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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.

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