08/24/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs August 8, 2017

STEVEN WOODROW JOHNSON v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2010-B-977 Mark Fishburn, Judge

No. M2016-02363-CCA-R3-PC

A Davidson County jury convicted the Petitioner, Steven Woodrow Johnson, of first 

degree felony murder, especially aggravated burglary, aggravated burglary, aggravated 

assault, and possession of a firearm during the commission of a dangerous felony, and the 

trial court sentenced him to an effective sentence of life in prison. This court affirmed 

the Petitioner’s convictions on appeal, save the especially aggravated burglary 

conviction, which we modified to aggravated burglary. State v. Steven Woodrow 

Johnson, M2011-00859-CCA-R3-CD, 2012 WL 3877787, at *1 (Tenn. Crim. App., at 

Nashville, Sept. 7, 2012), perm. app. denied (Tenn. Feb. 13, 2013). In 2013, the 

Petitioner filed a petition for post-conviction relief alleging that he had received the 

ineffective assistance of counsel. The post-conviction court held a hearing on the petition

and denied relief. On appeal, we affirm the post-conviction court’s judgment. 

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which D. KELLY 

THOMAS, JR., and J. ROSS DYER, JJ., joined.

Manuel B. Russ, Nashville, Tennessee, for the appellant, Steven Woodrow Johnson.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior 

Counsel; Glenn R. Funk, District Attorney General; and Janice Norman, Assistant 

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

OPINION

I. Facts and Procedural History

This case arises from the death of the victim, John Young, inside his home during 

a home invasion. For this offense, a Davidson County grand jury indicted the Petitioner 

for first degree felony murder, especially aggravated burglary, attempted especially 
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aggravated robbery, aggravated burglary, aggravated assault, and possession of a firearm 

during the commission of a dangerous felony.

A. Trial

In our opinion on the Petitioner’s first appeal, this court summarized the facts 

presented at trial as follows:

Officer Eric Bacon with the Metropolitan Nashville Police 

Department testified that in the early morning hours of November 23, 2008, 

he responded to a shooting call at a residence located at 524 Wesley 

Avenue in East Nashville. Upon entering the residence through the front 

door, Officer Bacon briefly spoke with George Young, the victim’s 

roommate and brother. He then went to the rear bedroom where the victim, 

John Young, was “near death,” lying on the bed with a gunshot wound to 

his head. Upon entering the bedroom, Officer Bacon discovered a revolver 

on the floor next to the victim’s foot and secured it. Paramedics soon 

arrived to transport the victim, and Officer Bacon was able to conduct a 

walk-through of the residence. He observed that the back door had been 

forced open, shell casings were scattered on the floor, and bullet holes were 

in the walls.

George M. Young, Jr. testified that he resided at 524 Wesley Avenue 

with the victim. On the night of November 22, 2008, they watched a 

football game and went to bed around 10:30 p.m. A few moments later, 

Mr. Young heard a knock at the back door. The victim went to the 

bathroom window through which he could see two men standing on the 

back porch; Mr. Young stood beside the victim. The victim told the two

people to leave, and they complied. From the front door of the residence, 

Mr. Young then observed the two men walking west down the street. The 

victim told Mr. Young that the men stated that “Dewayne” sent them to 

borrow money. After Mr. Young returned to bed, a noise in the home 

awakened him, and he discovered a man in his room, pointing a gun at his 

face. The man told him to get up. When Mr. Young stood up, the man hit 

him in the back of the head with his gun, knocking him to the floor.

Gunshots began to ring out, and Mr. Young lay face down on the floor. 

Mr. Young then heard glass breaking, which the shooter caused by jumping 

through the bedroom window. Mr. Young called 9-1-1 and called out to his 

brother. However, he “never could hear anything.” Mr. Young testified 

that he kept some money in the back of his closet, but the intruder did not 

take anything from the home that night.
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Richard Allen testified that he resided at 308 Dinwiddie Drive with 

Robert Taylor and Mr. Taylor’s wife, Crystan Shawn Taylor. On the 

evening of November 22, 2008, Allen was in possession of Crystan’s 

cellular phone. He received a call from [the Petitioner] in which he asked if 

Allen “wanted to go out and do something.” [The Petitioner] thereafter 

drove to Allen’s residence with [the Petitioner’s] brother, Richard Johnson, 

and another man whom Allen had never met before. The men all got into 

[the Petitioner’s] vehicle, and Allen had a conversation in the back seat of 

the vehicle with the man whom he did not know. Allen testified that the 

man “[w]anted to hit a lick. They were going to do a robbery.” Allen 

stated that the man wanted $60,000 that was in a shoe box in the home of 

“two old guys.” Allen was not certain if [the Petitioner] could hear the 

conversation, but Allen asked [the Petitioner] what he thought about the 

conversation. However, Allen could not recall how [the Petitioner] replied.

Allen then stepped out of the vehicle and returned to his house, not wanting 

to participate in the robbery. Allen left instructions with Crystan “to just 

answer the phone and say no[,]” if [the Petitioner] called. Allen and Robert 

Taylor then left the residence to go to a tattoo shop. After hearing about the 

home invasion and murder on the news, Allen contacted [the Petitioner] the 

next day and asked [the Petitioner] if he had been involved. [The 

Petitioner] responded that he had no involvement in the reported incident.

Crystan Shawn Taylor testified that on November 22, 2008, Allen 

was in possession of her cellular phone at their residence while she was at a 

tattoo shop with a friend. When Crystan returned home, Allen was leaving 

the residence with Robert Taylor, and Allen stated to Crystan that “[the 

Petitioner] may call. If he calls, tell him I’m not here and I said no.” After 

midnight, Crystan received a call from [the Petitioner], asking for “Ricky.” 

Crystan responded that “Ricky said to tell you he’s not here and he said 

no,” although she did not know the meaning of her response. [The 

Petitioner] then replied, “[T]hat’s all I need to know.”

Alicia Catherine Johnson, [the Petitioner’s] wife, testified that in 

2008, she and [the Petitioner] resided with [the Petitioner’s] parents in their 

home at 1221 London Bridge Road. [The Petitioner’s] brother, Richard 

Johnson, also resided there. She stated that she and [the Petitioner] were 

arguing constantly, and their marriage was “falling apart.” On the evening 

of November 22, 2008, she was at a family dinner at church with [the 

Petitioner], Wendy Johnson, Richard Johnson, and other family members.

Also in attendance was a man named Francisco Ancona, whom Alicia knew 
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as “Brobro,” and Gail Barber. At the dinner, Alicia overheard [the 

Petitioner] and Ancona talking about “hitting a lick.” Although she did not 

think they were referring to committing a robbery, she knew this term could 

refer to a robbery. She stated that she thought [the Petitioner] said the term, 

but she was “not positive.” She stated that, although she did not know what 

they were referring to, it made her feel “sick” because “anything that has to 

do with hitting a lick would be somebody getting in trouble.” After the 

dinner, she and [the Petitioner] returned home with their children in his 

vehicle. Alicia got into an argument with [the Petitioner], and [the 

Petitioner] left the home. Alicia began calling [the Petitioner] on his 

cellular phone, but he did not answer. Later that night, [the Petitioner]

returned home with Richard Johnson. They were carrying Ancona into the 

home. Ancona had a cut on his leg, and the two men put him into the 

shower. Alicia testified that she knew something was wrong because [the 

Petitioner] was very upset. Wendy Johnson and Barber also appeared at the 

home between 3:00 a.m. and 6:00 a.m. [The Petitioner] would not tell 

Alicia what had happened, but later [the Petitioner] turned on the news, 

which was broadcasting a story about the victim, and stated, “[T]hat’s it.”

Alicia Johnson further testified that [the Petitioner] and [the 

Petitioner’s] fiancee, Tangia Tobitt, contacted her and attempted to 

“intimidate” her about testifying. She stated that she was afraid of them.

Alicia spoke to Detective Curtis Hafley with the Metropolitan Nashville 

Police Department about the incident on two occasions, but she gave

different statements each time. She said she was scared the first time, and 

the second time she “felt more comfortable” with Detective Hafley. In her 

first statement on May 28, 2009, Alicia told Detective Hafley that she was 

asleep when [the Petitioner] and the other men came to the home that night, 

and a loud noise awakened her. However, she did not mention Wendy 

Johnson and Barber being in the home or that she saw any blood. She gave 

her second statement to Detective Hafley on March 28, 2010, in which she 

proffered this additional information. However, she did not tell Detective 

Hafley about the conversation she overheard between [the Petitioner] and 

Ancona at the family dinner about “hitting a lick” because she “didn’t want 

to get in trouble.” She only revealed that information shortly before trial.

Elizabeth Gail Barber testified that on November 22, 2008, she and 

her son went to the Walmart parking lot in Madison, Tennessee, to meet 

[the Petitioner], Richard Johnson, and Ancona, whom she knew as “Frank.”

Wendy Johnson was also at the meeting. [The Petitioner] asked Barber if 

she “wanted to make some money, about a thousand dollars.” They wanted 
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to use her vehicle, a Chevrolet S-10 truck, “[g]oing to the robbery.” She 

stated that she followed [the Petitioner] in his vehicle to a side street off 

Trinity Lane, where they exchanged vehicles, and she saw [the Petitioner]

remove a gun from the middle console of his vehicle. She stated that she 

thought “that they were going to use [the gun] to go do the robbery,” 

meaning she thought Ancona was going to take the gun into the home when 

he committed the robbery. Richard Johnson and Ancona then took her 

truck “to go by and do the robbery.” After Richard Johnson and Ancona 

took Barber’s vehicle, she and Wendy Johnson went with [the Petitioner] in 

his vehicle.

[The Petitioner] then drove to a White Castle restaurant and waited 

in the parking lot. Barber heard [the Petitioner] talking on the phone to 

someone, asking “if that was gunshots” approximately twenty to twentyfive minutes after the meeting on Trinity Lane. Richard Johnson and 

Ancona then approached them in Barber’s truck, and Ancona got into [the 

Petitioner’s] vehicle. [The Petitioner] drove them to his parents’ home, 

where she saw Alicia Johnson come out on the porch.

Barber further testified that she did not tell Detective Hafley that her 

two-year-old son was with her that night because she was “afraid that [she] 

would lose her child.” She also told Detective Hafley during her interview 

that she saw [the Petitioner] with a gun while at the Walmart parking lot, 

but she actually saw it on Trinity Lane “[b]ecause after thinking about it, 

that’s where I actually seen [sic] it the first time.” She further stated that 

while at the Walmart parking lot, [the Petitioner] was sitting in his vehicle 

with the door open when Ancona, who was standing outside, and [the 

Petitioner] agreed that Ancona would be the one to enter the home and 

commit the robbery.

Detective Paul Harris with the Metropolitan Nashville Police 

Department testified that he assisted Detective Hafley in the investigation.

Approximately eighty-eight hours after the incident occurred, Detective 

Harris arrested a suspect named Francisco Ancona. At the time of arrest, 

Ancona told police he was waiting on a ride from [the Petitioner], and 

Ancona gave [the Petitioner’s] address as his place of residence. Detective 

Harris considered [the Petitioner] a potential suspect because “there was a 

fair amount of speculation that someone would have assisted Francisco 

Ancona in the homicide. . . .” Detective Harris spoke with [the Petitioner]

on November 24, 2010, about his relationship with Ancona. That was [the 

Petitioner’s] first interview with police concerning this incident. [The 
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Petitioner] stated that he took Ancona to an Express Market at 

approximately 8:30 p.m. on November 22, 2008, and did not have any more 

contact with Ancona until around noon the next day. [The Petitioner]

stated that he was sick that evening and had been at home sleeping all 

night. After the interview, [the Petitioner] was not placed under arrest and 

was allowed to leave the station.

Kevin Carroll, an investigator with the Davidson County Sheriff’s 

Office, testified that Ancona’s visitation report indicated that [the 

Petitioner] visited Ancona in jail seven times between November 30, 2008, 

and January 25, 2009. Ancona’s visitation report also showed that [the 

Petitioner] was listed as “sibling.” Carroll further testified about Ancona’s 

recorded telephone calls, and he identified five calls that were played for 

the jury.

Special Agent Richard Wesley Littlehale, Assistant Special Agent in 

charge of the technical services unit for the Tennessee Bureau of 

Investigation, testified that Detective Hafley and the District Attorney 

General’s office contacted him to assist in analyzing telephone records 

pertaining to the case and in preparing a visual aid to present to the jury.

He explained the process of collecting and analyzing cellular phone data, 

and he created a map based on call records and addresses that Detective 

Hafley provided him.

Detective Curtis Hafley with the Metropolitan Nashville Police 

Department testified that he was the lead detective in the case and 

responded to the crime scene at 524 Wesley Avenue at 2:30 a.m. on 

November 23, 2008. Detective Hafley determined that the rear door of the 

victim’s residence was the point of entry and that George Young’s bedroom 

window was the suspect’s point of exit. After the police took Ancona into 

custody on November 23, 2008, Detective Hafley obtained a search warrant 

on November 24 for 1221 London Bridge Road because Ancona listed that 

address as his place of residence. Detective Hafley also obtained Ancona’s 

jail telephone call records and cellular phone records of [the Petitioner] and 

Ancona, among other potential suspects.

A few weeks later, a member of the Young family contacted 

Detective Hafley regarding a letter that Josh Young, the victim’s son, had 

sent. Josh Young was incarcerated in the Cheatham County Jail with 

Richard Allen, and Allen claimed to have information about the incident.

Detective Hafley interviewed Allen at the jail, and Allen supplied Detective 
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Hafley with details about [the Petitioner’s] attempt to get Allen involved in 

the robbery. Detective Hafley corroborated the information with cellular 

phone records. Detective Hafley later received recordings of Ancona’s 

telephone calls from prison to [the Petitioner]. He discovered that from the 

time of Ancona’s arrest on November 23, 2008, and [the Petitioner’s] arrest 

on January 26, 2009, there were about a dozen calls between Ancona and 

[the Petitioner].

Detective Hafley formally interviewed [the Petitioner] on January 

26, 2009, which was [the Petitioner’s] second interview with police. [The 

Petitioner] first told Detective Hafley the same story he told Detective 

Harris, stating that on the night of the incident he had been sick, had slept 

all night, and he had not seen Ancona until the next day. As the interview 

progressed, [the Petitioner] changed different aspects of his story. At first, 

[the Petitioner] denied knowing anything about the incident until after it 

occurred, but then [the Petitioner] informed Detective Hafley that Ancona 

previously told him “he was going to hit a good lick.” [The Petitioner] then 

stated that Wendy Johnson contacted him on behalf of a man named 

Dewayne Vaughan to commit a robbery, but he and Ancona never 

discussed the robbery. However, when interviewing Vaughan “a day or 

two” after [the Petitioner], Vaughan denied meeting [the Petitioner], and no 

cellular phone records indicated that they had communicated. Later, [the 

Petitioner] stated that he, in fact, left his home two times that night to look 

for Ancona, who had called him wanting a ride. However, [the 

Petitioner’s] story of the events did not correlate with cellular phone 

records and other statements, and Detective Hafley confronted [the 

Petitioner] about the inconsistencies. [The Petitioner] later stated that he 

spoke to Allen about recruiting him to commit the robbery. He said that he 

drove to Allen’s house with Richard Johnson and Ancona, where Ancona 

attempted to recruit Allen to participate.

Approximately three hours into the interview, [the Petitioner] added 

that Richard Johnson and Ancona drove Barber’s truck to commit the 

robbery. After claiming he was at his home when the robbery happened, 

[the Petitioner] subsequently stated that he was, in fact, out driving by 

himself at the time of the robbery. Approximately four hours into the 

interview, [the Petitioner] admitted that he went to the Youngs’ home the 

first time with Richard Johnson and Ancona under the pretext that a man 

named “Dewayne” sent them in an attempt to get money. [The Petitioner]

stated that he took Richard Johnson and Ancona to a church behind the 

Youngs’ residence, and he waited in his vehicle while the other two men 
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went up to the home. [The Petitioner] agreed with Detective Hafley that 

had the first attempt gone as planned, he would have been the “getaway 

driver.” [The Petitioner] also stated to Detective Hafley that he was not 

going to get anything from the robbery and that he did not want any money.

Detective Hafley further testified about the time and location of calls made 

by [the Petitioner] and Ancona using cellular phone records.

Sandra Parrish Thomas, M.D., an assistant medical examiner for the 

Davidson County Medical Examiner’s Office, testified that she reviewed 

the autopsy of the victim, although she did not conduct the autopsy herself.

She testified that the victim died from a single gunshot wound to the head.

[The Petitioner] . . . testified that he was not truthful with police in 

his interviews because he had received a threatening telephone call warning 

him not to testify against Ancona. The telephone call caused him to fear 

for the safety of his family. He stated that by the end of his interview with 

Detective Hafley, however, he had told the detective everything he knew 

about the incident. [The Petitioner] testified that two weeks prior to the 

incident, Wendy Johnson took him to meet Dewayne Vaughan, who wanted 

him to participate in a robbery, but [the Petitioner] said he was not 

interested. [The Petitioner] denied having a conversation with Ancona at 

the family dinner the night of the incident about “hitting a lick.” [The 

Petitioner] testified that Ancona asked him to take him and [the 

Petitioner’s] brother, Richard Johnson, to buy marijuana that night. 

Ancona directed them to an area close to 524 Wesley Avenue, although [the 

Petitioner] did not know a robbery was going to be attempted at that time. 

[The Petitioner] testified that he learned that his brother and Ancona 

actually made the first robbery attempt after the robbery attempt had 

occurred.

[The Petitioner] further denied having a gun in his truck the night of 

the robbery and stated that he never saw anyone with a gun that night.

However, he stated that he heard Ancona and Allen talking about a gun 

while the two men were seated in the back of his vehicle. [The Petitioner]

admitted that he placed the telephone call to Allen after the first failed

robbery attempt, but he stated he handed the telephone to Ancona after 

Allen answered because Ancona did not have a phone or any other way of 

getting in touch with Allen. [The Petitioner] testified that after the failed 

attempt, he drove Richard Johnson and Ancona to meet with Allen at the 

Taylor residence. He admitted he was in the car the entire time that Allen 

and Ancona were talking about “hitting a lick” and “needing a strap.”
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However, [the Petitioner] stated that he was not aware that Ancona was 

planning to return to the Youngs’ residence to attempt the robbery again 

that night.

[The Petitioner] testified that he was aware Ancona was going to 

commit a robbery on the evening of November 22, but he did not know 

when or where. He admitted driving over to the house of a man named 

“Red,” but he denied knowing that Ancona was attempting to recruit him to 

participate in the robbery. [The Petitioner] was aware that his brother, 

Richard, had driven Ancona to the Young residence to commit the robbery 

and that Ancona killed the victim, but [the Petitioner] only learned of this 

after the incident had occurred. [The Petitioner] further admitted that on 

the day of the incident, Ancona came back to his house injured during the 

early morning hours.

Johnson, 2012 WL 3877787, at *1-6. The jury convicted the Petitioner of first degree 

felony murder, especially aggravated burglary, aggravated burglary, aggravated assault, 

and possession of a firearm during the commission of a dangerous felony. The trial court 

sentenced the Petitioner to life in prison.

B. Post-Conviction Proceedings

The Petitioner filed a petition for post-conviction relief, pro se. The postconviction court appointed an attorney, and the attorney filed an amended petition, 

alleging that the Petitioner had received the ineffective assistance of counsel on the basis 

that, relevant to this appeal, his trial counsel failed to obtain a satisfactory plea 

agreement, which in turn led the Petitioner to proceed to trial and become subject to a life 

sentence. The post-conviction court subsequently held a hearing, during which the 

following evidence was presented: the Petitioner testified that he hired trial counsel 

(“Counsel”) when he was released on bond and that he met with Counsel many times 

over the course of eight months preparing for trial. He said that Counsel did not review

discovery with the Petitioner nor did he review the witnesses’ statements. Together they 

“briefly” reviewed two interviews the Petitioner had participated in but did not discuss 

issues of suppression or a defense strategy. The Petitioner asserted that Counsel failed to 

discuss with the Petitioner plea offers from the State until the day before trial when he 

informed the Petitioner that the State had offered a plea deal of ten to twenty years. The 

Petitioner elected to counter with an offer of six years to be served at 100 percent which 

the State declined. The Petitioner then decided to offer to serve fifteen years, but 

Counsel told him to think about it and think about going to trial. The Petitioner recalled 

that his trial began the following day, and he was unsure whether Counsel presented his 

offer of fifteen years to the State.
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The Petitioner testified that Counsel showed up late on the day of trial looking 

disheveled and unprepared. He recalled that Counsel did not discuss the theory of 

criminal responsibility with him. Counsel untimely filed post-trial motions on the 

Petitioner’s behalf and never discussed the Petitioner’s appeal with him. 

On cross-examination, the Petitioner agreed that he was never identified as the 

shooter in this case. He stated that each meeting with Counsel lasted for approximately 

twenty to forty minutes. The Petitioner agreed that Counsel’s argument at trial was that 

because the Petitioner was not present when the shooting occurred and did not actually 

intend for the victims to be murdered, he was not culpable under the theory of criminal 

responsibility. He asserted, however, that if he had fully understood the theory of 

criminal responsibility, the Petitioner would not have gone to trial based on Counsel’s 

argument. It was during the plea negotiations with the State that Counsel convinced the 

Petitioner to proceed to trial. The Petitioner stated that his recorded jail calls would 

indicate that he wanted to accept the State’s plea offer.

On the subject of Counsel’s cross-examination of witnesses at trial, the Petitioner 

contended that Counsel did not ask the witnesses any new questions and simply repeated 

what the State had asked on direct. Counsel did not “defend [the Petitioner] like he 

should” and he “should have tried harder” to defend the Petitioner at “a hundred percent.” 

Counsel did not ask certain questions of the witnesses the way the Petitioner told him to. 

He testified that during most of his meetings with Counsel they simply were “socializing” 

or talking about how things were going well with the case.

Tangia Tobitt, the Petitioner’s wife, testified that the night before the Petitioner’s 

trial she received a telephone call from Counsel, and she and the Petitioner listened to the 

phone call on speaker phone. She overheard Counsel tell the Petitioner that the State had 

offered him a plea deal, and she told the Petitioner that he should take it. Counsel told 

the Petitioner that he could “get [the Petitioner] something better” than the State’s offer. 

Ms. Tobitt overheard Counsel say, several times over the course of trial preparation, that 

the Petitioner could “beat it,” meaning win at trial. 

On cross-examination, Ms. Tobitt explained that she and the Petitioner were just 

“hanging out” when his charges were pending and that he did not discuss his case with 

her much. However, Ms. Tobitt went over the Petitioner’s discovery file with him and 

spoke with him while he was in jail. She also attended his meetings with Counsel and 

during those “brief short” meetings, Counsel never discussed anything serious with the 

Petitioner and simply told the Petitioner to “enjoy his kids” and not worry about his case. 

Ms. Tobitt maintained that the Petitioner wanted to plead guilty, and she said she would 

be surprised to learn that the State had not put forth a plea offer.
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Counsel testified that he had been a criminal attorney for twenty-one years and 

had handled approximately eighteen homicide trials. The Petitioner’s case was referred 

to him and he filed for discovery shortly thereafter. Counsel obtained funding for an 

investigator who contacted witnesses in an attempt to uncover anything that might be 

helpful for the Petitioner’s case. The Petitioner was “very concerned” about his case and 

met with Counsel many times. During those meetings, they reviewed discovery together, 

and Counsel answered the Petitioner’s questions about different parts of his case. 

Counsel did his best to explain the legal side of the Petitioner’s case to him to try and 

“put the puzzle together.” Counsel said he explained to the Petitioner the charges and 

their ranges of punishment.

Counsel recalled that the State did not make a plea offer. As the Petitioner’s trial 

date drew near, the Petitioner became concerned and discussed with Counsel what they 

could possibly offer to the State so that the Petitioner would not have to go trial. Counsel 

recalled that he spoke with the Petitioner the night before his trial and that they went 

“back and forth as to what [they] thought [they] might be able to settle the case for.” 

Counsel reiterated that he did not remember ever receiving an offer from the State. 

Counsel stated that the offer the Petitioner alleged had been conveyed by the State, ten to 

twenty years, was outside the sentencing range.

Counsel testified that he told the Petitioner not to worry about the additional cost 

of going to trial. Counsel was prepared to go to trial well before the trial date. He had no 

idea why the Petitioner thought he looked unkempt or dirty and said he usually wore suits 

to court. On the subject of trial preparation, Counsel went over all of his work the day 

before trial to make sure everything was in order. For a defense theory, Counsel planned 

to argue that the Petitioner knew the other people involved in the crime and had contact 

with them on a regular basis but on the occasion of the murder he did not want anything 

to do with them and did not know that they were planning a robbery. Through crossexamination of the other witnesses, Counsel was trying to prove that the other 

participants had motives for the killing, and he attempted to show through crossexamination that the witnesses were giving self-serving testimony. 

Counsel said he communicated his trial strategy with the Petitioner before and 

during his trial and throughout the trial checked with the Petitioner to see if he had 

anything to add or any comments or questions. Specifically, he told the Petitioner, 

“anything that you’re hearing that doesn’t sound right or that you remember different[ly], 

write it down,” and Counsel would then check in with the Petitioner before crossexamining a witness. Counsel testified that he reviewed the Petitioner’s statements and 

other recordings, as well as the investigators’ notes, and that he met with the investigators 

several times. Counsel did not recall the Petitioner ever asking him to try to negotiate a 
12

plea deal during the trial. 

On cross-examination, Counsel testified that, at trial, he had the discovery file and 

his work notes. The gist of his trial strategy was to develop questions for witnesses as the 

State put them on the stand, by comparing their testimony to what they had said in prior 

statements. His defense theory was that the Petitioner had not known his accomplices 

were planning to rob or kill the victims. Counsel addressed in front of the jury the fact 

that the Petitioner changed his story when talking to police and argued that the Petitioner 

was fearful because, without his involvement in the planning, a robbery and murder had 

occurred and the Petitioner did not know what to do. He argued that the State had not 

proven that the Petitioner was involved in the conspiracy to commit these crimes. 

Regarding a potential plea settlement, Counsel tried to explore negotiating a 

settlement with the State, but his and the Petitioner’s position was that the Petitioner did 

not have anything to do with the planning of these crimes and that the Petitioner’s 

accomplices acted on their own. In that mindset, Counsel was not going to offer for the 

Petitioner to plead guilty to any crime. Counsel told the Petitioner that they could 

possibly win at trial or get a hung jury. Counsel reiterated that he did not relay a plea 

offer from the State to the Petitioner because the State did not make one. At some point 

before trial, Counsel relayed to the State that the Petitioner would consider pleading 

guilty in exchange for a six-year sentence, and the State rejected that offer. Counsel 

stated that “any plea that [the Petitioner] would have wanted to take,” Counsel would 

have relayed to the State. Counsel testified that he discussed with the Petitioner the 

concept of criminal responsibility.

Rob McGuire testified that he worked as a prosecutor for the State and that he sat 

second chair on the Petitioner’s trial to assist the lead prosecutor. Mr. McGuire recalled 

that there were not any internal office discussions at the Davidson County District 

Attorney’s Office about offering the Petitioner a plea settlement. He recalled that the 

State felt it had a strong case that the Petitioner provided information and planning for the 

crimes, including identifying the house to be robbed and organizing the participants. The 

State felt that the Petitioner had a lead role in the planning. Mr. McGuire stated that it 

was possible that an offer was made for a second-degree murder plea, but his recollection 

was that the State knew the Defendant would not consider such an offer, so he believed 

one was never made. He testified that the alleged offer of ten to twenty years was an 

“illegal sentence” for a homicide offense and would not have been something the State 

offered.

On cross-examination, Mr. McGuire testified he was the team leader of the 

division prosecuting the Petitioner’s case, so it was unlikely that the lead prosecutor 

would have made an offer to the Petitioner without discussing it with him first. Mr. 
13

McGuire could not recall whether any offers were made to the other participants in the 

crime. There was a possibility that Counsel approached Mr. McGuire or the other 

prosecutor with an offer, but Mr. McGuire did not remember that particularly because he 

recalled that the State planned to go forward with a trial. In other words, no 

“meaningful” discussions were had about a plea settlement. Mr. McGuire testified that a 

six-year sentence in this case was not a realistic offer because it was a significant 

departure from the range of punishment. Mr. McGuire stated that a fifteen-year offer 

from the Petitioner, if made, would also have been rejected by the State. Again, however, 

he did not recall such an offer being made. 

The post-conviction court subsequently denied the Petitioner’s petition and made 

the following relevant findings:

There is no evidence before the Court that [Counsel] failed to 

investigate [the] Petitioner’s case. [Counsel] evaluated discovery and 

discussed discovery with [the] Petitioner. [Counsel] hired a private 

investigator whom he met with six or seven times prior to trial. [Counsel] 

developed a trial strategy based on [the] Petitioner’s own insistence that he 

knew his co-defendants and did not know that a robbery would occur. 

Furthermore, [Counsel’s] decision not to speak with or investigate Norman 

Smith was reasonable since Mr. Smith’s alibi had little bearing on [the] 

Petitioner’s own guilt or innocence.

Moreover, the Court finds that there is no ground for [the] 

Petitioner’s lack of communication claim. Based on [Counsel] and [the] 

Petitioner’s own testimony, they met weekly beginning eight months before 

trial to discuss the case. [The] Petitioner received discovery and he and 

[Counsel] discussed different [portions] of the discovery weekly. [Counsel] 

explained to [the] Petitioner the range of punishment and his potential 

culpability via criminal responsibility. The trial strategy, which was 

discussed and agreed to by [the] Petitioner, centered around [the] 

Petitioner’s own insistence that [the] Petitioner did not know a robbery 

would take place on the day in question.

Because no evidence exists to support [the] Petitioner’s contention 

that [Counsel] failed to investigate the case or communicate with [the] 

Petitioner, the first prong of the ineffective assistance of counsel has not 

been satisfied. Consequently, [Counsel] was not ineffective for failure to 

investigate the case or communicate with [the] Petitioner. 

. . . . 
14

Based on [Counsel] and Mr. McGuire’s testimony, the evidence is 

clear that [the] Petitioner was never offered a plea [deal] by the State. For 

this reason, [Counsel] did not breach a duty and was not deficient in this 

regard. The testimony suggests that [the] Petitioner proposed a six years at 

100% plea, [Counsel] conveyed that offer to the State (after advising his 

client that it would be rejected) and the plea was rejected without a counteroffer. A ten to twenty year deal as suggested by [Counsel] certainly would 

have been favorable to [the] Petitioner, yet the evidence indicates [the] 

Petitioner was not agreeable to such offer despite his wife’s desire that he 

accept it. Moreover, even if [the] Petitioner had agreed to [Counsel] 

extending an offer of 10-20 years to the State, the evidence preponderates 

against the State accepting the offer. The evidence in this case establishes 

that the State had little interest in entering into plea negotiations with [the] 

Petitioner because it felt the case against him to be particularly strong and 

[the] Petitioner to be one of the leaders in the commission of the crime. 

Although plea negotiations are an integral part of representing criminal 

defendants, there is no constitutional mandate that the State must 

participate in the process. Consequently, [the] Petitioner has failed to meet 

the Nesbit test for proving ineffective assistance of counsel in plea 

negotiations. 

It is from the post-conviction court’s judgment that the Petitioner now appeals.

II. Analysis

The Petitioner contends on appeal that the post-conviction court erred when it 

denied his petition. He maintains on appeal that he received the ineffective assistance of 

counsel because Counsel failed to obtain a “satisfactory” plea agreement, thus forcing the 

Petitioner to go to trial and expose himself to a life sentence. The Petitioner also 

contends that Counsel conveyed to him an erroneous belief that the Petitioner would be 

found not guilty at trial. The State responds that Counsel’s representation of the 

Petitioner was not ineffective, and that the record shows that no plea offer was 

forthcoming from the State and any offer from the Petitioner would have been rejected by 

the State. The State further responds that Counsel proceeded to trial in part based on the 

Petitioner’s lack of interest in a realistic plea deal, and that Counsel prepared for trial and 

was confident the Petitioner could be acquitted. This, the State contends, does not 

amount to ineffective assistance of counsel. We agree with the State.

In order to obtain post-conviction relief, a petitioner must show that his or her 

conviction or sentence is void or voidable because of the abridgment of a constitutional 
15

right. T.C.A. § 40-30-103 (2014). The petitioner bears the burden of proving factual 

allegations in the petition for post-conviction relief by clear and convincing evidence. 

T.C.A. § 40-30-110(f) (2014). The post-conviction court’s findings of fact are conclusive 

on appeal unless the evidence preponderates against it. Fields v. State, 40 S.W.3d 450, 

456-57 (Tenn. 2001). Upon review, this Court will not re-weigh or re-evaluate the 

evidence below; all questions concerning the credibility of witnesses, the weight and 

value to be given their testimony and the factual issues raised by the evidence are to be 

resolved by the trial judge, not the appellate courts. Momon v. State, 18 S.W.3d 152, 156 

(Tenn. 1999); Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). A post-conviction 

court’s conclusions of law, however, are subject to a purely de novo review by this Court, 

with no presumption of correctness. Id. at 457. 

The right of a criminally accused to representation is guaranteed by both the Sixth 

Amendment to the United States Constitution and article I, section 9, of the Tennessee 

Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 

S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The 

following two-prong test directs a court’s evaluation of a claim for ineffectiveness:

First, the [petitioner] must show that counsel’s performance was deficient. 

This requires showing that counsel made errors so serious that counsel was 

not functioning as the “counsel” guaranteed the [petitioner] by the Sixth 

Amendment. Second, the [petitioner] must show that the deficient 

performance prejudiced the defense. This requires showing that counsel’s 

errors were so serious as to deprive the [petitioner] of a fair trial, a trial 

whose result is reliable. Unless a [petitioner] makes both showings, it 

cannot be said that the conviction or death sentence resulted from a 

breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Melson, 772 

S.W.2d 417, 419 (Tenn. 1989).

In reviewing a claim of ineffective assistance of counsel, this Court must 

determine whether the advice given or services rendered by the attorney are within the 

range of competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 

936. To prevail on a claim of ineffective assistance of counsel, “a petitioner must show 

that counsel’s representation fell below an objective standard of reasonableness.” House 

v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 

(Tenn. 1996)). When evaluating an ineffective assistance of counsel claim, the reviewing 

court should judge the attorney’s performance within the context of the case as a whole, 

taking into account all relevant circumstances. Strickland, 466 U.S. at 690; State v. 

Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court should 
16

avoid the “distorting effects of hindsight” and “judge the reasonableness of counsel’s 

challenged conduct on the facts of the particular case, viewed as of the time of counsel’s 

conduct.” Strickland, 466 U.S. at 689-90. In doing so, the reviewing court must be 

highly deferential and “should indulge a strong presumption that counsel’s conduct falls 

within the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462. 

Finally, we note that a defendant in a criminal case is not entitled to perfect 

representation, only constitutionally adequate representation. Denton v. State, 945 

S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of 

ineffective assistance of counsel, ‘we address not what is prudent or appropriate, but only 

what is constitutionally compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting 

United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed 

to have been ineffective merely because a different procedure or strategy might have 

produced a different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. 

App. 1980). “The fact that a particular strategy or tactic failed or hurt the defense, does 

not, standing alone, establish unreasonable representation. However, deference to 

matters of strategy and tactical choices applies only if the choices are informed ones 

based upon adequate preparation.” House, 44 S.W.3d at 515 (quoting Goad, 938 S.W.2d 

at 369).

If the petitioner shows that counsel’s representation fell below a reasonable 

standard, then the petitioner must satisfy the prejudice prong of the Strickland test by 

demonstrating 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; Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability 

must be “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 

694; Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994).

A defendant claiming that trial counsel’s performance was deficient in the 

plea negotiations process has the burden to show by a reasonable 

probability that, but for counsel’s deficient representation, (1) the defendant 

would have accepted the plea, (2) the prosecution would not have 

withdrawn the offer, and (3) the trial court would have accepted the terms 

of the offer, such that the penalty under its terms would have been less 

severe than the penalty actually imposed.

Nesbit v. State 452 S.W.3d 779, 800-01 (Tenn. 2014) (citing Lafler v. Cooper, 566 U.S. 

156, 163 (2012)).

We conclude that the evidence does not preponderate against the trial court’s 

findings. Counsel and the State’s attorney testified that there was no plea offer made by 

the State in this case and that the offer the Petitioner alleged was made, ten to twenty 
17

years, was one that the State would not have conveyed because it did not align with the 

sentencing range for the charged offense. Counsel testified that he would have conveyed 

to the State whatever offer was proposed by the Petitioner and did so when the Petitioner 

proposed a six-year deal that was ultimately rejected. The State’s attorney testified that 

the State did not make a plea offer, and was unlikely to accept an offer from the 

Petitioner, because of the strong case it developed against the Petitioner as the leader in 

this crime. The Petitioner has not met his burden of proof that the State ever made a plea 

offer not conveyed to him by Counsel nor has he shown that but for Counsel’s 

performance he would have been given a plea offer by the State that he would have 

accepted. 

As to his argument that Counsel’s advice to the Petitioner that they could win at 

trial influenced his decision not to take a plea offer, the Petitioner has not provided any 

evidence that shows that Counsel talked him out of taking a plea by exhibiting confidence 

that the Petitioner’s case could be won at trial. We reiterate that no plea offer was 

forthcoming and plea negotiations were not likely to produce a mutually agreeable result. 

As a result, Counsel adopted the strategy to be confident in the Petitioner’s chances at 

trial, as he felt that the State could not prove that the Petitioner had a role in the offenses. 

Counsel cross-examined the various co-participants in the crime and attempted to 

convince the jury that the Petitioner was not a leader in or planner of the offenses. This 

was a reasonable strategic decision based on the evidence presented. Accordingly, we 

conclude that the Petitioner has not met his burden of proving that Counsel was 

ineffective and is not entitled to relief.

III. Conclusion

In accordance with the aforementioned reasoning and authorities, we affirm the 

post-conviction court’s judgment. 

________________________________

ROBERT W. WEDEMEYER, JUDGE