### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs S eptem

ber 25, 200 2
STANLEY MILLS v. STATE OF TENN ESSEE
Appeal from the Criminal Court for Hamilton County No. 235372 Douglas A. Meyer, Judge

No. E2002-00262-CCA-R3-PC March 5, 2003

The petitione

r, Stanle y Mi lls, appeals the Hamilton County Criminal Court’s denial of his petition for post-conviction relief from his conviction for second degree murder and resulting twenty -year sentence. He contends that he received the ineffective assistance

of counsel because his trial attorney didnot (1) prepare f

or trial adequately ; (2) object to the trial court’s erroneous jury instruction regarding his possible sentences; and (3) object to the tri al court’s amending his judgment of conviction t o refle ct that he was to ser

ve one hu

ndred pe rcent of his sente nce inste ad of thir

ty percent. We affirm the trial court’s denial of the pe tition. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which D AVID H. W ELLES and A LAN E. G LENN , JJ., joined.

John G. McDo

ugal, Ch attanoog a, Tenne ssee, fo r the app ellant, Sta

nley Mills.

Paul G. Summers, Attorney Gene ral and Rep orter; E

lizabeth B . Marney , Assistan t Attorne y General ; William H. Cox, I

II , Distric t Attorne

y General ; and Rodney

C. Strong, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

This case re

lates to the petitioner’s killing the victim, Keith Hood. The record reflects that the petitioner was indicted for first degree murder butconvicted by a

jury of second degree murder. On appea l, this cou rt affir med the c onviction

and state d the follo wing fa cts:
On May 5, 1996, Appellant attended a party

at the YMCA in Chattanooga. At approximately 2:00 a.m. most of t he atten dees, including the Appellant, left the party and gathered

at a neighborhood market. While at the market, a couple of individual s, incl uding Appellant’s brother , fired g uns into the

air . Appel lant had stolen a-2- gun from his father. Before leaving the mar ket, Appellant obtained the gun from his brother and lef t wi th two of his friends. He was
s eated in the back seat of the vehicle. As Appellant and hi s friend s rode aw ay, an ot he r v eh ic le , d ri ve n b y the victi m (Mr. Hoo d), came upon themand swerved in front of their vehicle. Appellant claimed that Mr. Hood h ad threa

tened him , and actually shot at him one we ek prior to this, so when he saw Hood swerve in front of them Appellant claimedhe fear

ed for hi s life. Whil e Mr. Hoo d was stop ped at a traffic light, the vehicle in wh i ch Appellant was a passenger approached

Mr. Hood’s vehicle i n th e left-turn lane. Appellant’s vehicle stopped just before coming par al lel to Mr. Hood’s vehicle. Appellant asked to be let out of t

he car s o that he c ould “handle some business.” Appellant cl aimed he attempted to flee, but Hood’s maneuvering of

the vehic le “made

him think it

was useless.” There
was no other testimony con cernin g an attempt to flee. Appellant claimedthat

he heard the “pop” of Hood’s electric locks and believe d that Hood was getting out of the car to hurt him, so he shot at Hood from the passenger side of Hood’s car . The bullet entered Hood’s heart and cau sed inter

nal blee ding, wh

ich led to death af ter only a few minutes. The investigation after the shooting revealed that Hood had never unlocked his doors and no weapon was found in his car

. Statev. Stanley

Warren M i lls , N o. 03C01-9810-cr-00368, Hamilton County, slip op. 2-3 (Te nn. Crim. App. July 13, 1999), app. denied (Tenn. Jan. 24, 2000).

At the evide ntiary hearing , the petitioner te stified th at he met with his atto rney only two or three times before trial. He said that they discussed trial strategy

and that his attorne

y pl anned to argue the petitioner shot the victim in self-defense. He said that at trial, though, his attorney argued he was guilty of

manslaughter. He sai d he gave his attorney the names of two witnesses, Carlos Stegall and Caprice McCroskey , who had seenthe victim threaten him. He said his attorney ag reed to interview the witnesses but later told him the defense did not need them. He said that to hi s knowledge, an investigator did not work on his case

. The petitioner testified that he confe ssed to the police. He said he and his attorney did not talk about why

he confessed or about suppressing his confe ssion. He said that he thought the trial court sen tenced him to twenty y ears as a Range I , standard offender but that when he g ot to the Department

of Correction (DOC), someone told him he would have to serve one hundred percent of his sentence. He said he shoul d have received a mental evaluation before trial because he was only sixteen years old when he shot the victim. He said he did not believe his attorney met with him after tr ial.

On cross-examination, the petitioner testified that he spoke with his father for about one and one-half minutes b efore h e confe ssed to the

police, t hat he and his father

signed a waiver o f right s-3-

form, and that his father was present during his confe ssion . He ack nowledg ed that a lthough h is attorney did not

call Mr. Stegall and Mr. McCroskey to testify, his attorney

called other witnesses to testify that the victim had previously threatened the petitioner and shot at him. He said he testified at trial that he was afraid of the victim, and he acknowledged that his attorney argued to the jury

that he shotthe victim out of fear. He also acknowledged that his attorney ca lled nine witnesses for the defense and that the jury found him g uilty of second

degree murder instead

of first degree murder.

The petitioner’s trial attorney testified that he had been practicing law si nce 1987 and that he was appointed to represent the petitioner at trial and on appeal of the petitioner’s convictions. He said that he di d not remember how many times he met with the petitioner before trial but that it was
more than three or four

times. He

said that during the meetings, he and the petitioner discussed the facts of the case, witnesses, and trial strategy . He said the defense’s strategy was to argue that the petitioner acted in self-defense. He said that if a se lf-defens e theory

did not work, he hoped

to convince the jury that the petitioner wa s guilty only of manslaughter. He

said that h

e discuss ed this two-tier ed strategy

with the pe

titioner a nd that he thought t he petitio ner unde

rstood it.

The attorney testified

that he did not believe aninvestigator was necessary for the case and that the trial court would not have appointed one any way bec ause it was not

a capital c ase. He

said he was able to investigate the case adequa tely and that he talke d to every witness the petitioner told him about except Mr. Stegall and Mr. McCroskey . He said that Mr. Stegall and Mr. McCroskey ha

d been friends with the vi ctim and h ad been either unavaila

ble for an in

terview or not hel

pful to the defense. He said he did not file a motion to suppress the petitioner’s confess ion beca use the police had read the

petitione r his rig hts and be cause th

e petition er’s fa th e r had been present during the confession. He said he did not r equest a mental evaluation for the petitioner because the petitioner was bright and did not seem to have any mental problems.

The attorney testified that he was able to introdu ce into evidence the victim’s prior conviction for carry ing a weapon. He said that the petitioner’s orig inal judgment of conviction, which was filed on February

2, 1998, showed that the petitioner was sentenced as a Range I , standard offender but that the trial court filed an amended judgment on July 30, 1999, showing that the petitione r had to
serve one hundr

ed perc ent of his sentenc e. He sa id that he did not object to the tr

ial cour t’ s amending the judg ment. He acknowledged that he may have

requested that the trial court instruct the jury on the petitioner’spossible ranges of punishment. He said that when he filed the petitioner’s motion for new trial, hedid not hav e the pet itioner’ s trial tra

nscript b ecause

he had loa

ned it to the petiti on er’s father. He said that in the appeal of the petitioner’s c onvictions, he raised only two issues and that if he ha d had the t ria l transcripts, he may ha ve raised an issue regarding the trial court’s instructing the ju

ry on the pet

itioner’ s possible

range s of punish

ment.
On cross-examination, the petitioner’s attorney acknowledg ed th at he was able to present testimonyabout the victim’s being a drug dealer and the victim’s chasing and shooting at the petitioner two weeks before the petitioner killed the victim. He acknowledged that in addition to the petitioner’s confession, some of the state’s witnesses identified the petitioner as the person who shot the victim

.-4-

In denying

the petition for post-conviction relief, the trial court noted that the petition er’s trial attorney testified that he met with the petitioner and th at th ey d iscussed the facts of the case, witnesse s, and trial strategies. The trial court noted that the petitioner ne ver said he w as unable

to communic ate with his attorney ade quate ly. The trial court de termined that the attorney did not abandon a self-defense strategy and stated that the trial attorney ’s defen se st ra te gy had been “successful in part” because the jury found the petitioner guilty of second

degree murder. The trial court believed that the attorney interviewed all of the state’s and defense’ s important witnesses and that he prope rly investig ated the

petitione r’s cas e. As to the

attorne y’ s failu re to file a mot

ion to suppressthe petitioner’s conf ession , the trial court determined that the evidence sug gested the petitione r gave his confe ssion know ingly and voluntarily. Finally , as to the petitioner’s claim that the trial cou

rt imprope

rly instructed the jury

regar ding his p ossible

punishmen

ts, the trial

court held that it proper ly in structed

the jury accord ing to the statute in effec t at the time

of the pe titioner’ s trial.

The petitione

r raisessevera

l issues r egardin g h is receiving the ineffective assistance of counsel. While the st

ate argues that

the trial court properly

determined that the petitioner received the effective assistance of counsel, it also con

tends tha t this cour t should dis miss his app eal bec ause the petitioner’s notice of appeal was untimely filed and because he gave no cause for

the delaye d filin g. Our review of the appellate rec ord reveals that the trial court filed its order deny ing the petitioner post-conviction relief on September 4, 20 01, and that the petitioner filed his notice of appeal on Dece

mber 14, 2 00l, well b ey ond the thi rty -day require ment in Rule

4(a), T.R.A.P. Also,
as the state correctly

notes in its brief, the petitioner failed to provide any reas on for t he late-filed notice of appea

l. We do not u

ndersta nd why the petiti oner hasfail ed to respond to the state’s argument for dismissing this appeal. Nevertheless, we note that the filing of the notice of appeal may be waived in

the inter est of ju stice. SeeT.R.A.P. 4( a). This b eing the petitione r’s onlypostconvicti on case, we belie ve the ci rcumstan ces allo w us to wai ve the not ice of a ppeal.
Under the Sixth Amendment, when a claim of ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that counsel’s performance wa s deficient and (2) that the deficie ncy was pre judicial in terms of

render ing a re asonable

probabil ity that the result of the trial was unreliable or the proceeding s fundamentally unfa ir. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); see Lock hart v. F retwell , 506 U.S. 364, 368-72, 113 S. Ct. 838, 842-4 4 (1993) . The Stricklandst and ard has bee n ap pl ied to th e ri ght to cou nse l u nde r ar ti cle I, section 9 of the Tennessee Constitution. State v. Melson , 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

In Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decide d that at to rn eys should be held to the general standard of whe ther the services rendered we re wi thi n the range of compe

tence de manded of

attorne ys i n criminal cases. Further, the court stated that t he range of competence was to be measured by the duties and criteria set forth in Beasley v. United States , 491 F.2d 687, 696 (6th Cir. 1974), and United States v. DeCoster , 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also, in reviewing counsel’s conduct, a “fair assessment of attorney performance requires that every e ffort be made to eliminate the distorting effects of hindsig ht, to reconstruct the circumstances of counse l’s chall enged

conduct, and to eva

luate the conduct f

rom c ounsel’s perspective at the time.” Strickland , 466 U.S. at 689, 10 4 S. Ct. at 20 65; see Hellard v. State , 629-5-

S.W.2d 4, 9 (Tenn. 1982). Thus, the fact that a particular stra tegy or tactic failed or

even hurt the defense does not, alone, support

a claim of ineffe ctive as sistance . Defer ence is made to trial strat egy or tactical choices if they

are informed ones based upon adequate pr eparation. See Hellar d , 629 S.W.2d at 9; DeCoster , 487 F.2d at 1201.

In a post-conviction case, the burden is on the petitioner to pr ove by clea

r a nd convincing evidence his grounds for relief. Tenn. Code Ann. § 40-30-210(f). On appeal, we a re bound by the trial court’s findings of fact unless we conc lude that

the evide nce in the record prepond erates agains t those findings. Fields v. Sta te , 40 S.W.3d 450, 456 (Tenn. 2001). Because they relate to mixed questions of law and fact, we review the trial court’s conclusions as to whether counse l’s perfor mance was deficient and whether that deficiency was pre judicial under a de novo standar d wit h no presumption of correctness. Id. at 457.

I. TRIAL P

REPARA TION

The petitioner claims that he received the ineffective a ssistance of counsel because his trial attorney failed to filea motion to suppress, failed to meet with him adequately before trial, and failed to discuss trial procedures and strategies with him sufficiently . The state claims that the petitioner received the effective assistanc e of counsel. We agree with the state.

The petitioner’s trial attorney testified at the evidentiary hearing that he could not remember ho w many

times he me

t with the p etitioner

but that it w as more th an three or four t ime s. He als o said that during the meetings, he and the petitioner discussed the facts of the case, witnesses, and the defense strategy . As the trial court correctly noted, the petitione r never said he w as unable

to communic ate adequately with his attorney. As to the petitioner’s a rgument that his atto rney abandoned a self

-defen se strateg

y, t he attor ney testifie d that he a

rgued self-de fense to the jury and that a defense witness testified that two weeks before the petitioner

shot the victim, the victim had chased and shot at

the petitioner. In addition, the petitioner acknowle dged that he testified at trial that he was a

fraid of the victim . Our revie w of the t rial transcript reveals that the petitioner’s attorney argued sel f-defense to the jury during closing argument and tha t the trial court instructed the jury on self-de

fense. As to the petitioner’s claim that his attorney should have f iled a motion to suppress , the petitioner did not allege at the evidentiary heari ng that he made his confession unknowing

ly or involuntarily. To the contrary , he said he agreed to g ive a statement to the police, that the police le

t him speak

to his father before he ga

ve the statement, that he and his father signed
a waiver of rights form, a nd that his fathe r waspres ent d uring his co nfes sion t

o the crim e. We conclude that the petitioner has failed to show that hereceived the ineffective assistance of counsel.

II. JURY INSTRUCTIONS
Next, the petitioner

claims that he received the ineffective assistanc e of coun sel beca use his attorney failed to object

when the trial court erroneously instructed the jury on

the minimum number of years he had to serve for the offense char ged a nd all lesser i ncluded offenses. Specifically , he-6-

argues that the jury instructions were imp roper because

the instructions included the possibility that he could be sentenced as an especially mitigated offender. He contends that the trial cou rt should have instructed the jury

on the minimum sentences for a standard offender.

At the time

of the pe titioner’ s trial, a trial court wa s r eq ui re d, up on mo ti on by e it he r p ar ty, to instruct the jury

on the “ possible

penalties of the offense charg ed andall lesser included offenses.” Tenn. Code Ann. § 40-35-201(b)(1) (1997) (amended 1998) ( emphasis added). The trial court had to include i n this instruction the “minimum number of year s a person sentenced to imprisonment for the offense charged

and lesse r included offens es must ser ve befor e reaching such person’ s earlie st releas e eligib il it y dat e.” Ten n. C ode Ann . § 4 0-3 5-2 01( b)( 2)( A)( i) ( 199 7) ( ame nde d 19 98) . In
ca lculati ng a defendant’s earliest release eligibility date, a tria

l court had to take into account the “relea se eligibil

ity p ercent

age e stablis he d b y § 40-35-501, maximum and minimum sentence reduction credits a

uthorized by § 41-21-23 6 and the g overnor ’s p ower to reduce pri son overcrowding pursuant to tit le 41, chap ter 1, part 5, if applicable.” Tenn. Cod e Ann. § 40 -35-201(

b)(2)( A)(i) (1997) (amended 1998). At the pet itioner’ s trial, the trial c ourt instr ucted the jury as follow s: Range of punishment: The jury will not attempt to fix any sentence. However, y ou may weig h and con s ider the meaning of a sentenc e of impri sonment. The range of

punishment for the crimes involved herein is as fo llows: Fi rst degree murder, life; second degree murder, 15 to 25 ye ars; voluntary

manslaughter, three to six y ears; reckless homicide, two to four

ye ars; criminally

neglig ent homic ide, one t o two y ears. You’re further informed that the minimum number of years a person sentenced to imprisonment for this offense must serve befor e reaching the ear

liest rel ease el

igibilit y date is: First degree murder, 51 years; sec ond degree murder , 12.75 years ; voluntary manslaug hter, .36 years ; reckless homicide, .24 y ears; criminally ne gligent homicide , .21 years. Whether a defendant is actually

released from incarcera

tio n on the date

when the y a re first eligible for rele ase is a d

is c retionary decision made by the boa rd of paroles and is based on many factor s. The board of

paroles has the authority to require a defendant to serve the entir e sentence impose d by

the Court.

The petitioner claims that the trial court erred by instructing the jury

on the minimum number of years he had to serve as a Range I , especially mitiga ted offender instead of as a Rang e I, standard offender. We note that pursuant to Tenn. Code Ann. § 40-35-501(b), an e sp ec ia ll y m itigated offender may be elig ible for rele ase aft

er serving twe

nty percen t of his sen

tence, w hereasa standard offender must serve

thirty percen t of his sen

tence be fore he is eligib le for release. In effect, the petitioner claims that by instructing the jur y on his relea se eligibility as an especially mitigated-7-

offende r, t he trial court misled and confused the jury . In addition, he contends that his attorney rendered deficient performance by failing to object to the improper instruction an d that h e was pr ej ud ic ed by t he de fi ci en cy.
In support of his argument, thepetitione r cites State v. Cook , 816 S.W.2d 322 (Tenn. 1991). In Cook , the trial cou rt was req uired by statute to sentenc e the defendant as a Range I I offender. Instead, the trial court mistakenly instru cted th e jury on the possible ra nges of punishment for a Range I offender. O n appeal, the defendant argued “that ha d the jury been instructed on the correct sentencing range , . . . ‘the y c ould have

exercise d their dis cretio n to convict of a lesser included offense.’” Id. at 324. I n other w ords, the

defenda nt claime d that the

trial court ’s erroneous instructions on the less seve re punish ments ca used the j ury

to convict him of a greater offe nse. Our supreme court ag reed, st ati ng, “whatever rights or benefits the L egislature had in mind for the defendant when it passed T.C.A. 40-35-201(b) would be lost if the defendant were to be sentenced to punishments greater than what the jury finding guilt was instructed would be imposed.”

Ini ti al ly, we note that the petitioner was convicted of second deg ree murder and, therefore , has no release eligibility

. See Tenn. Code Ann. § 40-35-501(i)(1)-(2). Neverthe less, his sentence could be reduced

up to fifteen percent for sentence r eduction credits. See Tenn. Code Ann. § 40-35- 501(i)(1). Thus, his Range I minimum fifteen-y ear sentence for a

Class A felony could be r educed from fifteen ye ars to12.75 yea rs. The trial court instructed the jury that the petitioner would have to serve a minimum of 12.75 yea rs in confinement if

convicted of second degree murder and made
no error as to the sentencing instruction for that off ense. The petitione

r’s claim may

still have mer

it, though, if the trial court erroneously instructed the jury on voluntary manslau ghter and the error could have impa

cted the jury ’s verdi ct. We conclude tha t if the t rial court gave an errone ous instructi on, it did no t affec t the jury ’s verdi ct.
The mini mum p unis hment for a R ange I offen der con victe d of vo lunt ary mansl augh t er, a Class C felony , is three

ye ars or th

irty -six months. SeeTenn. Code Ann. §§ 39-13-211(b), 40-35- 112(a)(3). Moreover, unlike second degree murde r, no sta

tute bars a defendant convicted of voluntary manslaughter f

rom be ing sentenced as an especially mitigated offender. Therefor e, pursuant to Tenn. Code Ann. § 40-35-501(b), a defendant convicted of voluntary manslaughter may be eligible for release af

ter serving twenty perc ent of his sentence or 7.2 months. If, howeve r, the trial court determines that the defendant is not an especially mitigated offender, then the defenda nt will have to serve thirty

percent of his sentenc e as a standard offender and will not be eligible for release until he has served 10.8 months in confinement.

In this case, even if the trial court improperly instructed t he jury on

the less severe punishmentfor voluntary mansla ughter, we believe the 3.6 month differe nce is ha rmles s error. Unlike Cook , in which the differences in punishment for Range I and Range

II offenders were signific ant, the difference in this case was minor. Therefore, the less se vere punishment instruction for voluntar y ma nslaugh ter did not cause the jury

to convict the petitioner of second degree murder. The petitioner has not demonstrated that he was prejudiced by his attorney’s fa

ilure to object to an erroneous instruction, and he is not entitled to relief.-8- III. AMENDED JUDGMENT Finally, the petitioner c laims that he received the ineffectiveassistanc e of coun sel beca use his attorne

y f ailed to object to the trial court filing an amended judgment of conviction almost one
an d on e-half y ears after the original judgment was filed. The state contends that the trial court properl y amended the judgment and, therefore , that the petitioner’s attorney wa s not ineffective for failing to object

. Initi ally , we note that the p etitioner

did not ra ise this issue in his pro se or amended petitions for post-conviction reli ef. Although his attorney mentioned the issue briefly a t the evidentiary

hearing, the trial

court did not address it in its order deny ing his post-conviction petition. As a general rule, this cour t will not address post-conviction issues that were not raised in the petition or addressed in the trial court. See State v. Smith , 814 S.W.2d 45, 49 (Tenn. 1991). In any event, we conclude the petitioner is not entitled to relief.

The original judgment of conviction that the trial court

filed on February

5, 1998, states that the tr ia l c ou rt se nt en ce d t he pe ti ti on er as a s ta nd ar d o ff en de r w it h r el ea se el ig ib il it y a fter serving thirty percen t of his sentence. However, as we have stated, a defendant convicted of second degree murder does not have release eligibility and must serve one hundred percent of his sente nce. See Tenn. Code Ann. § 40-35-501(i)(1)-(2). Theref ore, the petitioner’s sentence as a standar d offender
was in direct contravention to Tennessee Code Annotated § 40-35-501(i) and illegal. See Dixon v. Holland , 70 S.W.3d 33, 37 (Tenn. 2002). A trial court “may correct an illegal . . . sentence at any time, even if it has become final.” State v. Burkhart , 566 S.W.2d 871, 873 (Tenn. 1978). Therefore, the trial court pr

operly corrected the ju dgment, and the petitioner’s attorney was not ineffective for failing to object to the trial court’s filing an amende d judgment of conviction.

Based upon the foregoing and the record as a whole, we affirm the trial court’s denial of the petition for post-conviction relief.

___________________________________ JOSEPH M. TIPTON, JUDGE