IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs December 11, 2013

CHRISTOPHER LEE PIRTLE v. STATE OF TENNESSEE 

Appeal from the Criminal Court for Davidson County

No. 2005-D-3036 Monte Watkins, Judge

No. M2012-00627-CCA-R3-PC - Filed March 6, 2014

The petitioner, Christopher Lee Pirtle, appeals the denial of his petition for post-conviction

relief, arguing that the post-conviction court erred in finding that he failed to show that he

received ineffective assistance of trial counsel. Following our review, we affirm the

judgment of the post-conviction court denying the petition.

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

ALAN E. GLENN, J., delivered the opinion of the Court, in which JERRY L. SMITH and

CAMILLE R. MCMULLEN, JJ., joined.

Ashley Preston, Nashville, Tennessee, for the appellant, Christopher Lee Pirtle.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel;

Victor S. Johnson, III, District Attorney General; and Roger Moore, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

FACTS

The petitioner was convicted in 2007 by a Davidson County Criminal Court jury of

aggravated robbery, a Class B felony, and was sentenced by the trial court as a Range I

offender to ten years at 30% in the Department of Correction. His conviction and sentence

were affirmed by this court on direct appeal, and our supreme court denied his application

for permission to appeal. State v. Christopher Lee Pirtle, No. M2007-02577-CCA-R3-CD,

at *1 (Tenn. Crim. App. Apr. 23, 2009), perm. app. denied (Tenn. Sept. 28, 2009).

Our direct appeal opinion reveals that the petitioner’s conviction was based on his
August 2, 2005 use of a gun to steal a woman’s vehicle and purse as the victim and her young

son were in front of their apartment complex’s central mailbox area picking up their mail.

Id. Evidence presented against the petitioner at trial included his having been stopped and

arrested on August 17, 2005, while driving the victim’s vehicle; the fact that several of the

victim’s compact discs and other belongings were found in the petitioner’s residence; store

surveillance tapes that showed the petitioner was with several females who used the victim’s

credit cards at various locations after the robbery; and the fact that the victim made an

unequivocal courtroom identification of the petitioner as the perpetrator, testifying that she

recognized his eyes and that she had “no doubt” about her identification. Id. at * 2-3.

On March 16, 2010, the petitioner filed a pro se petition for post-conviction relief.

Following the appointment of post-conviction counsel, he filed two amended petitions in

which he raised claims of ineffective assistance of counsel. Specifically, he alleged that his

trial counsel provided ineffective assistance by: failing to file appropriate pretrial motions;

failing to properly and adequately investigate the facts of the case, including failing “to

properly utilize investigative services”; failing to adequately and properly meet with and

communicate with the petitioner; failing to fully and adequately advise the petitioner with

regards to defense strategy and the pros and cons of accepting a plea agreement; failing to

properly voice objections and cross-examine witnesses; and failing to properly raise all issues

in the motion for new trial and on direct appeal.

At the evidentiary hearing, the petitioner testified that his mother retained trial counsel

to represent him after his arraignment. In the beginning, counsel came to see him in the jail

often, bringing copies of discovery and transcripts of the preliminary hearings, which he used

to review with him the State’s evidence in the case. Counsel, however, never discussed any

possible trial defense strategy with him but instead kept trying to convince him to accept a

plea bargain offered by the State, despite the fact that he told counsel at each of their

meetings that he wanted to go to trial. The petitioner said that counsel told him that there

was a good chance he would lose the case if he went to trial. He claimed that counsel did not

have any discussions with him about his possible trial testimony until the day of trial, when

he advised him not to take the stand because the State could inquire into his similar pending

charges. The petitioner said that, had he known that he could not be cross-examined about

pending charges, he would have ignored counsel’s advice and testified in his own defense.

He stated that counsel represented him on his motion for new trial but withdrew before his

direct appeal. Counsel discussed with him the issues he was raising in the motion for new

trial but did not raise every issue he requested, such as the admission of evidence of the

“guns and the bandan[n]as” which did not belong to him. Counsel also failed to raise any

objections at trial to the admission of the evidence.

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On cross-examination, the petitioner testified that, had he taken the stand, he would

have told the jury that his friends brought the stolen items to his house and that he had

nothing to do with the crime. He acknowledged that counsel “did good” on his crossexamination of the State’s witnesses. He further acknowledged that counsel told him that

if he testified, he ran the risk of opening the door for the State to be allowed to introduce

evidence of his pending charges in other similar crimes. He said, however, that it was a risk

he wanted to take.

Trial counsel, who said he had been licenced to practice law since 2002 and that his

practice from 2005 until 2009 or 2010 was comprised of sixty to seventy percent criminal

defense, testified that the petitioner had three or four other pending cases, including another

aggravated robbery, at the time he represented him on the instant case. He said he met with

the petitioner on “a number of occasions” while he was housed at the criminal justice center

and that he reviewed with him the State’s evidence against him. He agreed that the petitioner

expressed his desire to go to trial but that he advised against it, testifying that he “was

adamant with [the petitioner]” that he thought there was a strong likelihood that he would be

convicted at trial. For that reason, he encouraged the petitioner to accept the State’s plea

offer.

Trial counsel testified that, although he could not recall the specifics, he was confident

he discussed the pros and cons of testifying with the petitioner not just on the day of trial but

also well before the day of trial because he “would need to know that in planning” his

defense strategy and “would not leave that until the day of trial.” He said he advised the

petitioner not to testify, informing him that he ran the risk of incriminating himself in his

pending cases and of opening the door to the introduction of evidence of those other cases.

He explained:

And I think what I would [have] expressed to [the petitioner] was that, I

thought his . . . likelihood of conviction, in this [case,] was high.

I think, perhaps, the other cases – without specific recollection –were,

maybe, not quite as strong as this one. If there was [a] reason for him to get

on the stand and potentially open the door and make statements that would

further incriminate himself in those cases, thereby leading to, possibly, a

significant amount of additional time, which could run concurrent or

consecutive, but could greatly increase the amount of time he was facing in the

Department of Correction[].

Trial counsel testified that he raised in the motion for new trial all the issues that he

believed held any merit. He said he considered, but opted against, filing a motion in limine

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to exclude evidence of the bandannas and guns because he did not believe his likelihood of

success was high. He stated that he chose not to object to the introduction of the evidence

during the course of the trial because he thought he would be overruled and he did not want

to “make a bigger issue” of it in front of the jury.

On cross-examination, trial counsel estimated that he met with the petitioner five to

seven times before the trial. He said that he reviewed with the petitioner the range of

punishment he faced if convicted at trial and that he was still trying, on the morning of trial,

to convince the petitioner to accept the State’s eight-year offer. He testified that when he

asked the petitioner for any information he could provide to help in his defense, he told him

to talk to a witness named “Brandi” and that he had gotten the victim’s car from a “junkie

named Fly.” The petitioner, however, was unable to provide any more information about

“Fly,” and when counsel talked to “Brandi,” he learned that the testimony she could provide

would not have been helpful to the petitioner.

On February 1, 2012, the post-conviction court entered an order denying the petition

on the basis that the petitioner failed to show that he received ineffective assistance of trial

counsel. This appeal followed.

ANALYSIS

Post-conviction relief “shall be granted when the conviction or sentence is void or

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

or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103 (2012). The

petitioner bears the burden of proving factual allegations by clear and convincing evidence.

Id. § 40-30-110(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 Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006). When

reviewing factual issues, the appellate court will not reweigh the evidence and will instead

defer to the post-conviction court’s findings as to the credibility of witnesses or the weight

of their testimony. Id. However, review of a 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); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

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.

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668, 687(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.

466 U.S. at 687.

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; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The

reviewing court must indulge a strong presumption that the conduct of counsel falls within

the range of reasonable professional assistance, see Strickland, 466 U.S. at 690, and may not

second-guess the tactical and strategic choices made by trial counsel unless those choices

were uninformed because of inadequate preparation. See Hellard v. State, 629 S.W.2d 4, 9

(Tenn. 1982). 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.

On appeal, the petitioner argues that counsel was deficient in his representation,

thereby prejudicing the outcome of his case by, among other things, failing to adequately

meet with him, failing to investigate or prepare for the case, and failing to discuss or plan any

trial defense strategy. In support, the petitioner cites his own testimony about trial counsel’s

alleged shortcomings, along with counsel’s admission that he continued to advise the

petitioner, up until the morning of trial, to accept the State’s plea bargain.

In its order denying relief, the post-conviction court found that the petitioner’s

testimony was not credible and concluded that the petitioner had not met his burden of

demonstrating that counsel was deficient or that he was prejudiced by any of counsel’s

alleged deficiencies in representation. We conclude that the record fully supports the

findings and conclusions of the post-conviction court. Trial counsel explained that he

investigated the case to the best of his ability given the limited information that the petitioner

was able to provide. He also explained why he continued to advise the petitioner, up until

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the last moment, to accept the State’s plea bargain offer. The petitioner himself

acknowledged that trial counsel met with him “often,” at least in the beginning, that counsel

provided him with copies of discovery and preliminary hearing transcripts, that counsel

reviewed the evidence against him, and that counsel did a good job in his cross-examination

of witnesses. The petitioner has simply not shown that counsel was in any way deficient in

his representation.

CONCLUSION

Based on our review, we conclude that the petitioner has failed to meet his burden of

showing that he was denied the effective assistance of trial counsel. Accordingly, we affirm

the judgment of the post-conviction court denying the petition for post-conviction relief.

_________________________________

ALAN E. GLENN, JUDGE

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