### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON O ct obe r 4, 200 5 S es sio n
JOSEP H GR AN DER SON v. S TAT E OF TEN NES SEE
Appeal f romthe Cr im inal Cou rt for Shelby Coun ty No. P -22144 John P. Colt on, Jud ge

No. W2004-02353-C CA-R 3-P C - F iled April 13, 2006

Th e pe tit ion e r, Jose ph Gr a nd e rs on , w a s c on vic te d b y a jury of fi rs t deg re e mur de r an d s e nte nc e d to lif e imp ri so nme nt. Th is C ou rt a ff ir me d the pe tit ion e r’ s c on vic tio n a ndse nte nc e on app e a l. S ta te v. J oseph Granderson, No. 02C01-9712- CR-00466, 1998 WL 506658 (Tenn. Crim. App. at J ackson, Aug

. 20, 1998), perm. app. denied, (Tenn. Mar. 8, 1999). Subseque ntly , the supreme court de nied permission to appea l. The petitioner fi l ed a p ro se petition for post-c onviction relief a lleg ing ineffe ctive assistanc e of c ounsel on numerous g rounds. Coun s e l w a s a p p o inted and seve ral a mended petitions were f

iled. After

hearing e vidence on the petition over the c ourse of sever al months, the post-conviction court entere d an orde r g ranting post-conviction re lief on t he basis that trial counsel

wa s in e ff e c tiv e be c a us e she fai led to p ro pe rl y inf orm th e pe tit ion e r o f h is p ote nti a l se nte nc e if convicted of

first deg ree murder. T he State appe als the post-convic tion court’s dec ision. W e af firm the jud g me nt o f the po st- c on vic tio n c ou rt

.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Trial Court Affirm ed

J ER R Y L. S MI TH , J ., delivere d the opinion of the court, in which T H O M A S T. W O O D A LL , J, joined and A L AN E. G L EN N , J ., not participating

.
Paul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; Ra c he l E . Wil lis , A ss ist a nt A tto rn e y Ge ne ra l; Wil liam L . Gibbons, District Attorney Ge n era l; and Steve Crossnoe, Assistant District Attorney Gene ral, for

the appe llant, State of Tenne ssee. Marty B. Mc Afe e, Memphis, Tenne ssee, f or the a ppellee, Joseph Gra nderson.

OP IN ION

The fa cts underlying the petitioner’s c onviction were prese nted on direc t appea l by this Court

a s f oll ow s:D r

. J er r y Fr an ci s co, t h e Sh el by Coun t y M edi ca l Exa mi n er , de s cr i bed a pu l mo nary e m b o l us as a bl ood c l ot 1
whi ch t r ave l s t o t he l un gs an d s hu t s off t he bl oo d f

l ow.

-2- At approximately

11:30 p.m. on November 10, 1995, Micha el Pipkin (the victim) and Michae l Peete we nt to L .D.’s L oung e, a late-nig ht club in Memphis. Approxim ately

thirty (30) minutes af

ter their a rrival, Pipkin and Peete sa w the defe ndant. The de fenda nt was the father of Pipkin’s step-c hildren and w as int ro du c e d to Pe e te by

Pip kin . Pe e te te sti fi e d at tria l th a t de fe nd a nt andPip kin did not arg ue or e x chang e ang ry words. He further

stated that def

endant’ s speec h was not slurre d, and he did not appe ar to be intox icated.

Sub se qu e ntl y , Pi pkin andPe e te re turne d to the ir ta ble . Wh e n th e y

c a me
ou t of the re str oo m, d e fe nd a nt w a s n o lo ng e r s ta nd ing a t th e ba r. Ap pr oximate ly

o n e ( 1 ) h o u r l at er , P ee t e s aw d ef en d an ts t an d i n g att h e f

ro n td o o r o f t h e l o u n ge shooting at Pipki n. Peete duc ked out of the w ay and hea rd Pipkin shout, “I ’m hit!” Pipkin rece ived g unshot wounds to his right arm, abdomen and pe lvis. He die d o n N ov e mbe r 1 7, c a us e d b y a pu lmo na ry e mbo lus du e to g un sh ot w ou nd s to

1 the abd ome n a ndpe lvi s.

Pe e te te sti fi e d th a t Pip kina ndde fe nd a nt d id n ot f ig ht o r a rg ue that ni g ht, nor did the victim ever

threaten the def

endant. He also stated that Pipkin was not

c arry ing a we apo n at th e tim e he wa s sh ot.
Tony Coleman, a pa

rt-time employ ee at L .D.’s, testified that he saw the defe ndant running out of the loung e af ter the shooting . He watched the de fendant
run ac ross the stree t, and def endant did not appe ar intoxi cate d as he w as not stu mbl ing . L ou is C on le y , th e ow ne r o f the e sta bli sh me nt, wa s st a nd ing ne xt to defe ndant during the shooting. H e, too, did not see a ny indication that defe ndant was intox icated.
Wanda Pipkin, the victim’s wife, testified that she a nd defe ndant wer e
ro ma nti c a lly

inv olv e d f

or se ve ra l y e ars a ndha d tw o ( 2) so ns . T he ir re la tio ns hip ended in 1993, a nd she beg an dating the victim approxim ately one (1) y ear

later. The de fenda nt was jea lous of her r elationship with the victim and told her that he did not want her to “ mess with any one else .” In late summer 1995, de fendant and the victim were involved in severa l alterc ations as a r esult of this jealousy . During this ti me, Mrs. Pipkin was preg nant, and de fendant threate ned to kill her unborn child beca

use he did not wa nt her to have children “ by nobody [si c] else but him.” Def endant a lso made threats to kil l Pipki n. Mrs. Pipkin t estified that the de fe nd a nt o ft e n c arrie d a

we apo n, bu t th e vic tim

didno t.-3- The de fenda nt telephoned Mrs. Pipkin on the nig ht after the shooting. She asked the defe ndant if he shot her husband, which he denied. He told her that he was in Mississippi the pre vious night. Althoug h defe ndant was a rre sted for the of fe ns e on No ve mbe r 2 5, he c on tin ua lly de nie d in vo lve me nt t o M rs . Pi pkin u nti l September 1996, w hen he a dmitted that he shot the victim “out of fea r.”

Def endant testified on his own be half at trial. He stated that he dra nk

e xce ssi ve ly , s uf

fe re d me mory

los s w he n h e dr a nk

a ndwa s u na

ble to “ fu nc tio n” if he dra nk in excess. He stated that the victim threatene d him repeatedly and wa s the ag g ressor in the va

rious alterc ations betwee n the two men. He testified that as

a r e s u l to f t h e s e c o n f

l i c t s , h e b e g a n c arr yi n g a

g u n o u to f

f e ar f o r h i s s a f e t y.

Def endant testified that on November 10, he drank an excessive a mount of various alc oholic bever ag es. He arrived at L .D.’s at a pproxi mately

11:00 p.m., and saw Pipkin and Peete shortly there afte r. Althoug h he wa s afr aid of Pipkin, he

rema ined at the c lub. Defe ndant was c arry ing a g un at the time. While he was sit tin g a t a

ta ble , h e a ndPip kinma de e y e c on ta c t. P ipkin b e g a n s tari ng a t hi m, g ivi ng him

a “ ha rdloo k. ” As the de fe nd a nt w a s a bo ut t o le a ve , Pi pkin “ re a lly started looking at [defenda nt] .” De fendant testified that he fe lt threatene d by the vic tim ’s pr e se nc e in the lou ng e . H e state d th a t th e vic tim ma de a mov e a s if

to
rea ch for a we apon, and de fendant shot him “out of fe ar.” He then r an fr om the club and we nt to his si ster’s house

.
He f urther te stified that he did not reme mber shooting Pipkin unt il after Pip kin die d. Al tho ug h h e c la ime d at tria l th a t he wa s a fr a id o f the vic tim , defe ndant ac knowledg ed that the victim neve r threatened him that nig ht, and he

never saw the vic tim with a weapon.

I n rebuttal, the state prese nted the testimony of the two (2) homicide detec tives who questioned def endant c oncerning this off ense. B oth detectives testified that def

endant ne ver me ntioned that the victim appea red to be rea ching for a wea pon when de fenda nt shot him . The de fendant’s transcribed statement

corr oborate s their testimony

.
Sta te v. Jose ph Gr a nd e rs on , N o. 02 C01 -9 71 2- CR- 00 46 6, 19 98 WL 50 66 58 , at *1 -2 (T e nn . Crim. App. at Jackson, Aug . 20, 1998), perm. app. denied, ( Tenn. Mar . 8, 1999).

At the conc lusion of the jury trial, the petitioner wa s convicted by the jury of first deg ree
mur de r andse nte nc e d to lif e in p ri so n. On dir e c t app e a l, the pe tit ion e r a rg ue d th a t th e Sta te faile d to pr ov e pr e me dit a tio n b e y on d a re a so na ble do ub t a ndthat th e jury wr on g ly re je c te d h is claim of self

defe nse. This Court upheld both the petitioner’s c onviction and sentenc e. State v. Jose ph Gr a nd e rs on , 1 99 8 WL 50 66 58 , at *5 . T he pe tit ion e r’ s a pp lic a tio n f

or pe rm iss ionto appea l to the supreme c ourt was de nied on Marc h 8, 1999.-4-

The pe titioner subsequently filed a pr o se petition for post-c onviction relief, a lleg ing ineffe ctive assistanc e of c ounsel at trial on a multitude of g rounds. Afte r counse l was appointed,

sever al amende d petitions were f iled, narr owing the g rounds on which the pe titioner claimed that he re ceive d ineffe ctive assistanc e of c ounsel. The pe titioner claimed that c ounsel was inef fec tive fo r: (1 ) f a ili ng to o btain a

ps y c ho log ic a l e va luatio n o f the pe tit ion e r; (2 ) f a ili ng to c ommun ic a te adequately

and investig ate pr operly ; (3) incor rec tly advising the petitioner that a life sentenc e
me a nt t we nty -f

ive y e ars inc arc e ratio n r a the r tha n f if ty -o ne y e ars inc arc e ratio n; ( 4) faili ng to op po se the Sta te ’s ob

je c tio n to the a dmi ssi on of the pe tit ion e r’ s st a te me nt; a nd(5 ) f a ili ng to develop the pe titioner’s theory of self- defe nse.

E v i d en ce at t h e P o s t -C o n v i ct i o n P ro ce ed i n gs

Severa l witnes s es t estified at a series of hearings he ld over the c ourse of nine months beg innin g Au gu st 1, 2003, and ending May 28, 2004. The pe titioner’s sister, Monique Smith, testifi ed that she and the petitioner had diff iculty communicating with the petitioner’s a ppointed public defe nder. Ms. Smith tried numerous times to talk to trial counse l outside the courtroom or by telephone. Ms. Smith even contacte d trial counsel’s supervisor, L oy ce L ambert, and expressed her f rustration with trial counsel. Ms. Smith stated that she g ave trial counsel the names of seve ral po te nti a l w itn e sse s w ho kn e w a bo ut c on fl ic ts b e tw e e n th e pe tit ion e r andthe vic tim

. She a lso tol d trial counsel a

bout the petitioner’s history of hea d injury and mental hea lth problems, informing trial

c ou ns e l th a t th e pe tit ion e r w a s h it i n the he a d a s a c hil d wh e n a du mps te r f

e ll o n h im, le a vin g him unconscious for

sever al hours, and that the petitioner wa s a “r esourc e” stude nt as a c hild.
Cedric Wrig ht, a frie nd of the victim, testified that the victim usually car ried a wea pon. Mr. Wright re counte d s ev er al co n fr o n t at i o n s b et we en t h e v i ct i man d t h e p et i t i o n er

. Ad d i t i onally , Br idge t Thomas, a f

riend of the petitioner, testified that the vic tim was violent and ca rried a g un.

Wanda Pipkins , the mother of the pe titioner’s two sons and g irlfriend of the victim, claimed that the victim had threatened the petitioner prior to the shooting , howeve r, she testified that she lied in ear lier statements to the police

. Dr. Joseph Ang elillo, a clinical psy cholog ist, testified that he performed a mental eva luation

on the petit ioner and discovere d that the petit ioner had a full-scale I Q of 71, a score that place d the petitioner in the cate g ory of Bor derline I ntellectual Func tioning. Dr. Ang elillo e x plain ed t h at the pe tit ion e r’ s I Q l e ve l c ou ld af fe c t his ab ili ty to fo rm int e nt an d mak e de c isi on s in str e ssf ul s itu a tio ns

. Dr. Ang elillo was emphatic that the information contained in trial counsel’s f ile rec ounting the petition e r ’ s h e a d in

ju r y , h is to r y

o f b la c k o u ts , a n xie ty , s p e c ia l e d u c a ti o n c la s s e s , a n d s ig n if ic a nt al co h o l u s e s h o u l d h av e tri gger ed co n t ac t wi t h a p s y ch o l o gi s t p ri o r t o tri al an d a r eq u es tfo r t es t i n g.

Trial counse l testified that she began working at t he P ublic Def ender ’s Office in 1990 and

was a member of

the ca pital defe nse tea m from 1995 to 1998, when she le ft the off ice to bec ome a judge

. At the time she repr esente d the petitioner, trial counsel explained that she h ad h an d led be tw e e n te n a ndtw e nty -f

ive fi rs t de g re e mur de r c a se s. Tria l c ou ns e l “ so me wh a t” re c a lle d th e fa c ts-5-

of the pe titioner’s ca se and that the theory at t rial was self-de fense and volunt ary intox ication. Trial counsel c laim ed t h at t h e case file wa s “not a c omplete file, but most of the file.” She stated that

someone e lse cleaned out her office when she left the Public Def ender ’s Off

i ce an d t h at “a lot of information that I

had, that may

not have nece ssarily been in the fil es, have [si c] been mispl ace d, or

ne ve r pla c e d in th e c or

re c t f ile .” Tria l c ou ns e l c la ime d th a t sh e sa w n o e ff e c ts o f m e nta l il lne ss i n the petitioner a nd that she had no que stion about his competency . She could not r emember whether a mental e valuation was c ompleted, but did n o t s ee a reque st for an e valuation in the file. Trial counsel stated that she provided the pe titioner with all materials she r ece ived throug h discovery and revie wed the mitig ation report that was pre pare d by investigator J oy ce King. Further, trial c ounsel claimed that she made e fforts to s ec u re all nece ssary and bene ficial witnesse s prior to trial. Trial

c o u n s e l s tate d th a t s h e w a s a w ar e o f th e c h a n g e in th e la w c o n c e r n in g th e mi n imu m time to be

serve d befor e par ole consider ation on a li fe sentence , but could not reme mber when the law c hang ed. At the post-conviction hea ring , trial counsel c ould not remember whether she told the pe titioner that his mini mum sentence would be twenty -five y ear s or fifty -one y ear s, but that she told him “whatever it [ the law] was at the time.”

L oy ce L ambert, trial counsel’s supe rvisor, testified that trial counsel left her files in disarray
w h e ns h ele ft the Public Defe nder’ s Offic e. Ms. L ambert rec alled re ceiving sever al complaints about tr ia l c ou ns e l f

ro m th e pe tit ion e r’ s f

a mil y . A s a

re su lt o f the c omp la int s, Ms. L a mbe rt vis ite d w ith the petitioner in jail. Ms. L ambert te stified that her office took note of the 1995 c hang e in the law

re g ard ing re le a se elig ibi lit y fo r p e rs on s se rv ing lif

e se nte nc e s f

or fi rs t de g re e mur de r c on vic tio ns

.

J oy ce King, an investigator for the public defe nder’ s office , testified that she wa s the social investigator assig ned to the petitioner’ s case . She g ather information about the pe t i tioner’s educational an d employ ment backg round and pr ovided that information to trial counse l. Ralph Nally , a leg al investig ator for the Public Defe nder’ s Offi c e, wa s also assig ned to the petitioner’ s case

. Mr. Nally interviewe d sever al wit nesses as direc ted by trial counsel. Additionally , Mr. Nally met with the petitioner seve ral times prior to trial.

L ee Coff ee, the Assistant District Attorney who prosecuted the petitioner, t estified that trial

c ounsel wa s w e ll- pr e pa

re d f or tr ia l a ndthat th e pe tit ion e r w a s n ot c oo pe rativ e wi th t ri a l c ou ns e l. Mr. Coffe e cla imed that he neve r made a firm of fer to settle the petitioner’s cas e bec ause tria l

c ou ns e l in fo rm e d h im that th e pe tit ion e r i ns ist e d o n g oin g to t ri a l.

Th e pe tit ion e r t e sti fi e d th a t tria l cou ns e l met w ith him app ro xima te ly

te n ti me s p ri or

to t ri a l. The pe titioner rec alled the initial intake mee ting where he informe d trial counsel a nd the investigators of his specia l education c lasses, blackouts, and head injury

. The pe titioner stated that he wa s no t g ive n a me nta l e va luatio n p ri or to t ri a l. T he pe tit ion e r r e ite rate d th e his tory of his vo la til e relationship wit h the victim, including thre ats and c onfr o n t at i o ns. The petitioner c laimed that he g ave all of t his information, i ncluding the names of several witnesses, to trial counsel. The petitioner testified that trial counse l told him that he would g et l i fe in prison if he wa s convicted at trial and that li fe me a nt t we nty -f

ive y e ars in p ri so n. Th e pe tit ion e r a lso c la ime d th a t tria l c ou ns e l pu lle d h im-6-

aside be forethe beg inning of the trial and informed him that the S tate had offe red twenty y ear s. At that point, the petitioner testified that he told tria l c ounsel he would take the twenty -y ear offe r, but that trial counsel told him to “hold on.” Trial c ounsel and the petitioner then went into lock-up wher e trial c ounsel beg an talking to the petit ioner about testify ing. The petiti oner claimed that trial

c ou ns e l ne ve r m e nti on e d th e tw e nty -y e ar o ff e r a g a in, bu t s ta te d th a t “ the famil y wante d to pr os e c ute .” Th e pe tit ion e r n e ve r d e nie d s ho oti ng the vic tim , claimi ng ins te a d th a t he sh ot the vic tim in self-de fense

.
At the c on c lus ion of the he ari ng , th e po st- c on vic tio n c ou rt too k th e ma tte r u nd e r a dv ise me nt. I n a wri t t en o rder, the post-conviction court gr anted the pe tition for post-conviction relief , de te rm ini ng that tria l c ou ns e l w a s in e ff e c tiv e fo r f

a ili ng to p ro pe rl y

a dv ise the pe tit ion e r abo ut h is potential prison exposure. I n that order , the post-conviction court made the f ollowing f

indings of fac t and conc lusions of law:

Petitioner’s first claim is that counsel wa s ineffe ctive in fa i l i n g t o order a
m e n t a l e v a l u a t i o n o f

p e t i t i o n e r

. A n i n v e s t i g a t i o n i n t o h i s m e n t a l c o m p e t e n c y, petitioner cla ims, would ha ve produce d evidenc e showing that he could not form the int e nt t o c omm it mur de r, a nd wo uld no t hav e be e n co nv ic te d o f mur de r i n th e fi rs t deg ree

. Petitioner offe rs numerous e vidence that h possessed limited mental abilities and was in ne ed of an evaluation to determine his c apac ity to f orm intent; however , the e vid e nc e of su c h a ne e d is no t c le ar a nd c on vin c ing

. Th e re is o the r e vid e nc e in the re cord that petitioner was of adequate compete ncy . At the post-conviction he ari ng , c ou ns e l st a te d that le a din g up to t ri a l pe tit ion e r a

pp e are d c oh e re nt andable to understand the n egoti ation proce ss. Counsel stated also that petitioner neve r
c la ime d th a t he wa s me nta lly ill wh e n h e c omm itt e d th e c ri me , a lth ou g h h e didc la im that he wa s drunk. Counsel conc luded that, base d on her me eting s with petitioner

a ndhis famil y , th e re wa s n o n e e d f or a ps y c hiatr ist

to t e sti fy on his behalf . Wh ile

c ou ns e l is no t a

me dic a l e xpe rt , o ur

re vie w o f h e r p e rf

orma nc e mus t be hig hly defe rential. De cisions an attorne y makes must not be judg ed in hindsight, but instead on their re asonable ness at the time they wer e made

.

. . . .
He re , w e fi ndthat c ou ns e l’ s d e c isi on no t to order a me nta l e va luatio n w a s n ot j us t a matter of strate g y , but was base d on specific information and sound rea sons. It was ba se d o n o bs e rv a tio ns fr om n ume ro us me e tin g wi th p e tit ion e r l e a din g up to t ri a l.

. . . .
Petitioner next claims that counsel wa s ineffe ct ive in failing to develop a theory of self- defe nse throug h evidenc e or prior violent incide nts betwee n petitioner and the victim. Had c ounsel investigated certain wit nesses a nd incidents, petitioner alleg es, evidenc e that the murder was the product of adequate provocation o r self--7-

de fe ns e c ou ld h a ve be e n p re se nte d a ndthe ve rd ic t li ke ly wo uld ha ve be e n d if fe re nt. Howeve r, petitioner f

ails to show this allegation by clea r and convincing evidenc e. At the hea

ring , counsel testified that she did investigate ce rtain w i t n es s es for the defe nse, as well as incide nts of the victim’s violent nature. Counsel’s note s and the

no te s o f the inv e sti g a tor

su pp ort th is. Mo re ov e r, c ou ns e l’ s de c isi on no t to us e thi s i n fo rm at i o n at trial is a matter of strate g y

that we will not scrutinize. . . . The decision not to investigate ce rtain witnesses, like the de cision not to order a mental evaluation, was a strateg ic choice counsel made for spe cific, c redible r easons. the

rec ord indicate s, for instance , that the testimony of Wanda P i p k i n s, a potential witness, would show that petitioner instigate d some of the pr evious confr ontations betwee n petitioner and the victim. Furthermore, c ounsel’s theory of def ense at trial relied on se lf-def

ense a nd voluntary

intox ication. I n light of this, we find counsel’ s decision not to use ce rtain witnesses to be a r easona ble profe ssional judgment. . . . I n conclusion, our pr esumption that c ounsel’s decision was within he r discretion has not been ove rcome by

petitioner’s a lleg ations, thus his claim is wit hout merit.

Petitioner asserts that c ounsel wa s i n ef fective in failing to object to the exclusion of a statement made by petitioners, a s well as failing to object to a

c omm e nt by the Sta te that a lle g e dly vio la te d pe tit ion e r’ s ri g ht to re ma in sil ent. Petitioner raises these alleg ations in his amende d petitioner, but TCA 40-30-110( f)

re q u i re s t h e pe t i t i o n er t o p ro v e th ei r al l ega t i o n s at t h p o s t -c o n v i c t i o n h e ar i n g. Petitioner did not make any mention of his alleg ations at the hea ring , and did not offe r any evidenc e in support, thus the claim is without merit.

Petitioner claims that counsel a dvised him that he fac ed a prison sentenc e of twenty -five y ear s if convicted, w hen he a ctually fac ed fifty -one y ear s. Counsel was

no t awa re of the diffe renc e, petitioner a sserts, and wa s not awar e that the law aff ecting the sentenc e had chang es before the murder was commi tted. Had he known his actua l exposure, petitioner claims, he would have acc epted the State’s offe r of a twenty -y ear

sentenc e.

We f indthat p eti tio ne r h a s su ff ic ie ntl y pr ov e n h is c la im a ndis e nti tle d to relief

. First, petitioner ha s demonstrated de ficient pe rformance of counse l. Counsel was de ficient in fa iling to i n fo rm p et i t ioner of his a ctual exposure in light of the chang e in law. The statute at the time counsel wa s advising pe titioner mandated that persons c ommitt ing mur der in the f irst deg ree afte r Jul y 1 , 1 9 9 5 would rec eive no rele ase e ligibility , and would ser ve 100% of their sentenc e less cr edits up to a 15%

ma ximum

. TCA40 -3 5- 50 1( i) (1 )( 19 95 ). Pe tit ion e r c omm itt e d th e c ri me a ft e r Jul y 1, 1995. I n being s en t en ce d to life imprisonment, he fac ed six ty y ear s, thus after apply ing the 15% cr edit maxi mum, he fa ce d fi ft y -one y ear s. Reasonable eff ective

a ssi sta nc e de ma nd s tha t a def e ns e a tto rn e y be a wa

re of the sec ha ng e s a nda dv ise the ir client ac cording ly . Counsel failed to do so, t hus her performance was de ficient unde r Strickland.-8- We find also that petitioner has pr ov en h is claims by clea r and c onvincing evidenc e. Petitioner offe rs a letter written by him on J uly 29, 1997, shortly afte r he

was sentenc ed, addre ssed to c ounsel. I n it he is confused a bout his parole status and

re fe rs to T CA 40 -3 5- 50 1( i) (1 ). He write s:

Acc ording to this attorney memo, I will ha ve to do 51 cala nder [sic] y ear s befor e being elig ible for pa role. You did no t tell me that the law had c hange d , or did y ou know that the time had we nt from 25

c a la nd e r [s ic ] y e ars to 51 yr. I f y ou wo uld ha ve inf orme d [me ] of

thi s I w o u ld h a v e to o k

th e 2 5 yr d e a l th e s tate o f

f e r d [s ic ] m e a t f

r is t [ s ic ].

I n determining whether petiti oner offer s his proof by clea r and c onvincing evidenc e, t h e t h r e s h o l d i s s u e i s w h e t h e r c o u n s e l a c t u a l l y t o l d h i m t h a t h e w o u l d f a c e t w e n t yf i v e ye ar s

. C o u n s e l s t a t e d t h a ts h e c o u l dn o tr e m e m b e r i f s h e t o l d p e t i t i o n e r

t w e n t yfi ve or fi ft y -o ne y e ars . Pe tit ion e r cl a ims that cou ns e l did tel l hi m tw e nty -f ive y e ars , but this i s not enoug h. Howeve r, we fi n d t h at t h e J uly 29 letter e stablishes that

c o u n s e l t o l d t h e p e t i t i o n e r t w e n t y 0 f i v e y e ar s : u n l i k e a c l a i m t o t h e c o u rtfo r p os tconviction purposes, w hich m ay lack credibility , petitioner’s letter is more per sonal in nature a nd motivated out of g enuine c oncern.

Under Strickland, petitioner m u s t als o establish that, but for counse l’s defic ient perf

ormanc e, ther e i s a re asonable probability that the re sult of the trial would have be en diffe rent. We find that petitioner doe s establish th i s. At the hearing, c ounsel testified that the State made a twenty -y ear o ff er, w hich petitioner declined. Petitioner at t his point was under the impression he f ace d only twenty -five y e ars if c on vic te d. I t wou ld ce rt a inl y ha ve a lte re d th e ou tc ome ha d c ou ns e l pr op e rl y inf ormed hi m of h is e xpos ur e : kn ow ing that he a c tua lly fa c e d f if ty -o ne y e ars , petitioner would no doubt have taken the State’ s offe r.

Post-Convi ction Standard of Re view
To sustain a petition for post-c onviction relief, a defe ndant must p ro v e h i s or her fac tual alleg ations by

clea r and convincing evidenc e at a n evidentiary hearing. See Tenn. Code Ann. § 40- 3 0 -1 1 0 (f ); M o m o n v

. S t at e, 1 8 S

. W

. 3 d 1 5 2 , 1 5 6 (T en n

. 1 9 9 9 ). T h e p o s t -c o n v i ct i o n co u rt ’ s fi n d i n gs of fa c t are c on c lus ive on app e a l un le ss the e vid e nc e pr e po nd e rate s othe rw ise

. Se e State v. B urns , 6 S. W.3 d 4 53 , 4 61 (T e nn. 19 99 ). Du ri ng ou r r e vie w o f the iss ue raise d, we wi ll a ff or d th os e finding s of fa ct the we ight of a jury verdic t, and thi s court is bound by the court’s finding s unless the evidenc e in the record pr eponder ates a g ainst those finding s. See He nley v. State, 960 S.W .2d 572, 578 (Tenn. 1997) ; Alley

v. State, 958 S.W .2d 138, 147 (Tenn. Crim. App. 1997). This Court may

no t r e we ig h o r r e -e va luate the e vid e nc e , n or su bs titute its inf

e re nc e s f or th os e dr a wn by

the po stc o n v ic ti o n c o u r t. Se e St a te v

. H o n e y c u tt , 5 4 S. W. 3 d 7 6 2 , 7 6 6 ( T e n n

. 2 0 0 1 )

. A ll questions

conce rning the cr edibilityof the witnesse s, the weig ht and value to be g iven their testimony , and the-9-

fa c tua l is su e s r a ise d b y

the e vid e nc e are to b e re so lve d b y the tr ia l judg e , n ot the app e llate c ou rt s. See Mo m o n , 1 8 S

. W.3d at 156; Henley , 960 S.W .2d at 578-79. How ever , the post-conviction court’s c onclusions of law a re r eviewe d under a purely de novo standa

rd with no presumption of

corr ectne ss. See Fie lds v. St ate, 40 S.W.3d 450, 458 (Tenn. 2001).

I neff ective A ssistance of Counsel
When a pet i t i oner se eks post-convic tion relief on the ba sis of ineffe ctive assistanc e of counsel, the pe titioner bear s the burden of showing that (a) the servic es re ndere d by trial counsel

wer e def icient and ( b) that the de ficient pe rformance wa s p re j u d i cial. S ee Powe rs v. State, 942 S.W .2d 551, 558 (Tenn. Crim. App. 1996). I n order to de monstrate defic ient perf orm an ce , the petitioner must show that the servic es re ndered or the a dvice g iven was be low “the r ang e of competenc e dema nded of attorney s in criminal case s.” Baxter v. Rose, 523 S.W .2d 930, 936 (Tenn. 19 75 ). I n ord er t o d e mon str a te pr e jud ic e , th e pe tit ion e r mus t sh ow that th e re is a re a so na ble probabil i t y t h at , but for counse l’s defic ient perf ormanc e, the r esult of the proc eeding would have be e n d if fe re nt. Se e Str ic klandv. Was hin g ton , 4 66 U. S. 66 8, 69 4 (1 98 4)

. “ B e c a us e a pe tit ion e r mus t
e sta bli sh bo th pr on g s of the te st t o p re va il o n a c la im o f i ne ff

e c tiv e a ssi stanc e of

c ou ns e l, f

a ilu re to p ro v e ei t her de ficient pe rformance or re sulting pre judice provide s a suffic ient basis to deny relief on the claim.” H enley , 960 S.W .2d at 580.

As note d a

bo ve , th is C ou rt

wi ll a ff or d th e po st- c on vic tio n c ou rt ’s fa c tua l f ind ing s a presumption of cor

rec tness, rende ring them conclusive on a ppeal unles s t he re cord pr eponder ates ag ainst the court’ s findings. See id. at 578. Howeve r, our supreme court has “de termined that issues of def icient per formanc e by counsel a nd possible prejudice to the defe nse ar e mix ed questions of law and fa c t

. . . ; th u s , [ap p e ll a te ] r e v ie w o f [t h e s e is s u e s ] is d e n o v o ” w ith n o p r e s umption of

corr ectne ss. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

F urthe rm or e , o n c laims of ine ff e c tiv e a ssi stanc e of c ou ns e l, the pe tit ion e r i s n ot e nti tle d to the be ne fi t of hin ds ig ht. Se e Ad kin s v. Stat e , 9 11 S.W. 2d 33 4, 34 7 ( Te nn . Crim. Ap p. 19 94 ). Th is Court may

not second- g uess a rea sonably -base d trial strateg y , and we cannot gr ant relief base d on a sound, but unsucce ssful, tactica l d ec i s i o n m ade during the course of the proc eeding s. See id. Ho we ve r, su c h d e fe re nc e to t he ta c tic a l de c isi on s o f c ou ns el app li es on ly if c ou ns e l ma

ke s th os e decisions af

ter a dequate prepa

ration for the ca se. S ee Cooper v. State, 847 S.W .2d 521, 528 (Tenn. Crim. App. 1992).

On appea l, the State arg ues that the post-conviction court err ed in gr anting post-conviction

r e l i e f b a s e d o n a

f i n d i n g t h a t t h e p e t i t i o n e r r e c e i v e d i n e f f e c t i v e a s s i s t a n c e o f c o u n s e l

. S p e c i f i c a l l y, the State ar g u e s th a t th e r e w a s n o t “ c le ar a n d c o n v in c in g p r o o f th a t [tr ia l c o u n s e l] a d v is e d the defe ndant incorr ectl y ab o u t h o w much time he would ha ve to serve on a life se ntence .” The pe tit ion e r a lso c ha lle ng e s the po st- c on vic tio n c ou rt ’s de nia l of re lie f a s to tr ia l c ou ns e l’ s f a ilu re to reque st a mental eva luation and fa ilure to prese nt witnesses at trial to tes tify about the victim’s violent nature.-10- Fa ilure to Request Mental Eva luation
At the post-conviction hea ring , trial counsel testified that she was awa re of the pe titioner’s history of spec ial education classes and c hildhood head injury

. Ho wever, trial counse l stated that

s h e o b s e r v e d n o e f

f e c t s o f m e n t a l i l l n e s s a n d h a d n o q u e s t i o n ab o u tt h e p e t i t i o n e r ’ s c o m p e t e n c y. The pe titioner never

told trial counsel that he wa s mentally ill or i ncompetent. Dr . Ang elillo testified that at the time he e valuated t h e petiti oner, the petitioner wa s in the cate g ory of borde rline intellectual func tioning. Howeve r, Dr. Ang elillo admitted that he did not test the petitioner at the time of the crime. The post-c onviction court dete rmined that the pe titioner had not produce d clea r and convinc ing e vidence such that would have nece ssitated a pre -trial mental evaluation. Furthermore , the post-conviction court determined that the decision not to reque st an eva luation was “not just a matter of

strateg y , but was base d on specifi c i n fo rm at i on and sounds re asons . . . observations from numerous meetings with petitioner l eading up to trial.” The r ecor d supports the p ost-conviction court’s conclusion that trial counse l was not defic ient in this reg ard. Further, the petitioner has pr esente d no proof that he was prejudice d by trial counsel’ s perf

ormanc e. this issue is w ith ou t me ri t.

Fa ilure to Present Witnesses
The pe titioner next complains that the post-convic tion court err ed by determining that trial counsel wa s not ineffe ctive for failing to su b p o ena w itnesses that would establish the victim’s reputation for violence . At the post-conviction hea ring , the petitioner pre sented thre e witnesses w ho testified that they

had see n the vi ctim assault people and witnesses a prior alterc ation betwee n the petitioner and the victim. Trial counsel testified that she and he r staff interviewe d witnesses and develope d the petitioner’s se lf-def ense the ory

prior to trial. The post-conviction court determined that tria l c ou ns e l’ s dec isi on no t to int e rv ie w c e rt a in w itn e sse s o r p re se nt the m a t tria l w a s “ a str a te g ic choice

. . . made for s pecif ic, credible reasons.” As stated above , on claims of inef fec tive assistance of counse l, the petitioner i s not entitled to the benefit of hi ndsight. See Adkins, 911 S.W .2d at 347. Further, this Court may

not second-g uess a r easona bly -base d trial strateg y , and we cannot g rant re lief based on a sound, but unsucce ssful, tactica l decision m ade during the course of the procee dings. See id. The petitioner ha s failed to mee t the burden of proof r equire d of him. The evide nce doe s not preponde rate ag ainst the determination of the post-conviction court. This issue is wit hout merit.

Potential L eng th of Sentence
Finally , the State appe als the post-convic tion court’s de t er m i n ation that trial counsel wa s ineffe ctive for

improperly

informing the petitioner that a life sentence wa s the equivale nt of a twenty -five y ear

prison sentenc e. At the post-conviction hea ring , the pet i t i o ner te stified that trial counsel informed him that life in prison as a r esult of a f irst deg ree murder c onviction was the equivalent of twenty -five y ear s in prison. The petitioner state d that he re jected a plea of fer of twenty y ear s based on the a ssertions of trial counse l as to the definition of a life sentenc e. The petitioner testified that ha d he known that-11-

a life se ntence was the e quivalent of fif ty -one y ear s, he would have taken the twenty -y ear plea of fer fr om the Sta te . T he pe tit ion e r’ s te sti mon y wa s bo lst e re d by a tw o- pa g e le tte r fr om the pe tit ion e r t o trial counsel that was dated J uly 29, 1997, sever al months a fter the petitioner wa s sentence d. The letter a ppear ed in t ri al co unsel’s ca se file. The first pag e of the letter c ontained the he ading “Re: Sentencing Correc tion,” and in the letter the petitioner e x presse d his conce rn in discovering that the TDOC re cords showe d that h e h ad b een se ntence d to life without parole a nd would have to se rve 100% of his six ty -y ear

sentenc e. The second pag e of the letter contains a copy of an attorney

g ener al opinion stating that life i n prison require s fifty -one y ear s of service. Be neath the opinion is a typewr i t t en n o t e w i t h n o s i gn at u re , s t at i n g:

Acc ording to this attorney memo, I will have t o d o 5 1 cala nder [sic] y ear s befor e being elig ible for parole. You di d not tell me t hat t he law had chang ed, or did y ou kn ow that the tim e ha d w e nt [s ic ] fr om 2 5 c a la nd e r [a ic ] y e ars to 5 1 y r. I f y ou wo uld have informed [m e] of this I would have took [sic] the 25 yr deal the state offe rd [sic] me at frist [ sic].

Trial counse l testified that she re viewed the file thoroug hly enoug h to note that there wer e seve ral pag es missing fr om the file. Trial counsel did not dispute the authenticity of the letter

from the p e ti ti o n e r a n d th e St a te d id n o t o b je c t w h e n th e le tt e r , a s p ar t o f tria l c o u n s e l’ s f ile, was made an exhibi t at the post-conviction proc eeding

.
The State now a

rg ues that the sec ond pag e of the letter was an unauthenticated document a nd thus not clear and convincing proof of trial counsel’ s failure to properly inform the petitioner of

the possible sentence . Ing r an ting the petition, the post-conviction court ga ve cr edibilityto the testimony of the pe titioner and dete rmined that the letter from the pe titioner to trial counsel bolstere d the petitioner’s position because it was “pe rsonal in nature and mot ivated out of genuine conce rn.” As stated a b o v e, “questions of c redibility of the witnesse s, the weig ht and value of the evidenc e, and resolution of conf

licts in the evidence are matters entrusted to the t rial j udg e as the t rial of f act” and the post-conviction court’s cre dibilit y determinations a re conclusive on appea l unle ss the evidenc e preponde rate s ag ainst them. State v. Odom, 928 S.W .2d 18, 23 (Tenn. 1996). The e vidence does

no t pr e po nd e rate a g a ins t th e tr ia l cou rt ’s c re dib ili ty de te rm inatio n he re in. Th e pe tit ion e r c arrie d h is burden of proving that trial counsel wa s ineffe ctive in fa iling to prope rly inform the petitioner reg arding his potential sentence if convicte d. Further, the pe titioner p ro v ed that, but for c ounsel ineffectiveness, the outcome of the trial would have been dif fer ent as the pe titioner would have

acc epted the State’s plea offe r. Acc ording ly , the judg ment of the post-c onviction court is aff irmed.-12- Conclusion

For the fore g oing r easons, the judg ment of the post-c onviction court is af fi rmed. Acc ording ly , this matter is remande d to the trial court f or a ne w trial.

___________________________________ J ERRY L . SMI TH, JUDGE