IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
September 5, 2001 Session
FRED EDMOND DEAN A/K/A OMAWALI ASHANTI SHABAZZ
v. STATE OF TENNESSEE
Appeal By Permission from the Court of Criminal Appeals
Circuit Court for Sullivan County
No. C40, 348 R. Jerry Beck, Judge
No. E1998-00135-SC-R11-PC - Filed October 30, 2001
We granted this appeal to determine whether the petitioner properly raised a claim of
ineffective assistance of counsel in a post-conviction proceeding when it was based upon the failure
of defense counsel to object to or appeal the trial court’s erroneous range of punishment instruction
to the jury on the offense of attempted second degree murder. We conclude (1) that the issue of
ineffective assistance of counsel was properly raised in the post-conviction proceeding and (2) that
defense counsel’s failure to object to or appeal the erroneous jury instruction fell below the range
of competence demanded of attorneys in criminal cases and was prejudicial to the petitioner. We
therefore affirm the judgment of the Court of Criminal Appeals.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals
Affirmed
E. RILEY ANDERSON, J., delivered the opinion of the court, in which FRANK F. DROWOTA, III, C.J.,
and ADOLPHO A. BIRCH, JR., JANICE M. HOLDER and WILLIAM M. BARKER, JJ., joined.
Richard L. Gaines, Knoxville, Tennessee, for the appellee, Fred Edmond Dean.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark E.
Davidson, Assistant Attorney General; Greeley Wells, District Attorney General; and Barry Staubus,
Assistant District Attorney General, for the appellant, State of Tennessee.
OPINION
The petitioner, Fred Edmond Dean, was convicted of second degree murder and attempted
second degree murder in 1995.1 The trial court sentenced Dean as a Range II multiple offender to
thirty years for the second degree murder conviction and fifteen years for the attempted second
degree murder conviction. The convictions and sentences were affirmed on direct appeal by the
Court of Criminal Appeals, and this Court denied permission to appeal.
Dean filed a petition for post-conviction relief in July of 1997, which alleged, among other
grounds, that Dean was denied his constitutional right to the effective assistance of counsel. The
asserted basis for the claim was that Dean’s trial and appellate counsel failed to object to or appeal
the following instruction to the jury with regard to the range of punishment for attempted first degree
murder and its lesser included offenses:
Attempt to Commit First Degree Murder, fifteen to forty years;
Attempt to Commit Second Degree Murder, three to ten years;
Attempt to Commit Voluntary Manslaughter; two to eight years;
Aggravated Assault, three to ten years; Assault, zero to eleven months
and twenty-nine days; Attempt to Commit Assault, zero to six
months.
The petition alleged that the instruction was error because it stated that the sentencing range for the
offense of attempted second degree murder was three to ten years, when in fact it was eight to thirty
years.2
At an evidentiary hearing, Dean’s trial counsel testified that he was unaware that the range
of punishment instruction was incorrect. Counsel also testified that he was unfamiliar with the
decision in State v. Cook, in which this Court held that a defendant was entitled to a new trial where
the jury was improperly informed that the possible penalties for the charged offense were lower than
they actually were. 816 S.W.2d 322, 326 (Tenn. 1991). Although Dean’s appellate counsel did not
testify at the post-conviction hearing, it is clear that this issue was not preserved in the motion for
a new trial, nor was it raised on direct appeal.
The trial court denied post-conviction relief on this ground after concluding that the
erroneous range of punishment instruction was a statutory error under Tenn. Code Ann. § 40-35-
201(b) and not a constitutional error that is cognizable in post-conviction proceedings. The Court
of Criminal Appeals reversed the trial court’s ruling after concluding that counsel’s failure to object
1
Dean was indicted for the offenses of first degree mu rder and a ttempt to co mmit first degree murder.
2
At the time of D ean’s trial, the relevant statu tory provisio n stated that “up on the mo tion of either pa rty
. . ., the court shall charge the possible penalties for the offense charged and all lesser included offenses.” Tenn. Code
Ann. § 40-35-201(b) (1997). Effective May 18, 1998 , this statute was rewritten and now provides that the trial court
may no longer instruct the jury with respect to the possible p enalties for the charged offense or lesser include d offenses.
See Tenn. C ode Ann . § 40-35 -201(b) (Supp. 2 000).
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to or appeal the issue violated the petitioner’s right to the effective assistance of counsel under the
United States and Tennessee Constitutions.
We granted this appeal to resolve this question and to clarify what acts or omissions may
serve as the basis for a post-conviction claim of ineffective assistance of counsel.
ANALYSIS
Post-Conviction Issues
Although the parties agree that the range of punishment charge to the jury with respect to the
offense of attempted second degree murder was error, the threshold issue is whether the petitioner
has raised an issue that is cognizable in a post-conviction proceeding. The Post-Conviction
Procedure Act 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.” Tenn. Code Ann. § 40-30-203 (1997).
The State argues that the trial court properly determined that the error violated a statutory
right which is not a cognizable ground for post-conviction relief and that an erroneous jury
instruction may not be challenged in a post-conviction proceeding. The State relies upon Overton
v. State, in which this Court affirmed the denial of post-conviction relief based on the trial court’s
improper instructions to the jury with respect to elements of the charged offense of aggravated rape.
874 S.W.2d 6 (Tenn. 1994).3 In particular, the State notes that this Court stated that “to allow every
error committed by the trial court to be recast in a post-conviction petition as an ineffective
assistance of counsel allegation would be to subvert the limited purposes of the post-conviction
procedure.” Id. at 12.
The defendant, on the other hand, argues that the failure of defense counsel to object to or
appeal the incorrect range of punishment instruction to the jury violated his right to the effective
assistance of counsel under the United States and Tennessee Constitutions. See State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999) (“Both the Sixth Amendment to the United States Constitution and
Article I, Section 9 of the Tennessee Constitution guarantee the criminally accused the right to
representation of counsel.”). The defendant maintains that the Court of Criminal Appeals correctly
distinguished Overton by finding that the language relied upon by the State was “cautioning against
the use of ineffective assistance of counsel as a mechanism for bringing otherwise improper issues
3
At the time Overton was convicted, rape was committed only if a defendant used “force” and a victim
“resisted in every way possible . . . .” The trial co urt, however, instructed the jury that “force or coercion” could be
established by the use of “parental, custodial, or official authority over a child less than fifteen years of age” – a statutory
definition that was not ap plicable at the time of the o ffense. We observed that the error “c ould have been instrum ental”
in securing the conviction because the defendant used his parental authority and not physical force in committing the
offenses. See Overton v. State 874 S.W.2d at 11.
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before the post-conviction courts” and was not “carving out a ‘failure to object to jury instructions’
exception to ineffective assistance of counsel claims.”
The Court of Criminal Appeals’ interpretation of Overton is correct. We did not state in
Overton that a post-conviction ineffective assistance of counsel claim may never be based on trial
counsel’s failure to object or appeal erroneous jury instructions. Nor did we adopt the view that an
ineffective assistance of counsel claim may only be based on counsel’s deficient performance
relative to a separate constitutional right. To the contrary, as the Court of Criminal Appeals stated,
the “abridgment of the constitutional right to the effective assistance of counsel does not require that
counsel’s act or omission involve a violation of another constitutional right.”
Our decisions following Overton illustrate that we have not adopted the unduly restrictive
view of ineffective assistance of counsel advocated by the State. In House v. State, the defendant
filed a post-conviction petition alleging that his trial counsel was ineffective for failing to seek the
identity of a confidential informant. 44 S.W.3d 508 (Tenn. 2001). This Court concluded:
We need not reach the issue of whether the right to disclosure is
constitutional. We are not presented with the question of whether
nondisclosure violated House’s constitutional rights. Rather, the
constitutional claim in this case is ineffective assistance of counsel
based on counsel’s failure to seek disclosure.
Id. at 513. Similarly, in Goad v. State, we held that trial counsel was ineffective for failing to
explore and present mitigating evidence in the sentencing phase of a capital trial and that the
deficiency was prejudicial to the petitioner. 938 S.W.2d 363 (Tenn. 1996). Our holding did
not require a finding that a defendant has a constitutional right to present mitigating evidence
separate and apart from the constitutional right to the effective assistance of counsel. Id. at 369.
Accordingly, we conclude that the constitutional right to effective assistance of counsel under
the United States and Tennessee Constitutions is a cognizable issue in post-conviction proceedings
irrespective of whether counsel’s alleged deficiency implicated a separate constitutional error, a
statutory error, a jury instructional error, or any other type of error or deficient performance. A
defendant has the constitutional right to the effective assistance of counsel without categorical
restrictions. We therefore hold that the petitioner properly raised the issue of his constitutional right
to the effective assistance of counsel in the petition for post-conviction relief.
Ineffective Assistance of Counsel
A constitutional claim of ineffective assistance of counsel is reviewed under the familiar
standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A petitioner must establish that counsel’s
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performance was deficient and that the deficiency prejudiced the defense. See Baxter, 523 S.W.2d
at 936; Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
Counsel is effective if the advice given or the services rendered are “within the range of
competence demanded of attorneys in criminal cases.” Baxter, 523 S.W.2d at 936. To prove a
deficiency, a petitioner must show that counsel’s acts or omissions were so serious as to fall below
an objective standard of “reasonableness under prevailing professional norms.” Strickland, 466 U.S.
at 688, 104 S. Ct. at 2065. To prove prejudice, a petitioner must establish a reasonable probability
that but for counsel’s errors the result of the proceeding would have been different. A “reasonable
probability is a probability sufficient to undermine confidence in the outcome.” 466 U.S. at 694, 104
S. Ct. at 2068.
Although we have never adopted an exhaustive list of criteria for counsel to satisfy in all
cases, we have cited with approval the duties and criteria set forth in the American Bar Association
Standards for the Defense Function. See Burns, 6 S.W.3d at 462. The following provisions are
relevant in this case:
Counsel must conduct appropriate investigations, both factual and
legal, to determine what matters of defense can be developed. . . .
This means that in most cases a defense attorney, or his agent, should
interview not only his own witnesses but also those that the
Government intends to call, when they are accessible. The
investigation should always include efforts to secure information in
the possession of the prosecution and law enforcement authorities.
And, of course, the duty to investigate also requires adequate legal
research.
Baxter v. Rose, 523 S.W.2d at 933 (quoting United States v. DeCoster, 487 F.2d 1197, 1203-04
(D.C. Cir. 1973)) (emphasis added).
In this case, the parties agree that the trial court’s instruction to the jury on the possible
penalties for attempted second degree murder was made in error. See Tenn. Code Ann. § 40-35-
201(b) (1997). In our view, effective counsel must be aware of the possible punishments applicable
to his or her client and must be informed and attentive when the trial court’s instructions to the jury
embrace such an obviously critical matter. Moreover, our decision in State v. Cook, which
emphasized that an erroneous range of punishment instruction similar to that given in this case
constitutes reversible error, was decided four years prior to the trial in this case and an effective
counsel should have been aware of it. See 816 S.W.2d 322 (Tenn. 1991).
Dean’s trial counsel nevertheless failed to notice the incorrect jury instruction, failed to be
aware of the appropriate ranges of punishment, failed to object to the erroneous instruction during
trial, and failed to preserve the erroneous instruction for appeal by listing it in the motion for a new
trial. Dean’s appellate counsel likewise failed to raise the issue on direct appeal. All of these
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functions are basic, yet essential, for preserving and raising errors under our rules of appellate
procedure. See Tenn. R. App. P. 3(e).4 In our view, therefore, the performance of counsel was
deficient under the prevailing standards in Baxter and Strickland.
Having concluded that there was a deficiency in the performance of counsel, the remaining
portion of the Baxter/Strickland analysis requires us to decide whether the deficiency was prejudicial
to the defense. To conclude that prejudice exists, we must determine that there is a reasonable
probability that but for counsel’s errors the result would have been different.
Applying this analysis, we believe that the deficiency in performance was prejudicial given
the critical nature of the error that was permitted to occur without objection or appeal. At the time
of this trial, Tenn. Code Ann. § 40-35-201(b) required that the jury know the range of punishment
for an offense before deciding a defendant’s guilt or innocence for the offense. As this Court
observed in Cook:
It is widely perceived by those who observed the operations of our
trial courts in previous times, when juries had the additional
responsibility of setting punishment, that often they seemed to find
guilt of a crime not necessarily most strongly suggested by the
evidence, but one the punishment for which suited their sense of
justice for the case. Apparently the Legislature desired to give those
charged with crimes the option of making certain that the jury knew
the punitive consequences of guilty verdicts in the cases under
consideration. . . .
Cook, 816 S.W.2d at 326-27.5 Moreover, we specified in Cook that prejudice occurs when a
defendant – like Dean – receives a sentence greater than the range of punishment contemplated by
the jury. See id. at 327.
In this case the jury was told by the trial judge that the applicable range of punishment for
the offense of attempted second degree murder was three to ten years when in fact it was eight to
thirty years. Moreover, the range applicable to Dean as a Range II multiple offender was twelve to
twenty years. See Tenn. Code Ann. § 40-35-112(b)(2) (1997). The jury therefore was furnished
with substantially inaccurate information that may have affected its deliberation when it considered
4
“[I]n all cases tried by a jury, no issue presented for review shall be predicated upon error in the
admission or exclusion o f evidence, jury instructions granted or refused, misconduct of jurors, parties or counsel, or other
action committed or occurr ing during the tria l of the case, or o ther ground upon whic h a new trial is sou ght, unless the
same was specifically stated in a motion for a new trial; otherwise, such issues will be treated as waived.” Tenn. R. App.
P. 3(e) (emphasis added).
5
W e later reaffirmed the rationale in Cook in holding that a trial court’s instruction to the jury containing
an inaccurate release eligibility date for the charged o ffense was reve rsible error. State v. Meyer, 994 S.W.2d 129 (Tenn.
1999).
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the charged offense and lesser offenses. Indeed, the jury was told that the punishment for attempted
second degree murder was identical to that for aggravated assault and nearly identical to that of
attempted voluntary manslaughter. Moreover, Dean was later sentenced by the trial judge to fifteen
years for the offense of attempted second- degree murder, i.e., a sentence greater than the punishment
contemplated by the jury for that offense. In our view, it is reasonably probable that had counsel
objected to and appealed the erroneous jury instruction, the result would have been different and the
petitioner would have received a new trial on the offense of attempted second degree murder under
our decision in Cook. Accordingly, we hold that the petitioner was prejudiced by the deficient
performance of counsel.
CONCLUSION
After consideration of the issues and applicable law, we conclude (1) that the issue of
ineffective assistance of counsel was properly raised in the post-conviction proceeding and (2) that
defense counsel’s failure to object to or appeal the erroneous jury instruction fell below the range
of competence demanded of attorneys in criminal cases and was prejudicial to the petitioner. We
therefore affirm the judgment of the Court of Criminal Appeals. Costs of appeal are taxed to the
State of Tennessee.
___________________________________
E. RILEY ANDERSON, JUSTICE
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