IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs October 25, 2016

MICHAEL DEON MILLS v. STATE OF TENNESSEE

Appeal from the Criminal Court for Knox County

No. 98950 Bobby R. McGee, Judge

___________________________________

No. E2016-01544-CCA-R3-PC – Filed November 21, 2016

___________________________________

Michael Deon Mills (“the Petitioner”) was convicted of two counts of especially 

aggravated kidnapping, one count of especially aggravated robbery, and one count of 

aggravated burglary by a Knox County jury. The trial court sentenced the Petitioner to an 

effective sentence of twenty-five years with release eligibility after service of 100% of 

the sentence in the Department of Correction. On appeal, this court affirmed the 

Petitioner‟s convictions. The Petitioner filed a petition for post-conviction relief, which 

the post-conviction court denied. The Petitioner argues on appeal that trial counsel‟s 

performance was deficient and that he was prejudiced by the ineffective assistance of trial 

counsel. On appeal, we affirm the post-conviction court‟s denial of relief to the 

Petitioner.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JAMES 

CURWOOD WITT, JR., and J. ROSS DYER, JJ., joined.

Douglas A. Trant, Knoxville, Tennessee, for the appellant, Michael Deon Mills.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant 

Attorney General; Charme P. Allen, District Attorney General; and Phillip H. Morton, 

Assistant District Attorney General, for the appellee, State of Tennessee.
- 2 -

OPINION

I. Factual and Procedural Background

Jury Trial

On direct appeal, this court summarized the testimony presented at trial as 

follows:

[Co-defendant] [t]wenty-two-year-old Brandon Tarver testified that 

the [Petitioner and co-defendant Kenneth Spencer] were his friends. At the 

time of trial, he had known [the Petitioner] and [co-defendant Spencer]

three and ten years, respectively. About 6:00 p.m. on August 8, 2007, [codefendants] Tarver and Spencer went to [co-defendant] Tarver‟s father‟s 

house on Apex Drive off Sutherland Avenue in Knoxville. [The Petitioner]

also went to the house. At some point, [co-defendant] Spencer went back 

to his home off Magnolia Avenue. [The Petitioner] also left [co-defendant] 

Tarver‟s father‟s home on Apex Drive. [Co-defendant] Tarver said that he 

and a girl named Tiffany later met up with [co-defendant] Spencer at [codefendant] Spencer‟s house. At that point, [co-defendant] Tarver refused to 

testify further, saying, “I have nothing else to say. I got my time. I wanna 

do my time.”

Philip Lim testified that in August 2007, he lived in a two-story 

home on Bradshaw Garden Drive. On the night of August 8, he was at 

home with his then nineteen-year-old son, Shawn, and thirteen-year-old 

daughter, Heidi. Shortly before midnight, Philip was standing in his living 

room while watching television and drinking soup. Someone knocked open 

the front door, and three or four people wearing bandanas over their faces 

came into the house. Philip said a black male pointed a “long” gun at his 

face and told him, “I will kill you. I will kill you.” A white male with an 

aluminum baseball bat hit Philip a few times on his back. Philip ran into 

the kitchen, and the man with the bat followed him. Philip said that the 

men wanted to know if he had any drugs and that he told them, “No. I 

don‟t have drugs. I don‟t even smoke.” Philip said he was “running 

scared”; screamed, “Call 911. Call 911”; picked up a barstool; and threw it 

at the man with the gun. He said that a second living room and his 

children‟s bedrooms were in the basement and that he headed downstairs.

Philip testified that he stumbled on the steps to the basement and that 

the man with the bat began beating him. Philip ran into Heidi‟s bedroom 

and tried to hold the door closed, but the man overpowered him, came into 
- 3 -

the room, and hit him on the head and back with the bat. Philip fought with

the man for about five minutes and ran out of the room. The man followed 

and continued to beat him, and Philip fell next to a couch in the basement 

living room. The man told him to take off a gold bracelet he was wearing, 

but Philip could not get the bracelet off because his thumb was swollen.

The man beat Philip with the bat, yanked the bracelet off his wrist, and told 

him to take out his wallet. Philip did as instructed, and the man took about 

sixty dollars out of the wallet. The man also pulled a telephone cord out of 

the wall. Philip took a cellular telephone out of his pocket in order to dial 

9-1-1, but the man broke it into two pieces.

Philip testified that the man “cornered” him under a piano and that 

he told the man, “Please don‟t kill me. I‟ve got beautiful children.” The 

man forced him to stay under the piano and did not leave him until the 

police arrived. At that point, the man broke through the basement‟s sliding 

glass door and ran outside. The police came into the house and took Philip

upstairs, where he saw his son. He said his head and his son‟s head were 

bleeding. The police captured a black intruder and a white intruder still in 

the house. Philip‟s son asked to see the two men but did not recognize 

them. Paramedics took Philip to the University of Tennessee Hospital. His 

thumb was broken, he could not raise his hand, and he had injuries to his 

neck and back. He said that the man with the bat had hit him twenty or 

thirty times, that his head was split open, and that he received staples in his 

head. He was in extreme pain after the attack and went to physical therapy 

for months. At the time of trial, he was still seeing his doctor for treatment 

and was in counseling. He said that he did not own a gun or baseball bat 

and that neither of those items had been in his home before the robbery.

On cross-examination, Philip testified that a briefcase containing 

jewelry had been in his bedroom closet and that one of the men found the 

briefcase and opened it. Philip‟s arms were bruised during the attack when 

he held them up to protect his neck. He said that the intruders damaged a 

couch and mattress, that they broke doors and windows, and that blood was 

“everywhere.” The intruders caused eighteen to twenty thousand dollars[‟]

worth of damage to his house.

Shawn Lim testified that on the night of August 8, 2007, he was 

downstairs and getting ready for bed. Suddenly, he heard his father upstairs 

yelling, “[C]all 911, help.” Shawn was scared and did not know what was 

going on. He ran upstairs and saw a tall black male with a bandana over his 

face and holding a gun. Shawn grabbed the gun and struggled with the 

man. He said he could not see his father but heard “other commotion” in 
- 4 -

the kitchen area. Suddenly, someone hit Shawn on the back of his head 

with a baseball bat. He said he blacked out for a moment, fell over the 

couch, and was beaten with the bat and the butt of the gun. He said two 

men told him, “Don‟t try and be brave or anything, sit down, stay right

here.” While the men were with him, Shawn could hear his father 

screaming downstairs. The man with the bat left, and the man with the gun 

moved Shawn to a bathroom. Shawn grabbed a towel and held it to his 

head. The man with the gun told Shawn to sit in the bathroom and stayed 

with him until the police arrived. Shawn said that while he was in the 

bathroom, he could see someone with a baseball bat walking “back and 

forth,” searching the upstairs bedrooms. He said he could still hear his 

father and a commotion downstairs.

Shawn testified that he heard the man with the bat alert the man with 

the gun, that the two men tried to find a way out of the house, and that he 

heard a bedroom window break. Shawn saw a police officer, and Philip 

Lim came upstairs. The police began searching the house and found the 

man with the bat and the man with the gun hiding in an upstairs bedroom.

The police brought them out of the room and took off their bandanas. 

Shawn said that only one of the intruders was black, and he identified [the 

Petitioner] in court as the black intruder with the gun. Regarding an incourt identification of [co-defendant] Spencer, Shawn said that “it was dark 

in the living room . . . , so I‟m not sure if he was the one that was in the 

living room or the one downstairs that I didn‟t see.” He said that as a result 

of the attack, he had a large cut on his head that had to be closed with 

fifteen staples. He also had cuts and bruises on his body. He said he was in 

extreme pain, took pain medication, and stayed in bed for about one week.

He said that the home invasion lasted about ten minutes and that he was 

“out of it” when he talked with the police.

On cross-examination, Shawn said he saw two men during the attack 

and “heard others.” Shawn said that while the man with the bat and the 

man with the gun were upstairs with him, he could hear his father 

downstairs yelling “like he was still getting beaten.”

The State recalled [co-defendant] Brandon Tarver, and his testimony 

resumed as follows: On the evening of August 8, 2007, [co-defendants] 

Tarver and Spencer drove [co-defendant] Spencer‟s dark green Toyota 

Camry to [co-defendant] Tarver‟s father‟s house on Apex Drive. [Codefendant] Tarver called [the Petitioner] and told him to come over. [Codefendant] Tarver said that [the Petitioner] knew about a house “where 

some guy lived that had some drugs and some money” and that they 
- 5 -

decided to ride by the house to see if the man was home. [Co-defendant] 

Tarver, [the Petitioner], and [co-defendant] Spencer got into the Camry, and 

Tiffany drove them to Bradshaw Garden. They saw cars in the home‟s 

driveway, and [the Petitioner] told them the man was there.

[Co-defendant] Tarver said that Tiffany drove them back to his 

father‟s house and that he put a twenty-gauge Remington pump shotgun 

into the trunk of [co-defendant] Spencer‟s car. He said he could not 

remember if the shotgun was loaded and did not know at the time that a 

baseball bat also was in the trunk. Tiffany drove them back to Bradshaw 

Garden and parked at the end of the street. [Co-defendant] Tarver, [the 

Petitioner], and [co-defendant] Spencer got out of the car and walked to the 

Lim house. [Co-defendant] Tarver said that [co-defendant] Spencer was 

carrying the bat, that [the Petitioner] was carrying the gun, and that they 

had the weapons in order to scare the occupants of the house. When they 

arrived at the home, [co-defendant] Tarver kicked in the front door. [Codefendant] Spencer walked into the house first, followed by [the Petitioner]

and [co-defendant] Tarver, and confronted Philip Lim. Shawn Lim came 

up behind his father and threw [the Petitioner] onto the couch, and [codefendant] Spencer hit Shawn with the bat. [Co-defendant] Spencer also 

hit Philip with the bat, and Philip started screaming. [Co-defendant] Tarver 

said his role was to find “the weed and the money,” that he walked into a 

bedroom, and that he started searching “[t]o see what they had.” He found 

a briefcase containing jewelry, and he put the jewelry in his pocket. He 

said that [the Petitioner] was in the living room and that he did not see [codefendant] Spencer again.

[Co-defendant] Tarver testified that he heard Shawn Lim ask [the 

Petitioner] for permission to get a towel. He heard the home‟s front door 

open, and [the Petitioner] told him the police were there. [The Petitioner]

used the end of the gun to break a window, and [co-defendant] Tarver saw 

police outside. He hid in a closet and [the Petitioner] hid under the bed, but 

the police found them. He acknowledged telling an investigator that he had 

realized as soon as they entered the Lim house that they had broken into the 

wrong home. He also acknowledged that they continued with their plan.

Later, [co-defendant] Tarver took the police to [co-defendant] Spencer‟s 

house off Magnolia Avenue, but [co-defendant] Spencer was not there.

[Co-defendant] Tarver used a police cellular telephone to call Tiffany, and 

she told him [co-defendant] Spencer was at [co-defendant] Tarver‟s father‟s 

house on Apex Drive. [Co-defendant] Tarver explained that he had stopped 

testifying earlier because “[t]hat‟s two of my best friends [sitting] over 

there.” He said he pled guilty in this case in return for an eight-year 
- 6 -

sentence. He acknowledged that no one in the district attorney‟s office had 

threatened him and that he did not have to testify.

On cross-examination, [co-defendant] Tarver testified that he and 

Tiffany had been dating and that he never told the police she was involved.

He acknowledged that after he refused to testify earlier, he spoke with his 

attorney and that his attorney reminded him he was supposed to cooperate 

with the district attorney‟s office as part of his plea agreement. He said he 

decided to continue testifying because he would “get some more time” if he 

did not cooperate.

Heidi Lim testified that on the night of August 8, 2007, she was 

downstairs in her bedroom, which was next to Shawn‟s bedroom, and heard 

her father upstairs “yelling help, call 911.” She grabbed a cordless 

telephone and went into Shawn‟s bedroom, but Shawn was not there. Heidi 

heard yelling upstairs, but she did not hear Shawn. She dialed 9-1-1 and 

got down on the floor, trying to hide. The State played Heidi‟s 911 call for 

the jury. During the call, which lasted about seven minutes, Heidi told the 

operator that someone was in her house and that she was hiding in her 

brother‟s bedroom. She also told the operator that she could hear someone 

saying “get on the ground” and that she thought her father had been hurt. 

Heidi testified that when the police arrived, she ran upstairs. Her father and 

brother were in the bathroom, and she saw Shawn holding a towel to his 

bleeding head. She said that her family owned a mixed-breed dog that 

stayed outside in a fenced yard, that she later found the dog hiding in a 

basement bathroom, and that his eye was bleeding.

Officer David Sanders of the Knoxville Police Department testified 

that on August 8, 2007, he responded to a home invasion call on Bradshaw 

Garden Drive. According to the call, a young woman was in the basement 

of the home, and the intruders were still in the house. Officer Sanders 

turned off his patrol car‟s lights and parked a couple of houses down from 

the Lim house. Officer Pete Franzen also arrived, and the two officers 

walked to the home. Officer Sanders set up a perimeter around the house 

while Officer Franzen went to the front of the house. Officer Sanders heard 

the front door slam. A few moments later, a window broke on the side of 

the house where he was standing. He watched the window, but no one 

climbed out. Other officers arrived, and Officer Sanders entered the 

basement through a broken sliding glass door. He checked each room in

the basement to make sure no suspects were hiding and found Heidi Lim in 

a bedroom. He heard officers yelling upstairs, went upstairs, and saw 

officers taking a white male into custody. The officers were removing the 
- 7 -

male from the bedroom where Officer Sanders had heard the window break 

earlier. Officers also took a young black male, who was hiding between the 

bedroom wall and the bed, into custody. A loaded shotgun was lying on the 

bed. Officer Sanders took the white male, who was [co-defendant] Tarver, 

outside; patted him down; and found jewelry in his pockets. He put [codefendant] Tarver into his patrol car.

. . .

On cross-examination, Officer Sanders acknowledged that when he 

first arrived at the Lim home, he thought the suspects had a shotgun and a 

baseball bat. When officers arrested [the Petitioner], he was not wearing a 

bandana over his face. The bat found at the home on Apex Drive was 

wood, not aluminum, and Officer Sanders could not see any traces of blood 

on it.

Dan Crenshaw, a senior evidence technician for the Knoxville Police 

Department, testified that he confiscated the items found at the Apex Drive 

residence. Partial, but unidentifiable, fingerprints were on the bat and the 

shotgun. Crenshaw also checked the shotgun found at the Lim residence 

for fingerprints but did not find any identifiable prints.

Latonia Mills, [the Petitioner‟s] mother, testified for him that he was 

a good child and that she never had any problems with him as a juvenile. 

She said she did not know [co-defendants] Tarver or Spencer.

State v. Michael Deon Mills and Kenneth Allen Spencer, No. E2009-01708-CCA-R3-

CD, 2011 Tenn. Crim. App. LEXIS 303 at *2-15 (Tenn. Crim. App. Apr. 21, 2011), 

perm. app. denied (Tenn. July 14, 2011). The jury found the Petitioner guilty of 

especially aggravated kidnapping, especially aggravated robbery, and aggravated 

burglary. Id. at *15. The trial court sentenced the Petitioner to “twenty-five years to be 

served at one hundred percent in confinement for each of the Class A felony convictions 

and to six years as Range I, standard offender[] for the aggravated burglary conviction. 

The sentences were to run concurrently for effective sentences of twenty-five years.” Id. 

This court affirmed the Petitioner‟s convictions on direct appeal, and our supreme court 

denied further review. Id. at 37.

Post-Conviction Hearing

The Petitioner filed a timely petition for post-conviction relief. At the postconviction hearing, Latonya Mills testified that she was the Petitioner‟s mother and that 

the Petitioner has had ADHD since he was a child. Ms. Mills testified that ADHD affects 
- 8 -

the Petitioner because “you can talk directly to him, but he is not understanding nothing 

[sic] that you say to him.” Ms. Mills stated that she attended three or four meetings 

between the Petitioner and trial counsel and that trial counsel told the Petitioner that he 

would receive a fifteen-year sentence with twenty percent release eligibility. Further, 

Ms. Mills testified that trial counsel never discussed the potential sentence that the 

Petitioner could receive if he chose to proceed to trial and was found guilty. 

On cross-examination, Ms. Mills testified that the Petitioner asked her to help him 

hire an attorney to represent him shortly after he was arrested for the underlying charges. 

Ms. Mills stated that she hired an attorney to represent the Petitioner during the 

preliminary hearing, and the attorney advised the Petitioner to accept a plea offer from 

the State for a twelve-year sentence with twenty percent release eligibility. Ms. Mills and 

the Petitioner were dissatisfied with this attorney‟s representation, so they hired trial 

counsel. On redirect examination, Ms. Mills stated that trial counsel never told the 

Petitioner that he might receive a sentence of twenty-five years with a one-hundred 

percent release eligibility. 

The Petitioner testified that he has “been in special ed [sic] [his] whole life” and 

has difficulties speaking and writing. The Petitioner stated that he signed the plea 

agreement for twelve years with thirty percent release eligibility and was released on 

bond before giving a plea colloquy in criminal court. However, the Petitioner‟s father 

“felt like [the Petitioner] should get a second opinion from another attorney because he 

felt like it was too much time.” When the Petitioner and his father met with trial counsel, 

she informed them that the plea offer of twelve years was not a good deal. The Petitioner 

testified that he did not accept the plea offer of twelve years because trial counsel advised 

him not to take it. The Petitioner stated that, if trial counsel had not advised against

taking the plea offer of twelve years, he would have accepted the plea offer. The 

Petitioner testified that trial counsel never discussed his case with him and only called 

him to ask when he would be making a payment to her. The Petitioner stated that trial 

counsel never advised him that he could receive a sentence of twenty-five years with 

release eligibility after service of 100% of the sentence, and he was unaware that he could 

receive that sentence until he was sentenced. The Petitioner also stated that he “never 

wanted to go to trial” and that trial counsel never discussed proceeding to trial with him 

until two days before his trial. 

The Petitioner testified that, at his meeting with trial counsel two days before trial, 

trial counsel told the Petitioner what he had been charged with but informed the 

Petitioner that “the kidnapping charges was [sic] going to get dismissed when [the 

Petitioner] go[t] to court” because the kidnapping was not a separate event from the 

robbery. The Petitioner stated that trial counsel advised him that if he was found guilty 

of the robbery charge then he could receive a maximum sentence of fifteen years with 
- 9 -

thirty percent release eligibility. When the Petitioner arrived in court for his trial, trial 

counsel informed him that the State had withdrawn the previous plea offer. Additionally, 

the Petitioner testified that trial counsel never discussed requesting a jury instruction on 

accomplice testimony with him, and trial counsel did not provide the Petitioner with his 

discovery materials. 

Trial counsel testified that she had practiced law in Tennessee since 1993 and that 

part of her practice included criminal defense. Trial counsel stated that, after the 

Petitioner and his family terminated their representation with Mr. Whalen, she agreed to 

represent the Petitioner. At that point, trial counsel learned that the State had offered the 

Petitioner a plea offer for a twelve-year sentence with thirty percent release eligibility, 

but the Petitioner did not want to plead guilty. Trial counsel informed the Petitioner that 

his only options were to accept a plea offer or proceed to trial, but trial counsel testified 

that the Petitioner was “adamant” about not pleading guilty. Trial counsel stated that she 

“wasn‟t even authorized to do any negotiations for [the Petitioner] because he said he was 

not going to plea.” Trial counsel testified that after she was retained and the Petitioner 

was arraigned she looked at the Petitioner‟s general sessions warrants to determine the 

Petitioner‟s charges. Trial counsel stated that she “did legal research” to determine the 

sentencing ranges for the Petitioner‟s charges. Trial counsel informed the Petitioner that 

he could receive a sentence between fifteen and twenty-five years with one-hundred 

percent release eligibility for the especially aggravated robbery charge. Trial counsel 

stated that either the Petitioner‟s mother or father or both were present when she met with 

the Petitioner to explain the possible sentences. Trial counsel stated that she “never 

promised [the Petitioner] anything.” Because the Petitioner informed trial counsel that he 

did not want to plead guilty and wanted to proceed to trial, trial counsel prepared for trial. 

On cross-examination, trial counsel stated that she did not discuss with the 

Petitioner the possibility of pleading guilty to the robbery charge and proceeding to trial 

on the kidnapping charge because the Petitioner “did not want to plea at all.” The 

following exchange occurred between trial counsel and the Petitioner‟s post-conviction 

counsel:

Q (Post-conviction counsel): Why didn‟t you request an accomplice jury 

instruction?

A (trial counsel): An accomplice? Because [the Petitioner] was found in 

the house. And I represented him.

Q: Was [co-defendant] Brandon Tarver an accomplice?
- 10 -

...

A: He was perhaps an accomplice, yes.

The post-conviction court found that trial counsel “acknowledged that [codefendant] Tarver could be considered an accomplice and agreed that she did not request 

a jury instruction on accomplice testimony.” The post-conviction court found that the 

circumstances of the case “provided adequate corroboration” of [co-defendant] Tarver‟s 

testimony and therefore an instruction on accomplice testimony was not necessary. The 

post-conviction court found that the Petitioner had failed to prove by clear and 

convincing evidence that trial counsel‟s failure to request the instruction had prejudiced 

him and denied relief to the Petitioner on this issue.

The post-conviction court found trial counsel‟s testimony regarding her meetings 

with the Petitioner and the depth of her discussion with him regarding plea offers and 

potential sentences credible. The post-conviction court also found that the Petitioner had 

failed to prove by clear and convincing evidence that “trial counsel was deficient at all 

with respect to communication with her client, trial preparation or plea bargaining[]” and 

denied relief to the Petitioner on this ground, as well. This timely appeal followed.

II. Analysis

On appeal, the Petitioner argues that trial counsel was ineffective in failing to 

advise him about the potential consequences of proceeding to trial; specifically, the 

Petitioner argues trial counsel was ineffective by informing him that the kidnapping 

charge would be dismissed and by telling him that the maximum sentence he could 

receive was fifteen years with thirty percent release eligibility. The Petitioner also 

contends that trial counsel was ineffective in failing to request a jury instruction on 

accomplice testimony and that “[h]e was prejudiced by the jury never knowing that [codefendant] . . . Tarver‟s testimony must be corroborated.” The Petitioner asserts trial 

counsel‟s failure to request and the trial court‟s failure to issue a jury instruction on 

accomplice testimony constitutes reversible error and deprived the Petitioner of due 

process. The State responds that trial counsel‟s performance regarding communications 

with the Petitioner was not deficient and that the Petitioner has not shown that he was 

prejudiced by trial counsel‟s advice or her failure to request a jury instruction on 

accomplice testimony.

Standard of Review

In order to prevail on a petition for post-conviction relief, a petitioner must prove 

all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828, 
- 11 -

830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and 

fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Appellate courts are bound 

by the post-conviction court‟s factual findings unless the evidence preponderates against 

such findings. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015). When reviewing 

the post-conviction court‟s factual findings, this court does not reweigh the evidence or 

substitute its own inferences for those drawn by the post-conviction court. Id.; Fields, 40 

S.W.3d at 456 (citing Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). Additionally, 

“questions concerning the credibility of the witnesses, the weight and value to be given 

their testimony, and the factual issues raised by the evidence are to be resolved by the 

[post-conviction court].” Fields, 40 S.W.3d at 456 (citing Henley, 960 S.W.2d at 579); 

see also Kendrick, 454 S.W.3d at 457. The trial court‟s conclusions of law and 

application of the law to factual findings are reviewed de novo with no presumption of 

correctness. Kendrick, 454 S.W.3d at 457.

Ineffective Assistance of Counsel

The right to effective assistance of counsel is safeguarded by the Constitutions of 

both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const. 

art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel, 

a petitioner must prove: (1) that counsel‟s performance was deficient; and (2) that the 

deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); 

see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same 

standard for ineffective assistance of counsel applies in both federal and Tennessee 

cases). Both factors must be proven in order for the court to grant post-conviction relief. 

Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State, 938 S.W.2d 363, 

370 (Tenn. 1996). Accordingly, if we determine that either factor is not satisfied, there is 

no need to consider the other factor. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007) 

(citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)). Additionally, review of 

counsel‟s performance “requires that every effort be made to eliminate the distorting 

effects of hindsight, to reconstruct the circumstances of counsel‟s challenged conduct, 

and to evaluate the conduct from counsel‟s perspective at the time.” Strickland, 466 U.S. 

at 689; see also Henley, 960 S.W.2d at 579. We will not second-guess a reasonable trial 

strategy, and we will not grant relief based on a sound, yet ultimately unsuccessful, 

tactical decision. Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).

As to the first prong of the Strickland analysis, “counsel‟s performance is effective 

if the advice given or the services rendered are within the range of competence demanded 

of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523 

S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that 

counsel was deficient, the petitioner must demonstrate “that counsel‟s acts or omissions 

were so serious as to fall below an objective standard of reasonableness under prevailing 
- 12 -

professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see 

also Baxter, 523 S.W.2d at 936.

Even if counsel‟s performance is deficient, the deficiency must have resulted in 

prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong 

of the Strickland analysis, the petitioner “must show that there is a reasonable probability 

that, but for counsel‟s unprofessional errors, the result of the proceeding would have been 

different. A reasonable probability is a probability sufficient to undermine confidence in 

the outcome.” Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks 

omitted).

Failure to Communicate Potential Results of Trial

In support of his argument, the Petitioner testified that he would have accepted the 

State‟s plea offer of a twelve-year sentence with thirty percent release eligibility if trial 

counsel had not advised against accepting the offer. The Petitioner also stated that trial 

counsel never advised him that he could receive a twenty-five year sentence with release 

eligibility after service of 100% of the sentence if he proceeded to trial. Trial counsel 

testified that the Petitioner “adamantly” told her that he did not want to plead guilty and 

that the Petitioner did not authorize her to negotiate with the State for a plea offer. Trial 

counsel also testified that she informed the Petitioner of all the possible sentencing ranges 

for the crimes that he was charged with committing. In particular, trial counsel testified 

that she informed the Petitioner that he could receive a sentence between fifteen and 

twenty-five years with release eligibility after service of 100% of the sentence. The postconviction court found trial counsel to be credible and found that the Petitioner had failed 

to prove by clear and convincing evidence that “trial counsel was deficient at all with 

respect to communication with her client, trial preparation or plea bargaining.” The 

evidence in the record does not preponderate against the post-conviction court‟s findings. 

Therefore, we conclude that the Petitioner has failed to establish that trial counsel was 

deficient in failing to communicate to him the possible consequences of proceeding to 

trial. The Petitioner is not entitled to relief on this ground.

Failure to Request Accomplice Jury Instruction

In support of his argument that trial counsel was ineffective for failing to request a 

jury instruction on accomplice testimony, the Petitioner testified that trial counsel never 

discussed requesting a jury instruction on accomplice testimony with him. Trial counsel 

testified that she did not request a jury instruction on accomplice testimony because “[the 

Petitioner] was found in the house[,]” but trial counsel stated that co-defendant Tarver 

“was perhaps an accomplice.” The post-conviction court found that the circumstances of 

the case “provided adequate corroboration” of co-defendant Tarver‟s testimony, and 
- 13 -

therefore, an instruction on accomplice testimony was not necessary. The postconviction court further found that the Petitioner had failed to prove by clear and 

convincing evidence that trial counsel‟s failure to request the instruction had prejudiced 

him. 

The evidence shows that trial counsel was deficient in failing to request an 

accomplice testimony jury instruction. “If the facts about the witness‟ participation in the 

crime are clear and undisputed, the trial court should determine as a matter of law 

whether the witness was an accomplice.” State v. Robinson, 239 S.W.3d 211, 225 (Tenn. 

Crim. App. 2006) (citing State v. Allen, 976 S.W.2d 661, 666 (Tenn. Crim. App. 1997)).

“However, if the facts are disputed or subject to different inferences, the jury should 

determine as a question of fact whether the witness was an accomplice.” Id. (citing State 

v. Anderson, 985 S.W.2d 9, 16 (Tenn. Crim. App. 1997)). Here, the facts regarding codefendant Tarver‟s participation in the crime are clear and undisputed. Additionally, the 

post-conviction court found that trial counsel acknowledged that co-defendant Tarver was 

an accomplice. Therefore, trial counsel should have requested that the trial court 

determine as a matter of law whether co-defendant Tarver was an accomplice and that the 

trial court instruct the jury on accomplice testimony. See Ronnell Leberry v. State, No. 

M2007-01813-CCA-R3-PC, 2009 WL 112579, at *5 (Tenn. Crim. App. Jan, 14, 2009) 

(counsel was deficient in failing to request jury instruction on accomplice testimony 

when the proof at trial established that a witness was an accomplice), perm. app. denied

(Tenn. June 15, 2009); see also George Arthur Lee Smith v. State, No. E2010-00488-

CCA-R3-PC, 2012 WL 260022, at *24 (Tenn. Crim. App. Jan. 30, 2012) (holding that 

trial counsel was deficient in failing to request a jury instruction on accomplice 

testimony), perm. app. denied (Tenn. June 25, 2012). However, the Petitioner is not 

entitled to relief because he failed to establish that he was prejudiced by trial counsel‟s 

failure to request a jury instruction on accomplice testimony.

We agree with the post-conviction court that the Petitioner has failed to establish 

prejudice. The police officers found the Petitioner hiding in the victims‟ house when 

they apprehended him. Additionally, the victims identified the Petitioner as one of their 

assailants. The Petitioner has not established on appeal how a jury instruction on 

accomplice testimony would have affected his trial, besides alleging that he was 

prejudiced because the jury did not know that co-defendant Tarver‟s testimony should 

have been corroborated. The Petitioner has failed to prove that he was prejudiced by trial 

counsel‟s failure to request a jury instruction on accomplice testimony. See Chico Lopez 

Chigano v. State, No. 03C01-9602-CR-00061, 1997 WL 105002, at *2 (Tenn. Crim. 

App. Mar. 11, 1997) (“[I]n order for the appellant to prevail in this collateral attack, the 

proof must establish that had the questioned accomplice instruction been given to the 

jury, there is a „reasonable probability‟ that the appellant would have been acquitted[]”), 
- 14 -

perm. app. denied (Tenn. June 30, 1997). The Petitioner is not entitled to relief on this 

ground. 

Additionally, the Petitioner argues that trial counsel‟s failure to request a jury 

instruction on accomplice testimony and the trial court‟s failure to instruct the jury on 

accomplice testimony deprived him of due process and constituted reversible error. 

Under the Post-Conviction Procedure Act:

A ground for relief is waived if the petitioner personally or through an 

attorney failed to present it for determination in any proceeding before a 

court of competent jurisdiction in which the ground could have been 

presented unless: (1) The claim for relief is based upon a constitutional 

right not recognized as existing at the time of trial if either the federal or 

state constitution requires retroactive application of that right; or (2) The 

failure to present the ground was the result of state action in violation of the 

federal or state constitution.

Tenn. Code Ann. § 40-30-106(g); see Cauthern v. State, 145 S.W.3d 571, 599 (Tenn. 

Crim. App. 2004); Black v. State, 794 S.W.2d 752, 756 (Tenn. Crim. App. 1990). In his 

petition for post-conviction relief, as amended, the Petitioner did not allege that trial 

counsel‟s failure to request a jury instruction and the trial court‟s failure to instruct the 

jury on accomplice testimony deprived him of his due process rights under the Fifth and 

Fourteenth Amendments of the U.S. Constitution and Article I Section 8 of the Tennessee 

Constitution and constituted reversible error. The Petitioner‟s claim for relief on this 

ground is not based upon “a constitutional right not recognized as existing at the time of 

trial,” and the Petitioner does not allege that his failure to present this ground for relief 

was the result of state action. Therefore, this issue is waived.

III. Conclusion

For the aforementioned reasons, the judgment of the post-conviction court is 

affirmed.

____________________________________

ROBERT L. HOLLOWAY, JR., JUDGE