IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs September 1, 2009 

CHRISTOPHER CANNON v. STATE OF TENNESSEE

Appeal from the Circuit Court for Madison County

No. C-08-189 Roy B. Morgan, Jr., Judge

No. W2008-02185-CCA-R3-PC - Filed February 12, 2010

The Petitioner, Christopher Cannon, appeals the Madison County Circuit Court’s denial of

post-conviction relief from his open guilty pleas to aggravated burglary and aggravated

assault which resulted in two twelve-year sentences to be served consecutively. He claims

trial counsel rendered ineffective assistance in failing to advise him that he could potentially

avoid his two consecutive twelve-year sentences by exercising his right to a jury trial. Upon

review, we affirm the judgment of the post-conviction court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which DAVID H. WELLES

and ALAN E. GLENN, JJ., joined.

J. Colin Morris, Jackson, Tennessee, for the Petitioner-Appellant, Christopher Cannon. 

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney

General; James G. Woodall, District Attorney General; and Alfred L. Earls, Assistant District

Attorney General, for the Appellee, State of Tennessee.

OPINION

The Petitioner was indicted for aggravated burglary, a Class C felony; aggravated

assault, a Class D felony; and aggravated assault, a Class C felony. He entered open guilty

pleas in Madison County Circuit Court to the aggravated burglary charge and the Class D

aggravated assault charge, and the second aggravated assault charge was dismissed. The trial

court sentenced the Petitioner as a Range III, persistent offender and imposed two

consecutive twelve-year sentences at forty-five percent. The Petitioner filed a timely pro se

petition for post-conviction relief on July 9, 2008, in which he asserted numerous claims

including ineffective assistance of counsel. The post-conviction court subsequently
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appointed counsel for the Petitioner; however, no amendment to the Petitioner’s original pro

se petition was filed. The State filed a response to the petition and a motion to dismiss. 

 

Following an evidentiary hearing on the petition, the court entered a written order

dismissing the post-conviction petition on September 19, 2008. The Petitioner filed a timely

notice of appeal. 

FACTUAL BACKGROUND

Post-Conviction Hearing. Trial counsel was the only witness to testify at the postconviction hearing on September 15, 2008. She testified regarding several claims in the postconviction petition that were not included in the Petitioner’s appeal to this court. Trial

counsel stated that the Public Defender’s Office was appointed to represent the Petitioner and

that the case was originally assigned to another attorney before being assigned to her in April

of 2007. The Petitioner ultimately entered open guilty pleas to two of the charges, thereby

allowing the trial court to determine the appropriate sentences. Trial counsel stated that one

of the three indicted offenses was dismissed pursuant to the Petitioner’s open plea. She said

that she informed the Petitioner of his right to a jury trial and that the trial court had also

informed him of his right to have a jury trial at the time that he entered his guilty pleas. Trial

counsel explained that the Petitioner also had a federal handgun charge at the time she

represented him on the state charges. Although she tried to have the federal and state

sentences served concurrently, the trial court informed her that it could not order federal and

state sentences to be served concurrently. Trial counsel stated that the Petitioner informed

her that he did not want a jury trial. Consequently, the Petitioner entered open guilty pleas

to one count of aggravated burglary and one count of aggravated assault, and he received two

twelve-year sentences to be served consecutively. She explained that she did not file a notice

of appeal on the Petitioner’s behalf because he told her that he did not want to pursue an

appeal because of the risk of receiving a longer sentence on appeal. Trial counsel stated that

she met with the Petitioner again on August 1, 2007, and he again told her that he did not

want to appeal his sentence. She did not get the Petitioner to sign a waiver of his right to

appeal because the Public Defender’s Office had informed her that they no longer do

waivers. When asked if she believed that there was anything else she could have done for

the Petitioner during her representation, trial counsel responded:

No, I don’t think there was anything else I could have done. I told him

at the time that I thought given his criminal convictions, what was pending in

Federal Court, that actually what he came out with was a fairly good outcome,

given all the circumstances in this case. 

Trial counsel said that the Petitioner’s case was set for trial and the jury was ready to
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be impaneled the day that he entered his guilty pleas. She stated that the trial court

determined that the Petitioner was a Range III, persistent offender based on his prior felony

record. She said that she explained to the Petitioner, prior to him entering his open guilty

pleas, that his sentences would be determined by the trial court. At the conclusion of the

hearing, the post-conviction court determined that there had “not been any evidence

submitted that would sustain this petition.” The court continued:

The Court noted the sentence given this Defendant at the time on the

[open] plea, noted the presentence report that was considered and justified, in

the Court’s opinion, that sentence. The Defendant was advised of his rights,

including, according to the testimony of [trial counsel], his right to appeal even

the [open] plea and sentencing. The jury was here as the Court recalls the day

the plea was entered, and every opportunity was afforded this Defendant to go

to trial.

Again, for the reasons stated, the Court dismisses the petition filed . .

. . 

 

The order denying the petition for post-conviction relief was entered on September

19, 2008.

ANALYSIS

Post-conviction relief is only warranted when a petitioner establishes that his or her

conviction is void or voidable because of an abridgement of a constitutional right. T.C.A.

§ 40-30-103 (2006). The Tennessee Supreme Court has held:

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

evidence preponderates otherwise. When reviewing factual issues, the

appellate court will not re-weigh or re-evaluate the evidence; moreover, factual

questions involving the credibility of witnesses or the weight of their testimony

are matters for the trial court to resolve. The appellate court’s review of a

legal issue, or of a mixed question of law or fact such as a claim of ineffective

assistance of counsel, is de novo with no presumption of correctness. 

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal quotation and citations

omitted). “The petitioner bears the burden of proving factual allegations in the petition for

post-conviction relief by clear and convincing evidence.” Id. (citing T.C.A. § 40-30-110(f);

Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006)). Evidence is considered clear and

convincing when there is no serious or substantial doubt about the accuracy of the
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conclusions drawn from it. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)

(citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901, n.3 (Tenn. 1992)).

Vaughn further repeated well-settled principles applicable to claims of ineffective

assistance of counsel: 

The right of a person accused of a crime to representation by counsel

is guaranteed by both the Sixth Amendment to the United States Constitution

and article I, section 9, of the Tennessee Constitution. Both the United States

Supreme Court and this Court have recognized that this right to representation

encompasses the right to reasonably effective assistance, that is, within the

range of competence demanded of attorneys in criminal cases.

Vaughn, 202 S.W.3d at 116 (internal quotations and citations omitted).

In order to prevail on an ineffective assistance of counsel claim, the petitioner must

establish that (1) his lawyer’s performance was deficient and (2) the deficient performance

prejudiced the defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[A] failure to

prove either deficiency or prejudice provides a sufficient basis to deny relief on the

ineffective assistance claim. Indeed, a court need not address the components in any

particular order or even address both if the [petitioner] makes an insufficient showing of one

component.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S.

at 697, 104 S. Ct. at 2069).

A petitioner successfully demonstrates deficient performance when the clear and

convincing evidence proves that his attorney’s conduct fell below “an objective standard of

reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S.

at 688, 104 S. Ct. at 2065; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is

demonstrated once the petitioner establishes “a reasonable probability that but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 370.

“‘A reasonable probability is a probability sufficient to undermine confidence in the

outcome.’” Id. (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068). In order to satisfy

the “prejudice” requirement in the context of a guilty plea, a petitioner “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, 59, 106 S. Ct. 366,

370 (1985); see also Serrano v. State, 133 S.W.3d 599, 605 (Tenn. 2004). 

Ineffective Assistance of Counsel. On appeal, the Petitioner claims trial counsel

rendered ineffective assistance in failing to advise him that he could potentially avoid his two
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consecutive twelve-year sentences by exercising his right to a jury trial. The Petitioner

asserts that the appropriate remedy is to remand his case to the trial court for a new trial on

all charges. In response, the State contends that the trial court properly dismissed the postconviction petition because the Petitioner failed to prove by clear and convincing evidence

that trial counsel’s performance was deficient. Specifically, the State argues that as the jury

trial was about to begin, the Petitioner entered pleas of guilty to two of his felony charges,

and the third felony charge was dismissed. It contends that the Petitioner received “a lower

effective sentence than what he could have received if he had been convicted at trial” of all

three of his indicted offenses. Finally, the State argues that trial counsel testified at the postconviction hearing that she told the Petitioner of his right to a jury trial and that the trial court

also informed him of his right to a jury trial during the guilty plea colloquy. We agree with

the State. 

Initially, we note that the Petitioner failed to include the transcript from his plea

submission hearing and failed to include a copy his indictment in the record on appeal. It is

the duty of the appellant to provide a record which conveys a fair, accurate and complete

account of what transpired with regard to the issues which form the basis of the appeal.

Tenn. R. App. P. 24(b); see State v. Taylor, 992 S.W.2d 941, 944 (Tenn. 1999).

Accordingly, this issue could be treated as waived. However, we will review this issue on

its merits based on the evidence presented at the post-conviction hearing and based on the

underlying facts for the offenses as stated in the presentence report, which is also included

in the record. 

We further note that the Petitioner offered absolutely no proof during the postconviction hearing regarding counsel’s ineffectiveness. The record shows that the Petitioner

was able to dismiss one of his three felony charges by entering open guilty pleas to the

aggravated burglary and aggravated assault charges, which resulted in sentences for two

charges rather than three charges. The Petitioner received the maximum sentence for a

Range III offender for the aggravated assault conviction; however, he received a sentence

below the maximum in his range for the aggravated burglary conviction. See T.C.A. § 40-

35-112. If the Petitioner had proceeded to trial, a jury could have found him guilty of all

three offenses. We note that “[i]n evaluating an attorney’s performance, a 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.” State v. Burns, 6 S.W.3d

453, 462 (Tenn. 1999) (citing Strickland, 466 U.S. at 689, 104 S. Ct. 2052). Moreover, “[n]o

particular set of detailed rules for counsel’s conduct can satisfactorily take account of the

variety of circumstances faced by defense counsel or the range of legitimate decisions

regarding how best to represent a criminal defendant.” Strickland, 466 U.S. at 688-89, 104

S. Ct. at 2065. Upon review, the Petitioner has failed to establish the factual allegations in

his petition by clear and convincing evidence. See Vaughn, 202 S.W.3d at 115.
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Furthermore, the record supports the post-conviction court’s determination that counsel’s

performance was not deficient. See Goad, 938 S.W.2d at 369. Accordingly, we affirm the

judgment of the post-conviction court. 

Conclusion. Upon review, we affirm the judgment of the post-conviction court.

____________________________________

CAMILLE R. McMULLEN, JUDGE