IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 19, 2011

ROBERT N. HELTON v. STATE OF TENNESSEE

Appeal from the Circuit Court for Bedford County

No. 12031 Lee Russell, Judge

No. M2010-01591-CCA-R3-PC - Filed June 13, 2011

The petitioner, Robert N. Helton, appeals the post-conviction court’s dismissal of his

petition for post-conviction relief from his convictions for theft of property over $10,000,

burglary, and vandalism. On appeal, he argues that the post-conviction court erred in

dismissing his petition because he received the ineffective assistance of counsel. After

review, we affirm the dismissal of the petition.

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

ALAN E. GLENN, J., delivered the opinion of the Court, in which J.C. MCLIN and CAMILLE

R. MCMULLEN, JJ., joined.

Gregory D. Smith, Clarksville, Tennessee (on appeal); and Andrew Jackson Dearing, III,

Assistant Public Defender (at hearing), for the appellant, Robert N. Helton.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant

Attorney General; Charles Frank Crawford, Jr., District Attorney General; and Michael D.

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

OPINION

FACTS

The petitioner was convicted of theft of property over $10,000, burglary, and

vandalism by a Bedford County Circuit Court jury and sentenced to an effective term of

twenty-seven years in the Tennessee Department of Correction. This court affirmed his

convictions and sentences on direct appeal, and no application for permission to appeal was

filed with the Tennessee Supreme Court. See State v. Robert N. Helton, No.

M2007-02873-CCA-R3-CD, 2009 WL 4438363 (Tenn. Crim. App. Dec. 2, 2009). The
petitioner’s convictions arose out of his breaking onto the farm property and into the barn

owned byhis former employers and stealing pieces oftheir farmand recreational equipment,

which he then subsequently sold. Id. at *1-5. 

The petitioner filed a pro se petition for post-conviction relief in which he alleged,

among other things, that he received the ineffective assistance of counsel. After the

appointment of counsel, an amended petition was filed. The trial court conducted an

evidentiary hearing at which the petitioner testified that he retained counsel to represent

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him. In preparation for trial, he and counsel met four times for a total of two and a half

hours. He and counsel discussed the possible sentences he faced, with counsel telling him

that the worst case scenario was that he could receive “[t]en years at 35 percent.” The

petitioner explained that the State had offered hima nine-year sentence at thirty-five percent,

so he opted to go to trial because “if I do lose, it’s just another year.” He said that he based

his decision to go to trial on counsel’s advice, and he would not have gone to trial had he

known he could be sentenced to twenty-seven years.

Trial counsel, an attorney with almost thirty years of experience primarily in criminal

law, testified that he was retained by the petitioner within a week of the petitioner’s arrest. 

Counsel could not recall exactly how many times he met with the petitioner but estimated

that he saw him “at least once a week” for a total of more than twenty hours. Asked to recall

his discussions with the petitioner regarding the potential sentences he faced, counsel said,

“He came in. We went over them. We calculated them.” Counsel stated that he informed

the petitioner that the trial court was known for giving very harsh sentences and that he

always informed his clients of the maximum sentence faced if convicted. He also informed

the petitioner that he would be eligible for consecutive sentencing due to his extensive

criminal record. On cross-examination, counsel specifically denied that he told the

petitioner the harshest sentence he faced was ten years at thirty-five percent.

At the conclusion of the hearing, the post-conviction court observed that trial

counsel’s testimony on the issue of the potential sentences the petitioner faced was “entirely

credible” and that “it’s simply irrational for him to have made that kind of representation .

. . [and]I don’t find it credible at all that [counsel] would have made that misrepresentation.” 

Thereafter, in its written dismissal of the petitioner’s petition for post-conviction relief, the

court found, relevant to the issue on appeal, that trial counsel’s testimony was credible that

counsel had accurately informed the petitioner ofthe potential maximumsentenced he faced

and that the trial court “imposes stout sentences and frequently has sentences run

consecutively where the law allows that.” The court specifically discredited the petitioner’s

testimony that counsel had advised him that he faced a possible maximum sentence of only

 We confine the majority of our recitation of the testimony to that relevant to this appeal. 

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ten years. The court observed that counsel “is a vastly experienced criminal attorney, with

nearly three decades of experience doing primarily criminal work, and it is difficult even to

imagine a motive for so grossly underestimating the potential punishment in the

[p]etitioner’s case.” 

ANALYSIS

The petitioner argues on appeal that the post-conviction court erred in dismissing his

petition because he received the ineffective assistance of counsel at trial due to counsel’s

informing him, erroneously, that the maximum sentence he faced was ten years.

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

voidable because of the abridgment of anyright guaranteed bythe Constitution of Tennessee

or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103 (2006). 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 trial court’s findings as to the credibility of witnesses or the weight of their

testimony. Id.; see Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009). However, review

of a trial 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); Burns v.

State, 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.

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

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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.

Upon review, we conclude that the petitioner has failed to establish any deficiency

in counsel’s performance. The petitioner contends that counsel erroneouslyadvised himthat

the longest sentence he could receive after a trial was ten years. However, counsel explicitly

denied giving the petitioner such advice. Asked about his discussions with the petitioner

regarding the potential sentences, counsel stated, “He came in. We went over them. We

calculated them.” Counsel said that he also informed the petitioner that the trial court was

known for giving harsh sentences and that the petitioner faced the possibility of receiving

consecutive sentences. The post-conviction courtspecificallyaccredited counsel’stestimony

that he did not inform the petitioner that the maximum sentence he faced was ten years, and

the court discredited the petitioner’s testimony to the contrary. It is well established that

appellate courts do not reassess credibility determinations. R.D.S. v. State, 245 S.W.3d 356,

362 (Tenn. 2008) (“Questions surrounding the credibility of witnesses and the ‘resolution

of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact.’”)

(quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). The petitioner emphasizes that

counsel never testified “as to what he told [the petitioner] was the maximum possible

sentence,” however, we note that counsel was not asked that specific question. The

petitioner has failed to prove his claim by clear and convincing evidence and is not entitled

to relief. 

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the post-conviction

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court’s dismissal of the petition. 

_________________________________

ALAN E. GLENN, JUDGE

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