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

Briefs S eptem

ber 23, 200 3

JOHN ROBERT TORY , JR. v. STATE OF TENNESSEE

Appeal from the Criminal Court for Knox County No. 57399 Richard Baumgartner, Judge

No. E2003-00019-CCA-R3-PC December 29, 2003

This opinion ad

judicate s John Rober

t Tory , Jr.’s app eal fro m the Knox Cou nty Crimi nal Cour t’s denial of his 1994 petition for po st-co nvict ion re lief. He fil ed the petit ion t o chal lenge his 1992 jury convictions of first degree murder an d e sp ec ia ll y ag gr av at ed ro bb er y. Following a hearing in which counsel argued bu t no evidence was presented, the post-conviction cour t rejected the petitioner’s claims that

his especially a

ggravated robber

y conviction violated double jeopa rdy principles, that the trial court erred in not

instructing the jury a s to second degre e murder as a less er inclu ded offe

nse of first degree felony

murder, and that trial counsel was ineffective in fa iling to demand an instruction on second degree murder a s a lesser included offense. Bec a use the recordand the applica ble law su

pport the denial of post-con viction re lief, we affirm.

Tenn. R. App.P. 3; Judg ment of t he Crim inal Court

is Affirme

d.

J AMES C URWOOD W ITT , J R ., J., deliver ed the opinion of the

court, in which D AVID H. W ELLES and R OBER T W. W EDEMEYER , JJ., joined.
M. Christopher Coffey, Knoxville, Tennessee , for the Appellant, John Robert Tory, Jr.

Paul G. Summers, Attorney Gene ral & Reporter; Braden H. B ou ce k, Assista nt Attorne

y General ; Randall E. Nichols, District Attorney Ge neral; and Marsha Selecman, Assistant District Attorney General, for the Appellee, State of Tenne ssee.

OPINION

The petitione

r rece ived his convictions at the hands of a jury . On direct appeal, the petitioner challenged his especially

aggravated robbe

ry conviction and the imposition of c onsec utive sente ncing, and this court affirmed that judgment. See State v. J ohn Rober

t Tory , No. 03C01-9306- CR-00202 (Tenn. Crim. App., Knoxville, Aug. 3, 1994), perm. app. denied (Tenn. 1994). The convictions emanate

from the 1990 robbery a

nd murder of Michael R. White in his home in Knox Co un ty. Id
., slip op. at 2. The defendant was linked to the cr

imes by the disco very

of his-2-

finger prints in the victim’s ho use, the discovery of inculpative evidence in the defendant’s home, and the defendant’s confession to involvement in the crimes. Id.

The petitioner filed a post-conviction petition, and the lower court conducted a hearing at which it heard arguments of law but rec eived no evi dence. The post-conviction court rejected the petitioner’s claim tha

t double je opardy

principle s preclu ded his co nvictions of both first degree felony murder

and especially

aggravated robbe

ry. The court held that Tennessee law allows dual convictions of both felony murde r and of the under lying felon

y. T he post-c onviction

court al so rejected the petitione

r’s tria l error a nd ineff ective a ssistance

of counse

l claims r elative t o the failure to instruct on second degree murder a s a lesser included offense. The court determined that, at the time of the pe

titioner’ s trial, se

cond deg ree mur der was not a lesser included offense of first degree felony murder

. Concerning the doubl e jeopard y claim, the issue was not ra ised as error in the def end ant ’s t ria l an d di rec t ap pea l. In fact, in his direct appeal brief, the defenda nt acknowledged that “Tennesseelaw allows convictions for both felony murde r and the underly

ing felony .” See John Robert Tory , slip op. at 7. Although the post-conviction court offered sound leg al re asons for rejecting the petitioner’s double jeopardy claim, see generally State v. Blackbu rn , 694 S.W.2d 934, 936-37 (Tenn. 1985) (double jeopardy principles do not bar prosecution for and conviction of both felony murder and underly

ing felony ), we are constra ined to affirm the ruling based upon the principle of w aiv er. Issues that could have be en raised previously

in a court of competent jurisdiction are deemed waived when they are knowingly a

nd understandingly

eschewed and then raisedfor the f

irst time in a post-conviction proceeding. Tenn. Code Ann. § 40-30- 112(b) (1990) (repealed 1995); House v. State, 911 S.W.2d 705, 714 (Tenn. 1995) (“Waiver in the post-conviction cont ext is to be determined by a

n objective standard

under which a petitioner

is bound by the action or inaction of his attorney .”). The double jeopardy claim is waived.
Regarding the trial error

and ineffe ctive as sistance of counse

l claims r elative t o the failure to instruc t the jury on secon d degr

ee murde r, the pos t-convic tion cour t corre ctly

ruled th a t second degree murder was not re cognized as a lesser included offense of felony murder at the time the petitione

r’s cas e was tried, see, e.g., State v. Gilliam, 901 S.W.2d 385, 390-91 (Tenn. Crim. App. 1995) (adju dicat ing a 1990 offe nse and h olding th at secon d degr ee murde r is not a lesser included offense of felony murde

r), and that the case lawlater establishing second degree murder as a lesser included offense was not

retroactive to affect the

petitioner’s case. See State v. Ely , 48 S.W.3d 710, 718-22 (Tenn. 2001) (relying upon State v. Burns , 6 S.W.3d 453, 464 (Tenn. 1999), in establishing second degree murder as a le sser includedoffense of first degre e felony

murder) ; Anthony Hodges

v. State, M2001-03068-CCA-R3-PC (Tenn. Crim. App., Nashville, Dec. 4, 2002), perm. ap p

. pending (Tenn. 2003). (“ Burns does not offer a constitutional claim for r elief c ognizant within a post-conviction proceeding where the de fendant’s direct

appeal was concluded prior to the filing of Burns .”). We agree that there was no trial error in omitting an instruction onsecond degree murder.

The post-conviction court, ho wever, did not per se rule upon the petiti oner’s c laim that his trial counsel was ineffective in not demanding an instruction on second degree murder. Tha t-3-

notwi thst andin g, the tenor of the p ost-conviction court’s order is dispositive of the ineffective assistance claim. For purposes of assuring a cr iminal defendant his constitutional right to effective representationof counsel, counsel’s performance must dwell “within the ra nge of competence demanded

of attorneys in cr

iminal cases.” Baxter v . Rose , 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland v. Washington , 466 U.S. 668, 678-79, 104 S. Ct. 20 52, 20 64-6 9 (19 84). We conclude that the standard for counsel’s performanc e was met when counsel acceded to the existing law that second degree murder

was not, at the time of the petitioner’s trial, recognized as a lesser included offense of felony murde

r. Sta te v. Benny Wallace , No. 86-208-II I (Tenn. Crim. App., Nashville, Aug. 26, 1987) (“[A]ttorney s m ay not b e said to be ineffective for not anticipating r ulings that change or alter existing law.”), perm. app. denied (Tenn. 1987).
For these reasons, the denial of post-conviction relief is affirmed.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE