Opinion

BRIAN PILLOW v. STATE OF TENNESSEE

Court: Court of Criminal Appeals of Tennessee
Filed: Dec 1, 2020
Status: Published
On the bench: Judge Thomas T. Woodall
Cited by: 0 cases
Authority: More cited than 14.5%

the post-conviction court has “discretion to allow free amendment of post- conviction petitions”

How later courts described this case

the post-conviction court has “discretion to allow free amendment of post- conviction petitions”

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The opinion

12/01/2020

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

July 14, 2020 Session

BRIAN PILLOW v. STATE OF TENNESSEE

Appeal from the Circuit Court for Maury County

No. 25630 Stella L. Hargrove, Judge

___________________________________

No. M2018-01275-CCA-R3-PC

___________________________________

Petitioner, Brian Pillow, was convicted by a Maury County Jury of three counts of selling

.5 grams or more of cocaine in a drug-free zone. He received an effective sentence of

twelve years to be served in the Tennessee Department of Correction. Petitioner filed a

petition seeking post-conviction relief, in which he alleged that he received the

ineffective assistance of counsel and that the trial court should have granted a

continuance when co-counsel was appointed. Following an evidentiary hearing, the post-

conviction court denied his petition. We affirm the judgment of the post-conviction

court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which ROBERT L.

HOLLOWAY, JR. and TIMOTHY L. EASTER, JJ., joined.

Michael Meise, Dickson, Tennessee (on appeal) and Kevin S. Latta, Columbia,

Tennessee (at trial) for the appellant, Brian James Pillow.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior

Assistant Attorney General; Brent A. Cooper, District Attorney General; and Adam

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

OPINION

Background

The evidence presented at trial, was as follows:

Columbia Police Detective Jason Dark testified that in May 2012, Kevin

Odie, a “street-level” drug dealer, was charged with narcotics offenses.

Thereafter, Odie approached the District Attorney General and offered to

work as a confidential informant in an attempt to obtain leniency on his

charges. Odie spoke with Detective Dark about purchasing drugs from

certain individuals, including the [Petitioner].

Detective Dark said that Odie purchased crack cocaine from the

[Petitioner] on three occasions: May 2, 2012; May 4, 2012; and May 11,

2012. The procedures before and after each transaction were largely

identical. Odie telephoned [Petitioner], who agreed to sell the drugs and

gave directions to a specific location. Immediately after each call,

officers searched Odie and his vehicle to ensure he had no contraband.

The officers photocopied the money to be used during the purchase then

gave Odie the cash to purchase two grams of cocaine. On May 2, Odie

was given $100; on May 4, he was given $130; and on May 11, he was

given $150. Detective Dark did not know why the price continually

increased.

Detective Dark recalled that before each transaction, Odie was equipped

with an audio/video recording device. The recording equipment was set

up so that Detective Dark could hear the transaction as it occurred, but

he could not view the video until he recovered the device from Odie and

downloaded the recording to a computer.

Detective Dark said that after being searched and given money, Odie

drove to 501 Martin Drive as directed by [Petitioner]. The location was

approximately 698 feet from Fairview Park. The May 2 purchase

occurred in a shed on the property, the May 4 purchase occurred in the

yard, and the May 11 purchase occurred inside a maroon sport utility

vehicle (SUV) that was parked in the driveway. Detective Dark said that

the SUV was registered to Tonya Perry, who had “associated with”

[Petitioner].

Detective Dark said that after each purchase, Odie met with the police

and gave them a substance that was packaged in a plastic sandwich

baggie and appeared to be crack cocaine. The detective sent the

substances to the Tennessee Bureau of Investigation (TBI) crime

laboratory for testing. He said that the amount of drugs Odie received

was larger than the amount the police typically obtained for the amount

of money provided.

On cross-examination, Detective Dark said that the price for one gram of

crack cocaine was usually $100; however, Odie received more than two

grams during each purchase. Odie was given $150 for the third

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transaction. After the transaction, Odie returned $10 and explained that

he paid $140 for the drugs.

Detective Dark said that prior to each transaction, Odie’s vehicle was

searched in a well-lit garage. He could not recall whether he or another

officer searched the vehicle but stated that [i]t’s just protocol. It’s

something we do. He explained that the officers did not “strip search”

an informant but that all of the informant’s pockets were checked. He

did not check inside Odie’s socks or shoes because he trusted Odie.

Detective Dark stated that [Petitioner] was not arrested on the day of the

last transaction; however, he was arrested in December 2012 after the

grand jury returned an indictment against him. At the time of his arrest,

[Petitioner] was in possession of $1,400 in cash. None of the bills

matched the serial numbers of the cash used in the controlled purchases.

Detective Dark said that while working as a confidential informant, Odie

made over 100 controlled buys from approximately forty individuals.

Kevin Odie testified that he had three prior felony convictions, two for

selling crack cocaine and one for selling marijuana. He also had two

pending charges of selling crack cocaine in a school zone and one

pending charge of selling marijuana. He volunteered to buy crack

cocaine for the police, hoping that his assistance would keep him from

being incarcerated.

Odie testified that his nickname was “Kap.” He had known [Petitioner],

whose nickname was “Bear,” for approximately one year. Odie’s first

purchase of crack cocaine from [Petitioner] occurred on May 2, 2012.

On that day, Odie called [Petitioner], and they arranged to meet so that

Odie could buy one gram of cocaine. [Petitioner] told Odie the crack

cocaine would cost $100. Odie went to the meeting with a woman he

“used to call [his] wife.” Prior to leaving for the meeting, Odie, his

companion, and the inside of the white Ford Explorer Odie was driving

were searched by the police. The officers found no money or drugs.

The police equipped Odie with recording equipment and provided him

with money prior to the transaction. The video recording, which was

played for the jury, captured the entire transaction. As the recording was

played, Odie explained what was depicted. The video showed Odie

driving to the meeting. During the drive, he called [Petitioner], who told

him to come to a location near Fairview Park. Prior to his arrival, Odie

called [Petitioner] to let him know he was on his way. During the

conversation, [Petitioner] gave directions to his exact location. As they

talked, Odie told [Petitioner], “‘I got a bill,’” which meant $100.

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[Petitioner] responded, “‘I gotcha,’” and indicated that Odie should

“come on.” Odie identified his and [Petitioner’s] voices on the

recording.

Odie said that after approximately ten or fifteen minutes, he arrived at

the designated location. He saw a white house with an unattached brown

shed, which he identified on the recording. As he walked toward the

shed, [Petitioner] opened the door. Odie identified [Petitioner] as the

person seen on the recording. Odie stepped inside the shed and saw

another man with [Petitioner]. [Petitioner] said that he did not know

whether Odie “wanted it soft or hard,” meaning powder or crack cocaine,

respectively. Odie indicated he wanted crack cocaine. Odie explained

that the video showed [Petitioner] getting the drugs out of a “dope sack.”

[Petitioner] weighed the crack cocaine then told Odie, “‘I gave you 2.5

[grams],’” which was more than Odie had requested. Odie said that he

would “definitely holler back at him again” for more crack cocaine.

After [Petitioner] gave Odie the crack cocaine, Odie put $100 on the

table; however, he never saw [Petitioner] pick up the money. Afterward,

Odie returned to the Explorer, called Detective Dark, and advised him

that he was on his way to meet with the officers. Odie did not stop

anywhere along the way. As soon as he arrived at the designated

location, Odie relinquished the crack cocaine to the officers and

described the transaction.

Odie said that on May 4, 2012, he again met with the officers prior to

meeting with [Petitioner]. The police searched Odie, his vehicle, and his

female companion and set up the recording equipment. The recording of

the transaction was played for the jury, during which Odie again

explained what was happening and identified [Petitioner]. Odie said that

he thought he was supposed to try to buy a larger amount of crack

cocaine. Once in Columbia, Odie called [Petitioner], but [Petitioner]

was at a barbershop and promised to call Odie when he left the shop.

[Petitioner] called a short while later and told Odie to return to the

location of their previous meeting. When Odie arrived, [Petitioner]

walked toward Odie and handed him a cigarette pack containing crack

cocaine. Odie gave [Petitioner] $130. Odie told [Petitioner] that he

would likely “holler at” him again. When the transaction was complete,

Odie called Detective Dark and arranged to meet the officers. Upon

arrival, Odie relinquished the drugs and provided details of the

encounter.

Odie said that the final purchase took place on May 11, 2012, at the

same location near Fairview Park. Once again, the police gave Odie

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recording equipment and searched Odie and his vehicle before he left.

The recording of the transaction was played for the jury, and Odie

narrated what transpired on the video. When Odie arrived at the

location, [Petitioner] was sitting in the driver’s seat of a maroon SUV,

and a man named Huey was sitting in the front passenger seat. Odie got

into the backseat of the vehicle. [Petitioner] handed Odie the crack

cocaine without turning around and indicated that he was giving Odie

three grams of crack cocaine. Odie told [Petitioner] he had $150, but

[Petitioner] said the price was only $140. Odie kept $10 and gave

[Petitioner] $140. Afterward, Odie met with the officers, returned the

$10, and relinquished the crack cocaine.

Odie said that during each transaction, he dealt exclusively with

[Petitioner]. The location of the transactions and the price of the drugs

were determined by [Petitioner].

The State then asked the trial court to have [Petitioner] “step forward

before the jury and display his bare arms to the jury.” Following the trial

court’s instructions, [Petitioner] removed his long-sleeved shirt, rolled

up the sleeves of his t-shirt, and showed his arms, which were tattooed,

to the jury.

On cross-examination, Odie said that the State had not promised him

anything for his assistance but that he hoped his cooperation would work

in his favor on his pending charges. He acknowledged that he made

thirty or forty controlled drug buys for the police and that the purchases

were made from several individuals.

On redirect, Odie acknowledged that he was in “big trouble” as a result

of his pending charges and that he had volunteered to help the State,

hoping he could avoid returning to prison. He stated, however, that the

State never asked him to purchase drugs specifically from [Petitioner].

Odie said that he did not see [Petitioner] pick up the money during the

first transaction; however, he left the money on the table for [Petitioner]

in exchange for the crack cocaine.

After Odie testified, the parties stipulated that Fairview Park was a drug

free zone pursuant to Tennessee Code Annotated section 39-17-

432(b)(1).

Brett Trotter, a forensic scientist with the TBI, testified that he received

three separate packages from the Columbia Police Department. Each

package contained a plastic sandwich bag containing crack cocaine. The

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first bag contained 2.39 grams, the second bag contained 2.56 grams, and

the third bag contained 2.90 grams.

State v. Brian Pillow, No. M2014-01355-CCA-R3-CD, 2016 WL 1270263, at *1-3

(Tenn. Crim. App. Mar. 31, 2016), perm. app. denied (Tenn. Aug. 18, 2016). Petitioner’s

convictions and sentences were affirmed on direct appeal.

Post-Conviction Hearing

At the post-conviction hearing, Petitioner testified that he had three meetings with

trial counsel prior to trial. They discussed a plea offer during one of those meetings.

Petitioner agreed that the State made one plea offer to him but he understood that trial

counsel was seeking a better offer. Petitioner testified: “So I wouldn’t took [sic] the offer

because he’s saying he could possibly get me a better plea agreement. He didn’t say for

sure that he was going to but he was going to let me know if he was or wasn’t.”

Petitioner claimed that no one told him that the first plea offer was a final offer. He said

that trial counsel came to the Turney Center and spoke with him three days prior to the

trial date. Petitioner testified that trial counsel asked if he was ready for trial and noted

that the State’s plea offer was “off the table.” He claimed that trial counsel never told

him that there was a “timetable’ for acceptance of the State’s offer or that the offer was a

final one. Petitioner testified that he did not give the plea offer the same consideration

that he would have given had he known that the offer was a final offer. Petitioner

asserted that he realized the morning of trial that no plea offer would be accepted.

Petitioner testified that he felt that Kevin Odie’s testimony at trial was untruthful

because he said that no promises or deals had been made with him prior to his testimony

in Petitioner’s case. Petitioner asserted that Mr. Odie failed to acknowledge at trial that

his bond had been significantly reduced in exchange for agreeing to work for police,

which Petitioner said that he found out by reading this Court’s opinion in State v. Travis

Lindsey, M2015-01954-CCA-R3-CD, 2016 WL 5937835 (Tenn. Crim. App. Oct. 12,

2016). As mentioned in that opinion, Officer Gray testified on cross-examination that

Mr. Odie had pending charges for selling drugs and that Mr. Odie contacted police with

information related to purchasing cocaine. As a result of his cooperation with police, Mr.

Odie’s bond was reduced on April 5, 1012, from $100,000 to $2,500. Officer Gray

admitted that Mr. Odie’s bond was reduced in order for him to help the police. He also

agreed that “an informant who testified at trial generally received more consideration

than one who remained confidential.” Id. at *2.

Petitioner asserted at the post-conviction hearing that the State should have

corrected Mr. Odie’s perjured testimony at his trial. He further asserted that the State

knew that “deals” had been made with Mr. Odie, and Petitioner’s trial counsel should

have known. Petitioner believed that Mr. Odie’s dishonesty on the witness stand about

the bond reduction was one of Petitioner’s “greatest arguments” on post-conviction and

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would have affected the outcome of his case. Petitioner was aware that Mr. Odie

ultimately pled guilty in his own case and received a two-year suspended sentence.

On cross-examination, Petitioner agreed that he had several drug convictions and a

conviction for unlawful possession of a firearm on his record. All of the drug convictions

involved possession of cocaine with intent to sell or the sale of cocaine.

Petitioner testified that his discussions with trial counsel went in circles, and trial

counsel told him that he might be able to get him a better deal if given more time. He

also claimed that trial counsel told him that he did not feel as though he could ever win

Petitioner’s case. Petitioner testified that the State’s plea offer was for the minimum

sentence of “[e]ight years at 100 percent.” He said that trial counsel did not explain the

elements of the crime that he was charged with but he explained the sentencing range for

the crimes. Petitioner thought that he faced a potential sentence of thirty-six years if

convicted.

Petitioner testified that in the case of State v. Travis Lindsey, Officer Gray testified

that Mr. Odie’s bond reduction was “part of a deal.” He said:

Then Kevin O[die] further testified and agreed with Officer Gray saying

that this was part of a deal. So I automatically assumed that my lawyer

should have knew [sic] about this deal and should have br[ought] this

deal to me. That could have also made me, I don’t want to go to trial,

I’m going to go ahead and take this deal. But I wouldn’t have d[one]

none of that with my lawyer telling me you’re going to give me a better

deal.

Petitioner testified that during Petitioner’s trial, trial counsel asked Mr. Odie if any deals

or promises had been made to him, and Mr. Odie said no.

Trial counsel testified that he met with Petitioner after being appointed to

represent him. He went over each element of the offense with Petitioner and told him

that the State would be required to prove each element beyond a reasonable doubt. Trial

counsel testified that given the evidence in discovery, Petitioner had a very good chance

of being found guilty at trial. Trial counsel did not have a plea offer from the State at the

time. Trial counsel testified that the State eventually made a plea offer, and trial counsel

timely communicated the offer to Petitioner. He agreed that there were scheduling orders

used in Petitioner’s case, and there was a plea or settlement deadline in the case. Trial

counsel testified that he communicated any plea offers to Petitioner prior to the plea or

settlement deadline. He further testified that he spoke with Petitioner about the settlement

deadline. Trial counsel asserted: “And that’s really one of the main points that I spoke to

[Petitioner] about.” He never advised Petitioner not to worry about the original plea offer

because he was going to obtain a better offer. However, trial counsel testified:

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I did talk to him about the possible better offer. I told [Petitioner] the

offer, which was eight years at 100 percent. And it was a 100 percent

sentence because it was within a thousand feet of Fairfield (sic) Park.

And like I said a while ago, I went over each element of that offense

with him. I told him that, look, we have got a plea deadline date. That is

what is on the table. You don’t mess with Judge Hargrove when it

comes to plea deadlines. You will go to trial if you don’t get it done.

He was - - and I was very sympathetic to him. He was very concerned

about his little girl, I believe, that he had just had. And he - - he was

very immersed in that really more so than his case. And I have never

been in his position. I can certainly understand that. But he was, no, I

just can’t leave my little girl. And I told him, I said, look, the minimum

time that you can get if you go to trial is eight years at 100 percent. That

is if Judge Hargrove decides, if you are convicted of all three, that is if

Judge Hargrove decides to run each of the offenses together, run them

concurrently, and sentence you to the lowest number of years within the

range, which is eight years. I said the worse [sic] case scenario would be

for you to be sentenced to 12 years on each offense.

* * *

And Judge Hargrove ran them consecutively. And I said, given your

prior background, given your criminal history, and given Judge

Hargrove’s reputation as a tough judge, fair but tough, she might do that.

And I urged [Petitioner] to think about his daughter in the manner of,

you know, if you want to see your daughter, you know, you might want

to take this plea. You have an opportunity to knock of[f] 15 percent and

get it down to 85 percent for which he would have to serve. I said if you

go to trial and you are convicted and the worst happens, you won’t ever

see your daughter grow up.

Trial counsel testified that he did not place Petitioner’s rejection of the plea offer

in writing. He asserted that he last discussed the plea offer with Petitioner and reminded

him of the plea deadline during a visit with Petitioner at the Turney Center prison. Trial

counsel testified:

I said, what I had told him at first, as I testified earlier, was that, okay,

this is your plea deadline. This is your plea offer; however, you need to

look at this as concrete. This, you have to do this if you want to

guarantee and lock in this plea offer, if Judge Hargrove would have

accepted it. I believe Her Honor would have. But I can try to get them

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to take the within 1,000 feet of a park, or whatever, off because

anywhere you go in this town you are within 1,000 feet of a park or a

school or a church or somewhere. And there is nowhere you could sell

drugs in this town and not be within a thousand feet of something like

that, just about.

On cross-examination, trial counsel agreed that he filed a motion to withdraw as

Petitioner’s counsel. A portion of the motion contained the following language:

Undersigned counsel received an offer from Assistant District Attorney

Brent Cooper and undersigned counsel conveyed that offer to the

defendant and told the defendant that this Court required defendants to

accept and enter into plea agreements roughly one month prior to the

scheduled trial date. Undersigned counsel further explained to the

defendant that if a criminal defendant did not so timely enter into a plea

agreement, that this Court would only allow such a defendant to either,

one, plead guilty to all charges in the indictment and have a subsequent

sentencing hearing, in other words a blind plea, or have a jury trial.

Trial counsel testified that he explained the scheduling order, which contained the plea

deadline date, to Petitioner.

Analysis

Before proceeding into the analysis of Petitioner’s appellate issues, it is necessary

to set forth that Petitioner’s counsel, who wrote Petitioner’s brief and ably presented oral

arguments in Petitioner’s case, was appointed by this court to represent Petitioner. The

appointment was necessary when Petitioner’s initial post-conviction counsel was allowed

to withdraw as Petitioner’s counsel pursuant to a motion filed in this court. All of

Petitioner’s complaints about post-conviction counsel discussed in this opinion refer to

Petitioner’s initial counsel and not to counsel currently representing Petitioner.

Initially, the State argues that Petitioner’s notice of appeal is a “nullity” because he

filed his pro se notice of appeal while still represented by counsel, and therefore, his

appeal is not properly before this court. It has long been the rule that a defendant may

not be represented by counsel and simultaneously proceed pro se. State v. Davis, 141

S.W.3d 600, 615-16 n. 12 (Tenn. 2004); State v. Burkhart, 541 S.W.2d 365, 371 (Tenn.

1976). However, as acknowledged by the State, Tenn. R. App. P. 4 provides that “in all

criminal cases the ‘notice of appeal’ document is not jurisdictional, and the filing of such

document may be waived in the interest of justice. Tenn. R. App. P. 4 (a). “In

determining whether waiver is appropriate, this [c]ourt will consider the nature of the

issues presented for review, the reasons for and the length of the delay in seeking relief,

and any other relevant factors presented in the particular case.” Gerry Hoover v. State,

-9-

No. M2011-02413-CCA-R3-PC, 2012 WL 4841608, at *3 (Tenn. Crim. App. Oct. 10,

2012).

In his reply brief, Petitioner asserts that the reason for filing a pro se notice of

appeal was because of the “extremely poor communication between he and his initial

post-conviction counsel as demonstrated throughout the record.” This is supported by the

record. As pointed out by Petitioner in his reply brief, initial post-conviction counsel

made the following statement at the post-conviction hearing: “And I will be the first to

admit, [Petitioner], and I think I said this on the record before, certainly has a decent

claim that I had not communicated well with him.” Petitioner’s initial post-conviction

counsel also filed a motion to withdraw as counsel after the pro se notice of appeal was

filed indicating that initial post-conviction counsel was unable to continue to maintain his

legal practice. His motion states the following:

As a direct and proximate result of the unceasing, unmitigated and

utterly unmanageable requirements of attorney time and money

necessarily expended by undersigned counsel stemming from the

unrelenting and continuous appointment(s) of undersigned counsel

(often in direct contravention of Tennessee Supreme Court Rule 13) to

indigent defendants throughout the 22nd Judicial District and beyond;

your undersigned counsel is no longer able to maintain a legal practice.

We note that Petitioner’s notice of appeal in this case, if such a filing was

appropriately filed by counsel, was timely. The order denying Petitioner’s petition for

post-conviction relief was filed on July 2, 2018, and Petitioner’s pro se notice of appeal

was filed on July 12, 2018. Because the pro se notice of appeal was timely filed, and due

to the lack of communication between Petitioner and his initial post-conviction counsel,

we waive the timely filing of the notice of appeal in the interest of justice. Gerry Hoover,

2002 WL 4841608, *3; see also State v. Markettus L. Broyld, No. M2005-00299-CCA-

R3-CO, 2005 WL 3543415, at *1 (Tenn. Crim. App. Dec. 27, 2005).

To obtain post-conviction relief, a petitioner must prove that his or her conviction

or sentence is void or voidable because of the abridgement of a right guaranteed by the

United States Constitution or the Tennessee Constitution. T.C.A. § 40-30-103

(2019); Howell v. State, 151 S.W.3d 450, 460 (Tenn. 2004). A post-conviction petitioner

bears the burden of proving his or her allegations of fact by clear and convincing

evidence. T.C.A. § 40-30-110(f) (2019); Dellinger v. State, 279 S.W.3d 282, 293-94

(Tenn. 2009). “Evidence is clear and convincing when there is no serious or substantial

doubt about the correctness of the conclusions drawn from the evidence.” Grindstaff v.

State, 297 S.W.3d 208, 216 (Tenn. 2009) (quoting Hicks v. State, 983 S.W.2d 240, 245

(Tenn. Crim. App. 1998)).

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The right to effective assistance of counsel is safeguarded by the Constitutions of

both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.

art. I, § 9. When a claim of ineffective assistance of counsel is made, the burden is on the

petitioner to show (1) that counsel’s performance was deficient and (2) that the

deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687

(1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). Failure to satisfy either

prong results in the denial of relief. Strickland, 466 U.S. at 697. Accordingly, if we

determine that either factor is not satisfied, there is no need to consider the other

factor. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007) (citing Carpenter v. State, 126

S.W.3d 879, 886 (Tenn. 2004)). Additionally, review of counsel’s performance “requires

that every effort be made to eliminate the distorting effects of hindsight, to reconstruct

the circumstances of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.” Strickland, 466 U.S. at 689; see also Henley v. State,

960 S.W.2d 572, 579 (Tenn. 1997). We will not second-guess a reasonable trial strategy,

and we will not grant relief based on a sound, yet ultimately unsuccessful, tactical

decision. Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).

The deficient performance prong of the test is satisfied by showing that “counsel’s

acts or omissions were so serious as to fall below an objective standard of reasonableness

under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)

(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).

The prejudice prong of the test is satisfied by showing a reasonable probability that “but

for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694. A reasonable probability is a “probability

sufficient to undermine confidence in the outcome” of the trial. Id. The stronger the

proof of guilt presented at trial, the more difficult it is to prove the prejudice prong

of Strickland. When proof of guilt is overwhelming, proving prejudice is exceedingly

difficult. See Proctor v. State, 868 S.W.2d 669, 673 (Tenn. Crim. App. 1992); Randy

Bray v. State, No. M2011-00665-CCA-R3-PC, 2012 WL 1895948, at *6 (Tenn. Crim.

App. May 23, 2012) (finding that, in light of overwhelming evidence, petitioner could not

demonstrate prejudice); Raymond E. McNeil v. State, No. M2010-00671-CCA-R3-PC,

2011 WL 704452, at *6 (Tenn. Crim. App. Mar. 1, 2011) (finding that overwhelming

evidence of guilt precluded showing of prejudice from admission of item of evidence at

trial).

Petitioner first argues that trial counsel rendered deficient performance by failing

to inform him of the deadline set by the trial court for accepting the State’s plea offer.

The post-conviction court summarized the evidence presented at the post-conviction

hearing concerning this ground and concluded:

The Court finds [trial counsel] to be a knowledgeable attorney,

experienced in criminal law and procedure. The Court finds his

testimony credible. The Court has no doubt that [trial counsel] explained

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to [Petitioner] the deadline for accepting a plea agreement and entering a

plea.

Also, the Court is not aware that it is bound or compelled to accept any

plea agreement tendered to it.

The deadline for tendering a plea ran; the case was docketed for trial;

and [Petitioner] was convicted. Now, it appears to the Court that

[Petitioner] wishes he had accepted the plea agreement.

The record in this case does not preponderate against the post-conviction court’s

factual findings. At the post-conviction hearing, trial counsel testified that he timely

communicated the State’s plea offer to Petitioner, and he informed Petitioner that there

was a settlement date in the case. Trial counsel asserted: “And that’s really one of the

main points that I spoke to [Petitioner] about.” He noted that he later spoke with

Petitioner during a visit at the Turney Center prison about the plea offer and reminded

him of the plea deadline. Trial counsel’s testimony is supported by the trial court’s

scheduling order, issued the day after arraignment, which specifically set a deadline for

the acceptance of plea offers. Additionally, trial counsel’s motion to withdraw contains

the following language: