Assigned on Briefs April 11, 2017
from the Criminal Court for Shelby County No. 11-03600 James
M. Lammey, Judge
Zachary Carlisle, was convicted of voluntary manslaughter and
employing a firearm during the commission of a dangerous
felony and received an effective sentence of thirty years,
all of which was affirmed on direct appeal. State v.
Zachary Carlisle, No. W2012-00291-CCA-R3-CD, 2013 WL
5561480, at *1 (Tenn. Crim. App. Oct. 7, 2013), perm.
app. denied (Tenn. Mar. 17, 2014). Petitioner
subsequently filed a petition for post-conviction relief,
alleging ineffective assistance of counsel and prosecutorial
vindictiveness. The post-conviction court denied relief after
a hearing. We affirm the denial of post-conviction relief.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Timmerman, Memphis, Tennessee, for the appellant, Zachary
Herbert H. Slatery III, Attorney General and Reporter;
Jeffrey D. Zentner, Assistant Attorney General; Amy P.
Weirich, District Attorney General; and Gavin Smith,
Assistant District Attorney General, for the appellee, State
Timothy L. Easter, J., delivered the opinion of the court, in
which Alan E. Glenn and J. Ross Dyer, JJ., joined.
TIMOTHY L. EASTER, JUDGE
and Procedural Background
eight years ago, Petitioner killed Neal Krauss. He was
indicted for voluntary manslaughter and employing a firearm
during the commission of a dangerous felony as a result of
his role in a drug deal gone wrong. Id. at *2-3. The
facts underlying Petitioner's conviction indicate that
the victim arranged to purchase drugs from Petitioner but did
not have enough money for the transaction. Id. at
*2. On the way to meet Petitioner, the victim tore a green
paper flyer into strips and wrapped a dollar bill around it
to create a fake wad of money. Id. When Petitioner
realized that he was being duped, he pulled a gun on the
victim. Id. at *3. A brawl ensued between Petitioner
and the victim during which the victim was shot. Id.
The victim died shortly thereafter. After a jury trial,
Petitioner was convicted of both offenses. Id. at
*1. The trial court sentenced Petitioner to consecutive
fifteen-year sentences for the convictions. Id.
counsel failed to file a timely motion for new trial.
Id. at *19. On appeal, Petitioner challenged the
sufficiency of the evidence, the failure of the indictment to
charge an offense, the lack of a jury instruction on
self-defense, and the trial court's instruction that
Petitioner's statements could qualify as a confession.
Id. at *1. This Court affirmed the judgment of the
trial court, finding the evidence and indictment sufficient
and that plain error did not entitle Petitioner to relief for
the remaining issues. Id. The supreme court denied
permission to appeal.
Petitioner filed a lengthy pro se petition for
post-conviction relief. In the petition, he raised various
issues, including: (1) the failure of the State to provide
adequate notice of enhanced punishment; (2) the violation of
his Sixth Amendment right to a trial by jury due to the trial
court's use of enhancement factors; (3) the violation of
double jeopardy rights by dual convictions for voluntary
manslaughter and employing a firearm during the commission of
a dangerous felony; (4) the failure of the State to provide
evidence favorable to his defense; (5) the State's use of
perjured testimony; (6) ineffective assistance of counsel;
and (7) prosecutorial vindictiveness with regard to the
indictment of employment of a firearm. With regard to trial
counsel, Petitioner claimed that he was ineffective because
he failed to communicate plea offers, failed to discuss plea
offers and potential sentences with Petitioner, failed to
confer with Petitioner with regard to his defense, failed to
properly investigate witnesses, failed to object to jury
instructions, and failed to file a motion for new trial.
Petitioner attached several items to his petition for relief,
including an affidavit from trial counsel in which trial
counsel admitted that he did not timely file the motion for
new trial due to "an unexpected traumatic event"
that occurred at his office on the date the motion was set to
be filed. Petitioner also attached a copy of a complaint made
to the Tennessee Board of Professional Responsibility against
trial counsel by his mother.
post-conviction court appointed counsel and an amended
petition was filed. The amended petition incorporated the
allegations from the pro se petition and pointed to
additional deficiencies by trial counsel. The amended
petition also alleged that the State's decision to seek
an indictment for employing a firearm during the commission
of a dangerous felony after Petitioner decided to go to trial
amounted to a rebuttable presumption of prosecutorial
hearing on the post-conviction petition, the post-conviction
court heard testimony from an Assistant District Attorney
General in Shelby County. He was not originally assigned to
Petitioner's case but took over the case prior to trial.
He recalled that the State had "extended an offer of six
years" to Petitioner before he was involved in the case.
The "offer was just out there . . . kind of going back
and forth between counsel [for Petitioner and the
State]." He originally honored the offer but eventually
decided that the case had been "under-indicted"
based on the facts. Counsel for the State felt that the case
should have been indicted as second degree murder. After
examining the facts and becoming more familiar with the case,
the State decided to explore the option of an additional
indictment and, as a result, amended the offer "from six
years to 15 years at 60 percent." The State sought an
additional indictment on the firearm charge but denied
seeking the indictment as a result of Petitioner's
rejection of the plea deal. Counsel for the State evaluated
the facts, felt the State had a strong case, and determined
that the matter would eventually go to trial.
for the State recalled that witness Brian
Nelson contacted the State with information about
the incident. The State did not doubt Mr. Nelson's
version of the events, finding him to be "truthful"
despite the "considerable risks [he faced] to come
forward and testify" due to his perception as a
the Public Defender's Office represented Petitioner.
Substitute counsel was appointed to represent Petitioner in
May of 2010 after the Public Defender's Office was
removed due to a conflict of interest. She recalled
communicating the existing six-year offer to Petitioner and
he "decided to go to trial." Substitute counsel
recalled that the matter had been unsuccessfully resubmitted
for an indictment on second degree murder. Substitute counsel
recalled Petitioner rejected the offer in August of ...