IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 10, 2015

ANTONIO BIGSBEE v. STATE OF TENNESSEE

Appeal from the Circuit Court for Robertson County

No. 06-0426 Michael R. Jones, Judge

No. M2014-01799-CCA-R3-PC – Filed September 22, 2015

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Following a jury trial, Antonio Bigsbee (“the Petitioner”) was convicted of especially 

aggravated kidnapping and reckless endangerment and sentenced as an especially

mitigated offender to thirteen and a half years’ incarceration. The Petitioner filed a 

petition for post-conviction relief alleging that trial counsel failed to communicate a plea 

offer of eight years’ incarceration. After a hearing, the post-conviction court denied 

relief. Discerning no error, we affirm the judgment of the post-conviction court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which THOMAS T.

WOODALL, P.J., and ROBERT W. WEDEMEYER, J., joined.

Chelsea Nicholson (on appeal) and John Drake (at post-conviction hearing), Nashville, 

Tennessee, for the appellant, Antonio Bigsbee.

Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant 

Attorney General; John W. Carney, District Attorney General; and Jason White, Assistant 

District Attorney General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural Background

The Petitioner was indicted, along with two co-defendants, for one count each of 

attempted especially aggravated robbery, especially aggravated kidnapping, and 
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attempted first degree murder. State v. Antonio Bigsbee, No. M2008-02514-CCA-R3-

CD, 2010 WL 4188274, at *1 (Tenn. Crim. App. Oct. 22, 2010).1 Immediately prior to 

trial, the State dismissed the charge of attempted especially aggravated robbery and 

proceeded to trial on the remaining two counts. Id. Ultimately, the jury convicted the 

Petitioner of especially aggravated kidnapping and reckless endangerment, as a lesserincluded offense of attempted first degree murder. Id. at *5. The trial court sentenced 

the Petitioner as an especially mitigated offender to an effective sentence of thirteen and a 

half years’ incarceration. This court affirmed the Petitioner’s convictions on direct 

appeal. Id. at *10.

The Petitioner then filed a petition for post-conviction relief alleging ineffective 

assistance of counsel on various grounds. After the appointment of post-conviction 

counsel, the Petitioner filed an amended petition for post-conviction relief alleging, 

among other things, that trial counsel was ineffective for failing to communicate “a 

serious and valid [plea] offer” to the Petitioner. At the start of the post-conviction 

hearing, the Petitioner informed the court that he was proceeding solely on the claim that 

trial counsel failed to communicate a plea offer.

Brenda Mauritz, the Petitioner’s mother, testified that she hired trial counsel the 

day after the Petitioner was arrested and that trial counsel was able to secure bond for the 

Petitioner. However, Ms. Mauritz claimed that, after the Petitioner was released on bond, 

trial counsel repeatedly missed or showed up late to appointments with the Petitioner. 

Ms. Mauritz claimed that trial counsel did not have a defense strategy and did not 

interview witnesses the Petitioner identified as having information about the incident. 

Additionally, Ms. Mauritz recalled that trial counsel asked her and her husband to attend 

a meeting with the victim and the victim’s attorney2but trial counsel did not attend the 

meeting.

Ms. Mauritz stated that trial counsel did not review discovery with the Petitioner 

or explain “what [the Petitioner] was going to have to face.” Instead, trial counsel

portrayed an “I got this” mentality. Ms. Mauritz recalled that trial counsel may have told 

the Petitioner that the State was offering him a deal where the Petitioner would serve

fifteen years in prison but trial counsel did not convey any other plea offer. Ms. Mauritz 

 

1 Although this court’s opinion on direct appeal does not include a discussion of the charges 

against the Petitioner’s co-defendants, the post-conviction court’s order makes it clear that the indictment 

was issued against all three individuals.

2

It is clear from the record that the person identified as the victim’s attorney was a privately hired 

attorney and not a member of the District Attorney General’s office.
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understood that the Petitioner could face fifteen years’ incarceration3if he was convicted 

after a trial, but she hoped that the judge would reduce the sentence because the Petitioner 

had never been in trouble before, worked full-time, and went to school. Ms. Mauritz was 

not aware of any other plea offer until after the Petitioner had been sentenced. Ms. 

Mauritz also reported that, approximately three months after trial counsel was hired to 

represent the Petitioner, trial counsel informed her that he had a conflict of interest with 

the Petitioner’s case and needed to associate co-counsel because trial counsel had 

previously represented the victim. On cross-examination, Ms. Mauritz maintained that 

trial counsel never informed her about an eight-year plea offer.

The Petitioner testified that trial counsel advised him that he could possibly “beat” 

the charges against him. After the Petitioner was convicted, trial counsel told him that he 

would try to secure the Petitioner a thirteen-year sentence. Trial counsel never 

communicated a plea deal to the Petitioner. The Petitioner first learned that the State had 

offered him a plea deal when appellate counsel asked the Petitioner why he did not accept 

an offer of five years at thirty percent. The Petitioner reported that he only met with trial 

counsel when the Petitioner had a court date and when he paid trial counsel. The 

Petitioner claimed that trial counsel never had a strategy for trial. As far as the Petitioner 

knew, none of his co-defendants were offered plea deals from the State.

On cross-examination, the Petitioner admitted that trial counsel came to the county 

jail shortly after he was hired to inform the Petitioner of the charges against him. 

However, he claimed that trial counsel never explained the charges or their possible 

sentences. Instead, trial counsel simply told the Petitioner that the case was “winnable.” 

Consequently, when the trial started, the Petitioner “believe[d] that day [that he] was 

gonna [sic] go home.” The Petitioner stated that appellate counsel told him the State had 

offered to allow him to plea to a five-year sentence at thirty percent. He said appellate 

counsel did not show him any paperwork evidencing the offer. The Petitioner admitted 

that he was at the scene of the crime, and he explained that, had a plea been offered to 

him, he would have taken it. The Petitioner explained that he felt that he should not have 

been punished as harshly as his co-defendants because he never held the gun used in the 

crime. 

Associate counsel testified that trial counsel asked for his assistance in the 

Petitioner’s trial because trial counsel had previously represented the victim. Associate

counsel conducted Ms. Mauritz’s direct examination and delivered the closing argument. 

Associate counsel did not attend any of the meetings with the Petitioner or Ms. Mauritz. 

Associate counsel did not know of any plea deals offered to the Petitioner. However, he 

 

3 On cross-examination, Ms. Mauritz stated that she was not aware the maximum sentence for 

attempted especially aggravated kidnapping was twenty-five years. See Tenn. Code Ann. § 40-35-

112(a)(1) (2006).
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recalled that someone told him the State had offered one of the Petitioner’s co-defendants 

a plea deal. On cross-examination, associate counsel clarified that he took no part in the 

case prior to trial and he was not aware of any discussions that took place between the 

Petitioner and trial counsel prior to trial.

Trial counsel testified that he was hired immediately after the Petitioner’s 

preliminary hearing. He met with the Petitioner and Ms. Mauritz “many, many times.”

Trial counsel recalled that he explained the charges and reviewed discovery with the 

Petitioner. According to trial counsel, factors in Petitioner’s favor were that the 

Petitioner had no criminal history and had completed high school. However, witnesses’ 

statements and the Petitioner’s own statement to police placed the Petitioner at the scene

of the crime. Consequently, trial counsel tried to negotiate a plea agreement with the 

State. Trial counsel recalled that the first plea offer was a “package deal” of eight years’ 

incarceration which required all three co-defendants to accept the State’s offer. If any codefendant declined the offer, then all three had to go to trial. Trial counsel communicated 

this offer to the Petitioner and his mother, but neither trial counsel nor the Petitioner was

satisfied with the offer. They discussed the plea offer extensively, but they “thought 

eight years was ridiculous” based on the Petitioner’s history. Trial counsel attempted to 

negotiate a better deal, but the State refused to agree to any other plea agreement.

Trial counsel recalled that one of the co-defendants, Jamelle Felts, also turned 

down the offer and was convicted after a trial. Even though Mr. Felts had turned down 

the offer, trial counsel recalled that the eight-year plea offer remained open to the 

Petitioner “all the way up until [the Petitioner’s] trial day.” Even after trial counsel 

advised the Petitioner that, under the worst case scenario, he could be sentenced to fifteen 

to twenty-five years with an eighty-five percent service rate, the Petitioner elected to go 

to trial. Trial counsel explained that the Petitioner and his family were fully aware of the 

eight-year offer but felt that, because of the Petitioner’s background and limited 

involvement in the crime, he should have been treated differently than his co-defendants

during plea negotiations. Counsel’s trial strategy was to highlight the Petitioner’s limited 

role in the crime in hopes that the jury would convict the Petitioner of facilitation. With a 

conviction for facilitation, trial counsel believed that the Petitioner would have been able 

to be sentenced to probation. Trial counsel admitted that, at the time of the postconviction hearing, his law license was suspended. He stated he had not filed the 

paperwork to reinstate his license because he was retired.

On cross-examination, trial counsel reiterated that the Petitioner’s offer never 

changed from the time he was indicted to the date of trial. Based on the Petitioner’s 

history, trial counsel felt that the offer was “terrible.” Trial counsel could not recall 
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whether the jury received an instruction for facilitation.4 Trial counsel explained that he 

asked associate counsel to assist with the trial because “two is always better than one.” 

Also, trial counsel stated

There may have been some discussion about a conflict, but I don’t think 

that was totally it. I think somewhere I think something came up about—I 

can’t remember the young lady that testified for the State, the victim—not 

the victim, but the lady who identified him. I think at some point I may 

have—she may have called my office at some point or something about a 

case or something.

Trial counsel said that he could not recall exactly what the conflict was, but he 

maintained that he would have brought in associate counsel even if there was no conflict. 

Trial counsel also explained that his license had been temporarily suspended due to a 

complaint against him. Trial counsel had since resolved the complaint but had not filed 

the paperwork to reinstate his license. Trial counsel also admitted that his license may 

have been suspended in the past because he “owed some money one time” and once for 

CLE credits.

In a written order, the post-conviction court specifically accredited trial counsel’s 

testimony and discredited the Petitioner’s testimony. Accordingly, the post-conviction 

court found that the Petitioner had failed to establish his claims by clear and convincing 

evidence and denied post-conviction relief. The Petitioner filed an untimely notice of 

appeal.

Analysis

As a preliminary matter, we must address the State’s claim that the Petitioner’s 

appeal should be dismissed for failure to file a timely notice of appeal. Rule 4(a) of the 

Tennessee Rules of Appellate Procedure states that the notice of appeal “shall be filed 

with and received by the clerk of the trial court within 30 days after the date of entry of 

the judgment appealed from.” However, in criminal cases, the notice of appeal is not 

jurisdictional, and this court may waive the timely filing requirement in the interest of 

justice. Id. To determine whether waiver is appropriate, “this [c]ourt will consider the 

nature of the issues presented for review, the reasons for and length of the delay in 

seeking relief, and any other relevant factors presented in the particular case.” State v. 

Markettus L. Broyld, No. M2005-00299-CCA-R3-CO, 2005 WL 3543415, at *1 (Tenn. 

Crim. App. Dec. 27, 2005). In this case, the Petitioner filed his notice of appeal three 

days after the thirty-day deadline and asserts that he simply “miscalculated the deadline.” 

 

4 At the close of proof, the post-conviction court took judicial notice of the jury instructions, 

which included an instruction as to facilitation of especially aggravated kidnapping.
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Because the delay is minimal and the issues presented in the case concern the Petitioner’s 

constitutional right to effective assistance of counsel, we waive the requirement for a 

timely filing of the notice of appeal in the interest of justice.

On appeal, the Petitioner argues that the post-conviction court erred in crediting 

trial counsel’s testimony and asks this court to find that the Petitioner established that 

trial counsel was ineffective. Additionally, the Petitioner contends that trial counsel’s 

violating the ethical rule regarding conflict of interests constituted ineffective assistance 

of counsel.

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, 

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). As such, we review a trial 

court’s findings of fact under a de novo standard with a presumption that those findings 

are correct unless otherwise proven by a preponderance of the evidence. Id. (citing Tenn. 

R. App. P. 13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). The trial court’s 

conclusions of law are reviewed “under a purely de novo standard, with no presumption 

of correctness . . . .” Id.

When reviewing the trial court’s findings of fact, this court does not reweigh the 

evidence or “substitute [its] own inferences for those drawn by the trial court.” Id. at 

456. 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 trial judge.” Id. (citing Henley, 960 S.W.2d at 579). 

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 two factors: (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 postconviction 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). 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).
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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 

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).

The Strickland standard also applies during plea negotiations. Missouri v. Frye,

— U.S. —, 132 S. Ct. 1399, 1407-09 (2012); Nesbit v. State, 452 S.W.3d 779, 787 

(Tenn. 2014). Accordingly, during the plea bargain process, “counsel has the 

responsibility to render effective assistance as required by the Sixth Amendment.” 

Nesbit, 452 S.W.3d at 787 (citing Frye, 132 S. Ct. 1407-08). “[A]s a general rule, defense 

counsel has the duty to communicate formal offers from the prosecution to accept a plea 

on terms and conditions that may be favorable to the accused.” Frye, 132 S. Ct. at 1408. 

“A fair trial will not correct trial counsel’s deficient performance in failing to convey a 

plea offer[.]” Nesbit, 452 S.W.3d at 787 (citing Lafler v. Cooper, — U.S. —, 132 S. Ct. 

1376, 1381 (2012)).

In this case, trial counsel testified that he communicated to the Petitioner the 

State’s offer of eight years’ incarceration at a thirty percent service rate and he discussed 

that offer with the Petitioner and Ms. Mauritz on several occasions. Although the 

Petitioner and Ms. Mauritz claimed that trial counsel never communicated the State’s 

offer of eight years at thirty percent, the post-conviction court explicitly credited trial 

counsel’s testimony. We will not reweigh trial counsel’s credibility on appeal. 

Therefore, we conclude that the Petitioner had failed to prove that trial counsel was 

deficient and is not entitled to relief on this ground.

The Petitioner also claims that trial counsel was ineffective because he had a 

conflict of interest with the Petitioner’s case. Although the Petitioner presented proof as 

to this matter during the post-conviction hearing, the Petitioner failed to allege this claim 

in either his pro se petition or amended petition for post-conviction relief. Further, the 

post-conviction court did not address this claim in its order denying post-conviction 
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relief. We conclude that the Petitioner waived consideration of the issue by failing to 

raise it in his petition for post-conviction relief. Tenn. Code Ann. § 40-30-104(d), (e); 

Louis Mayes v. State, No. W2012-01470-CCA-R3-PC, 2013 WL 6730105, at *7 (Tenn. 

Crim. App. Dec. 18, 2013), perm. app. denied (Tenn. Apr. 11, 2014).

Conclusion

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

affirmed.

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ROBERT L. HOLLOWAY, JR., JUDGE