IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

September 10, 2009 Session

CARLOS HARDY v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2002-D-1927 J. Randall Wyatt, Jr., Judge

No. M2008-02851-CCA-R3-PC - Filed January 22, 2010

A Davidson County jury convicted Petitioner, Carlos Hardy, of second degree murder, and

the trial court sentenced him to twenty-five years as a Range I, violent offender. State v.

Carlos Hardy, No M2004-02249-CCA-R3-CD, 2006 WL 359677, at *6 (Tenn. Crim. App.,

at Nashville, Feb. 10, 2006), perm. app. denied, (Tenn. Jul. 3, 2006). Petitioner was

unsuccessful in his appeal to this Court. Id. at *15. He filed a petition for post-conviction

relief raising a number of issues including an allegation that he was afforded the ineffective

assistance of counsel. After a hearing, the post-conviction court denied the petition. On

appeal, Petitioner argues that the post-conviction court erred in denying his petition with

regard to the issue of ineffective assistance of counsel. We have reviewed the record on

appeal and conclude that the post-conviction court did not err in denying the petition.

Therefore, we affirm the decision of the post-conviction court.

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

JERRY L. SMITH, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and

J.C. MCLIN, JJ., joined.

Cynthia M. Fort, Nashville, Tennessee, for the appellant, Carlos Hardy.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney

General; Victor S.Johnson, District Attorney General; and Kathy Morante, Assistant District

Attorney General, for the appellee, State of Tennessee.
OPINION

Factual Background

In March 2004, Petitioner and his co-defendant, Atlanta Hardy, were convicted of

second degree murder by a Davidson County jury. Id. at *6. The trial court sentenced

Petitioner to twenty-five years as a Range I, violent offender for the murder. Id. Petitioner

unsuccessfully appealed both his conviction and his sentence to this Court. See id. at *15.

Petitioner filed a petition for post-conviction relief arguing that he was afforded ineffective

assistance of counsel. After holding an evidentiary hearing, the post-conviction court denied

the petition. Petitioner now appeals the denial of his petition and argues that the postconviction court erred when it determined that trial counsel’s representation was effective.

We have reviewed the record on appeal and conclude that Petitioner is unable to prove that

trial counsel’s representation of Petitioner was deficient or that any deficiency in

representation was prejudicial. Therefore, we affirm the denial of the petition for postconviction relief.

Petition for Post-conviction Relief

On July 3, 2007, Petitioner filed a petition for post-conviction relief. In that petition,

he asserted that he was afforded ineffective assistance of counsel because: trial counsel failed

to object to a witness’s testimony regarding a polygraph test; trial counsel failed to properly

raise the issue of the polygraph test on appeal; two rebuttal witnesses, Evelyn Bell and

Aljanada Coats, were not called by trial counsel; trial counsel failed to investigate and/or

interview witness Maria Hardy; Petitioner was forced to file his own Rule 11 application to

appeal to the Tennessee Supreme Court; and the issue of his excessive sentence pursuant to

Blakely v. Washington, 542 U.S. 296 (2004), was not raised on appeal. On July 19, 2008,

Petitioner filed an amended petition adding an affidavit in which a witness from trial

retracted part of his testimony at trial.

The post-conviction court held a hearing on the petition. Petitioner testified at the

evidentiary hearing. He made several allegations regarding trial counsel’s ineffectiveness

at trial. Petitioner stated that trial counsel should have called Ms. Evelyn Bell to testify at

trial. According to Petitioner, she would have contradicted the testimony of his codefendant’s mother, Ms. Marion Ford. Ms. Ford testified at the trial that Petitioner came to

her house and confessed to murdering the victim. Petitioner maintained at the hearing that

Ms. Bell was present and would have testified that she did not hear him confess. Petitioner

also stated that he believed trial counsel should have interviewed Charles Carter, a witness

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who testified at trial. Petitioner stated that he had no knowledge of trial counsel interviewing

Mr. Carter. He also faulted trial counsel for never visiting the scene of the crime or having

an expert generate reports regarding ballistics and measurements.

Petitioner also testified as to his complaints regarding his appeal. After being denied

appellate relief by this Court, trial counsel attempted to withdraw. However, the Tennessee

Supreme Court denied trial counsel’s motion to withdraw because it was untimely. Petitioner

stated that he did have communications with his attorney about his Rule 11 application to the

supreme court but ultimately his draft of a Rule 11 application was filed with the supreme

court. It was unsuccessful. Finally, Petitioner testified that this Court’s opinion stated that

trial counsel did not object to a witness’s testimony regarding a polygraph test. However,

trial counsel stated in his brief that he did object to the introduction of the polygraph test.

Petitioner argues that this failure was ineffective.

Mr. Carter also testified at the hearing on Petitioner’s behalf. He testified that after

looking at his testimony at trial and interviews with the detectives investigating the murder

he would change only one thing about his testimony. At trial Mr. Carter testified that he saw

Petitioner with a gun, but at the hearing he maintained that he did not see Petitioner with a

gun. He stated that he lied about seeing the gun because he was on federal probation at the

time and wanted to protect himself.

Petitioner’s trial counsel also testified at the hearing. He stated that at the time he

represented Petitioner his practice consisted of nine-five percent criminal defense work. He

had handled thirty murder trials. With regard to Mr. Carter’s testimony at trial about the

polygraph test, trial counsel stated that Mr. Carter merely mentioned that a polygraph test

had been administered. Mr. Carter did not even testify as to the results of the test. Trial

counsel made a strategic decision to not bring it up to the trial court in order avoid calling

further attention to the statement. He raised it on appeal, but trial counsel did not feel that

it was the basis of a very strong argument. Trial counsel recommended to Petitioner that he

should not testify on his own behalf. However, Petitioner felt that he needed to rebut the

testimony that had been offered at trial, so he chose to testify at trial.

Trial counsel recalled Petitioner mentioning a possible witness who could refute Ms.

Ford’s testimony. At the hearing, he believed it was Ms. Bell. He stated that he checked on

the witness’s criminal record and found that she had an extensive record of theft and

impersonation. Therefore, he determined that it would not be in his client’s best interest to

call her to testify. In addition, trial counsel stated that he had never heard of Ms. Coats. Trial

counsel did not speak with Mr. Carter because he refused to speak with trial counsel.

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Trial counsel also testified concerning his motion to withdraw after representing

Petitioner in his appeal to this Court. Trial counsel stated that he filed a motion to withdraw

with the supreme court and sent a letter to that effect to Petitioner setting out the time frame

for submitting a Rule 11 application to appeal to the supreme court. However, the supreme

court denied the motion to withdraw because trial counsel had filed the motion too late. At

that point, because he was still the attorney of record, trial counsel filed a fully-briefed Rule

11 application. The supreme court denied it. According to trial counsel, the supreme court

also denied the Rule 11 application drafted by Petitioner because he was represented by

counsel.

The post-conviction court denied Petitioner’s petition for post-conviction relief.

Petitioner filed a timely notice of appeal.

ANALYSIS

Post-Conviction Standard of Review

The post-conviction court’s findings of fact are conclusive on appeal unless the

evidence preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

During our review of the issue raised, we will afford those findings of fact the weight of a

jury verdict, and this court is bound by the court’s findings unless the evidence in the record

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

1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim .App. 1997). This Court may not

reweigh or re-evaluate the evidence, nor substitute its inferences for those drawn by the postconviction court. See State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn. 2001). However, the

post-conviction court’s conclusions of law are reviewed under a purely de novo standard with

no presumption of correctness. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

Effective Assistance of Counsel

When a petitioner seeks post-conviction relief on the basis of ineffective assistance

of counsel, the petitioner bears the burden of showing that (a) the services rendered by trial

counsel were deficient and (b) the deficient performance was prejudicial. See Powers v.

State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient

performance, the petitioner must show that the services rendered or the advice given was

below “the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose,

523 S.W.2d 930, 936 (Tenn. 1975). In order to demonstrate prejudice, the petitioner must

show that there is a reasonable probability that, but for counsel’s deficient performance, the

result of the proceeding would have been different. See Strickland v. Washington, 466 U.S.

668, 694 (1984). “Because a petitioner must establish both prongs of the test to prevail on

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a claim of ineffective assistance of counsel, failure to prove either deficient performance or

resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley, 960

S.W.2d at 580.

As noted above, this Court will afford the post-conviction court’s factual findings a

presumption of correctness, rendering them conclusive on appeal unless the record

preponderates against the court’s findings. See id. at 578. However, our supreme court has

“determined that issues of deficient performance by counsel and possible prejudice to the

defense are mixed questions of law and fact . . . ; thus, [appellate] review of [these issues]

is de novo” with no presumption of correctness. Burns, 6 S.W.3d at 461.

Furthermore, on claims of ineffective assistance of counsel, the petitioner is not

entitled to the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim.

App. 1994). This Court may not second-guess a reasonably-based trial strategy, and we

cannot grant relief based on a sound, but unsuccessful, tactical decision made during the

course of the proceedings. See id. However, such deference to the tactical decisions of

counsel applies only if counsel makesthose decisions after adequate preparation for the case.

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

On appeal, Petitioner argues that the post-conviction court erred in denying his

petition because he was afforded ineffective assistance of counsel. He specifically argues

that trial counsel failed to interview a witness, Ms. Bell, who was present when he allegedly

confessed; failed to properly investigate the facts in light of Mr. Carter’s testimony that he

lied at trial; failed to object to the entry of polygraph evidence at trial; and failed to timely

notify Petitioner of his intention to withdraw from representing Petitioner when the deadline

to file his Rule 11 application to the supreme court was approaching.

With regard to Ms. Bell, trial counsel testified that he interviewed her and found that

she had an extensive criminal record. The post-conviction court found that trial counsel had

indeed investigated her and found that trial counsel was not deficient in not presenting her

as a witness. In addition, Petitioner did not present Ms. Bell at the evidentiary hearing.

Under State v. Black, 794 S.W.2d 753 (Tenn. Crim. App. 1990), when a petitioner argues that

trial counsel was ineffective by not presenting a witness at trial, the petitioner must present

that witness at the evidentiary hearing. 794 S.W.2d at 757-58. Therefore, we conclude that

the record does not preponderate against the findings of the post-conviction court.

Petitioner next argues that trial counsel was ineffective because he failed to properly

investigate what Mr. Carter’s testimony would be at trial. To support this argument,

Petitioner points to Mr. Carter’s testimony at the evidentiary hearing that he lied at

Petitioner’s trial when he stated that he saw Petitioner holding a gun. The State argues that

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Petitioner has waived this issue because he did not present this argument as an ineffective

assistance of counsel argument. The post-conviction court analyzed this issue as a potential

due process violation as opposed to the basis for an ineffective assistance of counsel

argument. We have reviewed the record from the post-conviction court. Petitioner did not

present this issue as an ineffective assistance of counsel issue, but rather, filed an amendment

to his petition and stated the following: “Petitioner is attaching an affidavit from Charles

Carter wherein he retracts certain incriminating statements he made regarding the defendant.

Said statements were highly incriminating and most likely the cause of conviction.” A

petitioner may not assert one ground for relief in the post-conviction court and pursue a

different or new theory on appeal. State v. Adkisson, 899 S.W.2d 626, 634-35 (Tenn. Crim.

App. 1994). Therefore, this issue is waived. Id. at 635.

Petitioner also argues that trial counsel was ineffective for failing to object to Mr.

Carter’s testimony at trial that a polygraph examination occurred while the police were

investigating the case. Mr. Carter did not mention any results of the polygraph examination.

At the evidentiary hearing, trial counsel testified that he did not object because he did not

want to call additional attention to the matter. He stated that he made a tactical decision in

not objecting. The post-conviction court found that trial counsel acted effectively by not

objecting. As stated above, this Court cannot grant relief based on a sound, but unsuccessful,

tactical decision made during the course of the proceedings. Adkins, 911 S.W.2d at 347.

Therefore, the findings of the post-conviction court do not preponderate against the findings

of the post-conviction court.

In hisfinal issue on appeal, Petitioner argues that trial counsel wasineffective because

he attempted to withdraw from representing Petitioner near the deadline of his Rule 11

application to our supreme court. Trial counsel filed an untimely motion to withdraw from

representation. The supreme court denied trial counsel’s motion. After the denial of the

motion, trial counsel reviewed Petitioner’s pro se Rule 11 application and also drafted a

separate Rule 11 application which was also filed with our supreme court. The postconviction court found that trial counsel’s untimely motion to withdraw was deficient.

However, Petitioner was unable to prove prejudice because trial counsel drafted a Rule 11

application, and it was filed with the court. The record does not preponderate against the

post-conviction court’s findings that Petitioner has been unable to meet the second prong

under Strickland.

We conclude that Petitioner has been unable to prove under Strickland that trial

counsel was both deficient and that the deficiency prejudiced Petitioner. Therefore, we

affirm the decision of the post-conviction court.

CONCLUSION

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For the foregoing reasons, we affirm the post-conviction court’s denial of the petition

for post-conviction relief.

___________________________________

JERRY L. SMITH, JUDGE

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