deficiency, the proper standard for attorney performance is reasonably effective

assistance, meaning that counsel’s performance falls “within the wide range of reasonable

professional assistance.” Strickland, 466 U.S. at 687, 689. To prevail, “the petitioner must

show that counsel’s acts or omissions were so serious as to fall below an objective standard

of reasonableness under prevailing professional norms.” Goad, 938 S.W.2d at 369. The

attorney’s errors must be so serious that counsel was not functioning as the counsel

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guaranteed under the Sixth Amendment. Strickland, 466 U.S. at 687. Judicial scrutiny of

counsel’s performance must be highly deferential, allowing for the “wide latitude counsel

must have in making tactical decisions.” Strickland, 466 U.S. at 689.

In showing that any deficiency in performance resulted in prejudice, the defendant

must demonstrate that counsel’s errors were so serious as to deprive the defendant of a fair

trial. Strickland, 466 U.S. at 687. While the defendant need not show that the deficiency

more likely than not altered the outcome of the trial, it is necessary to demonstrate that there

is a reasonable probability that, but for counsel’s unprofessional errors, the results of the

proceeding would have been different. Strickland, 466 U.S. at 693-94. Failure to prove

either deficiency or prejudice will result in the denial of a claim, and the court need not

address both prongs. Goad, 938 S.W.2d at 370.

The petitioner bears the burden of proving the allegations of fact in a post-conviction

petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f) (2012). Clear

and convincing evidence leaves no serious or substantial doubt about the correctness of

conclusions drawn from the evidence. Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn.

2009). The factual findings of the post-conviction court are binding on the appellate court

unless the evidence preponderates against them. Dellinger v. State, 279 S.W.3d 282, 295

(Tenn. 2009). Questions of law and mixed questions of law and fact are reviewed de novo

with no presumption of correctness. Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011). On

review, a claim of ineffective assistance of counsel is a mixed question of law and fact.

Grindstaff, 297 S.W.3d at 216.

Tennessee Code Annotated section 40-14-205(a) allows the trial court, “upon good

cause shown, [to] permit an attorney appointed under this part to withdraw as counsel of

record for the accused.” The court may also replace an attorney on its own motion “if the

court deems replacement of the attorney necessary to preserve the rights of the accused.”

T.C.A. § 40-14-205(b). Tennessee Supreme Court Rule 8, Rules of Professional Conduct

1.16, delineates the circumstances in which an attorney may or must withdraw from

representing a client. Withdrawal is mandatory if “(1) the representation will result in a

violation of the Rules of Professional Conduct or other law; (2) the lawyer’s physical or

mental condition materially impairs the lawyer’s ability to represent the client; or (3) the

lawyer is discharged.” Appointed counsel for an indigent defendant “shall continue to

represent an indigent party throughout the proceedings, including any appeals, until the case

has been concluded or counsel has been allowed to withdraw by a court.” Tenn. Sup. Ct. R.

13 § 1(e)(5).

The petitioner, by his own testimony, did not discharge trial counsel but told both the

trial court and his trial counsel that he wished to continue to trial represented by his attorney.

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Nor was there any evidence that his trial counsel should have withdrawn for any other reason

under Tennessee Supreme Court Rule 8, Rules of Professional Conduct 1.16. See State v.

Branam, 855 S.W.2d 563, 566 (Tenn. 1993) (holding that, absent grounds for mandatory or

permissive withdrawal, the trial court did not abuse its discretion in declining to allow

counsel to withdraw). The petitioner has failed to demonstrate by clear and convincing

evidence that his trial counsel was ineffective for failing to move to withdraw from

representation. Furthermore, there was no proof presented at the post-conviction hearing that

would establish a reasonable probability of a different outcome had the petitioner’s trial

counsel withdrawn. Trial counsel’s testimony that he had no difficulty communicating with

the petitioner in preparation for trial was not challenged, and the evidence adduced at trial

establishing the petitioner’s guilt was overwhelming.

The petitioner’s other bases for claiming ineffective assistance of counsel were not

raised in his appellate brief and are therefore waived. Tenn. Rule Crim. App. 10(b). There

appears to be no proper basis for excusing the defendant’s waiver, for it is clear from the

record that these claims were also not meritorious. Many of the alleged errors – such as trial

counsel’s purported failure to provide discovery and trial counsel’s actions regarding the

photographs – are not supported by evidence. Others, such as trial counsel’s alleged advice

to accept a plea offer or trial counsel’s alleged coercion to testify, plainly were not

prejudicial. Still others, such as counsel’s decision not to subpoena witnesses, advice not to

testify, and decision to show the letter to Dr. Steinberg, were quintessential tactical decisions

toward which a reviewing court shows high deference. We do not believe they amount to

deficient representation on this record. Strickland, 466 U.S. at 689.

CONCLUSION

Based on the foregoing, we conclude that the post-conviction court did not err when

it found that the petitioner had shown neither deficient performance nor any resulting

prejudice. The judgment of the post-conviction court is affirmed.

_________________________________

JOHN EVERETT WILLIAMS, JUDGE

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