### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs J uly 13, 2004
LON ADELBERT P IERCE v. STATE OF TENNESSEE Direct Appeal from the Circuit Court for Benton County No. CR690-PC-1 C. Creed Mc Ginley, Judge

No. W2003-02384-CCA-R3-PC - Filed August 20, 2004

The petitione

r appea ls the dismi ssal of his

petition for post-conviction relief from his conviction for first degree murder, arg

uing that the po st-convi ction court erred in finding he rece ived effective assistance of counse l at trial a nd on appeal. Following our review, we affirm the dismissal of the petition. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. G LENN , J., deliver ed the opi

nion of the

court, in which J OHN E VERE TT W IL LI AMS and N ORMA M C G EE O GLE , JJ., joined. Guy T. Wilkinson, District Public Defe nder, and Vicki S . Snyder, Assistant District Public Defende r, for the appellant, Lon Adelbe rt Pierce.
Paul G. Summers, Attorney Gene ral and Reporter; Helena Walton Yarbrough, Assistant Attorney Genera l; G. Robert Radford, District A ttorney Genera l; and Steve

n L. G arrett a

nd Beth C. Boswell , Assistant District Attorneys Gener al, for the appellee, State of Tennessee.

OPINION
FACTS
The petitione

r, Lon Adelbe

rt Pie rce, wa s in dicted for the March 21, 1997, first degre e premeditated

murder of Larr

y Gene Peppe

rs, Sr., and the attempted

first degree murder

of Peppe rs’
son. See State v. Lon Adelbert Pierce , No. W1999-01433-CCA-R3-CD, 2000 WL 1664278, at *1 (Tenn. Crim. App. Oct. 23, 2000), perm. to appeal denied (Tenn. Sept. 2, 2003). Following a trial, the jury acquitted him of attempted f irst degree murder but was unabl e to reach a verdict on the premeditated

murder count of the indictment. Id. The petitioner was thereafter retried on

the first degreemurder count, found guilty , and sentenced to life imprisonment

. Id. His conviction and sentence were affirmed

by t his court , and, foll owing a delay ed appe al, our su

preme c ourt deni ed his application for permission to appeal. Id.-2-

As related

in the dire ct appea

l opinion, t

he petiti oner’s c onviction stemmed f

rom a disagreement

with the vi ctim

over payment for a

truck the petitioner had sold the victim under an informal installme

nt agre ement, with the understanding that the victim’s wifewould record the lien in the pet itioner’ s favor f

or the unp aid portion of the sa le price. Id. When the victim’s wife failed to record the lien a

nd the vic tim failed to make payments in ac cordance with their agree ment, the petitioner be ca me an gr y and began m aking statements in the weeks before the murde r to various individua ls, including Dougla s Glenn Whitfield, the owner of a truck stop, and Whitfield’s employee , Beth Mary

Podgwaite, about his intention of either retrieving his truck or killing the victim. Id. at *2. The

direct a ppeal opi nion rela tes what t hen tran spired:
Onthe morning of March 2 1, 1997, Larry

Peppers, Sr., his wife Teresa, and his son

Lar ry Jr. left the ir home to d

rive to the North 40 Truck Stop. While traveling along on thehighway , they saw [the petit ioner], who turned his car around and followed

them to the truck stop. The Peppers went inside, and [the petitioner] followed. [T he petitioner] confronted the victim, and the victim tried to back

aw ay. Mr

. Whitf

ield was concerned about the disagr eement taking place inside his business and asked [the petitioner] to go outside. [The petitioner] complied. When the Peppers finished their business, they went outside. As the Peppers attempted to l eav e, [the petitioner] approached

their vehicle. He and the victim exchanged words. Larry Sr. told L arry

Jr. to call the police, and the victim [sic] said that Larry Jr. should call the morgue. [The petitioner] said he was going to g et a gun . He leaned into his vehicle, which was parked nea rby, and retrieved a gun. Twice he pointed the gun at Larry Sr., and Larry

Jr. pushed [t he pe ti ti on er ’s ] a rm aw ay. [The petitioner] pointed the gun at Te resa Peppe rs, a nd ag ain Larry

Jr. pu shed

[the p etiti oner ’s] a

r m aw ay. As the two struggled over the g un, [the p e titioner] fired and wounded Larry Jr. The [petitioner] cha s ed Larry Sr. in the parking lot. Shots rang out, a

nd La rry Sr. fe ll wounded. The [petitioner] appr oached

Larry Sr. and shot him again as he lay wounded on th e p ave ment. Teresa Peppers ran toward the truc k stop, and [the petitioner] followed her. Podgwaite, who was working inside the truck stop, heard the [petitioner] say, “W[h]ere is she? I’m going to kill her.” Whitfield intervened and told [the petitioner] to leave

. [The petitioner] went outside and stayed on the pr emises for about five minutes before driving off. Larry Pepper s, Sr. died from his injuries. Larry Peppers, Jr. survived.
After [the petitioner] leftthe truck stop, he changed vehicles and drove to Arkansas. Eventually , he went to Mexico. He lived on-3- the lam for fourteen months butfinally surrend ered to a uthoritie s in Phoenix, Arizona.
Id. at **2-3 (footnote omitted).

At trial, the petitioner

pr esented evidence that at the time of the shooting, “he was in dire financial condition,” was “very distraug ht” over the victim ’s failur

e to pay , had not sl ept in

a couple of days, and could not re

member when he had last eaten. Id. at *3. He al so presen ted expert testimony from a psychiatrist and ane ur op syc ho lo gi st to su pp or t a cl ai m o f d im in is he d c ap ac it y, whichincluded proof that “he w as sufferin g from major depression a nd hy pogly cemia re lated to diabetes on the day of the c rime”; that he “had a below- average I Q in the borderline mentally retarded range ”; that he

“had a h istory of major d

epressi on and suic idal thoug hts dating back to 1994”; and that all of these factors, combined with his sleep de p rivation, “resulted in diminished capacity . . . to act intentionally.” Id.
OnNovember 4, 2002, the petitioner filed a pro se petition for post-conviction relief, allegi ng ineffective assistan ce of

counsel. Following the appointment of counsel, he filed an a mended petition on December 18, 2002, in which he alleged counsel was ineff ective at trial and on appeal for failing to subpoena witnesses who could have established that the killing occurred during the heat of passion, for

failing to file a R

ule 11, Te nn. R. App. P., applic ation for permission to appeal to the supreme court, and for failing to comply with the petitioner’s request for a copy of the trial transcr

ipt.
The petitioner testified at the February 28, 2003, evidentiary he aring that trial counsel informed him during a meeting in Memphis that hewould app eal his case to t he Tenne ssee Supr

eme Court and later se nt him a letter, dated October 25, 2000, to that effect. The petitioner denied that he had rec eived a s econd le tter, da ted the sa me day and sent t

o the same

address, in which

counsel stated that after dictating the first letter he had begun “ to contemplate whether

this was something that [the petitioner] wished for [him] to do,” and therefore was advising that unless he hea rd from the petitioner

within the

next thirty

day s, he would not file an application for permission to appeal to the supreme court. The petitioner said he did not learn until September 10, 2002, that an appeal had never been filed.
The petitione

r testifie d he infor

med trial counsel o f witness es from the truck s top who wo uld have established that the shooting occurred in the heat of passion, but the witnessesnever testified at trial. Tr ial couns el never

explained

why he faile d to investig ate or subpoena these witnesses, other thanto say

that it “w asn’t the

th ing to go to.” Tria

l counsel spoke with

him “a co

uple of times” during the course of his representa tion, asking if he understood what was going on, and he replied that he “basically

” did. However, he did not un derstand wha t was hap pening with the a

ppeals process and felt that

trial counsel failed to keep him informed about it. The petitioner also testified that he requested that trial counsel providehim with a copy of his trial transcript, but he failed to do
so. On cross-examination, he ackn ow ledged that it was possible he had made statements about killing the victim to witnesses at the truck stop during the two weeks before the shooting.1 Rule 14, “Withdrawal of counse l for ind igent p arty after a dve rse de cision in interme diate a ppe llate co urt,” pro vides in part:

Permis sion for lea ve t o wit

hdraw as cou nselfor

an indig ent part

y aft er an adverse final dec ision in the Co urt of Appeals or Court of Criminal Appeals and before preparati on and fi lin g of an Appli cat ion forPer mission to Appeal in the Suprem e Cou rt must be obtained from the intermediate appellat e court by fil ing a moti on with t

he Appellate Court Clerk no t later than fourteen ( 14) days after the interm ediate cour t’s entry of final ju dgm ent.

The motion shall st ate tha t : (1) based upon counsel’s review of t he opini on of th e int ermediat e appellat e court, the bri ef fil ed on behalf of the indigent party in t

hat court prese nts s uch is sues as are avai lable f o r seco nd-tier a ppe llate review if sought by the par ty ac ting pro se, and (2) the wri tt en not if ication prescri bed by this rule and a cop y of the inter med iate co urt’s opinion ha ve been forwa rded to the ind igent p arty.

The motio n shall b e accompan ied by a copy of t

he wr it ten noti fi cati on forwarded to the ind igent p arty. The writ ten not ifi cati on shall

stat e: (1) t

hat couns el does not inten d to file an Ap plicatio n for P ermiss ion to A ppe al and that co unsel is asking the interm ediate court for permi ssi on to withd raw; (2 ) that the p arty ma y file
a pro se Appli cati on for Permis sion

to Appeal with the Clerk of t he Supreme Co urt if fil ed within si xty (60) days aft er entry of final jud gme nt in the inter med iate app ellate court; (3) th e date on whi ch the int ermedi ate court ’s opini on was rel eased; (con tinued ...)
-4- Tria l counsel testified he had been licensed to practice law since 1986. He said that approxima

tely thirty perce

nt of his practic e was cr

iminal, an

d the peti tioner’s case wa s not his first murder trial. He testifie d that whe

n he went to Memphis t

o discuss the appeal, the petitioner, who had had a heart attack during the sec ond trial, was suffering from diabetes and “felt like . . . he was goingto die,” “had essentially given up ,” and “

really didn’t ca

re” abo ut filing an appe al. Nevertheless, tr

ial couns el appea

led the c ase thro

ugh the intermed iate court level. Two days af ter re ceiving the opinion, he dictated his first letter to the petitioner dated October 25, 2000. Trial counsel testified he dictated the second letter la ter that s ame day

after th inking a bout the su

preme court’s criteria for accepting an application

for permission to appeal and the fact that the petitioner had no interest in pursuing an appeal. Although he sent the second letter to the same addre ss as the first, he never heard from the petitioner. Trial counsel stated that he investigated and interviewed
a number of witnesses from the truck stop. However, bec ause they c ould have corroborated that the petitioner had threatened to kill the victim, he chose not to have them testify on the petitioner’s behalf.
OnMarch 5, 2003, the post-conviction court entered an orde r granting the petitioner

the right to file a delay

ed applic ation for

permission to appea

l to the sup

reme co urt, find ing that , despite the
seco nd letter sent to the petitioner, trial counsel had clearly failed to comply with Rule 14 of the Rules of the Tenness ee Supre me Court, which sets forth the procedures counsel must follow when withdrawingrepresentation from an indigent client following an adve rse ruling o f the inte

rmediate appella te court. 1 The post-conviction court stayed all other matters contained in the petition pending1 (.. .continu ed) and (4) the date o n which an Ap plicatio n for P ermiss ion to Ap peal is due. The writ ten notif icat ion must

also r efle ct the party ’s mai lin g address t o which t he noti ce was for ward ed.
-5- the outcome

of the delaye d appeal. On September 2, 2003, our supreme court denied the petitioner’s applicationfor per

mission toappeal. On September 17, 2003, the post-conviction court entered an order dismissing the petition for post-conviction relief, finding that trial counsel’s conduct wa s not deficient and that the petitioner had “not been deprived of any constitutional right that

would support post conviction relief.” This appeal followed.
ANALYSIS
Post-Conviction Standard of Review
The post-conviction petitioner bears the burden of proving his or her allegations by

clear and convincingevidence. See Tenn. Cod e Ann. § 40 -30-210( f). When a n evident iary hearing is held inthe post-conviction

setting, the findings of

fact mad e by the cour t are conclusive

on appea l unless the evidence preponderates ag ainst the m. See Sta te v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999); Tidwell v. State , 922 S.W.2d 497, 500 (Tenn. 1996). However, review of the post-conviction court’s application of the law to the facts of the case is de novo , with no presumption of correctness. See Ruff v. State , 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counse l, which present s mixed questions of fact and law, is re viewed de novo , with a pr esumption

of corr ectness given only to the post-conviction court’s findings of fact. See Fields v. State , 40 S.W.3d 450, 458 (Tenn. 2 001); Burns , 6 S.W.3d at 461.
Ineffective Assistance of Counsel

To establish a

claim of ineffective assistance of counsel, the pe titioner has the burden to show both that tria l counsel ’s perf

ormance was def icient an d that cou

nsel’s de ficie nt performance prejudiced

the outcome of the proceeding. Strickland v. Washington , 466 U.S. 668, 6 87, 104 S. Ct. 2052, 2064 , 80 L. Ed.2d 674 ( 1984); see State v. Taylor , 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that same standard for determining ine ffective assistanceof counse l that is ap plied in federal cases also applies in Tennessee ). The Strickland standar d is a two-

prong te st: First, the defe nd ant must show that counsel’s performance was deficie nt. This requires showing that counsel made error s so serious that counsel was not fun

ctioning as th e “c ounsel” guaranteed the defendant by the Sixth Amendment. Second, the defenda nt must show that the d

eficien t perfor mance pr ejudice d the def

ense. Th is requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose r esult is reliable.2 The State addi tional ly ar gues that the p etition is time -barre d be cause it was fil ed more than one year beyond

the date tha t t

he ju dgment

became f

inal . Tenne ssee Code Annot ated sect ion 40-30- 10 (a) (2003) pr ovides tha t a pe ti ti on forpost -con viction r eli ef mu st be fi led “ wit hinone (1) year

of t he dat e of t

he f inal act ion of

the highe st state app ellate court to whi ch an appeal is ta ken or, if no ap peal is ta ken , wi th in one ( 1) y ear of t he da te on wh ich

th e ju dgmen t be came final[ .]” Our supreme court has recogn ized, h owever, t hat i n some cases due p roce ss requ ires that this o ne-year statute of limitations be to lled. See W illiams v. S tate , 44 S.W .3d 464, 471 (Tenn. 2001 ) (concluding that due process r equired tolli ng of post- convict ion st atut e of limitat ions whe n petition er was misled into believing t hat his counsel was continuing app eals pro cess o n his be half); see also Conl ey R. Fair v. S tate , No. E2003- 00807-CCA-R3- PC, 2004 WL 370254, at *3 (Tenn. Crim. App. M ar. 1, 2004) (remanding to the post-convicti on court to deter mine whet

her due proces s requi red tolli ng of statut e of limit ations base d on trial cou nsel’s failure to file Ru le 11 application for permission t o appeal to the supre me c ourt o r Rule 14 m otion to withdraw from his r epresentation of peti tioner, wi th the f ollowing inst

ruction: “ If the post-convicti on court determines that the petit ioner, through no fault of his own, was denied his rightto s eek s econdtier review and fil ed his petit ion withi n a re asonable t ime, the cour t shal l gran t hi m the opportun ity to seek a delaye d appeal to our supre me c ourt.”)

. Here, the post-convicti on court obviously concluded, based on the evidence, that due pro cess re quire d that the statute o f limitations b e tolled in this case

. -6- 466 U.S. at 687, 104 S. Ct. at 2064.
The deficie

nt performance

prong o f the test

is satisfie d by

showing that “ counsel’s acts or omissions were so serious as to fall below an objective standard of reasonableness under prevailing professional norms.” Goad v. Sta te , 938 S.W. 2d 363 , 369 ( Tenn. 1996) (citi ng Strickland , 466 U.S. at 688, 104 S. Ct. at 2065 ; Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong of the te st is satis fied b y showing a reasonable probability , i.e., a “probability suff icient to undermine confidence in the outcome,” that “but for counsel’s unprofes sional error s, the result of the proceeding would have been different.” Strickland , 466 U.S. at 694, 104 S. Ct. at 2068.
As he did with the post-conviction court, the petitioner argues on appe al that tri al counse l
was ineffective for failing to subpoena the c ritical truck stop witnesses who could have established stateof passion, for

failing to pursue his appeal to thesupreme court, a nd for fa iling to provide hi

m with a transcript

of the trial. The State responds by a rguing, inter alia , 2 that the post-conviction court properly found tha

t trial counsel’s decision not to subpoena the witnesses from the truck stop was
a sound tria

l strateg y a nd that the

petitione r has not sh own he was prejudiced by trial counsel’s failure to file an application for permission to appeal or to provide him with a copy of the trial transcript. We agree with the State.
Whenreviewing a claim of ineffec tive assistanc e of coun sel, we are mindful tha

t we must indu lge a strong presumption that counsel’s conduct fell within the range of reasonable professional assistance, see Strickland , 466 U.S. at 690, 104 S. Ct. at 2066, and may not sec ond-guess the tactical and strategic choices made

by counsel unless those choic es were uninformed because of inade quate prepar ati on. See H ellard v . State , 629 S.W.2d 4, 9 (Tenn. 1982). Trial counsel testified he investigated

and inter viewed the truck s top witnes ses, and f ully explained the reason he decided not to subpoen

a them to tr

ial:
And my concer

n was bringin

g all the se other potential people in, that the jury was g oing to hear I’ mgoing to kill him if he don’t pay me,-7- was just going to keep that testimony time and time ag ain going

to trial. So, from a tr

ial strat egy, I did n’t want t

he jury to just keep hearing that. Our position was that he said if he doesn’t pay me it’s killing me

from a fi nancial standpoin

t.
You had his testimony

then ag ainst

this one Beth Podgeway [sic]. However, if y

ou calle d these

other fo lks in that would basic ally corroborateBeth then, obviously, it would look worse towa rds the defense.
The post-conviction court found that “[c]ou

nsel’s de cision in th

is rega rd [was] supported by logicand reason, in that some witnesses fro m the truck stop were called and clear ly supported a premeditated

act as opposed to a hea

t of passion ty

pe situati on.” The

record fully supports t

his findi ng. Furthermore, we agr ee with the State that the petitioner has not shown how any alleged deficiency

in counsel’s performance with respect to these witnesses pr ejudiced his case. When a petitioner contends that trial couns el was ineffective for failing to investiga te or present potential witnesses in support of his defense, he bears the burden of pre senting these witne sses at the post-convictionevidentiary he aring. Black v . State , 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Here, the petitioner neither named the poten t ial witnesses nor presented their testimony at the evidentiary

hearing. Without show

ing wha t evidenc e the witnesses wo uld have provided had they been subpoenaed at trial, the petitioner cannot meet the prejudice prong of the Strickland

test. Id. at 758.

We further a gre e with the State that, in light of the post-conviction court’s having g ranted the petitioner the opportunity to file a de layed applica tion for permission to appeal to the supr eme court, the petitioner

has also failed to show that he was prejudiced by trial counsel’s failure to pursue the appeal or to provide him with a copy of his trial transcript.
CONCLUSION
Based on our review, we conclude that the petitioner has failed to meet his burden of showing he was denied the effective assistance of counsel at trial or on appeal. Accordingly , we affirm the post-conviction court’s dismissal of the petition for post-conviction relief.

___________________________________ ALAN E. GL

ENN, JUDGE