IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs January 11, 2005

LARRY MITCHELL v. STATE OF TENNESSEE

 Appeal from the Criminal Court for Shelby County

No. P-27009 John P. Colton, Jr., Judge

No. W2004-00981-CCA-R3-PC - Filed April 25, 2005

The Appellant, Larry Mitchell, appeals the judgment of the Shelby County Criminal Court denying

his petition for post-conviction relief. On appeal, Mitchell argues that he was denied his Sixth

Amendment right to the effective assistance of counsel. After a review of the record, we affirm the

denial of post-conviction relief.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and

J. C. MCLIN, JJ., joined.

Kamilah E. Turner, Memphis, Tennessee, for the Appellant, Larry Mitchell.

Paul G. Summers, Attorney General and Reporter; John L. Bledsoe, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Andre Thomas, Assistant District Attorney

General, for the Appellee, State of Tennessee.

OPINION

Procedural Background

The Appellant is currently serving an effective twenty-four year sentence as a result of his

convictions for attempted first degree murder, especially aggravated kidnapping, two counts of

aggravated robbery, and theft of property over $10,000. These convictions stem from three separate

criminal episodes which occurred on the dates of May 9 and May 14, 2001, in Shelby County.

Compelling evidence, including victim identification of the Appellant and fingerprint evidence,

linked the Appellant to these crimes. Pursuant to a plea agreement, the Appellant entered guilty

pleas to the above offenses on October 28, 2002.
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In January of 2003, the Appellant filed a pro se petition for post-conviction relief alleging

that he was denied the effective assistance of counsel. Following the appointment of counsel and

the filing of an amended petition, an evidentiary hearing was held on January 15, 2004. The postconviction court denied relief by written order of March 25, 2004. This timely appeal followed. 

Analysis

The Appellant argues that his trial counsel was deficient for failing to: (1) provide him with

available discovery material; (2) contact material witnesses; (3) conduct a proper investigation; (4)

advise him of the elements of the offenses; and (5) file a motion for severance of the offenses.

Additionally, the Appellant contends that his guilty pleas were not voluntary because trial counsel

coerced him into pleading guilty. 

In order to succeed on a post-conviction claim, the Appellant bears the burden of showing,

by clear and convincing evidence, the allegations set forth in the petition. Tenn. Code Ann. § 40-30-

110(f) (2003). To support a Sixth Amendment claim of ineffective assistance of counsel, the

Appellant must establish that counsel’s performance fell below the range of competence of attorneys

demanded in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under Strickland

v. Washington, the Appellant must establish (1) deficient representation and (2) prejudice resulting

from the deficiency. 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). It is unnecessary for a court

to address deficiency and prejudice in any particular order, or even to address both if the petitioner

makes an insufficient showing on either. Id. at 697, 104 S.Ct. at 2069. With a guilty plea, to satisfy

the “prejudice” prong, the Appellant “must show that there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill

v. Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 369 (1985).

The issues of deficient performance by counsel and possible prejudice to the defense are

mixed questions of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). “A trial court’s

findings of fact underlying a claim of ineffective assistance of counsel are reviewed on appeal under

a de novo standard, accompanied with a presumption that those findings are correct unless the

preponderance of evidence is otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing

Tenn. R. App. P. 13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). However, conclusions

of law are reviewed under a purely de novo standard with no presumption of correctness. Fields, 40

S.W.3d at 458. 

I. Discovery, Witnesses, and Pretrial Investigation

The Appellant contends that trial counsel failed to provide him with discovery material made

available by the State. Although raised as a ground for deficient performance, this issue was never

developed by the Appellant at the post-conviction hearing. Thus, we are uninformed as to what

discovery material the Appellant is referring to and more importantly how this material, if provided,

would have produced a different conclusion. Proof of deficient representation by omission requires

more than a bare allegation of some lost potential benefit. Notwithstanding the Appellant’s
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assertions, trial counsel testified that he reviewed all discoverymaterial and the facts ofthe case with

the Appellant on numerous occasions. Trial counsel also testified that after his appointment in the

case, he received the Public Defender’s entire investigative file and, after reviewing various

statements of witnesses in the file, made additional personal contact with other witnesses. He further

explained that the State provided “open file” discovery in the case, and, therefore, he had access to

the State’s witnesses through this source as well. Trial counsel testified that he reviewed the

elements of the various offenses with the Appellant, and together they developed the defense strategy

which was to be employed if the case proceeded to trial. The post-conviction court, in accrediting

the testimony of trial counsel, found that the Appellant’s allegations of (1) failing to provide

discovery; (2) failing to advise as to the elements of the offenses; and (3) failing to conduct a proper

investigation were not supported by the proof. The record does not preponderate against these

findings. These issues are without merit.

II. Motion to Sever

Next, the Appellant contends that trial counsel was deficient because he failed to file a

motion to sever the offenses. Severance of offenses is governed by Tenn. R. Crim. P. 8 and 13.

Here, Appellant fails to identify which offenses should have been severed, whether joinder of the

offenses was permissive as provided by Tenn. R. Crim. P. 8(b), or how the Appellant was prejudiced

by trial counsel’s failure to pursue severance. With regard to this allegation, the Appellant was

required to show by clear and convincing evidence (1) that a motion to sever would have been

granted and (2) that there was a reasonable probability that the proceedings would have concluded

differently if counsel had performed as suggested. The Appellant clearly has failed to establish either

factor. Thus, this issue is without merit. Moreover, as found by the post-conviction court, the

Appellant’s entry of guilty pleas to the offenses made this issue moot.

III. Coerced Guilty Plea

Finally, the Appellant argues that his guilty pleas were not knowing and voluntary because

trial counsel coerced him into pleading guilty. The Appellant asserts that when he wanted to plead

to a twenty-year sentence and could not get it, trial counsel urged him to accept a twenty-five year

sentence. Describing the circumstances, he stated, “[trial counsel] kept telling me . . . you need to

take this twenty-five, if you don’t you’re going to trial and get a hundred and ninety-five years.”

Trial counsel’s testimony on this issue differed materially from that of the Appellant. With regard

to this issue, the post-conviction court found as follows:

Counsel submits that he gave Petitioner his honest and professional opinion based

upon the facts and situation presented, which is his duty to the client. Counsel

submits that upon receiving the first plea offer, he communicated to Petitioner that

he did not think it was in Petitioner’s best interest to take the offer. Prior to trial, a

second plea agreement was offered of 25-years, which was drastically less than the

first offer. Counsel negotiated the reduction of an additional year, down to 24-years.

Counsel submits that he and Petitioner agreed that taking the offer was the best
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resolution. Also, counsel describes Petitioner as “elated” and stated that Petitioner

thanked counsel for “saving him many years in prison”.

. . .

Petitioner was given ample opportunity to express any coercion or intimidation

brought on by counsel throughout the questioning process of entering the guilty plea.

At no time did Petitioner express any such coercion. Therefore, this Court finds the

claim of coercion is without merit and no due process violation exists.

The record supports these findings and the post-conviction court’s conclusion that the

Appellant has failed to establish that he was denied the effective assistance of counsel or that his

pleas of guilty were unknowingly and involuntarily entered.

CONCLUSION

Based upon the foregoing, we affirm the dismissal of the petition for post-conviction relief

by the Shelby County Criminal Court.

______________________________

DAVID G. HAYES, JUDGES