IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs at Knoxville April 23, 2019

JOHN WILLIE STONE v. STATE OF TENNESSEE

Appeal from the Circuit Court for Bedford County

No. 18042-PC Franklin Lee Russell, Judge

No. M2018-01214-CCA-R3-PC

The Petitioner, John Willie Stone, appeals from the Bedford County Circuit Court’s 

denial of his petition for post-conviction relief from his burglary of an automobile, 

misdemeanor theft, and aggravated assault convictions, for which he is serving a twentyone-year sentence. The Petitioner contends that he received the ineffective assistance of 

trial and appellate counsel. We affirm the judgment of the post-conviction court.

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

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

T. WOODALL and ROBERT W. WEDEMEYER, JJ., joined.

Garrett D. Haynes, Shelbyville, Tennessee, for the appellant, John Willie Stone. 

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior 

Assistant Attorney General; Robert James Carter, District Attorney General; and Michael 

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

OPINION

Following a jury trial, the Petitioner was convicted of one count each of burglary 

of an automobile, theft of property valued at $500 or less, and the aggravated assault of 

Andrew Doak. See State v. John Willie Stone, No. M2016-01269-CCA-R3-PC, 2017 WL 

2438580, *1 (Tenn. Crim. App. June 6, 2017), perm. app. denied (Tenn. Oct. 4, 2017). 

After the conclusion of the trial but before the sentencing hearing, the Petitioner filed a 

pro se motion seeking the appointment of new counsel. The trial court treated this 

motion as a petition for post-conviction relief based on the ineffective assistance of trial 

counsel. The court appointed new counsel and, following a hearing addressing both the

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Petitioner’s motion for new trial and the designated petition for post-conviction relief, the 

court denied all claims. On appeal from the conviction proceedings, this court 

determined that the trial court mistakenly treated the Petitioner’s motion for the

appointment of new counsel as a petition for post-conviction relief. This court vacated 

the portion of the trial court’s order denying post-conviction relief, but this court

addressed the claim of ineffective assistance of trial counsel, denied relief, and

determined that the Petitioner had exhausted all claims related to the ineffective 

assistance of trial counsel. Id. *1, 10. 

In its opinion, this court summarized the facts as follows: 

The State’s proof at trial showed that on the night of August 26, 

2014, Caitlin Pope drove her truck to her parents’ residence on East 

Franklin Street in Shelbyville. She arrived at approximately 9:30 p.m. and 

parked in front of the house. Ms. Pope left the vehicle unlocked with the 

windows down, and she placed her wallet in a cup holder between the two 

front seats of the vehicle while she went inside the house.

Andrew Joel Doak testified that his parents lived next door to Ms. 

Pope’s parents and that on the night of August 26, he had driven to his 

parents’ house to pick up some food. As he was walking to his vehicle 

which was parked on Franklin Street, he noticed “some legs hanging out a 

driver’s side vehicle next door.” Finding this suspicious, Mr. Doak 

approached the vehicle, and the man, who was “hanging out of the driver’s 

side window” and who was later identified as the [Petitioner], jumped to 

the ground and began to walk away. Mr. Doak followed the [Petitioner]

and noticed that he “st[uck] something under his shirt and down in his 

pockets.” Due to the darkness and the fact that the [Petitioner] was wearing 

a hat, Mr. Doak was initially unable to discern much about his appearance.

After Mr. Doak had followed the [Petitioner] a short distance, the 

[Petitioner] suddenly turned and “threw his hands” up, asking Mr. Doak, 

“What’s up?” Mr. Doak inquired what the [Petitioner] was doing, and the 

[Petitioner] responded that he wasn’t “doing nothing.” Mr. Doak then 

accused the [Petitioner] of breaking into the truck, which the [Petitioner]

denied. The [Petitioner] then began to run. Mr. Doak gave chase, and the 

[Petitioner] reached under his shirt and told Mr. Doak, “Don’t make me 

pull this on you.” The [Petitioner] “darted away,” and Mr. Doak attempted 

to round a tree and cut him off when the [Petitioner] tripped and fell to the 

ground. The [Petitioner] immediately jumped to his feet and lunged at Mr. 

Doak; Mr. Doak was “really scared,” and his only thought was “don’t let 

him get close enough if he does have” a weapon. To keep the [Petitioner]

at bay, Mr. Doak kicked him in the head, but the [Petitioner] managed to 
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stay on his feet. Mr. Doak and the [Petitioner] continued to scuffle, during 

which Mr. Doak saw “something get throwed [sic] out from under [the 

Petitioner’s] shirt.” Eventually, Mr. Doak gained control of the [Petitioner]

and held him on the ground while Mr. Doak called 9-1-1. While Mr. Doak 

was speaking with the 9-1-1 dispatcher, he felt something hit his arm. Mr. 

Doak noticed that his right forearm had been cut near his elbow, and he saw 

“the blade . . . coming at [his] arm again.” Mr. Doak informed the 

dispatcher that the [Petitioner] had a knife, and he tossed his telephone 

aside so that he could concentrate on disarming the [Petitioner]. Mr. Doak 

was afraid of being stabbed. The [Petitioner] continued to struggle, and 

Mr. Doak ultimately took control of the knife and cast it away, all the while 

keeping the [Petitioner] pinned to the ground. Shelbyville Police 

Department (“SPD”) officers arrived a short time later.

John Willie Stone, 2017 WL 2438580, at *1.

The Petitioner filed a pro se petition seeking post-conviction relief on April 16, 

2018. The Petitioner was appointed counsel, and counsel filed an amended petition. At 

the June 14, 2018 post-conviction hearing, trial counsel testified that he had worked for a 

public defender’s office for many years and that he represented the Petitioner at the trial 

but that he withdrew as the Petitioner’s counsel before the sentencing hearing. He 

explained that appellate counsel was appointed to represent the Petitioner at the joint

motion for new trial and sentencing hearing and on appeal. 

Trial counsel testified that he attempted to negotiate a plea agreement and that the 

State made several offers, which were conveyed to the Petitioner. Counsel said that the 

Petitioner was actively involved in the negotiations. Counsel recalled that the 

Petitioner’s defense was that Mr. Doak attacked the Petitioner as he walked down the 

street. Counsel stated he cross-examined trial witnesses by asking questions consistent 

with the theory that the Petitioner was assaulted but that he did not introduce any 

photographs of the victim’s injuries. Counsel agreed that the Petitioner had requested 

that counsel submit photographs of the injuries as evidence but said that he did not 

because the Petitioner’s injuries did not appear to be defensive wounds. Counsel 

explained that the Petitioner’s thumb injury was consistent with a person “holding a knife 

in their hand with the blade up preparing to cut somebody or make a cutting motion[.]” 

Counsel said that he had seen such injuries previously. Counsel believed a photograph of 

the Petitioner’s thumb would have damaged the Petitioner’s defense. 

Trial counsel testified that he did not request Tennessee Rule of Criminal 

Procedure 26.02 material from Lieutenant Mike Baker. Counsel said that he spoke with 

all three of the police officers involved with the Petitioner’s case and that counsel

reviewed the police report. Counsel said that he did not remember if he requested a 
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circumstantial evidence jury instruction but that the judge would always include a 

circumstantial evidence instruction, even if trial counsel did not request it.

Trial counsel testified that he did not file any pretrial motions. Counsel said that 

he did not consider seeking to suppress the knife because he believed there was no basis

to file a motion to suppress. Counsel did not recall if he had DNA testing performed on 

the knife but said that the Petitioner and Mr. Doak had been cut by the knife. Counsel 

said that he did not object to the chain of custody of the knife because the chain of 

custody was proper. Counsel explained that the police officer responding to the scene 

properly preserved the knife and then placed it in an evidence locker. Counsel said that 

because the police officer followed the proper procedure for collecting evidence, no one 

else would have had access to the knife.

On cross-examination, trial counsel testified that a photograph of the Petitioner’s 

injured hand would have been more damaging than helpful. Counsel said that testimony 

established the Petitioner’s hand injury. Counsel said testimony about the hand injury 

allowed him to argue that the Petitioner was the victim and that Mr. Doak was the initial 

aggressor. Counsel stated that the Petitioner never claimed ownership of the knife and 

denied ever possessing it. 

Trial counsel testified that the State’s final plea offer was ten years’ incarceration 

at forty-five percent and that he conveyed this offer to the Petitioner. Counsel said that 

he advised the Petitioner that the Petitioner risked receiving a longer sentence if 

convicted at a trial. 

Appellate counsel testified that he represented the Petitioner at the joint motion for 

new trial and sentencing hearing, and on appeal. Counsel said that the Petitioner wanted

to pursue claims of ineffective assistance of trial counsel. Counsel said that he expressed 

his concerns to the Petitioner regarding the wisdom of raising ineffective assistance of 

trial counsel at this stage in the appellate process. Counsel stated that he told the 

Petitioner, “Please do not go forth, let’s do this properly, these are the pitfalls, this is why 

you shouldn’t do it, if you want to preserve your rights, let’s do this in the traditional way 

[be]cause there’s a lot of wisdom behind choosing the correct path.” Counsel said that 

despite his admonitions, the Petitioner insisted on pursuing the claims of ineffective 

assistance of trial counsel. Counsel denied that he suggested the ineffective assistance of 

trial counsel claim be included in the motion for new trial.

Appellate counsel did not recall presenting any proof at the sentencing hearing. 

He stated that he would not be surprised to learn that he did not put on any proof because 

he did not know of any helpful proof. Counsel agreed that he did not make any argument 

regarding mitigating evidence and said that he was not aware of any mitigating evidence. 

Counsel said he drafted the Petitioner’s appellate brief. When asked if he made any 

citations to the record, counsel said that he simply listed the petitioner’s claims because 
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there was nothing in the record to support the Petitioner’s claims. Counsel explained that 

he also failed to cite to any legal authority in the brief because he did not know of any 

that would support the Petitioner’s claims. Counsel said that this court waived 

consideration of the ineffective assistance of counsel claim because the brief lacked 

argument, citations to authorities, and appropriate references to the record. 

On cross-examination, appellate counsel testified that the Petitioner raised

concerns about trial counsel’s alleged ineffective assistance. Counsel testified that after 

he reviewed the case, he advised the Petitioner to wait until after the appeal from the 

conviction proceedings to raise an ineffective assistance of trial counsel claim. Counsel 

said the brief did not include any citations for the ineffective assistance of trial counsel 

claim because he could not find anything in the record or in authority to support the 

claim. 

The Petitioner testified that trial counsel was ineffective in multiple ways. The 

Petitioner said that counsel failed to conduct plea negotiations adequately. The Petitioner 

said that, during plea negotiations, counsel said he could negotiate an eight-year sentence

but that the State did not agree to an eight-year sentence. 

The Petitioner testified that he suffered several injuries during the incident with 

Mr. Doak. The Petitioner said that he received a finger cut and a “circle around [his] 

eye.” He said that he asked trial counsel to present photographs of the injuries to the jury 

but that counsel did not. The Petitioner stated that trial counsel did not believe the 

Petitioner’s version of the incident. He alleged that counsel would have better prepared 

for the Petitioner’s trial if counsel had believed the Petitioner. The Petitioner said that

counsel should have filed a motion to suppress the knife on the basis of an improper

chain of custody. The Petitioner believed counsel should have had the knife tested for the 

presence of DNA. 

The Petitioner testified that he never discussed trial strategy with trial counsel and 

that they did not have a “meaningful working relationship.” The Petitioner said that 

counsel visited the Petitioner only once at the jail and that counsel never filed any pretrial 

motions. The Petitioner stated that counsel did not adequately cross-examine witnesses 

and investigate who handled the knife.

The Petitioner testified that he received the ineffective assistance of appellate 

counsel. The Petitioner said that the Petitioner did not raise any post-conviction issues 

intentionally but that he had attempted to remove trial counsel. The Petitioner said 

appellate counsel advised the Petitioner to raise all of his issues at the motion for new 

trial. The Petitioner said that he was unfamiliar with the law and that he did not realize 

he had raised a post-conviction issue. The Petitioner denied that counsel pressured the 

Petitioner to raise the ineffective assistance of trial counsel claim in the motion for new 
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trial but stated that appellate counsel knew as an experienced attorney that the claim 

should have been deferred.

On cross-examination, the Petitioner agreed that an attorney could not promise to 

obtain a specific plea offer from the State. The Petitioner understood that the State’s 

offer was for eight years but said that when co-counsel conveyed the offer to the 

Petitioner, the offer was for ten years. The Petitioner said he and co-counsel were not in 

agreement regarding plea negotiations, and he believed co-counsel was not working in 

the Petitioner’s best interests. The Petitioner stated that trial counsel was not present 

when this ten-year offer was conveyed and that the Petitioner rejected it. The Petitioner 

believed that at the next court date he would have been able to discuss the offer with trial 

counsel and to determine what had happened to the eight-year offer trial counsel assured 

him the State would accept. 

The Petitioner testified that if trial counsel had presented better evidence, the jury 

would have believed that Mr. Doak was the original aggressor and that the Petitioner was 

the victim. The Petitioner conceded that the jury heard testimony from Mr. Doak and 

from the Petitioner and credited Mr. Doak’s testimony. 

The Petitioner testified that if trial counsel had adequately represented him, the 

results of his trial would have been different. The Petitioner stated that if appellate 

counsel had not committed errors, the results of his appeal would have been different.

 

At the conclusion of the hearing, the post-conviction court denied relief. In a 

written order, the court found that the Petitioner had waived consideration of his 

ineffective assistance claim against trial counsel by raising the issue in the appeal of the 

conviction proceedings. The court concluded that evidence regarding trial counsel’s 

ineffectiveness was “rendered irrelevant” by this court’s ruling on appeal and held that 

the ineffective assistance of counsel evidence at the post-conviction hearing was

“stricken.” 

The post-conviction court considered the merits of the Petitioner’s claim that 

appellate counsel was ineffective. Regarding appellate counsel’s appellate brief, the 

court determined that no testimony or case law supported the Petitioner’s claim that trial 

counsel provided ineffective assistance. The court determined that trial and appellate 

counsel “each did the best he could with the facts and law with which he was presented.” 

This appeal followed.

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 (2012). A

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

evidence. Id. § 40-30-110(f) (2012). A post-conviction court’s findings of fact are 
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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.

The Petitioner contends that trial and appellate counsel provided the ineffective 

assistance of counsel. The Petitioner asserts that trial counsel failed to introduce

photographs of the Petitioner’s injuries and did not use a strategy in furtherance of the 

Petitioner’s defense strategy. The Petitioner argues that trial counsel was ineffective (1) 

for failing to file a motion to suppress the knife and (2) for not cross-examining

effectively the police officers responding to the incident about the chain of custody of the 

knife. The Petitioner claims that trial counsel did not properly prepare the Petitioner to 

testify at the trial, failed “to request statements from every witness under Tenn. R. Crim. 

P. 26.2[,]” and failed to renew the motion for a judgment of acquittal following the 
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conclusion of the Petitioner’s proof at trial. The Petitioner asserts that he was prejudiced 

by these deficiencies and that the cumulative effect of trial counsel’s deficiencies 

deprived the Petitioner of the effective assistance of counsel. The State responds that the 

issue has been previously determined and that the post-conviction court properly denied

relief.

The Petitioner claims that he also received ineffective assistance of appellate 

counsel because appellate counsel failed to follow the rules of Tennessee Appellate 

Procedure. Specifically, he argues that appellate counsel failed to raise properly the issue 

of ineffective assistance of trial counsel on appeal. In the appeal from the conviction

proceedings, this court waived plenary review of the ineffective assistance of trial 

counsel issue because the Petitioner’s brief “merely listed his multiple claims of 

ineffective assistance of counsel in a 15-line, single sentence that was devoid of 

argument, citation to authorities, or appropriate references to the record.” John Willie

Stone, 2017 WL 2438580, at *11. 

I. Trial Counsel

In his post-conviction petition, the Petitioner alleged trial counsel provided 

ineffective assistance, and the record reflects that it has been previously determined in the 

appeal of his convictions. Tennessee Code Annotated section 40-3-106(h) states, 

A ground for relief is previously determined if a court of competent 

jurisdiction has ruled on the merits after a full and fair hearing. A full and 

fair hearing has occurred where the petitioner is afforded the opportunity to 

call witnesses and otherwise present evidence, regardless of whether the 

petitioner actually introduced any evidence.

The Petitioner raised this issue at his motion for new trial and sentencing hearing, and the 

trial court denied relief. In its opinion affirming the Petitioner’s convictions, this court 

concluded that the Petitioner’s motion requesting new counsel was not a petition for postconviction relief and that the Petitioner still had the opportunity to seek post-conviction 

relief in accord with the Post-Conviction Procedure Act. Id. at *10. However, this court 

concluded that the Petitioner had “exhausted any and all claims relative to the 

ineffectiveness of counsel,” after concluding that the Petitioner did not receive the

ineffective assistance of trial counsel. Id. This court reasoned, “The [trial] court 

explicitly accredited the testimony of trial counsel and explicitly discredited that of the” 

Petitioner and held “that the [Petitioner] ha[d] failed to prove by clear and convincing 

evidence any facts that demonstrate that trial counsel’s representation was deficient or 

prejudicial.” Id. at *11. As a result, the Petitioner is not entitled to relief on this basis.

II. Appellate Counsel
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Despite the Petitioner’s having previously exhausted his claim that trial counsel 

provided ineffective assistance, the Petitioner’s claim that his appellate counsel was 

ineffective was properly raised in his post-conviction petition. See Joseph Newton v. 

State, No. M2016-02240-CCA-R3-PC, 2017 WL 5901032, at *7 (Tenn. Crim. App. Nov. 

29, 2017) (holding that the petitioner had not waived review of claims of ineffective 

assistance of appellate counsel when claims of ineffective assistance of trial counsel had 

been determined on direct review from the conviction proceeding), perm. app. denied

(Tenn. Mar. 14, 2018); Ronald Yates v. State, No. W2008-02067-CCA-R3-PC, 2009 WL 

4505436, at *1 (Tenn. Crim. App. Dec. 3, 2009) (holding that the petitioner had not 

waived his post-conviction claim of the ineffective assistance of appellate counsel when

the petitioner had previously litigated the ineffective assistance of trial counsel in the

direct appeal from the conviction proceeding); John Earl Scales v. State, No. M2003-

01753-CCA-R3-PC, 2004 WL 1562542, at *1 (Tenn. Crim. App. July 13, 2004) (holding 

that raising the ineffective assistance of trial counsel on direct appeal from the conviction 

proceeding does not preclude a petitioner from asserting subsequently the ineffective 

assistance of appellate counsel as a ground for post-conviction relief). The legal standard 

that applies to ineffective assistance of appellate counsel claims is the same standard that 

applies to claims regarding the performance of trial counsel. Carpenter v. State, 126 

S.W.3d 879, 886 (Tenn. 2004).

The Petitioner asserts that appellate counsel failed to comply with Tennessee 

Court of Criminal Appeals Rule 10(b), which states, “Issues which are not supported by 

argument, citation to authorities, or appropriate references to the record will be treated as 

waived in this court.” He also claims that counsel failed to comply with Tennessee Rule 

of Appellate Procedure 27(a)(7), which states that an appellate brief shall contain an 

argument “setting forth . . . the contentions of the appellant with respect to the issues 

presented, and the reasons therefor, including the reasons why the contentions require 

appellate review, with citations to the authorities and appropriate references to the record 

. . . relied on[.]” 

Regarding the sufficiency of appellate counsel’s advocacy for the Petitioner, the 

post-conviction court found that counsel “did the best he could with the facts and law 

with which he was presented.” Although appellate counsel may not have complied with 

the letter of the Rules, this court determined in the previous appeal that the Petitioner’s 

ineffective assistance allegations did not warrant relief. The record supports the postconviction court’s determination that appellate counsel did not provide the ineffective 

assistance of counsel. The Petitioner is not entitled to relief on this basis.

Based upon the foregoing and the record as a whole, the judgment of the postconviction court is affirmed.

 ____________________________________

 ROBERT H. MONTGOMERY, JR., JUDGE