IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs July 13, 2004

LON ADELBERT PIERCE v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Benton County

No. CR690-PC-1 C. Creed McGinley, Judge

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

The petitioner appeals the dismissal of his petition for post-conviction relief from his conviction for

first degree murder, arguing that the post-conviction court erred in finding he received effective

assistance of counsel at trial and 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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and

NORMA MCGEE OGLE, JJ., joined.

Guy T. Wilkinson, District Public Defender, andVickiS. Snyder, Assistant District Public Defender,

for the appellant, Lon Adelbert Pierce.

Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney

General; G. Robert Radford, District Attorney General; and Steven L. Garrett and Beth C. Boswell,

Assistant District Attorneys General, for the appellee, State of Tennessee. 

OPINION

FACTS

The petitioner, Lon Adelbert Pierce, was indicted for the March 21, 1997, first degree

premeditated murder of Larry Gene Peppers, Sr., and the attempted first degree murder of Peppers’

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 first degree murder but was unable to reach a verdict on the

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

degree murder count, found guilty, and sentenced to life imprisonment. Id. His conviction and

sentence were affirmed by this court, and, following a delayed appeal, our supreme court denied his

application for permission to appeal. Id. 
-2-

As related in the direct appeal opinion, the petitioner’s conviction stemmed from a

disagreement with the victim over payment for a truck the petitioner had sold the victim under an

informal installment agreement, with the understanding that the victim’s wife would record the lien

in the petitioner’s favor for the unpaid portion of the sale price. Id. When the victim’s wife failed

to record the lien and the victim failed to make payments in accordance with their agreement, the

petitioner became angry and began making statements in the weeks before the murder to various

individuals, including Douglas 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 appeal opinion relates what then transpired: 

On the morning of March 21, 1997, Larry Peppers, Sr., his

wife Teresa, and his son Larry Jr. left their home to drive to the North

40 Truck Stop. While traveling along on the highway, they saw [the

petitioner], who turned his car around and followed them to the truck

stop. The Peppers went inside, and [the petitioner] followed. [The

petitioner] confronted the victim, and the victim tried to back away.

Mr. Whitfield was concerned about the disagreement 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 leave, [the petitioner]

approached their vehicle. He and the victim exchanged words. Larry

Sr. told Larry Jr. to call the police, and the victim [sic] said that Larry

Jr. should call the morgue. [The petitioner] said he was going to get

a gun. He leaned into his vehicle, which was parked nearby, and

retrieved a gun. Twice he pointed the gun at Larry Sr., and Larry Jr.

pushed [the petitioner’s] arm away. [The petitioner] pointed the gun

at Teresa Peppers, and again Larry Jr. pushed [the petitioner’s] arm

away. As the two struggled over the gun, [the petitioner] fired and

wounded Larry Jr. The [petitioner] chased Larry Sr. in the parking

lot. Shots rang out, and Larry Sr. fell wounded. The [petitioner]

approached Larry Sr. and shot him again as he lay wounded on the

pavement. Teresa Peppers ran toward the truck 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 premises for about

five minutes before driving off. 

Larry Peppers, Sr. died from his injuries. Larry Peppers, Jr.

survived.

After [the petitioner] left the truck stop, he changed vehicles

and drove to Arkansas. Eventually, he went to Mexico. He lived on
-3-

the lam for fourteen months but finally surrendered to authorities in

Phoenix, Arizona. 

Id. at **2-3 (footnote omitted). 

At trial, the petitioner presented evidence that at the time of the shooting, “he was in dire

financial condition,” was “very distraught” over the victim’s failure to pay, had not slept in a couple

of days, and could not remember when he had last eaten. Id. at *3. He also presented expert

testimony from a psychiatrist and a neuropsychologist to support a claim of diminished capacity,

which included proof that “he was suffering from major depression and hypoglycemia related to

diabetes on the day of the crime”; that he “had a below-average IQ in the borderline mentally

retarded range”; that he “had a history of major depression and suicidal thoughts dating back to

1994”; and that all of these factors, combined with his sleep deprivation, “resulted in diminished

capacity . . . to act intentionally.” Id.

On November 4, 2002, the petitioner filed a pro se petition for post-conviction relief, alleging

ineffective assistance of counsel. Following the appointment of counsel, he filed an amended

petition on December 18, 2002, in which he alleged counsel was ineffective 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 Rule 11, Tenn. R. App. P., application for permission to appeal to the

supreme court, and for failing to comply with the petitioner’s request for a copy of the trial transcript.

The petitioner testified at the February 28, 2003, evidentiary hearing that trial counsel

informed him during a meeting in Memphis that he would appeal his case to the Tennessee Supreme

Court and later sent him a letter, dated October 25, 2000, to that effect. The petitioner denied that

he had received a second letter, dated the same day and sent to 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 heard from

the petitioner within the next thirty days, 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 petitioner testified he informed trial counsel of witnesses from the truck stop who would

have established that the shooting occurred in the heat of passion, but the witnesses never testified

at trial. Trial counsel never explained why he failed to investigate or subpoena these witnesses, other

than to say that it “wasn’t the thing to go to.” Trial counsel spoke with him “a couple of times”

during the course of his representation, asking if he understood what was going on, and he replied

that he “basically” did. However, he did not understand what was happening with the appeals

process and felt that trial counsel failed to keep him informed about it. The petitioner also testified

that he requested that trial counsel provide him with a copy of his trial transcript, but he failed to do

so. On cross-examination, he acknowledged 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 counsel for indigent party after adverse decision in intermediate appellate court,”

provides in part:

Permission for leave to withdraw as counsel for an indigent party after an

adverse final decision in the Court of Appeals or Court of Criminal Appeals and

before preparation and filing of an Application for Permission to Appeal in the

Supreme Court must be obtained from the intermediate appellate court by filing a

motion with the Appellate Court Clerk not later than fourteen (14) days after the

intermediate court’s entry of final judgment.

The motion shall state that: (1) based upon counsel’s review of the

opinion of the intermediate appellate court, the brief filed on behalf of the indigent

party in that court presents such issues as are available for second-tier appellate

review if sought by the party acting pro se, and (2) the written notification

prescribed by this rule and a copy of the intermediate court’s opinion have been

forwarded to the indigent party.

The motion shall be accompanied by a copy of the written notification

forwarded to the indigent party. The written notification shall state: (1) that counsel

does not intend to file an Application for Permission to Appeal and that counsel is

asking the intermediate court for permission to withdraw; (2) that the party may file

a pro se Application for Permission to Appeal with the Clerk of the Supreme Court

if filed within sixty (60) days after entry of final judgment in the intermediate

appellate court; (3) the date on which the intermediate court’s opinion was released;

(continued...)

-4-

Trial counsel testified he had been licensed to practice law since 1986. He said that

approximately thirty percent of his practice was criminal, and the petitioner’s case was not his first

murder trial. He testified that when he went to Memphis to discuss the appeal, the petitioner, who

had had a heart attack during the second trial, was suffering from diabetes and “felt like . . . he was

going to die,” “had essentially given up,” and “really didn’t care” about filing an appeal.

Nevertheless, trial counsel appealed the case through the intermediate court level. Two days after

receiving the opinion, he dictated his first letter to the petitioner dated October 25, 2000. Trial

counsel testified he dictated the second letter later that same day after thinking about the supreme

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 address 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, because they could have corroborated that the

petitioner had threatened to kill the victim, he chose not to have them testify on the petitioner’s

behalf. 

On March 5, 2003, the post-conviction court entered an order granting the petitioner the right

to file a delayed application for permission to appeal to the supreme court, finding that, despite the

second letter sent to the petitioner, trial counsel had clearly failed to comply with Rule 14 of the

Rules of the Tennessee Supreme Court, which sets forth the procedures counsel must follow when

withdrawing representation from an indigent client following an adverse ruling of the intermediate

appellate court.1 The post-conviction court stayed all other matters contained in the petition pending
1

(...continued)

and (4) the date on which an Application for Permission to Appeal is due. The

written notification must also reflect the party’s mailing address to which the notice

was forwarded. 

-5-

the outcome of the delayed appeal. On September 2, 2003, our supreme court denied the petitioner’s

application for permission to appeal. On September 17, 2003, the post-conviction court entered an

order dismissing the petition for post-conviction relief, finding that trial counsel’s conduct was 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

convincing evidence. See Tenn. Code Ann. § 40-30-210(f). When an evidentiary hearing is held

in the post-conviction setting, the findings of fact made by the court are conclusive on appeal unless

the evidence preponderates against them. See State 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 counsel, which

presents mixed questions of fact and law, is reviewed de novo, with a presumption of correctness

given only to the post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450, 458

(Tenn. 2001); Burns, 6 S.W.3d at 461.

Ineffective Assistance of Counsel

To establish a claim of ineffective assistance of counsel, the petitioner has the burden to show

both that trial counsel’s performance was deficient and that counsel’s deficient performance

prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S. 668, 687, 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 ineffective assistance of counsel that is applied in

federal cases also applies in Tennessee). The Strickland standard is a two-prong test:

First, the defendant 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

defendant by the Sixth Amendment. Second, the defendant must

show that the deficient performance prejudiced the defense. This

requires showing that counsel’s errors were so serious as to deprive

the defendant of a fair trial, a trial whose result is reliable.
2

 The State additionally argues that the petition is time-barred because it was filed more than one year beyond

the date that the judgment became final. Tennessee Code Annotated section 40-30-10 (a) (2003) provides that a petition

for post-conviction relief must be filed “within one (1) year of the date of the final action of the highest state appellate

court to which an appeal is taken or, if no appeal is taken, within one (1) year of the date on which the judgment became

final[.]” Our supreme court has recognized, however, that in some cases due process requires that this one-year statute

of limitations be tolled. See Williams v. State, 44 S.W.3d 464, 471 (Tenn. 2001) (concluding that due process required

tolling of post-conviction statute of limitations when petitioner was misled into believing that his counsel was continuing

appeals process on his behalf); see also Conley R. Fair v. State, No. E2003-00807-CCA-R3-PC, 2004 WL 370254, at

*3 (Tenn. Crim. App. Mar. 1, 2004) (remanding to the post-conviction court to determine whether due process required

tolling of statute of limitations based on trial counsel’s failure to file Rule 11 application for permission to appeal to the

supreme court or Rule 14 motion to withdraw from his representation of petitioner, with the following instruction: “If

the post-conviction court determines that the petitioner, through no fault of his own, was denied his right to seek secondtier review and filed his petition within a reasonable time, the court shall grant him the opportunity to seek a delayed

appeal to our supreme court.”). Here, the post-conviction court obviously concluded, based on the evidence, that due

process required that the statute of limitations be tolled in this case. 

-6-

466 U.S. at 687, 104 S. Ct. at 2064.

The deficient performance prong of the test is satisfied 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. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing 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 test is satisfied by showing a reasonable probability, i.e., a “probability sufficient to undermine

confidence in the outcome,” that “but for counsel’s unprofessional errors, 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 appeal that trial counsel

was ineffective for failing to subpoena the critical truck stop witnesses who could have established

state of passion, for failing to pursue his appeal to the supreme court, and for failing to provide him

with a transcript of the trial. The State responds by arguing, inter alia,

2

 that the post-conviction court

properly found that trial counsel’s decision not to subpoena the witnesses from the truck stop was

a sound trial strategy and that the petitioner has not shown 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. 

When reviewing a claim of ineffective assistance of counsel, we are mindful that we must

indulge 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 second-guess the tactical

and strategic choices made by counsel unless those choices were uninformed because of inadequate

preparation. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Trial counsel testified he

investigated and interviewed the truck stop witnesses, and fully explained the reason he decided not

to subpoena them to trial: 

And my concern was bringing all these other potential people in, that

the jury was going to hear I’m going to kill him if he don’t pay me,
-7-

was just going to keep that testimony time and time again going to

trial.

So, from a trial strategy, I didn’t want the jury to just keep

hearing that. Our position was that he said if he doesn’t pay me it’s

killing me from a financial standpoint.

You had his testimony then against this one Beth Podgeway

[sic]. However, if you called these other folks in that would basically

corroborate Beth then, obviously, it would look worse towards the

defense. 

The post-conviction court found that “[c]ounsel’s decision in this regard [was] supported by

logic and reason, in that some witnesses from the truck stop were called and clearly supported a

premeditated act as opposed to a heat of passion type situation.” The record fully supports this

finding. Furthermore, we agree with the State that the petitioner has not shown how any alleged

deficiency in counsel’s performance with respect to these witnesses prejudiced his case. When a

petitioner contends that trial counsel was ineffective for failing to investigate or present potential

witnesses in support of his defense, he bears the burden of presenting these witnesses at the

post-conviction evidentiary hearing. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).

Here, the petitioner neither named the potential witnesses nor presented their testimony at the

evidentiary hearing. Without showing what evidence the witnesses would have provided had they

been subpoenaed at trial, the petitioner cannot meet the prejudice prong of the Strickland test. Id.

at 758. 

We further agree with the State that, in light of the post-conviction court’s having granted

the petitioner the opportunity to file a delayed application for permission to appeal to the supreme

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. GLENN, JUDGE