Session March 7, 2017
from the Criminal Court for Shelby County No. 10-02597 Paula
petitioner, Carlos Smith, appeals the denial of
post-conviction relief from his 2012 Shelby County Criminal
Court jury convictions of attempted second degree murder,
aggravated assault, aggravated robbery, especially aggravated
burglary, employing a firearm during the commission of a
dangerous felony, and being a felon in possession of a
handgun, claiming that he was denied the effective assistance
of counsel at trial. Because the post-conviction court failed
to make any findings with regard to the petitioner's
claim that trial counsel did not properly inform him of his
potential sentencing exposure, we remand for the limited
purpose of making the requisite findings on this issue. In
all other respects, we affirm the judgment of the
R. App. P. 3; Judgment of the Criminal Court Affirmed in
B. Dougan, Jackson, Tennessee (on appeal), and Eugene
Belenitsky, Memphis, Tennessee (at hearing), for the
appellant, Carlos Smith.
Herbert H. Slatery III, Attorney General and Reporter;
Jeffrey D. Zentner, Assistant Attorney General; Amy P.
Weirich, District Attorney General; and Pamela Fleming Stark
and Sam Winnig, Assistant District Attorneys General, for the
appellee, State of Tennessee.
Curwood Witt, Jr., J., delivered the opinion of the court, in
which Thomas T. Woodall, P.J., and Robert L. Holloway, Jr.,
CURWOOD WITT, JR., JUDGE
Shelby County Criminal Court jury convicted the petitioner of
two counts each of attempted second degree murder and
aggravated assault, and one count each of aggravated robbery,
especially aggravated burglary, employing a firearm during
commission of a dangerous felony, and being a felon in
possession of a handgun, and the trial court imposed an
effective sentence of 120 years' incarceration. This
court affirmed the convictions on direct appeal. See
State v. Carlos Smith, No. W2012-01931-CCA-R3-CD (Tenn.
Crim. App., Jackson, Aug. 29, 2013), perm. app.
denied (Tenn. Jan. 15, 2014).
Carlos Smith, this court stated the facts of the
case as follows:
Late in the evening of November 2, 2009, the defendant, his
girlfriend, Kelsie Brunner, and his friend, Carl Hall,
decided to rob Reginald Milam. The defendant, Ms. Brunner,
and Mr. Hall proceeded to a local Wal-Mart, where Ms. Brunner
purchased two ski masks, a pair of gloves and a set of bolt
cutters. Ms. Brunner then drove the men to Mr. Milam's
residence. The defendant and Mr. Hall exited the vehicle,
wearing the ski masks rolled up on their heads to resemble
The defendant and Mr. Hall accosted George McColley, Jr., and
Richard Hardin, Mr. Milam's brother-in-law, as the two
gentlemen were returning to Mr. Milam's residence, where
they resided. The defendant and Mr. Hall, both of whom were
armed and wearing ski masks, forced Mr. McColley and Mr.
Hardin into the residence at gunpoint, demanding to see Mr.
Milam. In a back bedroom of the residence, the gunmen
encountered Mr. Milam, his wife, Lillian Hardin, and two of
the couple's grandchildren. The defendant held them all,
including Mr. McColley and Mr. Hardin, at gunpoint and
demanded money. Renell Hardin, Mr. Milam's and Mrs.
Hardin's adult daughter, heard the commotion and exited
her bedroom. When the defendant and Mr. Hall noticed her,
they forced her into the back bedroom at gunpoint. At some
point during the fracas, a struggle ensued, and the defendant
and Mr. Hall shot both Mr. Hardin and Mr. McColley. Mr.
McColley also managed to stab Mr. Hall in the back of the
neck. The defendant and Mr. Hall then fled the scene with
approximately $300 to $400 in cash, and they returned to Ms.
Brunner's vehicle. The defendant told Ms. Brunner that
"the people in the house weren't compliant, that
they got into a physical altercation and at that point [the
defendant] had to shoot them."
On April 15, 2010, the Shelby County grand jury issued an
11-count indictment against the defendant, Mr. Hall, and Ms.
Brunner, stemming from these criminal offenses. The defendant
was charged with two counts of attempted second degree murder
in the shootings of Mr. Hardin and Mr. McColley, and two
counts of aggravated assault against Mrs. Hardin and her
daughter, Renell Hardin. In addition, the defendant was
charged with the aggravated robbery of Mr. Milam, the
especially aggravated burglary of Mr. Hardin's residence,
employing a firearm during the commission of a dangerous
felony, and being a felon in the possession of a handgun.
The trial court conducted a jury trial in January 2012. Mr.
McColley, Mr. Hardin, Mrs. Hardin, Ms. Renell Hardin, and
Lajettie Pegues, one of Mr. Milam's and Mrs. Hardin's
daughters, all provided similar testimony about the events of
November 2-3, 2009. Ms. Brunner testified that she had been
charged with facilitation of especially aggravated robbery
for her role in the offenses and confirmed that she had been
convicted of the felony of reckless aggravated assault in
2008. Ms. Brunner denied that she had been offered a deal in
exchange for her testimony against the defendant. Christina
Lane with the Shelby County Criminal Court Clerk's Office
testified that the defendant was charged with aggravated
robbery in July 2000 and that he was ultimately convicted of
that crime. Immediately following Ms. Lane's testimony,
the trial court instructed the jury as follows:
Ladies and gentlemen, if from the evidence presented you find
that [the defendant] has been convicted of a prior crime you
can consider that evidence only for the purpose of its effect
on the count of the indictment that alleges that he is a
convicted felon in possession of a firearm. You are not to
consider it for any other purpose. It doesn't go to
whether he's guilty, or not guilty of any of the other
charges involved in any of the other counts of the
indictment. It is only being allowed to be presented to you
for the sole purpose of that particular count that alleges
that he has previously been convicted of a felony. ...