IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

October 4, 2005 Session

JOSEPH GRANDERSON v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. P-22144 John P. Colton, Judge

No. W2004-02353-CCA-R3-PC - Filed April 13, 2006

The petitioner, Joseph Granderson, was convicted by a jury of first degree murder and sentenced to

life imprisonment. This Court affirmed the petitioner’s conviction and sentence on appeal. State

v. Joseph Granderson, No. 02C01-9712-CR-00466, 1998 WL 506658 (Tenn. Crim. App. at Jackson,

Aug. 20, 1998), perm. app. denied, (Tenn. Mar. 8, 1999). Subsequently, the supreme court denied

permission to appeal. The petitioner filed a pro se petition for post-conviction relief alleging

ineffective assistance of counsel on numerous grounds. Counsel was appointed and several amended

petitions were filed. After hearing evidence on the petition over the course of several months, the

post-conviction court entered an order granting post-conviction relief on the basis that trial counsel

was ineffective because she failed to properly inform the petitioner of his potential sentence if

convicted of first degree murder. The State appeals the post-conviction court’s decision. We affirm

the judgment of the post-conviction court.

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

JERRY L. SMITH,J., delivered the opinion of the court, in whichTHOMAS T.WOODALL,J, joined and

ALAN E. GLENN, J., not participating. 

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Steve Crossnoe, Assistant District Attorney

General, for the appellant, State of Tennessee.

Marty B. McAfee, Memphis, Tennessee, for the appellee, Joseph Granderson.

OPINION

The facts underlying the petitioner’s conviction were presented on direct appeal by this Court

as follows: 
Dr. Jerry Francisco, the Shelby County Medical Examiner, described a pulmonary embolus as a blood clot

1

which travels to the lungs and shuts off the blood flow.

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At approximately 11:30 p.m. on November 10, 1995, Michael Pipkin (the

victim) and Michael Peete went to L.D.’s Lounge, a late-night club in Memphis. 

Approximately thirty (30) minutes after their arrival, Pipkin and Peete saw the

defendant. The defendant was the father of Pipkin’s step-children and was

introduced to Peete by Pipkin. Peete testified at trial that defendant and Pipkin

did not argue or exchange angry words. He further stated that defendant’s speech

was not slurred, and he did not appear to be intoxicated.

Subsequently, Pipkin and Peete returned to their table. When they came

out of the restroom, defendant was no longer standing at the bar. Approximately

one (1) hour later, Peete saw defendant standing at the front door of the lounge

shooting at Pipkin. Peete ducked out of the way and heard Pipkin shout, “I’m

hit!” Pipkin received gunshot wounds to his right arm, abdomen and pelvis. He

died on November 17, caused by a pulmonary embolus due to gunshot wounds to 1

the abdomen and pelvis.

Peete testified that Pipkin and defendant did not fight or argue that night,

nor did the victim ever threaten the defendant. He also stated that Pipkin was not

carrying a weapon at the time he was shot.

Tony Coleman, a part-time employee at L.D.’s, testified that he saw the

defendant running out of the lounge after the shooting. He watched the defendant

run across the street, and defendant did not appear intoxicated as he was not

stumbling. Louis Conley, the owner of the establishment, was standing next to

defendant during the shooting. He, too, did not see any indication that defendant

was intoxicated.

Wanda Pipkin, the victim’s wife, testified that she and defendant were

romantically involved for several years and had two (2) sons. Their relationship

ended in 1993, and she began dating the victim approximately one (1) year later. 

The defendant was jealous of her relationship with the victim and told her that he

did not want her to “mess with anyone else.” In late summer 1995, defendant and

the victim were involved in several altercations as a result of this jealousy. During

this time, Mrs. Pipkin was pregnant, and defendant threatened to kill her unborn

child because he did not want her to have children “by nobody [sic] else but him.” 

Defendant also made threats to kill Pipkin. Mrs. Pipkin testified that the

defendant often carried a weapon, but the victim did not.
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The defendant telephoned Mrs. Pipkin on the night after the shooting. She

asked the defendant if he shot her husband, which he denied. He told her that he

was in Mississippi the previous night. Although defendant was arrested for the

offense on November 25, he continually denied involvement to Mrs. Pipkin until

September 1996, when he admitted that he shot the victim “out of fear.”

Defendant testified on his own behalf at trial. He stated that he drank

excessively, suffered memory loss when he drank and was unable to “function” if

he drank in excess. He stated that the victim threatened him repeatedly and was

the aggressor in the various altercations between the two men. He testified that as

a result of these conflicts, he began carrying a gun out of fear for his safety.

Defendant testified that on November 10, he drank an excessive amount of

various alcoholic beverages. He arrived at L.D.’s at approximately 11:00 p.m.,

and saw Pipkin and Peete shortly thereafter. Although he was afraid of Pipkin, he

remained at the club. Defendant was carrying a gun at the time. While he was

sitting at a table, he and Pipkin made eye contact. Pipkin began staring at him,

giving him a “hard look.” As the defendant was about to leave, Pipkin “really

started looking at [defendant].” Defendant testified that he felt threatened by the

victim’s presence in the lounge. He stated that the victim made a move as if to

reach for a weapon, and defendant shot him “out of fear.” He then ran from the

club and went to his sister’s house.

He further testified that he did not remember shooting Pipkin until after

Pipkin died. Although he claimed at trial that he was afraid of the victim,

defendant acknowledged that the victim never threatened him that night, and he

never saw the victim with a weapon.

In rebuttal, the state presented the testimony of the two (2) homicide

detectives who questioned defendant concerning this offense. Both detectives

testified that defendant never mentioned that the victim appeared to be reaching

for a weapon when defendant shot him. The defendant’s transcribed statement

corroborates their testimony. 

State v. Joseph Granderson, No. 02C01-9712-CR-00466, 1998 WL 506658, at *1-2 (Tenn. Crim.

App. at Jackson, Aug. 20, 1998), perm. app. denied, (Tenn. Mar. 8, 1999).

At the conclusion of the jury trial, the petitioner was convicted by the jury of first degree

murder and sentenced to life in prison. On direct appeal, the petitioner argued that the State

failed to prove premeditation beyond a reasonable doubt and that the jury wrongly rejected his

claim of self defense. This Court upheld both the petitioner’s conviction and sentence. State v.

Joseph Granderson, 1998 WL 506658, at *5. The petitioner’s application for permission to

appeal to the supreme court was denied on March 8, 1999.
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The petitioner subsequently filed a pro se petition for post-conviction relief, alleging

ineffective assistance of counsel at trial on a multitude of grounds. After counsel was appointed,

several amended petitions were filed, narrowing the grounds on which the petitioner claimed that

he received ineffective assistance of counsel. The petitioner claimed that counsel was ineffective

for: (1) failing to obtain a psychological evaluation of the petitioner; (2) failing to communicate

adequately and investigate properly; (3) incorrectly advising the petitioner that a life sentence

meant twenty-five years incarceration rather than fifty-one years incarceration; (4) failing to

oppose the State’s objection to the admission of the petitioner’s statement; and (5) failing to

develop the petitioner’s theory of self-defense. 

Evidence at the Post-Conviction Proceedings

Several witnesses testified at a series of hearings held over the course of nine months

beginning August 1, 2003, and ending May 28, 2004. The petitioner’s sister, Monique Smith,

testified that she and the petitioner had difficulty communicating with the petitioner’s appointed

public defender. Ms. Smith tried numerous times to talk to trial counsel outside the courtroom or

by telephone. Ms. Smith even contacted trial counsel’s supervisor, Loyce Lambert, and expressed

her frustration with trial counsel. Ms. Smith stated that she gave trial counsel the names of several

potential witnesses who knew about conflicts between the petitioner and the victim. She also told

trial counsel about the petitioner’s history of head injury and mental health problems, informing trial

counsel that the petitioner was hit in the head as a child when a dumpster fell on him, leaving him

unconscious for several hours, and that the petitioner was a “resource” student as a child. 

Cedric Wright, a friend of the victim, testified that the victim usually carried a weapon. Mr.

Wright recounted several confrontations between the victim and the petitioner. Additionally, Bridget

Thomas, a friend of the petitioner, testified that the victim was violent and carried a gun. 

Wanda Pipkins, the mother of the petitioner’s two sons and girlfriend of the victim, claimed

that the victim had threatened the petitioner prior to the shooting, however, she testified that she lied

in earlier statements to the police. 

Dr. Joseph Angelillo, a clinical psychologist, testified that he performed a mental evaluation

on the petitioner and discovered that the petitioner had a full-scale IQ of 71, a score that placed the

petitioner in the category of Borderline Intellectual Functioning. Dr. Angelillo explained that the

petitioner’s IQ level could affect his ability to form intent and make decisions in stressful situations.

Dr. Angelillo was emphatic that the information contained in trial counsel’s file recounting the

petitioner’s head injury, history of blackouts, anxiety, special education classes, and significant

alcohol use should have triggered contact with a psychologist prior to trial and a request for testing.

Trial counsel testified that she began working at the Public Defender’s Office in 1990 and

was a member of the capital defense team from 1995 to 1998, when she left the office to become a

judge. At the time she represented the petitioner, trial counsel explained that she had handled

between ten and twenty-five first degree murder cases. Trial counsel “somewhat” recalled the facts
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of the petitioner’s case and that the theory at trial was self-defense and voluntary intoxication. Trial

counsel claimed that the case file was “not a complete file, but most of the file.” She stated that

someone else cleaned out her office when she left the Public Defender’s Office and that “a lot of

information that I had, that may not have necessarily been in the files, have [sic] been misplaced, or

never placed in the correct file.” Trial counsel claimed that she saw no effects of mental illness in

the petitioner and that she had no question about his competency. She could not remember whether

a mental evaluation was completed, but did not see a request for an evaluation in the file. Trial

counsel stated that she provided the petitioner with all materials she received through discovery and

reviewed the mitigation report that was prepared by investigator Joyce King. Further, trial counsel

claimed that she made efforts to secure all necessary and beneficial witnesses prior to trial. Trial

counsel stated that she was aware of the change in the law concerning the minimum time to be

served before parole consideration on a life sentence, but could not remember when the law changed.

At the post-conviction hearing, trial counsel could not remember whethershe told the petitioner that

his minimum sentence would be twenty-five years or fifty-one years, but that she told him “whatever

it [the law] was at the time.” 

Loyce Lambert, trial counsel’s supervisor, testified that trial counsel left her files in disarray

when she left the Public Defender’s Office. Ms. Lambert recalled receiving several complaints about

trial counsel from the petitioner’s family. As a result of the complaints, Ms. Lambert visited with

the petitioner in jail. Ms. Lambert testified that her office took note of the 1995 change in the law

regarding release eligibility for persons serving life sentences for first degree murder convictions.

Joyce King, an investigator for the public defender’s office, testified that she was the social

investigator assigned to the petitioner’s case. She gather information about the petitioner’s

educational and employment background and provided that information to trial counsel. Ralph

Nally, a legal investigator for the Public Defender’s Office, was also assigned to the petitioner’s case.

Mr. Nally interviewed several witnesses as directed by trial counsel. Additionally, Mr. Nally met

with the petitioner several times prior to trial. 

Lee Coffee, the Assistant District Attorney who prosecuted the petitioner, testified that trial

counsel was well-prepared for trial and that the petitioner was not cooperative with trial counsel.

Mr. Coffee claimed that he never made a firm offer to settle the petitioner’s case because trial

counsel informed him that the petitioner insisted on going to trial.

The petitioner testified that trial counsel met with him approximately ten times prior to trial.

The petitioner recalled the initial intake meeting where he informed trial counsel and the

investigators of his special education classes, blackouts, and head injury. The petitioner stated that

he was not given a mental evaluation prior to trial. The petitioner reiterated the history of his volatile

relationship with the victim, including threats and confrontations. The petitioner claimed that he

gave all of this information, including the names of several witnesses, to trial counsel. The petitioner

testified that trial counsel told him that he would get life in prison if he was convicted at trial and

that life meant twenty-five years in prison. The petitioner also claimed that trial counsel pulled him
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aside before the beginning of the trial and informed him that the State had offered twenty years. At

that point, the petitioner testified that he told trial counsel he would take the twenty-year offer, but

that trial counsel told him to “hold on.” Trial counsel and the petitioner then went into lock-up

where trial counsel began talking to the petitioner about testifying. The petitioner claimed that trial

counsel never mentioned the twenty-year offer again, but stated that “the family wanted to

prosecute.” The petitioner never denied shooting the victim, claiming instead that he shot the victim

in self-defense. 

At the conclusion ofthe hearing, the post-conviction court took the matter under advisement.

In a written order, the post-conviction court granted the petition for post-conviction relief,

determining that trial counsel was ineffective for failing to properly advise the petitioner about his

potential prison exposure. In that order, the post-conviction court made the following findings of

fact and conclusions of law:

Petitioner’s first claim is that counsel was ineffective in failing to order a

mental evaluation of petitioner. An investigation into his mental competency,

petitioner claims, would have produced evidence showing that he could not form the

intent to commit murder, and would not have been convicted of murder in the first

degree. Petitioner offers numerous evidence that h possessed limited mental abilities

and was in need of an evaluation to determine his capacity to form intent; however,

the evidence of such a need is not clear and convincing. There is other evidence in

the record that petitioner was of adequate competency. At the post-conviction

hearing, counsel stated that leading up to trial petitioner appeared coherent and able

to understand the negotiation process. Counsel stated also that petitioner never

claimed that he was mentally ill when he committed the crime, although he did claim

that he was drunk. Counsel concluded that, based on her meetings with petitioner

and his family, there was no need for a psychiatrist to testify on his behalf. While

counsel is not a medical expert, our review of her performance must be highly

deferential. Decisions an attorney makes must not be judged in hindsight, but instead

on their reasonableness at the time they were made.

. . . .

Here, we find that counsel’s decision not to order a mental evaluation was not just

a matter of strategy, but was based on specific information and sound reasons. It was

based on observations from numerous meeting with petitioner leading up to trial.

. . . . 

Petitioner next claims that counsel was ineffective in failing to develop a

theory of self-defense through evidence or prior violent incidents between petitioner

and the victim. Had counsel investigated certain witnesses and incidents, petitioner

alleges, evidence that the murder was the product of adequate provocation or self-
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defense could have been presented and the verdict likely would have been different.

However, petitioner fails to show this allegation by clear and convincing evidence.

At the hearing, counsel testified that she did investigate certain witnesses for the

defense, as well as incidents of the victim’s violent nature. Counsel’s notes and the

notes of the investigator support this. Moreover, counsel’s decision not to use this

information at trial is a matter of strategy that we will not scrutinize. . . . The

decision not to investigate certain witnesses, like the decision not to order a mental

evaluation, was a strategic choice counsel made for specific, credible reasons. the

record indicates, for instance, that the testimony of Wanda Pipkins, a potential

witness, would show that petitioner instigated some of the previous confrontations

between petitioner and the victim. Furthermore, counsel’s theory of defense at trial

relied on self-defense and voluntary intoxication. In light of this, we find counsel’s

decision not to use certain witnesses to be a reasonable professional judgment. . . .

In conclusion, our presumption that counsel’s decision was within her discretion has

not been overcome by petitioner’s allegations, thus his claim is without merit. 

Petitioner asserts that counsel was ineffective in failing to object to the

exclusion of a statement made by petitioners, as well as failing to object to a

comment by the State that allegedly violated petitioner’s right to remain silent.

Petitioner raises these allegations in his amended petitioner, but TCA 40-30-110(f)

requires the petitioner to prove their allegations at th post-conviction hearing.

Petitioner did not make any mention of his allegations at the hearing, and did not

offer any evidence in support, thus the claim is without merit. 

Petitioner claims that counsel advised him that he faced a prison sentence of

twenty-five years if convicted, when he actually faced fifty-one years. Counsel was

not aware of the difference, petitioner asserts, and was not aware that the law

affecting the sentence had changes before the murder was committed. Had he known

his actual exposure, petitioner claims, he would have accepted the State’s offer of a

twenty-year sentence.

We find that petitioner has sufficiently proven his claim and is entitled to

relief. First, petitioner has demonstrated deficient performance of counsel. Counsel

was deficient in failing to inform petitioner of his actual exposure in light of the

change in law. The statute at the time counsel was advising petitioner mandated that

persons committing murder in the first degree after July 1, 1995 would receive no

release eligibility, and would serve 100% of their sentence less credits up to a 15%

maximum. TCA 40-35-501(i)(1)(1995). Petitioner committed the crime after July

1, 1995. In being sentenced to life imprisonment, he faced sixty years, thus after

applying the 15% credit maximum, he faced fifty-one years. Reasonable effective

assistance demands that a defense attorneybe aware ofthese changes and advise their

client accordingly. Counsel failed to do so, thus her performance was deficient under

Strickland. 
-8-

We find also that petitioner has proven his claims by clear and convincing

evidence. Petitioner offers a letter written by him on July 29, 1997, shortly after he

was sentenced, addressed to counsel. In it he is confused about his parole status and

refers to TCA 40-35-501(i)(1). He writes:

According to this attorney memo, I will have to do 51 calander [sic]

years before being eligible for parole. You did not tell me that the

law had changed, or did you know that the time had went from 25

calander [sic] yearsto 51 yr. If you would have informed [me] of this

I would have took the 25 yr deal the state offerd [sic] me at frist [sic].

In determining whether petitioner offers his proof by clear and convincing evidence,

the threshold issue is whether counsel actually told him that he would face twentyfive years. Counsel stated that she could not remember if she told petitioner twentyfive or fifty-one years. Petitioner claims that counsel did tell him twenty-five years,

but this is not enough. However, we find that the July 29 letter establishes that

counsel told the petitioner twenty0five years: unlike a claim to the court for postconviction purposes, which may lack credibility, petitioner’s letter is more personal

in nature and motivated out of genuine concern. 

Under Strickland, petitioner must also establish that, but for counsel’s

deficient performance, there is a reasonable probability that the result of the trial

would have been different. We find that petitioner does establish this. At the

hearing, counsel testified that the State made a twenty-year offer, which petitioner

declined. Petitioner at this point was under the impression he faced only twenty-five

yearsif convicted. It would certainly have altered the outcome had counsel properly

informed him of his exposure: knowing that he actually faced fifty-one years,

petitioner would no doubt have taken the State’s offer. 

Post-Conviction Standard of Review

To sustain a petition for post-conviction relief, a defendant must prove his or her factual

allegations by clear and convincing evidence at an evidentiary hearing. See Tenn. Code Ann. § 40-

30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). The post-conviction court’ s findings

of fact are conclusive on appeal unless the evidence preponderates otherwise. See State v. Burns,

6 S.W.3d 453, 461 (Tenn. 1999). During our review of the issue raised, we will afford those

findings of fact the weight of a jury verdict, and this court is bound by the court’s findings unless the

evidence in the record preponderates against those findings. See Henley 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

not reweigh or re-evaluate the evidence, nor substitute its inferences for those drawn by the postconviction court. See State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn. 2001). All questions

concerning the credibility of the witnesses, the weight and value to be given their testimony, and the
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factual issues raised by the evidence are to be resolved by the trial judge, not the appellate courts.

See Momon, 18 S.W.3d at 156; Henley, 960 S.W.2d at 578-79. However, the post-conviction

court’s conclusions of law are reviewed under a purely de novo standard with no presumption of

correctness. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

Ineffective Assistance of Counsel

When a petitioner seeks post-conviction relief on the basis of ineffective assistance of

counsel, the petitioner bears the burden of showing that (a) the services rendered by trial counsel

were deficient and (b) that the deficient performance was prejudicial. See Powers v. State, 942

S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient performance, the

petitioner must show that the services rendered or the advice given was below “the range of

competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.

1975). In order to demonstrate prejudice, the petitioner must show that there is a reasonable

probability that, but for counsel’s deficient performance, the result of the proceeding would have

been different. See Strickland v. Washington, 466 U.S. 668, 694 (1984). “Because a petitioner must

establish both prongs of the test 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, 960 S.W.2d at 580. 

As noted above, this Court will afford the post-conviction court’s factual findings a

presumption of correctness, rendering them conclusive on appeal unless the record preponderates

against the court’s findings. See id. at 578. However, our supreme court has “determined that issues

of deficient performance bycounsel and possible prejudice to the defense are mixed questions of law

and fact . . . ; thus, [appellate] review of [these issues] is de novo” with no presumption of

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

Furthermore, on claims of ineffective assistance of counsel, the petitioner is not entitled to

the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). This

Court may not second-guess a reasonably-based trial strategy, and we cannot grant relief based on

a sound, but unsuccessful, tactical decision made during the course of the proceedings. See id.

However, such deference to the tactical decisions of counsel applies only if counsel makes those

decisions after adequate preparation for the case. See Cooper v. State, 847 S.W.2d 521, 528 (Tenn.

Crim. App. 1992).

On appeal, the State argues that the post-conviction court erred in granting post-conviction

relief based on a finding that the petitioner received ineffective assistance of counsel. Specifically,

the State argues that there was not “clear and convincing proof that [trial counsel] advised the

defendant incorrectly about how much time he would have to serve on a life sentence.” The

petitioner also challenges the post-conviction court’s denial of relief as to trial counsel’s failure to

request a mental evaluation and failure to present witnesses at trial to testify about the victim’s

violent nature. 
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Failure to Request Mental Evaluation

At the post-conviction hearing, trial counsel testified that she was aware of the petitioner’s

history of special education classes and childhood head injury. However, trial counsel stated that

she observed no effects of mental illness and had no question about the petitioner’s competency.

The petitioner never told trial counsel that he was mentally ill or incompetent. Dr. Angelillo testified

that at the time he evaluated the petitioner, the petitioner was in the category of borderline

intellectual functioning. However, Dr. Angelillo admitted that he did not test the petitioner at the

time of the crime. The post-conviction court determined that the petitioner had not produced clear

and convincing evidence such that would have necessitated a pre-trial mental evaluation.

Furthermore, the post-conviction court determined that the decision not to request an evaluation was

“not just a matter of strategy, but was based on specific information and sounds reasons . . .

observations from numerous meetings with petitioner leading up to trial.” The record supports the

post-conviction court’s conclusion that trial counsel was not deficient in this regard. Further, the

petitioner has presented no proof that he was prejudiced by trial counsel’s performance. this issue

is without merit.

Failure to Present Witnesses

The petitioner next complains that the post-conviction court erred by determining that trial

counsel was not ineffective for failing to subpoena witnesses that would establish the victim’s

reputation for violence. At the post-conviction hearing, the petitioner presented three witnesses who

testified that they had seen the victim assault people and witnesses a prior altercation between the

petitioner and the victim. Trial counsel testified that she and her staff interviewed witnesses and

developed the petitioner’s self-defense theory prior to trial. The post-conviction court determined

that trial counsel’s decision not to interview certain witnesses or present them at trial was “a strategic

choice . . . made for specific, credible reasons.” As stated above, on claims of ineffective assistance

of counsel, the petitioner is not entitled to the benefit of hindsight. See Adkins, 911 S.W.2d at 347.

Further, this Court may not second-guess a reasonably-based trial strategy, and we cannot grant relief

based on a sound, but unsuccessful, tactical decision made during the course of the proceedings. See

id. The petitioner has failed to meet the burden of proof required of him. The evidence does not

preponderate against the determination of the post-conviction court. This issue is without merit. 

Potential Length of Sentence

Finally, the State appeals the post-conviction court’s determination that trial counsel was

ineffective for improperly informing the petitioner that a life sentence was the equivalent of a

twenty-five year prison sentence.

At the post-conviction hearing, the petitioner testified that trial counsel informed him that

life in prison as a result of a first degree murder conviction was the equivalent of twenty-five years

in prison. The petitioner stated that he rejected a plea offer of twenty years based on the assertions

of trial counsel as to the definition of a life sentence. The petitioner testified that had he known that
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a life sentence was the equivalent of fifty-one years, he would have taken the twenty-year plea offer

from the State. The petitioner’s testimony was bolstered by a two-page letter from the petitioner to

trial counsel that was dated July 29, 1997, several months after the petitioner was sentenced. The

letter appeared in trial counsel’s case file. The first page of the letter contained the heading “Re:

Sentencing Correction,” and in the letter the petitioner expressed his concern in discovering that the

TDOC records showed that he had been sentenced to life without parole and would have to serve

100% of his sixty-year sentence. The second page of the letter contains a copy of an attorney general

opinion stating that life in prison requires fifty-one years of service. Beneath the opinion is a typewritten note with no signature, stating:

According to this attorney memo, I will have to do 51 calander [sic] years before

being eligible for parole. You did not tell me that the law had changed, or did you

know that the time had went [sic] from 25 calander [aic] years to 51 yr. If you would

have informed [me] of this I would have took [sic] the 25 yr deal the state offerd [sic]

me at frist [sic]. 

Trial counsel testified that she reviewed the file thoroughly enough to note that there were several

pages missing from the file. Trial counsel did not dispute the authenticity of the letter from the

petitioner and the State did not object when the letter, as part of trial counsel’s file, was made an

exhibit at the post-conviction proceeding. 

The State now argues that the second page of the letter was an unauthenticated document and

thus not clear and convincing proof of trial counsel’s failure to properly inform the petitioner of the

possible sentence. In granting the petition, the post-conviction court gave credibility to the testimony

of the petitioner and determined that the letter from the petitioner to trial counsel bolstered the

petitioner’s position because it was “personal in nature and motivated out of genuine concern.” As

stated above, “questions of credibility of the witnesses, the weight and value of the evidence, and

resolution of conflicts in the evidence are matters entrusted to the trial judge as the trial of fact” and

the post-conviction court’s credibility determinations are conclusive on appeal unless the evidence

preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The evidence does

not preponderate against the trial court’s credibility determination herein. The petitioner carried his

burden of proving that trial counsel was ineffective in failing to properly inform the petitioner

regarding his potential sentence if convicted. Further, the petitioner proved that, but for counsel

ineffectiveness, the outcome of the trial would have been different as the petitioner would have

accepted the State’s plea offer. Accordingly, the judgment of the post-conviction court is affirmed.
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Conclusion

For the foregoing reasons, the judgment of the post-conviction court is affirmed.

Accordingly, this matter is remanded to the trial court for a new trial. 

 

 ___________________________________ 

JERRY L. SMITH, JUDGE