The opinion
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 which THOMAS 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:
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 embolus1 due to gunshot wounds to
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.
1
Dr. Jerry Francisco, the Shelby County Medical Examiner, described a pulmonary embolus as a blood clot
which travels to the lungs and shuts off the blood flow.
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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 whether she 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 of the 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 attorney be aware of these changes and advise their
client accordingly. Counsel failed to do so, thus her performance was deficient under
Strickland.
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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] years to 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 twenty-
five years. Counsel stated that she could not remember if she told petitioner twenty-
five 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 post-
conviction 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
years if 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 post-
conviction 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 by counsel 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 type-
written 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
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