IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

February 25, 2020 Session

LARRY E. RATHBONE v. STATE OF TENNESSEE

Appeal from the Criminal Court for Campbell County

No. 16073 E. Shayne Sexton, Judge

No. E2019-00447-CCA-R3-PC

The State appeals from the post-conviction court’s order granting post-conviction relief 

to the Petitioner, Larry E. Rathbone, from his convictions for two counts of rape of a 

child, one count of attempted rape of a child, and one count of aggravated sexual battery, 

for which he is serving an effective fifty-six-year sentence. On appeal, the State contends 

that the post-conviction court erred in granting relief on the Petitioner’s ineffective 

assistance of counsel claim related to his trial attorney’s dual representation of him and 

the codefendant at their joint trial and related to counsel’s failure to obtain a severance. 

In cross-appeal issues, the Petitioner contends that the court erred in failing to grant relief 

on his claim that he received the ineffective assistance of counsel because trial counsel 

did not challenge the competency of the child victim who testified at the trial and that he 

is entitled to plain error relief based upon ineffective assistance of counsel due to 

counsel’s lack of objection to the introduction of evidence of uncharged criminal 

conduct. We conclude that the post-conviction court erred in granting relief and reverse

its judgment.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES 

CURWOOD WITT, JR., and D. KELLY THOMAS,JR., JJ., joined.

Wesley D. Stone, Knoxville, Tennessee, for the Appellant, Larry E. Rathbone.

Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Senior 

Assistant Attorney General; Jared R. Effler, District Attorney General; Thomas E. 

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

04/30/2020
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OPINION

The Petitioner and Veronda Gean Fleeman, who was the Petitioner’s girlfriend at 

the time of the offenses, were convicted by a Campbell County Criminal Court jury of 

offenses related to the sexual abuse of one of the Petitioner’s sons. The victim, who was

age ten at the time of the trial, testified. The Petitioner’s other son, who was age four at 

the time of the trial, did not testify because the trial court found that he was not 

competent to testify. The Petitioner and Ms. Fleeman appealed, and this court merged 

some of the Petitioner’s convictions, dismissed some of Ms. Fleeman’s convictions on 

the basis that the State failed to prove she was criminally responsible for the Petitioner’s 

conduct, and remanded the case for a sentencing hearing on the issue of consecutive 

sentencing relative to the Petitioner. See State v. Larry E. Rathbone and Veronda Gean 

Fleeman, No. E2007-00692-CCA-R3-CD, 2008 WL 1744581 (Tenn. Crim. App. Apr. 

16, 2008), perm. app. denied (Tenn. Oct. 27, 2008). Following the new sentencing 

hearing, the Petitioner appealed the imposition of consecutive sentences, and this court 

affirmed the judgments of the trial court, which imposed a fifty-six-year effective 

sentence. See State v. Larry E. Rathbone, No. E2011-01269-CCA-R3-CD, 2012 WL

2394103 (Tenn. Crim. App. June 26, 2012), perm. app. denied (Tenn. Oct. 17, 2012).

The Petitioner filed a pro se post-conviction petition. Counsel was appointed and 

filed two amended petitions. As pertinent to this appeal, the petition and amended 

petitions alleged that the Petitioner had received the ineffective assistance of counsel 

because (1) his trial attorney had a conflict of interests arising from the dual 

representation in the conviction proceedings of the Petitioner and the Petitioner’s 

girlfriend, (2) trial counsel failed to seek a severance, and (3) the trial court failed to 

challenge the competency of the ten-year-old victim to testify. 

At the post-conviction hearing, the former district public defender testified that the

public defender’s office had been appointed to represent the Petitioner and Ms. Fleeman 

in the conviction proceedings. She said one of the assistant district public defenders 

served as lead counsel in the trial court and that she had been involved in preparing the 

brief and presenting the oral argument in the Petitioner and Ms. Fleeman’s appeal.1

Appellate counsel said that the case had been discussed in the office throughout her 

office’s representation of both defendants but that she had not been actively involved 

before the appeal. Relative to a possible conflict of interests due to her office’s 

representation of both defendants, appellate counsel said she “didn’t feel conflicted from 

the beginning” because both defendants said the victim had not told the truth. She agreed 

that she had no knowledge of whether trial counsel met with the Petitioner to discuss a 

 

1

For simplicity, we will refer to the district public defender as appellate counsel and to the assistant 

district public defender as trial counsel.
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conflict of interests and whether the Petitioner waived any conflict. She agreed she did 

not talk to trial counsel about whether the Petitioner had signed a written waiver. She 

said she had not been aware of the existence of a conflict when the case was pending in 

the trial court. After she was asked to review two court rules, she agreed that the waiver 

of a conflict of interests was required to be in writing.

Appellate counsel agreed that she had concerns that if she said something 

favorable to the Petitioner in the appellate brief, it might be unfavorable to Ms. Fleeman. 

She noted that the State had taken the position at sentencing that the Petitioner had been a 

leader in the commission of the offense and that Ms. Fleeman had been less culpable. 

Appellate counsel said “that’s the type of thing I would argue and probably quote, but I 

couldn’t because that was arguing against [the Petitioner].” 

Appellate counsel testified that the victim’s testimony was the most important part 

of the State’s case and that this witness “was all they had.” She agreed that the State had 

called two child witnesses but that only one had been permitted to testify. She recalled 

that the one who was not allowed to testify had been very young and that the court found 

that he was unable to understand the “consequences of not being truthful or the obligation 

to be truthful under oath.” She agreed that as a defense attorney, if she had information 

regarding “health evaluations and things of that nature” that might be pertinent to a 

witness’s competency to testify, she would “seek to explore” the issue of the witness’s 

competency.

Appellate counsel testified that she filed an application for permission to appeal to 

the Tennessee Supreme Court on behalf of the Petitioner. She said she obtained 

significant relief for Ms. Fleeman from the Court of Criminal Appeals, and she did not 

recall if she filed an application for permission to appeal on behalf of Ms. Fleeman. She 

agreed that this court vacated all but one of Ms. Fleeman’s convictions based upon 

insufficiency of the evidence. She agreed that the court held that Ms. Fleeman could not 

be criminally responsible for the Petitioner’s conduct and that the conviction the court 

affirmed was based upon “direct contact between [the victim] and [Ms. Fleeman].”

Appellate counsel identified the brief she filed with this court on behalf of the 

Petitioner and Ms. Fleeman. She agreed that she raised a sufficiency of the evidence 

issue based upon the victim’s providing the only evidence of the offenses and that she did 

not raise an issue regarding trial counsel’s lack of a challenge to the victim’s competency 

to testify. Appellate counsel did not recall why she did not raise an issue related to trial 

counsel’s lack of a competency challenge. She agreed that she did not raise an issue 

related to the lack of a severance of the defendants. She said she thought that issues 

related to whether trial counsel had a conflict of interests and to the lack of a severance 

were more appropriate issues for a post-conviction petition than for the appeal of the 

convictions. 
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Appellate counsel testified that in hindsight, she should have raised a conflict of 

interests issue in the Court of Criminal Appeals relative to her joint representation of the 

defendants in the appeal. She said that if she had said, as appellate counsel, that she did 

not think she could represent both defendants ethically, the court would have had to 

appoint separate attorneys for the defendants. Appellate counsel said that if she had done 

this, the Court of Criminal Appeals would not have had to decide whether trial counsel 

had a conflict of interests. When asked whether she would have presented the same 

appellate issues if she had represented only the Petitioner, appellate counsel said she did 

not think she could answer because that was not the situation in which she had been. She 

noted that if the appellate court had granted a motion for appointment of separate counsel 

for each defendant, the public defender’s office would not have represented either of the 

defendants because of the receipt of confidential information during the representation of 

both defendants. She said that her brief would have been different if she had represented 

only the Petitioner but that she did not know if it would have made a difference in the 

outcome. She could not identify anything that she could have done with regard to the 

appeal in order to obtain a more favorable result. She said that, in retrospect, she should 

not have represented both defendants on appeal.

Appellate counsel identified a June 24, 2005 letter from the Petitioner to trial 

counsel, in which the Petitioner stated that he did not think he could receive proper 

representation from an attorney who was employed by the State and that he wanted trial 

counsel to ask the court to appoint another attorney. Appellate counsel said the 

Petitioner’s trial occurred “around September” 2005.

Appellate counsel agreed she raised an issue regarding the constitutionality of the 

consecutive sentencing statute in the application for permission to appeal to the 

Tennessee Supreme Court. She did not recall why she did not raise the other issues that

she had raised in the Court of Criminal Appeals. The application for permission to 

appeal was received as an exhibit.

Michael Siwinski testified that, in his duties as a newspaper reporter, he spoke 

shortly after the Petitioner’s trial with a woman who was the Petitioner’s wife or ex-wife 

and was the victim’s mother. Mr. Siwinski said that the woman stated she knew the 

Petitioner “didn’t do it but he deserved it because he was an a------,” had beaten her, and 

had abused her. Mr. Siwinski said the woman stated that the Petitioner “deserve[d] what 

he . . . got.” Mr. Siwinski thought he had published the contents of the conversation in 

the newspaper. He said he had never spoken to the Petitioner but thought he had shared 

the information with trial counsel and a prosecutor.

The victim of the Petitioner’s conviction offenses testified that he was currently 

age twenty-two and that he had received childhood mental health treatment before he 
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testified at the Petitioner’s trial. The victim said he lived with his mother at the time of 

the Petitioner’s trial and agreed she helped him with his “insulin problems.” He said he 

had talked to a prosecutor about his prospective testimony before he testified at the trial. 

He said that he helped a neighbor with her dogs for money and that he did not receive 

governmental assistance. He said that he had been diagnosed with reading and learning 

disabilities and that he attended “one special class,” the name of which he could not 

recall. He said he did not read well. When asked if he finished or left high school, he 

said, “yes.”

During an offer of proof,2the victim testified that he told the Petitioner’s attorney 

about one year ago that the victim’s trial testimony had not been truthful and that the 

victim revealed the information to the victim’s maternal grandfather about one year 

before he told the Petitioner’s attorney. The victim said he “would have felt” he could 

tell the trial counsel the truth if counsel had talked to him. The victim said he would have 

told counsel that the sexual abuse did not happen. The victim thought his mother would 

not have prevented his talking with counsel. The victim said his mother told him to make 

the allegations and that he had done it because she threatened to hurt his brother and 

sister. He thought he could have disagreed with his mother. He said, however, that he 

had not felt at the time like he could tell anyone that his mother had influenced him to 

make the accusations. 

The Petitioner testified that he had been concerned about trial counsel’s having a 

conflict of interests and that he had tried to “fire” counsel and have the trial court appoint 

a different attorney. The Petitioner acknowledged that this occurred before he was aware 

counsel was representing Ms. Fleeman. The record showed that, at the time the 

Petitioner sought to have counsel replaced, Ms. Fleeman had been indicted but had not 

yet been served with a capias and had not yet surrendered to authorities. The Petitioner 

said that counsel had represented him at the preliminary hearing and that Ms. Fleeman

“was not there at the time.” He said she surrendered to authorities in September, a month 

before the trial. He said he learned that counsel was representing Ms. Fleeman, as well, 

when counsel informed him in late September that counsel had been appointed to 

represent her. The Petitioner said that counsel had stated the court had appointed counsel 

“for efficiency purposes or something.” The Petitioner said counsel stated, “[I]t would 

look better also.” The Petitioner said, “I didn’t want [counsel] as my attorney to begin 

 

2 The State objected on the basis of relevance. The post-conviction court permitted the Petitioner to make 

an offer of proof regarding the victim’s recantation and stated that it would consider the evidence only to 

the extent to which its relevance was ultimately shown. The court did not state whether it had considered 

the testimony received in the offer of proof. Its only ruling addressed an affidavit of the victim, which the 

court ruled was inadmissible. At the end of the hearing, the court expressed its disapproval of the 

Petitioner’s having called this witness at the hearing and its doubt that the recantation testimony was 

relevant to the PC issues.
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with, much less representing both of us.” The Petitioner said he had been employed in 

construction and had not understood legal matters. He identified the June 2005 letter he 

wrote to counsel, in which he expressed his desire for a different attorney. He agreed that 

the court conducted a hearing as a result of the letter and that the court denied his request 

to discharge counsel.

The Petitioner testified that the mother of his children was upset because she 

learned he “was trying to take the kids from her,” which would result in her losing his 

child support payments and the children’s Social Security checks. The Petitioner said he 

informed trial counsel about this, but counsel did not question “any of them” about it at 

the trial. The Petitioner said he advised counsel that the victim’s mother “had [the 

victim] locked up a couple [of] times” in a psychiatric hospital and that the Petitioner 

thought the victim’s mother was using the victim’s disabilities to manipulate the victim. 

The Petitioner said the victim’s diagnoses included bipolar disorder. The Petitioner said 

he asked counsel to investigate this, but counsel did nothing. The Petitioner said a 

physician who did genetic testing of the victim opined that the victim did not have 

bipolar disorder and wrote in a report that the victim’s mother “wants him to be 

[bipolar].” The Petitioner said the report had been in the discovery materials that counsel 

provided to him and that he showed the document to counsel. The Petitioner said he 

wanted counsel to present a defense theory that the victim’s mother was controlling of the 

victim but that counsel did not present the theory to the jury and did not challenge the 

victim’s mother’s credibility. 

The Petitioner testified that he asked trial counsel why the Petitioner and Ms. 

Fleeman were represented by the same attorney. The Petitioner said counsel stated the 

joint representation was because the Petitioner and Ms. Fleeman were charged with 

different offenses and because Ms. Fleeman was charged with criminal responsibility for 

the Petitioner’s actions. The Petitioner said he did not know he was supposed to waive a 

conflict of interests and that he never signed a waiver. He said no hearing regarding the 

conflict of interests occurred in the trial court. 

The Petitioner testified that trial counsel communicated a ten-year plea offer that 

would be in effect if the trial court determined that the victim was not competent to 

testify. He agreed that counsel had concerns about the victim’s competency.

The Petitioner testified that he was not charged with any offenses related to the 

younger child. The Petitioner said the trial evidence included testimony that Ms. 

Fleeman “let [the younger child] touch her,” that this was unrelated to Ms. Fleeman’s 

charges, and that trial counsel did not object to the admission of the evidence. The 

Petitioner testified that he should have had a separate trial from Ms. Fleeman, in view of 

the Court of Criminal Appeals’ vacating her convictions upon which the theory of guilt 
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had been criminal responsibility for his conduct and in view of his not having been 

charged with the remaining count for which her conviction was affirmed. 

The Petitioner testified that the discovery materials reflected that the victim’s 

account of the illegal acts changed “from . . . the arrest, the affidavit, to the forensic 

interview.” He said, “I was charged with four counts of rape of a child and then it 

changed.”

The Petitioner testified that the younger child was not allowed to testify at the trial 

on the objection of the trial court. The post-conviction court referred to the trial record 

and observed that trial counsel, not the trial court, had objected, and that the trial court 

had sustained the objection. The post-conviction court noted that being “reckless with 

words . . . goes into my ruling on credibility.” The Petitioner later said the court “just 

brought it up” initially without a defense objection and that counsel objected “after they 

did the voir dire.”

The Petitioner testified that the victim answered questions at the trial and that the 

jury credited the victim’s testimony and convicted the Petitioner.

The Petitioner testified that he met with trial counsel three or four times in the 

kitchen of the old jail before the trial. The Petitioner said Ms. Fleeman attended one of 

the meetings. The Petitioner said counsel told them that “it would look better” if counsel 

represented both of them. The Petitioner agreed that both he and Ms. Fleeman denied the 

charges. He said he “didn’t see [Ms. Fleeman] do anything.” He agreed their positions at 

trial were the same “[o]n separate charges.” He said, however, that they should have 

been “separated.” He agreed that he learned about the joint representation sometime 

between September 25, 2005, when Ms. Fleeman surrendered to authorities, and October 

26, 2005, the date the trial began. 

Trial counsel testified that he was retired from the practice of law and had 

previously worked in the public defender’s office. He said appellate counsel had been his 

supervisor. 

Trial counsel said he had represented multiple defendants charged in a single case 

in his twenty-two years with the public defender’s office. He said his duty in such a case 

was to ensure that no conflict of interests existed, to represent both clients vigorously, 

and not to “jeopardize one for the other.” 

Trial counsel testified that he did not think Ms. Fleeman had been under arrest or 

had participated in the preliminary hearing. He agreed that the Petitioner and Ms. 

Fleeman were indicted jointly after the case was bound over to the grand jury. He said, 

“I guess I was appointed to represent both of them.” When asked about the absence in 
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the trial record of an order appointing him as counsel for Ms. Fleeman, he said, “I don’t 

know how I would have represented her if I hadn’t been appointed.” He said he did not 

accept retained cases due to his employment with the public defender’s office. Counsel 

said that he did not think a conflict of interests existed as to the Petitioner and Ms. 

Fleeman and that the State’s theory of guilt as to each defendant was different as to the 

counts in which the Petitioner was charged with touching the victim and Ms. Fleeman 

was charged with criminal responsibility or facilitation of the Petitioner’s conduct. 

Counsel noted that he met with both defendants and discussed the case in detail. He said 

that neither defendant said anything that would contradict the other. Counsel said, “And 

for what it’s worth, they were in love at the time and they wanted to be tried together, 

they asked to be tried together, and I felt like that was not a problem.” He acknowledged 

that the defendants did not make a written request to be tried together. Counsel said that, 

in retrospect, he would have wanted for the defendants to be tried together.

After reviewing Tennessee Rule of Criminal Procedure 44 and Tennessee Rule of 

Professional Conduct 1.7, trial counsel acknowledged that the required written waiver 

and hearing regarding conflict of interests did not occur in the Petitioner’s case. 

Trial counsel agreed that the trial judge had first raised the issue about the younger 

child’s competency to testify. Counsel agreed that evidence of a mental health issue 

might affect a witness’s competency and might help him discredit the witness. He agreed

that no effort was made to challenge the competency of the testifying victim. Counsel 

agreed that he had examined the victim at the preliminary hearing and that he had 

reviewed the victim’s statements to the police and the Department of Children’s Services

(DCS), and counsel said he had not had any concerns about the victim’s competency to 

testify. Counsel did not recall the Petitioner’s stating that “there might be some issue 

with [the victim’s] mental state.” Counsel agreed that when the State called the victim to 

testify at the trial, the victim “wouldn’t testify” initially. Counsel agreed that the victim 

had been able to testify after the lunch break. Counsel agreed that he “wasn’t pleased 

with” the opportunity for the victim to be encouraged to testify during the lunch break 

and did not recall if he had asked to speak with the victim and the victim’s mother during 

the break. He agreed he had not asked to conduct a voir dire of the victim in order to 

ascertain what had occurred during the break, although he thought questions had been 

asked about it on the record. He agreed he did not have concerns about the victim’s 

mental health at the time of the trial and said he did nothing to investigate the victim’s 

mental health relative to the issue of competency to testify. When asked if he would have 

challenged the victim’s competency to testify and credibility to the jury based upon 

findings from three evaluations which noted the victim’s intellectual deficits, speech and 

language deficits, and behavioral issues, counsel said it was “[p]ossible.” Counsel said 

he learned about the victim’s psychiatric hospitalization from the victim’s preliminary 

hearing testimony, but counsel noted that the victim was able to relate the facts of the 

case coherently and without difficulty. Counsel said that, before the post-conviction 
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hearing, he had not seen the documents related to the previous psychiatric evaluations. 

With regard to portions of the reports from the evaluations that counsel had been asked to 

read during his testimony, he said nothing in them indicated that the victim had any 

tendency to lie or deceive. He agreed that the reports were generated for the purpose of 

enrolling or maintaining the victim in special education classes. 

Freddy McNeely, who was called as a rebuttal witness for the Petitioner, testified 

that he had been a juror at the Petitioner’s trial. Mr. McNeely said that four or five years 

ago, he had talked by telephone to a male attorney whose name he did not know. He 

agreed he told the attorney that the outcome of the Petitioner’s trial might have been 

different if the Petitioner had been represented by an attorney other than trial counsel. He 

said his impression, based on prior knowledge of trial counsel, had been favorable at the 

beginning of the trial but that the prosecutor seemed better prepared during the trial than 

trial counsel. 

The Petitioner was recalled and testified that trial counsel’s testimony had not 

been truthful when counsel said the Petitioner and Ms. Fleeman wanted to be tried 

together. 

The post-conviction court took judicial notice of the following facts: Ms. Fleeman 

was indicted with the Petitioner, but she was not served with a capias until September 25, 

2005. The Petitioner’s July 8, 2005 motion for appointment of different counsel did not 

contain any reference to a severance or to “picking of . . . who the Public Defender is 

[going to] represent,” and the Petitioner would not have known at the time that the Public 

Defender was also Ms. Fleeman’s attorney. The court observed, “It’s very clear to me

that that there is no written order of appointment for the Public Defender to represent Ms. 

Fleeman.” 

The post-conviction court found that the record did not support a conclusion that 

appellate counsel’s performance had been deficient. The court noted that appellate 

counsel’s advocacy on behalf of Ms. Fleeman, which resulted in all but one of her 

convictions being vacated due to insufficiency of the evidence “doesn’t suggest that [the 

Petitioner] was left behind.” 

With regard to the performance of trial counsel, the post-conviction court stated:

Without [trial counsel’s] testimony that the [Petitioner and Ms. Fleeman] 

wanted to be tried together, severing the defendants by all accounts should 

have happened. . . . The question is, is there proof to show that that 

severance in and of itself created a technical problem. And . . . there has 

been no showing of that.
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The court found that trial counsel’s testimony had been credible, noting specifically its 

findings that counsel’s testimony regarding the Petitioner and Ms. Fleeman having 

professed to being in love and having “made a conscious decision to go to trial together.” 

The court said the lack of a written waiver had been a “mistake” but that the testimony 

showed that counsel had not performed deficiently regarding the severance issue. The 

post-conviction court found that the Petitioner had not proven his ineffective assistance of 

counsel claims and that no structural error occurred during the conviction proceedings. 

The court said, however, that it would not enter an order for thirty days to allow the 

parties time to submit any additional evidence. In this regard, the court stated:

[Trial counsel] testified very candidly about why he made his decisions at 

trial, why he made his pretrial decisions. The conversation that he talks 

about having with [the Petitioner] and Ms. Fleeman about them being in 

love, wanting to try the case together came across as very credible. He 

didn’t – he told what he knew, he explained what he didn’t know, and I find 

his credibility on the issues of severance and/or consolidation of these 

defendants as credible and controlling in this case. I’ll – I’m [going to] put 

a caveat to that. I’m subject to change if we can find some . . . courtroom 

testimony that is contrary to what . . . I’ve heard here in Court. But based 

on what . . . I’ve heard here today suggests that . . . the [P]etitioner . . . and 

Ms. Fleeman made a conscious decision to go to trial together and although 

it is not memorialized in writing which would have always helped, . . . 

that’s a mistake, but I find that the evidence, the testimony here overrides 

any, per se, mistake that one might say. So in that sense, the severance 

issue as [trial counsel] handled it was proper.

. . . .

If . . . something develops such as contrary information about how . . . the 

defendants were joined for trial, other information about a formal request to 

sever the defendants, then I may change my ruling, but . . . as I know it 

today under these circumstances, that’s how it will stand.

After the hearing, the State filed additional documents consisting of relevant 

excerpts of the trial court’s docket book related to the appointment of counsel for the 

Petitioner, Ms. Fleeman’s arrest record reflecting the date she came into jail custody, and

a letter the Petitioner sent to a juror after the trial. In the letter, the Petitioner stated that 

Ms. Fleeman “turned her self in on Sept. 25 2005 so we could go to trial.” The Petitioner 

filed additional documents consisting of the affidavits of complaint for the Petitioner and 

Ms. Fleeman.
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A pretrial hearing transcript filed with this court as a supplement to the appellate

record reflects that Ms. Fleeman was arraigned on October 10, 2005. The transcript 

reflects that trial counsel advised the court, “I’ve spoken to [the Petitioner and Ms. 

Fleeman], and I do not believe at this time there is a conflict.” The trial court responded 

that counsel should advise the court if a conflict arose.

The post-conviction court filed a written order, in which it found that the 

Petitioner had failed to prove his ineffective assistance of counsel claim relative to a 

severance of defendants. With regard to the conflict of interests issue, the court found 

that the Petitioner and Ms. Fleeman wanted to be tried jointly. The court discredited the 

Petitioner’s testimony that the Petitioner asked trial counsel to obtain a severance and 

found that the Petitioner waived the severance issue by “standing mute.” The court said, 

however,

This cannot end the analysis. The problem magnifies at the 

appellate level when [appellate counsel] attempted to craft separate bases 

for relief. Her testimony reflects that she saw the difficulties in one lawyer 

representing two clients on a case such as this but feared raising the issue 

on appeal without evidence would jeopardize later PCR claims. She further 

stated that she thought any conflict required a waiver and without such an 

ethical conflict existed.

As previously stated, this Court finds that although no written waiver 

was executed allowing the Public Defender to represent both defendants, it 

is clear that the Petitioner actively pursued a joint trial. It is situations such 

as this when our system of justice is called upon to protect a litigant from a 

potential and foreseeable danger. This court, and trial counsel, in an effort 

to accommodate defendants set for a relatively expeditious trial, failed to 

protect the Petitioner from his own misguided strategy. A tactic of this 

nature so clearly perilous should have drawn higher scrutiny by this Court 

and trial counsel regardless of waiver by the Petitioner.

For this reason, the Court finds sufficient grounds to grant 

Petitioner’s claim of constitutional error and the conviction is hereby 

vacated. This case will be re-docketed as soon as practical.

The State filed the present appeal, in which it contends that the post-conviction 

court erred in granting relief on the basis of ineffective assistance of counsel related to 

the conflicts of interest and severance issue. The Petitioner counters that the court 

properly granted relief on this basis but that the court erred in denying relief on his 

ineffective assistance of counsel claim related to the failure to challenge the victim’s 

competency to testify.
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Post-conviction relief is available “when the conviction or sentence is void or 

voidable because of the abridgement of any right guaranteed by the Constitution of 

Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103 (2082). A

petitioner has the burden of proving his factual allegations by clear and convincing 

evidence. Id. § 40-30-110(f) (201). A post-conviction court’s findings of fact are 

binding on appeal, and this court must defer to them “unless the evidence in the record 

preponderates against those findings.” Henley v. State, 960 S.W.2d 572, 578 (Tenn. 

1997); see Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction 

court’s application of law to its factual findings is subject to a de novo standard of review 

without a presumption of correctness. Fields, 40 S.W.3d at 457-58. 

To establish a post-conviction claim of the ineffective assistance of counsel in 

violation of the Sixth Amendment, a petitioner has the burden of proving that (1) 

counsel’s performance was deficient and (2) the deficient performance prejudiced the 

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 

506 U.S. 364, 368-72 (1993). The Tennessee Supreme Court has applied the Strickland

standard to an accused’s right to counsel under article I, section 9 of the Tennessee 

Constitution. See State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

A petitioner must satisfy both prongs of the Strickland test in order to prevail in an 

ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to prove 

either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective 

assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To establish the 

performance prong, a petitioner must show that “the advice given, or the services 

rendered . . . are [not] within the range of competence demanded of attorneys in criminal 

cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S. at 

690. The post-conviction court must determine if these acts or omissions, viewed in light 

of all of the circumstances, fell “outside the wide range of professionally competent 

assistance.” Strickland, 466 U.S. at 690. A petitioner “is not entitled to the benefit of 

hindsight, may not second-guess a reasonably based trial strategy by his counsel, and 

cannot criticize a sound, but unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d 

334, 347 (Tenn. Crim. App. 1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn. 

2008). This deference, however, only applies “if the choices are informed . . . based upon 

adequate preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). 

To establish the prejudice prong, a 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.” Strickland, 466 U.S. at 694. “A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Id.

I
-13-

With regard to the claim of ineffective assistance of counsel related to the dual 

representation of the Petitioner and Ms. Fleeman and to the lack of a severance, the State 

notes in its brief, 

A primary difficulty in this case is determining the precise bases upon 

which the post-conviction court granted relief. The State perceives two: 

(1) A Sixth Amendment violation stemming from a conflict of interest in 

trial counsel’s dual representation of petitioner and Ms. Fleeman; and (2) a 

Sixth Amendment violation stemming from counsel’s ineffectiveness in 

failing to seek a severance of the co-defendants for trial.

The issue is complex because the ineffective assistance of counsel claim involves the 

intertwined questions of a conflict of interests claim and of the failure to seek a 

severance. We will consider the questions jointly.

The State argues that the post-conviction court erred in granting relief because the 

evidence did not show that an actual conflict of interests existed, that a severance was not 

required, and that the Petitioner would not have obtained a different result even if a 

severance had been granted. The Petitioner counters that counsel was ineffective because

an actual conflict of interests existed, from which prejudice must be presumed, and 

because he did not receive a fair trial in the absence of a severance.

We read the post-conviction court’s order as concluding that an actual conflict of 

interests existed. Our supreme court has said:

[A]n actual conflict of interest includes any circumstances in which an 

attorney cannot exercise his or her independent professional judgment free 

of “compromising interests and loyalties.” See [State v. Culbreath, 30 

S.W.3d 309, 312-13 (Tenn. 2000)]; see also Tenn. R. Sup. Ct. 8, EC 5-1.

In the context of multiple employment, for example, an actual conflict 

arises where an attorney’s continuance of such employment “would be 

likely to involve the lawyer in representing differing interests.” Tenn. Sup.

Ct. R. 8, DR 5-105(B). If a conflict exists, it may only be cured if “it is 

obvious that the lawyer can adequately represent the interest of each [client] 

and if each [client] consents to the representation after full disclosure of the 

possible effect of such representation on the exercise of the lawyer’s 

independent professional judgment on behalf of each.” Tenn. Sup.Ct. R. 8, 

DR 5-105(C). An appearance of impropriety, on the other hand, existed 

under the Tennessee Code of Professional Conduct “in those situations in 

which an ordinary knowledgeable citizen acquainted with the facts would 

conclude that the . . . representation poses substantial risk of disservice to 
-14-

either the public interest or the interest of one of the clients.” [Clinard v. 

Blackwood, 46 S.W.3d 177, 187 (Tenn. 2001)].

State v. White, 114 S.W.3d 469, 476-77 (Tenn. 2003).

A potential conflict of interests due to an attorney’s representation of multiple 

clients “does not authorize a presumption of ineffective assistance of counsel.” Netters v. 

State, 957 S.W.2d 844, 847 (Tenn. Crim. App. 1997) (citing Cuyler v. Sullivan, 446 U.S. 

335 (1980)). In addition to establishing that an actual conflict existed, a petitioner who 

alleges that he received the ineffective assistance of counsel due to the existence of an 

actual conflict of interests must show that the “actual conflict of interest adversely 

affected his lawyer’s performance.” Cuyler, 446 U.S. at 348.

Trial counsel’s failure to obtain a written waiver and to ensure that the trial court 

conducted a hearing on the conflict of interests issue, standing alone, does not entitle the 

Petitioner to relief. See Thomas Keith Battle v. State, No. 01C01-9510-CR-00335, 1997 

WL 13739, at *7 (Tenn. Crim. App. Jan. 16, 1997), perm. app. denied (Tenn. Sept. 8, 

1997). 

 

One of the independent, professional decisions trial counsel had to make was 

whether to move for a severance or proceed with a joint trial. At the time of the 

Petitioner’s trial, Tennessee Rule of Criminal Procedure 8(c) provided:

(c) Joinder of Defendants. – Two or more defendants may be joined in the 

same indictment, presentment, or information:

(1) If each of the defendants is charged with accountability for each

offense included; or

(2) If each of the defendants is charged with conspiracy, and some 

of the defendants are also charged with one or more offenses 

alleged to be in furtherance of the conspiracy; or

(3) Even if conspiracy is not charged and all of the defendants are 

not charged in each count, if the several offenses charged:

(A) Were part of a common scheme or plan; or

(B) Were so closely connected in time, place, and occasion that 

it would be difficult to separate proof of one charge from 

proof of the others.
-15-

Tenn. R. Crim. P. 8(c) (2005) (amended 2006).

At the time, Tennessee Rule of Criminal Procedure 14(c)(2) provided: 

(2) The court, on motion of the state or on motion of the defendant other 

than under subdivision (c)(1), shall grant a severance of defendants if:

(A) Before trial, it is deemed necessary to protect a defendant’s right to 

a speedy trial or it is deemed appropriate to promote a fair 

determination of the guilt or innocence of one or more defendants; 

or

(B) During trial, with consent of the defendant to be severed, it is 

deemed necessary to achieve a fair determination of the guilt or 

innocence of one or more defendants.

Id., Rule 14(c)(2) (2005) (amended 2006).

With these principles in mind, we must determine whether, given the facts of the 

case, trial counsel could exercise his independent professional judgment on behalf of the 

Petitioner while also representing Ms. Fleeman. The State argues that no conflict of 

interests existed because counsel’s strategy – a total denial that the offenses occurred –

was the same for both defendants. The State argues that no evidence shows that counsel 

was faced with making any decision which benefitted one client, to the detriment of the 

other. The Petitioner counters that due to the multiple representation, counsel failed in 

several respects in his duties to the Petitioner.

The post-conviction court credited trial counsel’s testimony that he met with the 

Petitioner and Ms. Fleeman at the jail and that they expressed their desire to be tried 

together. The record reflects, as well, that counsel saw a tactical advantage in a joint trial 

because both defendants denied any culpability, and each defendant’s across-the-board 

denials bolstered the other. In the letter written by the Petitioner to a juror after the trial 

and filed with the court as a post-conviction hearing exhibit, the Petitioner stated that Ms. 

Fleeman “turned her self in on Sept. 25 2005 so we could go to trial.” He also stated, 

“All this trial was is if you believe [the victim] or me and [Ms. Fleeman].” The record 

supports the court’s determination that the Petitioner wanted to be tried jointly with Ms. 

Fleeman and that counsel made an informed, strategic decision to proceed with a joint 

trial.

Turning to the Petitioner’s arguments, he contends that trial counsel’s divided 

loyalties led counsel not to object to evidence of uncharged misconduct, consisting of the 

victim’s testimony that the Petitioner performed a sex act on the victim, that Ms. Fleeman 
-16-

and the younger child saw it, and that, at the same time, Ms. Fleeman was allowing the 

younger child to touch her sexually. The Petitioner was convicted of rape of a child 

relative to the victim for this incident. Ms. Fleeman was convicted of rape of a child via 

criminal responsibility for the Petitioner’s abuse of the victim, although this court vacated 

her conviction based upon insufficiency of the evidence. See Larry E. Rathbone and 

Veronda Gean Fleeman, 2008 WL 1744581, at *6-9. Ms. Fleeman was not charged with 

or convicted of a crime related to the sexual contact with the younger child based upon 

these facts. See id. The Petitioner argues that counsel should have objected on the basis 

that Ms. Fleeman’s uncharged misconduct toward the younger child was irrelevant to the 

question of the Petitioner’s guilt of the charged offense and on the basis that the evidence 

was unfairly prejudicial. The Petitioner also argues that counsel faced a dilemma in 

which an objection to this evidence on behalf of the Petitioner “could have drawn 

additional attention, scrutiny, or both, by the jury as it relates to Ms. Fleeman’s 

misconduct as alleged in [the count for which she was convicted and which was affirmed 

on appeal].” 

Trial counsel acknowledged at the post-conviction hearing that he did not object to 

this evidence. He said he did not know why he had not sought to exclude or object to the 

evidence or move for a mistrial. When asked if he had made a strategic decision not to 

object or request a mistrial, counsel said, “I couldn’t answer that today.” 

Second, the Petitioner argues that trial counsel failed to represent him effectively 

because counsel had a conflict of interests in representing both defendants based upon the 

State’s closing argument at the trial relative to Count Twelve, in which Ms. Fleeman was 

charged but the Petitioner was not. He argues that, in effect, the State argued that the 

Petitioner was guilty of uncharged misconduct via criminal responsibility for Ms. 

Fleeman’s crime. The Petitioner points to the following excerpt from the argument:

Count Twelve is the count that alleges that Veronda Fleeman is 

actually the person that does the abuse. Her criminal responsibility as to 

Count Twelve is the fact not that she watched it this time but that she 

participated, that she did it. [The victim] told you that it happened in the 

living room on the mattress. This was the mattress that Veronda slept on 

every night, because that’s where Veronda told us she slept every night. It 

happened in the living room on the mattress. He said Veronda put her 

private on his private and that her clothes were off, and when I asked what 

did her body do, he said it went up and down. He even went a little bit 

further with this one, maybe because I asked. When her body was going up 

and down where were her hands? He stood right here and said they were 

right here on him (indicating), as her body was going up and down with no 

clothes on. And when I asked him where were your hands, he said they 
-17-

were right here on him (indicating). He told you that when Veronda did 

that to him that his daddy was present and that his daddy watched that.

The Petitioner did not elicit any testimony from trial counsel at the hearing regarding 

counsel’s lack of an objection to this portion of the State’s closing argument.

Third, the Petitioner argues that trial counsel provided ineffective assistance 

related to the conflict of interests when counsel allowed the introduction of insufficient 

evidence to sustain Ms. Fleeman’s convictions via a criminal responsibility theory. He 

argues that because Ms. Fleeman was tried jointly, the evidence of her criminal activity, 

albeit insufficient to support convictions against her, bolstered the State’s case against the 

Petitioner because she was charged with criminal responsibility for the Petitioner’s 

conduct. 

In the post-conviction court, the Petitioner had the burden of proving ineffective 

assistance of counsel by clear and convincing evidence. See T.C.A. § 40-30-110(f). The 

record reflects that, although counsel did not ensure that the Petitioner signed a written 

waiver regarding any conflict of interests or that the trial court conducted a hearing on the 

issue, counsel determined after consulting with the Petitioner and Ms. Fleeman that no 

conflict was apparent and advised the court accordingly. The post-conviction court 

credited counsel’s testimony that the Petitioner and Ms. Fleeman wanted to be tried 

together, and the record supports this determination. 

The record reflects that the Petitioner and Ms. Fleeman denied that either of them 

committed the offenses. The Petitioner testified at the trial that he did not commit the 

offenses with which he was charged and that he never saw Ms. Fleeman engaged in 

sexual activity with the victim. Ms. Fleeman testified at the trial that she did not commit 

the offenses with which she was charged and that she never saw the Petitioner sexually 

abuse the victim. In view of the chosen defense of a blanket denial of wrongdoing, the 

admission of evidence of an additional uncharged crime allegedly committed by Ms. 

Fleeman and the evidence and closing argument that the Petitioner was present and 

observed Ms. Fleeman’s abuse of the victim as charged in Count Twelve cannot be said 

to have created a conflict of interests that required separate representation of the 

defendants. The Petitioner, Ms. Fleeman, and trial counsel discussed joint representation 

and the denial defense. Given the totality of the evidence and the defense strategy, any 

objection to the evidence of uncharged conduct by the Petitioner and Ms. Fleeman and to 

the evidence and closing argument did not place counsel in a position in which he was 

required to sacrifice the interests of the Petitioner in favor of Ms. Fleeman. The jury’s 

decision in this case was straightforward: Should they believe the victim, who testified 

about the offenses the Petitioner and Ms. Fleeman perpetrated on him, or should they 

believe the Petitioner and Ms. Fleeman, who denied that any abuse occurred? It was 

counsel’s view, after a review of the facts and consultation with his clients, that a joint 
-18-

trial benefitted the defendants because the total denial of culpability of each defendant 

bolstered the other. Counsel’s ability to advance the Petitioner’s defense was not 

impaired in the respects identified by the Petitioner by virtue of the joint representation, 

and counsel’s not seeking a severance did not deprive the Petitioner of a fair 

determination of guilt or innocence. 

We conclude that the record does not support the post-conviction court’s 

determination that trial counsel provided ineffective assistance due to a conflict of 

interests in his representing both the Petitioner and Ms. Fleeman. The facts and 

circumstances of the case reflect that no conflict existed. Similarly, the record fails to 

reflect that the Petitioner demonstrated any prejudice that befell him as a result of 

counsel’s alleged conflict of interests. Counsel was able to present the chosen defense, 

and the jury weighed the evidence and credited the victim’s testimony over that of the 

Petitioner and Ms. Fleeman. The evidence of Ms. Fleeman’s criminal conduct and the 

closing argument regarding the Petitioner’s observation of Ms. Fleeman’s abusing the 

victim were insignificant in view of the entire case and the issues presented relative to the 

Petitioner’s commission of multiple offenses against the victim. 

With regard to the question of whether trial counsel should have sought a 

severance, the Petitioner and Ms. Fleeman were appropriately joined for trial because the 

charged offenses were part of a common scheme or plan of sexual abuse of the victim. 

See Tenn. R. Crim. P. 8(c)(3)(A). To the extent that the Petitioner argues that trial 

counsel provided ineffective assistance in failing to obtain a severance, the question is 

whether counsel’s inaction resulted in the Petitioner’s not receiving a fair determination 

of guilt or innocence. See id., Rule 14(c)(2)(A), (B).

As we have stated, trial counsel determined, after consideration of the facts and 

consultation with the Petitioner and Ms. Fleeman, that a joint defense was in the 

Petitioner’s best interests, and the Petitioner consented. Moving for a severance or a 

mistrial in order for the defendants to be severed at their future trials would have been 

contrary to this objective. The evidence of Ms. Fleeman’s alleged uncharged misconduct 

and the Petitioner’s presence during Ms. Fleeman’s commission of the act that formed the 

basis for Count 12 did not impair counsel’s ability to proceed with a joint defense. The 

evidence of Ms. Fleeman’s uncharged criminal conduct toward the younger child and the

evidence and closing argument regarding the Petitioner’s observation of Ms. Fleeman’s

abusing the victim were not significant in view of the entire case and the issues presented, 

such that the Petitioner was unable to obtain a fair adjudication of his guilt or innocence. 

We conclude that the post-conviction court erred in granting relief on the 

Petitioner’s claim that he received the ineffective assistance of counsel based upon trial 

counsel’s having a conflict of interests and his failure to obtain a severance.
-19-

II

The Petitioner contends that the post-conviction court erred in denying relief on 

his claim that trial counsel was ineffective because counsel did not challenge the victim’s 

competency to testify at the trial. The State responds that the court properly denied relief 

because the Petitioner failed to offer any evidence to rebut the presumption that the 

victim had been competent to testify at the trial and that a reasonable probability existed 

that the result of the trial would have been different if counsel had challenged the 

victim’s competency.

All witnesses are presumed competent to testify unless the Rules of Evidence or 

statutes provide otherwise. Tenn. R. Evid. 601. In Tennessee, no disqualification by rule 

or statute exists for children. See id., Advisory Comm’n Cmts. The witness must be able 

to swear or affirm to tell the truth and must have personal knowledge of the matters about 

which he testifies. See Tenn. R. Evid. 602, 603.

The record reflects that trial counsel observed the victim’s testimony at the 

preliminary hearing and had no concerns that the victim might be incompetent to testify. 

The victim testified at the preliminary hearing that he had been a patient at a psychiatric 

hospital. Although the Petitioner offered evidence at the post-conviction hearing that the 

victim had undergone psychiatric evaluations, he did not show that the victim was, at the 

time of the trial, unable to understand and make the oath and to relate facts from the 

victim’s personal knowledge, and that counsel knew or should have known of the 

victim’s alleged incompetency. The trial record reflects that, although the victim was 

hesitant to testify initially, he was able to testify after a break. The record reflects that, 

before he related the facts relevant to the charges, the victim was able to answer that he 

was ten years old and lived with his “Mamaw and Papaw.” He was not asked about his 

understanding of the truth and whether he would tell the truth.3 Trial counsel crossexamined the victim about having been hospitalized at “Peninsula” and having trouble 

remembering things. Counsel also cross-examined the victim about his testimony on 

direct examination as compared with his preliminary hearing testimony, and the victim 

was able to answer counsel’s questions. The Petitioner called the victim as a witness at 

the post-conviction hearing, and the victim testified about his childhood mental health 

treatment and enrollment in a special education class. His testimony did not establish, 

however, that he had been unable to understand the oath he took to tell the truth at the 

trial. He merely claimed that he had been untruthful at the trial. The record reflects that 

the post-conviction court discredited the victim’s recantation.

 

3 We note that the Petitioner does not allege that the victim was not sworn as a witness, which would 

include the oath to tell the truth.
-20-

We conclude that the post-conviction court did not err in denying relief on this 

basis. The Petitioner failed to show by clear and convincing evidence that a factual basis 

existed for trial counsel to mount a successful challenge to the victim’s competency to 

testify. The Petitioner is not entitled to relief on this basis.

III

The Petitioner contends that this court should grant plain error relief on the basis 

that he received the ineffective assistance of counsel when trial counsel (1) did not object 

to his observance of Ms. Fleeman’s committing the offense that formed the basis for her 

conviction in Count Twelve and (2) did not object to the introduction of insufficient 

evidence of Ms. Fleeman’s criminal responsibility for the Petitioner’s criminal conduct. 

The State counters that these issues are waived because they were not raised in the postconviction court.

The Post-Conviction Procedures Act requires that a petitioner raise “all” issues in 

his petition. T.C.A. § 40-30-104(d) (2018). Consideration of an issue which is raised for 

the first time on appeal is waived. See, e.g., Cauthern v. State, 145 S.W.3d 571, 599 

(Tenn. 2004) (“[A]n issue raised for the first time on appeal is waived.”); State v. Turner, 

919 S.W.2d 346, 356-57 (Tenn. Crim. App. 1995); see T.C.A. § 16-5-108(a) (2009) 

(stating that the jurisdiction of the Court of Criminal Appeals is appellate in nature); 

T.R.A.P. 36(a) (stating that the appellate courts may not grant relief in contravention of 

the trier of fact). Consideration of these issues for the first time in this appeal is waived. 

Further, the Petitioner has not cited any authority for the use of plain error relief in a postconviction setting. We decline to consider the issues as a matter of plain error.

In consideration of the foregoing and the record as a whole, the judgment of the 

post-conviction court is reversed. The Petitioner is not entitled to post-conviction relief.

 _____________________________________

 ROBERT H. MONTGOMERY, JR., JUDGE