IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs September 19, 2017

PHILLIP ALEXANDER MCWILLIAMS v. STATE OF TENNESSEE

Appeal from the Circuit Court for Sevier County

No. 19209II Walter C Kurtz, Judge

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No. E2017-00275-CCA-R3-PC

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Petitioner, Phillip Alexander McWilliams, appeals the denial of his petition for postconviction relief from his convictions for aggravated domestic assault and reckless 

endangerment with a deadly weapon. Petitioner argues that he received ineffective 

assistance of counsel. After a review of the record and the briefs of the parties, we 

determine Petitioner has failed to establish that he received ineffective assistance of 

counsel. Accordingly, the judgment of the post-conviction court is affirmed. 

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER, J., joined. NORMA MCGEE OGLE, J., not participating.

William L. Wheatley, Sevierville, Tennessee, for the appellant, Phillip Alexander 

McWilliams.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney 

General; James B. Dunn, District Attorney General; and Rolfe Straussfogel, Assistant 

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

OPINION

Factual and Procedural Background

Petitioner was indicted by a Sevier County grand jury for aggravated domestic 

assault, reckless endangerment with a deadly weapon, and possession of drug 

paraphernalia. The State alleged that Petitioner pointed a firearm at the victim and 

discharged the firearm in another direction while Petitioner, the victim, and a child were 

11/02/2017
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inside the house. On April 28, 2014, Petitioner entered a guilty plea to aggravated 

domestic assault and reckless endangerment with a deadly weapon and received an 

effective sentence of ten years to be suspended after serving one year in incarceration. In 

exchange for the plea, the possession of drug paraphernalia charge was dismissed. 

On April 27, 2015, Petitioner filed a timely pro se petition for post-conviction 

relief. Counsel was appointed, and on September 12, 2016, petitioner amended his 

petition for post-conviction relief, alleging that he received ineffective assistance of trial 

counsel. An evidentiary hearing was held on January 10, 2017.

According to Petitioner, trial counsel met with him multiple times prior to the 

entry of the plea. First, Petitioner and trial counsel met in a parking lot and discussed 

Petitioner’s case for approximately thirty minutes. Later, Petitioner and trial counsel met 

for a second time in a parking lot, and Petitioner retained trial counsel during that 

meeting. Petitioner claims that, other than one phone call from trial counsel seeking 

payment of a retainer fee, Petitioner had no contact with trial counsel between the date of 

the second meeting and the scheduled date for a preliminary hearing. Trial counsel 

claimed that he “probably” talked to Petitioner on the phone. However, Petitioner

maintains that he attempted to contact trial counsel “dozens” of times, but to no avail. 

Trial counsel testified that he told the general sessions court at a bond revocation 

hearing that Petitioner’s actions—pointing the firearm at the victim and firing a shot in 

another direction—were a result of Petitioner’s emotional reaction to walking into his 

house and finding his wife with another man. According to trial counsel, he did this to 

illustrate to the court that Petitioner was in a situation that caused him to experience 

intense distress. While speaking about the bond revocation hearing, trial counsel said, 

“There wasn’t a question of guilt or innocence. He had discharged a firearm, a shotgun, 

inside the house. The only issue was what his punishment was going to be, and I was 

trying to get him probation.” Despite trial counsel’s efforts, the general sessions court 

revoked Petitioner’s bond and held him without bond. According to Petitioner’s 

assertions, trial counsel advised the Petitioner to waive his preliminary hearing because 

he would not get as good of a deal if he burdened the court with a preliminary hearing. 

On January 31, 2014, Petitioner waived his preliminary hearing. 

Petitioner claims that he spoke with trial counsel at his arraignment in circuit 

court. During that conversation, Petitioner told trial counsel about his need to see a 

doctor, false information provided by Petitioner’s wife, and coaching provided to 

Petitioner’s wife by the police. Petitioner said that after his arraignment, he had no 

contact with trial counsel until the date of his plea hearing.

Petitioner maintains that trial counsel told him about the contents of the video 

evidence on the day of his plea hearing. Yet, trial counsel testified, “I didn’t review any 
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video.” According to Petitioner, trial counsel stated that “there was no way that 

[Petitioner] could possibly win at trial[.]” While Petitioner contends that he told trial 

counsel numerous times about his ability, or lack thereof, to remember the events giving 

rise to the charges, trial counsel was of the opinion that Petitioner “wasn’t even close” to 

the criteria for an insanity defense. Trial counsel had represented numerous clients with 

mental impairments since he began his practice of criminal law in 1989. Based upon this 

experience, trial counsel saw no opportunity for a defense related to Petitioner’s inability 

to remember the facts because Petitioner remembered the basic facts of his whereabouts 

and did not deny being in the house at the time of the crime. Additionally, trial counsel 

recounted, “[Petitioner] may have said something like I don’t remember pulling the 

trigger but I don’t deny that I did it.” Trial counsel quipped, “He certainly never told me

anything like aliens had taken over my brain and made me do it or Jesus told me to do it.” 

At the post-conviction hearing, Petitioner claimed that the events which gave rise 

to the charges against him occurred during “the middle of a six-day blackout” or 

“psychotic break.” Despite having “clouded memories,” Petitioner was able to recount 

many of the facts surrounding his firing of the shotgun in his home. He claimed that his 

“black out” was like being in a dream, but he was actually awake. 

During the course of trial counsel’s representation of Petitioner, trial counsel met 

with Petitioner, Petitioner’s mother, the victim, the victim’s father, and members of the 

Sevier County Special Operations Response Team.1 According to trial counsel, he spoke 

with every available witness. At the post-conviction hearing, trial counsel was asked 

whether he filed for discovery in this case. Trial counsel responded, “I think I had 

received all of that.” However, trial counsel never stated definitively whether he had 

filed for discovery and also said, “A lot of times they just give you the discovery before 

you file.” Based upon his preparation and experience, trial counsel believed that 

petitioner’s “conviction was a foregone conclusion.” 

Trial counsel recounted that he met numerous times with the State. He negotiated 

and received a plea offer from the State, which included one year of jail time. Trial 

counsel considered the possibility of success at trial, the judge who would be presiding 

over the potential sentencing hearing, and the date of Petitioner’s release before 

recommending that the Petitioner take the plea deal. After a recitation of the underlying 

facts and a plea of guilty by Petitioner, the trial court entered a judgment of conviction 

against Petitioner for aggravated domestic assault and reckless endangerment. Then, 

pursuant to the agreement, the trial court sentenced Petitioner to consecutive sentences of 

six years for the assault conviction and four years for the reckless endangerment 

 

1 We note that it appears that trial counsel refers to the victim as “the witness” from time to time 

during his testimony. Additionally, the record refers to the Sevier County Special Operations Response 

Team as the “SORT team.” 
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conviction. Petitioner was ordered to serve only one year in jail and the balance of his 

sentence on supervised probation. 

After being released from custody, Petitioner sought treatment by Cherokee 

Health Systems. On October 22, 2014, Cherokee Health Systems observed Petitioner and 

diagnosed him with an unspecified adjustment disorder, post-traumatic stress disorder, 

and an unspecified mood disorder. The diagnosis mentions a personality disorder, but it 

does not appear to be conclusive because the diagnosis includes the phrase “Deferred / 

Pending More Information.” On October 27, 2014, five days after seeking treatment by 

Cherokee Health Systems, Petitioner was arrested for public intoxication, and a violation 

of probation warrant was issued. Later, the violation of probation warrant was amended

to include allegations of Petitioner making threating statements on social media. On 

January 21, 2015, Petitioner pleaded guilty to his violation of probation, and the trial 

court ordered Petitioner to complete a mental health and alcohol treatment program. 

However, on August 19, 2015, another violation of probation warrant was issued 

after Petitioner was arrested for violation of the implied consent law, driving under the 

influence, driving on a revoked license, and maintaining a social media account in 

violation of a court order. As a result, the trial court revoked petitioner’s probation, and 

ordered him to serve the remainder of his sentence in confinement. As a part of 

Petitioner’s intake evaluation, Dr. Susan Glass evaluated Petitioner on February 18, 2016, 

and diagnosed Petitioner with “Dissociative Amnesia” and “Persistent Depressive 

Disorder (Dysthymia), with mixed features and mood congruent psychotic features.” In 

Petitioner’s amended petition for post-conviction relief, he claimed that “the treatment 

and diagnosis received by [Petitioner] demonstrate that there was arguably a basis for 

[trial counsel] to investigate which he failed to do.” 

After a hearing on the petition, the post-conviction court denied post-conviction 

relief finding that perhaps “[Trial counsel] did not proceed in his representation of 

[P]etitioner by the numbers,” and “should have communicated better with his client; 

however, he knew all there was to know about the case.” This timely appeal followed. 

Analysis

Petitioner argues that he received ineffective assistance of counsel because trial 

counsel failed to visit or correspond with Petitioner for the three months that Petitioner 

was incarcerated in the Sevier County Jail and trial counsel conducted an inadequate 

investigation by not filing for discovery and failing to investigate a possible mental health 

defense. The State counters by arguing that trial counsel thoroughly investigated the 

facts of the case by speaking with every witness and Petitioner neither had a history of 

mental illness nor made any statements to trial counsel that warranted pursuing a mental 

health defense. We agree with the State. 
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Post-conviction relief is available for any conviction or sentence that is “void or 

voidable because of the abridgment of any right guaranteed by the Constitution of 

Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. In order to 

prevail in a claim for post-conviction relief, a petitioner must prove his or her factual 

allegations by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 

S.W.3d 152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is no 

serious or substantial doubt about the correctness of the conclusions drawn from the 

evidence.” Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). 

Both the Sixth Amendment to the Constitution of the United States and article I,

section 9 of the Tennessee Constitution guarantee the right of an accused to the effective 

assistance of counsel. See Davidson v. State, 453 S.W.3d 386, 392-93 (Tenn. 2014). In 

order to sustain a claim of ineffective assistance of counsel, a petitioner must demonstrate 

that counsel’s representation fell below the range of competence demanded of attorneys 

in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under the two 

prong test established by Strickland v. Washington, 466 U.S. 668, 687 (1984), a petitioner 

must prove that counsel’s performance was deficient and that the deficiency prejudiced 

the defense. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting 

that the same standard for determining ineffective assistance of counsel applied in federal 

cases also applies in Tennessee). Because a petitioner must establish both elements in 

order to prevail on a claim of ineffective assistance of counsel, “failure to prove either 

deficient performance or resulting prejudice provides a sufficient basis to deny relief on 

the claim.” Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997). “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).

Whether a petitioner has been denied the effective assistance of counsel presents a 

mixed question of law and fact. Burns, 6 S.W.3d at 461. This Court will review the 

post-conviction court’s findings of fact “under a de novo standard, accompanied with a 

presumption that those findings are correct unless the preponderance of the evidence is 

otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 

13(d); Henley, 960 S.W.2d at 578). This Court will not re-weigh or re-evaluate the 

evidence presented or substitute our own inferences for those drawn by the trial court. Id.

at 456. Questions concerning witness credibility, the weight and value to be given to 

testimony, and the factual issues raised by the evidence are to be resolved by the postconviction court. Id. However, the post-conviction court’s conclusions of law and 

application of the law to the facts are reviewed under a purely de novo standard, with no 

presumption of correctness. Id. at 458. 
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The test for deficient performance is whether counsel’s acts or omissions fell 

below an objective standard of reasonableness under prevailing professional norms. 

Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the 

questionable conduct from the attorney’s perspective at the time, Hellard v. State, 629 

S.W.2d 4, 9 (Tenn. 1982), 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). This Court will not use hindsight to second-guess a 

reasonable trial strategy, even if a different procedure or strategy might have produced a 

different result. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994); 

Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). However, this 

deference to the tactical decisions of trial counsel is dependent upon a showing that the 

decisions were made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 

(Tenn. Crim. App. 1992).

Even if a petitioner shows that counsel’s representation was deficient, the 

petitioner must also satisfy the prejudice prong of the Strickland test in order to obtain 

relief. The question is “whether counsel’s deficient performance renders the result of the 

trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 

364, 372 (1993). A petitioner must show that there is a reasonable probability “sufficient 

to undermine confidence in the outcome” that, “but for counsel’s unprofessional errors, 

the result of the proceeding would have been different.” Burns, 6 S.W.3d at 463 (quoting 

Strickland, 466 U.S. at 694). 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 

(1985). “[A]n error by counsel, even if professionally unreasonable, does not warrant 

setting aside the judgment of a criminal proceeding if the error had no effect on the 

judgment.” Id. at 58 (quoting Strickland, 466 U.S. at 691). 

I. Communication by Counsel

Petitioner argues that trial counsel’s alleged failure to visit or correspond with 

Petitioner for the three months that he was incarcerated in the Sevier County Jail falls 

below an objective standard of reasonableness as measured by Tennessee Rule of 

Professional Conduct 1.4. Generally, Rule 1.4 requires attorneys to inform clients of 

developments in their case, consult with clients about accomplishing the client’s 

objectives, and explain the situation so that the client can make an informed decision. 

See Tenn. Sup. Ct. R. 8, RPC 1.4. Trial counsel testified that he met with Petitioner and 

spoke with him on his court date, he met with Petitioner multiple times prior to his 

arraignment, and he “probably” talked to Petitioner on the phone. While this is not ideal 

communication, Petitioner failed to show any sort of development in his case that trial 

counsel failed to communicate to him. Also, Petitioner has not shown that his objectives 

were not accomplished by trial counsel’s representation or that Petitioner was unable to 
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make an informed decision. Without something more, we cannot find that trial counsel 

was deficient in his communication. Moreover, Petitioner has failed to show that he was 

prejudiced by trial counsel’s actions because he has not shown that, but for counsel’s lack 

of communication, he would not have pleaded guilty. Trial counsel negotiated a plea 

deal, communicated the offer to Petitioner, and Petitioner accepted the offer. Trial 

counsel’s lack of communication did not affect the guilty plea. 

II. Investigation by Counsel

Next, Petitioner argues that trial counsel was ineffective because he did not 

properly investigate Petitioner’s case when he did not file for discovery and when he did 

not investigate a possible mental health defense. Petitioner, again, uses the Tennessee 

Rules of Professional conduct as the measuring stick for objective reasonableness and 

contends that trial counsel’s actions run afoul of Tennessee Rule of Professional Conduct 

1.1, which requires an attorney to provide “competent legal representation” to his or her 

client. Tenn. Sup. Ct. R. 8, RPC 1.1. “Competent representation requires the legal 

knowledge, skill, thoroughness, and preparation reasonably necessary for the 

representation.” Id. 

When asked about discovery, trial counsel stated, “I think I received all of that,”

and “a lot of times they just give you the discovery before you file.” Further, trial 

counsel testified that he spoke to every available witness. The evidence certainly does 

not preponderate against the post-conviction court’s finding that trial counsel “knew all 

there was to know about the case.” The mere failure to file a discovery motion is not 

enough to render counsel ineffective if other investigation was performed. See Tyrone G. 

Meade v. State, No. 02C01-9708-CR-00316, 1998 WL 599520, at *3 (Tenn. Crim. App. 

Sept. 11, 1998), no perm. app. filed; Bobby Foutch v. State, No. 01C01-9103-CC-00085, 

1991 WL 255883, at *1 (Tenn. Crim. App. Dec. 5, 1991), no perm. app. filed; Jeffrey R. 

Johnson v. State, C.C.A. No. 1, 1990 WL 17186, at *2 (Tenn. Crim. App. Feb. 28, 1990),

perm. app. denied (Tenn. Jun. 11, 1990). Even if trial counsel did not formally file for 

discovery, we do not conclude that he was deficient in that regard. Furthermore, 

Petitioner has failed to show prejudice by pointing to any information pertinent to his 

guilty plea that would have been discovered by trial counsel if he had filed for discovery. 

With regard to trial counsel’s investigation of a mental health defense, trial 

counsel used his experience to determine that Petitioner “wasn’t even close” to the 

criteria for an insanity defense. While Petitioner’s mental evaluations were entered as 

evidence at the post-conviction hearing, they were made after Petitioner’s guilty plea and

are irrelevant to the evaluation of counsel’s effectiveness because this Court evaluates the 

actions of trial counsel from his perspective at the time of representation. At the time that 

trial counsel was making a decision about investigating a mental health defense, he would 

have been relying solely on his interactions with Petitioner. Trial counsel testified that he 
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saw no opportunity for a mental health defense and stated, “[Petitioner] may have said 

something like I don’t remember pulling the trigger but I don’t deny that I did it.” The 

post-conviction court appears to have accredited trial counsel’s testimony about 

Petitioner’s statement when the trial court found “Petitioner’s statement that he ‘didn’t 

remember pulling the trigger but I may have done it’ certainly does not indicate a 

defense.” The evidence does not preponderate against the post-conviction court’s finding 

that trial counsel was “well within an objective standard of reasonableness.” 

Moreover, Petitioner has failed to show that he was prejudiced by trial counsel not 

investigating a mental health defense. Petitioner did not call an expert witness to explain 

his diagnosis or how it would have been the basis for a mental health defense. Rather, 

Petitioner testified about having a “blackout” or “psychotic break.” Even in conjunction 

with the mental evaluations, this is insufficient to show what the expert evidence would 

have been. “There can be no speculation ‘as to what the [expert] evidence would have 

shown and . . . how it would have benefitted Petitioner.’” Brimmer v. State, 29 S.W.3d 

497, 512 (Tenn. Crim. App. 1998) (quoting Davis v. State, 912 S.W.2d 689, 698 (Tenn. 

1995)). “‘[W]hen a petitioner contends that trial counsel failed to discover, interview, or 

present witnesses in support of his defense, these witnesses should be presented by the 

petitioner at the evidentiary hearing.’” Terrence Woods v. State, No. W2009-02060-

CCA-R3-PC, 2010 WL 3619543, at *10 (Tenn. Crim. App. Sept. 15, 2010) (quoting 

Black v. State, 794 S.W.2d 752 ,757 (Tenn. 1990)), perm. app. denied (Tenn. Feb. 16, 

2011). In order to show prejudice from failure to discover, interview, or present an 

expert witness, a petitioner must present favorable expert testimony at the post-conviction 

hearing. See id. The only way for Petitioner to show that he was prejudiced by trial 

counsel’s failure to investigate a mental health defense would be for Petitioner to present 

the testimony that would be the basis for that defense at the post-conviction hearing.

Petitioner made no such showing. 

Conclusion

In sum, we hold that trial counsel was not deficient and Petitioner was not 

prejudiced. Therefore, Petitioner received effective assistance of counsel. For the 

foregoing reasons, we affirm the judgment of the post-conviction court. 

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TIMOTHY L. EASTER, JUDGE