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Nesbit v. State

Supreme Court of Tennessee, Jackson

November 14, 2014


Session Heard at McKenzie April 10, 2014. [1]

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Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals Affirmed; Case Remanded to the Trial Court. Appeal by Permission from the Court of Criminal Appeals Criminal Court for Shelby County. No. P21818. Chris Craft, Judge.

Marty B. McAfee and Gerald Skahan, Memphis, Tennessee, for the appellant, Clarence Nesbit.

Robert E. Cooper, Jr., Attorney General and Reporter; Gordon W. Smith, Associate Solicitor General; James E. Gaylord, Assistant Attorney General; Amy P. Weirich, District Attorney General; and John Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.

SHARON G. LEE, C.J., delivered the opinion of the Court, in which JANICE M. HOLDER, CORNELIA A. CLARK, GARY R. WADE, and WILLIAM C. KOCH, JR., JJ., joined.



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The issue presented is whether the defendant is entitled to a new trial based on ineffective assistance of counsel. A Shelby County jury convicted the defendant of first degree premeditated murder and sentenced him to death. Following unsuccessful appeals, the defendant filed for post-conviction relief on the grounds of ineffective assistance of counsel. The post-conviction court granted the defendant a new sentencing hearing, but denied him a new trial on the murder conviction. A majority of the Court of Criminal Appeals affirmed, holding that any deficiency in trial counsel's performance at the guilt phase did not result in prejudice. We hold that the defendant has not proven by clear and convincing evidence a reasonable probability that, but for the deficient performance of his trial counsel, the result would have been different. We affirm the judgment of the Court of Criminal Appeals and remand the case to the trial court for a new sentencing hearing.



On the afternoon of May 20, 1993, nineteen-year-old Clarence Nesbit (" the Defendant" ) shot and killed twenty-year-old Miriam Cannon (" the victim" ) in her apartment in Memphis. The Defendant and the victim, who had known each other for about a month, had a romantic relationship. The Defendant was arrested and charged with first degree murder. In 1995, a Shelby County jury convicted him of first degree murder and sentenced him to death. His conviction and sentence were affirmed on appeal. State v. Nesbit, 978 S.W.2d 872, 877 (Tenn. 1998); State v. Nesbit, No. 02C01-9510-CR-00293, 1997 WL 194864, at *21 (Tenn. Crim. App. Apr. 22, 1997).

In 1999, the Defendant timely filed a petition for post-conviction relief. He subsequently

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amended and supplemented the petition. The Defendant asserted that his trial counsel had provided ineffective assistance by failing to adequately investigate, prepare, and present certain evidence at trial and by failing to timely convey to him a plea offer. Between May 19, 2003, and December 19, 2006, the post-conviction court conducted evidentiary hearings. By order entered September 9, 2009, the post-conviction court ruled that the Defendant was not entitled to post-conviction relief as to the murder conviction, but was entitled to a new sentencing hearing based on ineffective assistance of counsel. Both parties appealed; the State dismissed its appeal.

A majority of the Court of Criminal Appeals affirmed the post-conviction court's decision. Nesbit v. State, No. W2009-02101-CCA-R3-PD, 2013 WL 1282326, at *63 (Tenn. Crim. App. Mar. 28, 2013). Judge Joseph M. Tipton dissented, expressing the view that trial counsel's deficient investigation and trial preparation were prejudicial and warranted a new trial. Id. at *64-68 (Tipton, P.J., dissenting). We granted the Defendant's application for permission to appeal.



The Post-Conviction Procedure Act, Tenn. Code Ann. § § 40-30-101 to -122 (2012), provides that relief " shall be granted when the conviction or sentence is void or voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of the United States," id. § 40-30-103. A claim of ineffective assistance of counsel is a mixed question of law and fact. Calvert v. State, 342 S.W.3d 477, 485 (Tenn. 2011) (citing Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009); State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn. 2001)). A defendant seeking post-conviction relief has the burden of proving his or her factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f); see also Calvert, 342 S.W.3d at 485 (citing Grindstaff, 297 S.W.3d at 216). The factual findings of a post-conviction court are conclusive on appeal unless the record preponderates against them. Tenn. R. App. P. 13(d); Mobley v. State, 397 S.W.3d 70, 80 (Tenn. 2013) (citing Dellinger v. State, 279 S.W.3d 282, 294 (Tenn. 2009); Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006)). However, appellate review of a post-conviction court's conclusions of law is de novo with no presumption of correctness. Mobley, 397 S.W.3d at 80; Smith v. State, 357 S.W.3d 322, 336 (Tenn. 2011) (citing Calvert, 342 S.W.3d at 485)).

Both the United States Constitution and Tennessee Constitution provide for the assistance of counsel to criminal defendants. U.S. Const. amend. VI; Tenn. Const. art. I, § 9. These constitutional provisions guarantee not simply the assistance of counsel, but rather the reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Baxter v. Rose, 523 S.W.2d 930, 934-36 (Tenn. 1975). Counsel's representation is constitutionally ineffective when it " so undermine[s] the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686.

In order to prevail on a claim of ineffective assistance of counsel, a defendant must establish both (1) that counsel's performance was deficient and (2) that such deficient performance prejudiced the defense. Id. at 687; Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996). Thus, to prevail on a claim of ineffective assistance of counsel, a defendant must prove both deficient performance and prejudice,

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and a court need not address both concepts if the defendant fails to demonstrate either prong sufficiently. Strickland, 466 U.S. at 687; Goad, 938 S.W.2d at 370.

Establishing deficient performance requires " showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687; Mobley, 397 S.W.3d at 80. " Effective" counsel means the provision of advice or services is " within the range of competence demanded of attorneys in criminal cases." Baxter, 523 S.W.2d at 936 (quoting McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); see also Strickland, 466 U.S. at 687 ( " [T]he proper standard for attorney performance is that of reasonably effective assistance." ). The reasonableness standard is an objective one, measured by the professional norms prevailing at the time of the representation. Strickland, 466 U.S. at 678-88; Dean v. State, 59 S.W.3d 663, 667 (Tenn. 2001).

Proof of prejudice sufficient to establish constitutionally ineffective counsel is met by showing " a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; Goad, 938 S.W.2d at 370. When examining a conviction that occurred as a result of a trial, " the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Strickland, 466 U.S. at 695. A reasonable probability of being found guilty of a lesser charge also satisfies the prejudice prong of Strickland. Pylant v. State, 263 S.W.3d 854, 869 (Tenn. 2008).

The Strickland standard for determining whether a defendant received effective assistance of counsel applies during plea negotiations as well as during trial. Missouri v. Frye, 132 S.Ct. 1399, 1407-09, 182 L.Ed.2d 379 (2012); see also Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Accordingly, during the plea bargain process, as at all critical stages of the criminal process, counsel has the responsibility to render effective assistance as required by the Sixth Amendment. Frye, 132 S.Ct. at 1407-08; Harris v. State, 875 S.W.2d 662, 663, 665 (Tenn. 1994). " [A]s a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused." Frye, 132 S.Ct. at 1408. A fair trial does not correct trial counsel's deficient performance in failing to convey a plea offer because of " the reality that criminal justice today is for the most part a system of pleas, ...

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