Wesley H. Luthringer v. State of Tennessee

08/09/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 13, 2021
WESLEY H. LUTHRINGER v. STATE OF TENNESSEE
Appeal from the Circuit Court for Bedford County
No. 18086 PC Forest A. Durard, Jr., Judge
No. M2020-00503-CCA-R3-PC
The petitioner, Wesley H. Luthringer, appeals the denial of his petition for post-conviction
relief, which petition challenged his convictions of aggravated vehicular homicide, alleging
that the trial court erred by denying his motion for new counsel and that he was deprived
of the effective assistance of trial counsel. Discerning no error, we affirm the denial of
post-conviction relief.
Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and CAMILLE R. MCMULLEN, J., joined.
Jonathan Brown, Fayetteville, Tennessee, for the appellant, Wesley H. Luthringer.
Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Assistant
Attorney General; Robert J. Carter, District Attorney General; and Mike Randles, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
The Bedford County Grand Jury charged the petitioner with two counts of
vehicular homicide and four alternative counts of aggravated vehicular homicide for the
deaths of Ronald Neely, Jr. and Donald Lazas III. State v. Wesley Howard Luthringer, No.
M2016-00780-CCA-R3-CD, slip op. at 1-2 (Tenn. Crim. App., Nashville, Feb. 6, 2017).
The evidence presented at trial showed that on February 24, 2014, the
petitioner was driving a Kia Sedona minivan in which Mr. Neely and Mr. Lazas were
passengers along Highway 82 East in Bedford County, when the vehicle made a “‘sudden
jerk to the right,’” crossed the center line[,] and “began sliding and created tire marks.”
Id., slip op. at 3-4. The vehicle created a “gouge area” in the ground, “became airborne[,]
and traveled approximately [22] feet before hitting three trees and coming to a stop.” Id.,
slip op. at 4. While airborne, the vehicle rotated causing the hood and roof of the vehicle
to hit the side of a tree approximately eight feet from the ground. Id. The petitioner was
found pinned in the driver’s seat, wearing a seatbelt and “wedged between the steering
wheel and the dash.” Id., slip op. at 2. One deceased victim was found “on the roof of the
vehicle,” and the other deceased victim was found “‘partially ejected [lying] prone . . . in
the dirt with the vehicle crushed on top of him.’” Id. (first alteration in original). A strong
smell of alcohol emanated from the petitioner’s person. Id., slip op. at 2-3. First responders
found beer cans around the outside of the vehicle, and, when the van was rolled to its
upright position, “beer cans rolled out of the vehicle.” Id. The petitioner’s blood test—
performed after he had been administered saline, which “‘could [have] potentially dilute[d]
the blood alcohol [content]’”—revealed a blood alcohol content of 0.21. Id., slip op. at 6
(alterations in original).
The jury convicted the petitioner as charged, and the trial court merged the
appropriate offenses. After a sentencing hearing, the trial court sentenced the petitioner to
an effective 48-year sentence. On appeal, this court affirmed the petitioner’s convictions
and sentence. Id., slip op. at 1-11.
In April 2017, the petitioner filed a timely pro se petition for post-conviction
relief. After the appointment of counsel, the petitioner filed an amended petition.1
The petitioner was represented by two attorneys at trial.2 Both attorneys were
subpoenaed to appear for an evidentiary hearing, but co-counsel was unable to appear due
to health issues. The post-conviction court continued the hearing and permitted the
petitioner to take co-counsel’s testimony by deposition. The petitioner attempted to do so,
but co-counsel’s health had deteriorated to a point that he was unable to participate in a
deposition. At the time of the October 2019 evidentiary hearing, the petitioner had been
unable to depose co-counsel, and the evidentiary hearing proceeded without his testimony.
At the evidentiary hearing, the petitioner testified that trial counsel and co-
counsel represented him at trial and that “they were always together” when he spoke with
them. He was incarcerated in Henning prior to his trial, and his attorneys came to see him
only once, “[n]ot long before trial,” staying only “[f]ive minutes maybe.” During that five-
minute meeting, counsel told him that the case was going to trial and that “‘it pretty much
1
Present counsel is the third attorney appointed to the petitioner’s post-conviction proceedings.
Through counsel, the petitioner filed three amended post-conviction petitions, the final of which
incorporated by reference the entirety of the original pro se petition. Consequently, the post-conviction
court considered only the claims raised in the pro-se petition and the final amended petition.
2
Because only one trial attorney testified at the evidentiary hearing, we will refer to the testifying
attorney as “trial counsel” and the non-testifying attorney as “co-counsel.”
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looks like they’ve got you.’” The petitioner said that he came to court several times leading
up to his trial and that he met with counsel on those dates but that those meetings were
“[n]ot long.” He acknowledged that counsel had told him that the State had offered a plea
agreement with a 40-year sentence with a “high percentage” to serve before release
eligibility but said that he “quickly refused that” and that they did not discuss making a
counteroffer. The petitioner denied that counsel discussed trial witnesses, trial preparation,
or a defense strategy with him, stating that “[t]here was no strategy.” He said that counsel
never discussed with him whether he was driving the vehicle at the time of the wreck but
that they just “said it looks like I was.” He explained that he sustained “a bad brain injury”
in the accident and that he did not “remember anything.”
The petitioner testified that counsel sent him only part of the discovery
materials, consisting of autopsy and medical reports and that neither attorney reviewed the
materials with him. As to “[p]retty much” all trial exhibits, including “[s]ome diagrams
and some pictures and reports,” the petitioner said that he “[n]ever saw them until trial.”
He testified that, at a pretrial hearing on June 15, 2015, he “was trying to fire my attorneys”
because “they hadn’t worked. They hadn’t tried to do anything for me.” He told the trial
court that he was aware that counsel had received “over 400 pages” of documents in
discovery materials but that they had sent him only 20 pages. The petitioner said that
before trial, he did not think that he had been driving the vehicle at the time of the crash
and said that if counsel had reviewed the discovery materials with him and had shown him
the photographs indicating that he was driving, he would have given a plea offer greater
consideration. Instead, he “thought I was innocent when I went to trial.”
The petitioner averred that counsel failed to object to the State’s asking
leading questions during direct examination of witnesses at trial. The petitioner believed
that the State “was coaching the witnesses to get the answers he wanted out of them.” He
said that counsel also failed to object to the State’s indicating by its questions certain facts
that were not in evidence. He testified that co-counsel relied on the eighth edition of the
Tennessee Pattern Jury Instructions whereas the trial court relied on the 19th edition and
that co-counsel’s failure to stay up to date on the law concerned him.
During cross-examination, the petitioner acknowledged that counsel mailed
him some discovery materials but denied that those materials included the diagrams or
reports from the Critical Incident Response Team’s investigation. He conceded that he
received copies of the victims’ autopsy reports and the medical records from his treatment
after the accident but said that counsel did not point out to him the portion of the medical
report that indicated that he was removed from the driver’s seat of the vehicle. He
reiterated that “nobody ever went over anything with me.” The petitioner acknowledged
that he wrote a letter to co-counsel on July 5, 2015, in which he stated that he wanted
counsel “to find out who made these medical statements I found, and have them supena’d
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[sic] to court.” The petitioner said that, because of his brain injury, his “short term memory
is gone” and that he could not remember to what medical statements he was referring in
the letter. He denied that counsel pointed out to him the statements in the medical reports
that indicated that he had been driving. He said that he did not know until trial that the
State had two witnesses to testify that he was removed from the driver’s seat at the scene
of the crash. The petitioner said that he “didn’t think I was driving until I went to trial”
and heard the evidence.
The petitioner acknowledged that his blood alcohol level was .21 at the time
of the crash but denied that counsel explained to him that his high blood alcohol content
and his prior DUI convictions allowed the State to charge him with aggravated vehicular
homicide rather than merely vehicular homicide. He testified that counsel explained to
him the elements of vehicular homicide but that they did not discuss the additional elements
of aggravated vehicular homicide. He also denied that they discussed the possible effect
of his prior DUI convictions on his sentences, stating, “I didn’t hear about that until
sentencing.” The petitioner acknowledged that it was possible that his not remembering
counsels’ explaining certain things to him was the result of his memory loss and not
because they failed to do so.
The petitioner acknowledged that in his July 2015 letter to co-counsel, he
asked co-counsel to work on a plea agreement in which he would plead guilty to vehicular
homicide if the State would agree to “drop the aggravated.” He also acknowledged that in
a June 2015 hearing, he told the trial court that he could not plead guilty because he could
not remember what happened the night of the crash. He reiterated that counsel did not
discuss any trial strategy with him but acknowledged that he could not provide counsel
with any helpful information about the night of the crash because of his memory loss. He
acknowledged that the State’s evidence would be hard for him to defend against but
suggested that there were other arguments that counsel could have made.
The petitioner said that counsel had not explained to him that each aggravated
vehicular homicide charge carried a potential sentence of 15 to 25 years. The petitioner
said that, had he known his sentencing exposure, he would have “[m]aybe” accepted a plea
offer but then said, “I thought I was innocent. I wouldn’t have took one year right then.”
He said that even knowing all of the evidence that the State presented at trial, he “probably
still wouldn’t have took” a plea offer and “would have still took it to trial probably.”
When pressed, the petitioner admitted that he looked at sentencing
information available in the facility where he was incarcerated pretrial and knew that
aggravated vehicular homicide was a Class A felony that carried a 15- to 25-year sentence
for a Range I offender. He reiterated, however, that counsel never discussed the matter
with him. He explained that he mentioned a best interest plea in his July 2015 letter to
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counsel because other inmates told him “these things to write and ask for.” He denied that
counsel discussed such a plea with him. He acknowledged that co-counsel had written him
a letter on July 23, 2015, in which co-counsel said that the State was considering his plea
offer but had not yet made a decision.
The petitioner took issue with counsels’ relying on an out-of-date edition of
the Tennessee Pattern Jury Instructions but acknowledged that they were not surprised by
the language of the jury instructions given by the court.
Trial counsel testified that he and co-counsel worked as a team on the
petitioner’s case. He could not recall a time that either attorney met with the petitioner
alone, saying, “I think we were both together about every time.” Trial counsel stated that
they met with the petitioner “numerous times” between his arraignment and trial. He
explained that he and co-counsel did not have delegated roles on the case but “just worked
on it as a team,” sharing equal responsibility.
Trial counsel testified that he and co-counsel sent the petitioner all of the
discovery materials, noting that initially, they had only the autopsy reports and “the general
discovery”; they did not receive the petitioner’s medical reports until sometime later. He
said that the petitioner’s medical records were given to the petitioner on June 17, 2015. He
emphasized that he and co-counsel discussed with the petitioner “everything involving the
case on numerous occasions.” Trial counsel said that they reviewed the petitioner’s
medical records and his medical condition and that the petitioner “told us numerous times
that he couldn’t remember anything about the brain damage . . . . And we went over with
him that he had a .21 BAC . . . .” Trial counsel also said that they discussed with the
petitioner that his medical records indicated that he was driving the vehicle but that the
petitioner indicated that he did not remember driving and “kind of waffled a little bit.”
Trial counsel testified that the petitioner raised the possibility of “a best
interest plea but he didn’t want to take 40 years. And so he said he didn’t feel like he could
plead guilty since the State wouldn’t come down any lower.” Counsel discussed a plea
offer with him pursuant to which the State offered 40 years at 30 percent release eligibility.
Trial counsel said that they investigated the petitioner’s suggestion that certain family
members could testify that he was not driving at the time of the crash but that two of those
witnesses did not have knowledge of the matter and a third witness saw Mr. Neeley drive
away in the vehicle prior to the crash but did not witness the crash. Counsel said that the
evidence indicated that the defendant was driving at the time of the crash.
Trial counsel testified that either he or co-counsel “grabbed what Pattern
Instructions we saw at the office” before going to trial unaware that they had taken an
outdated edition. He denied that their bringing the outdated edition to court had any impact
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on the trial because the trial court had an updated version on which the parties based their
discussion of the jury instructions.
Trial counsel said that they did not consider hiring expert witnesses because
“an expert is not going to be able to say if there was any sort of intervening cause. And
that was pretty much the only viable defense since he was driving the car.” He also said
that they argued at trial that an intervening event, such as a deer running in front of the
vehicle, could have been the cause of the accident, but he reiterated that an expert would
not have strengthened that argument.
Trial counsel explained that they did not object to the State’s using a
supervising doctor to admit the autopsy reports rather than the doctor who performed the
autopsies because “there’s case law that says that’s fine.” He also said that the cause of
death of the victims was not in question. Trial counsel said that the State did not ask leading
questions of witnesses on direct examination.
Trial counsel acknowledged that, in a June 2015 hearing, the petitioner raised
his dissatisfaction with the extent of counsels’ communication with him but said that they
“were talking to him about everything.” After that hearing, trial counsel and co-counsel
“made sure that we had sent everything to him and then . . . we s[aw] him at the jail while
he was here and went to see him in Henning and then saw him before trial.” Trial counsel
explained that it was not his practice to send all discovery materials to every client “because
some of them don’t want it.” Instead, it was his practice to fully discuss all of the materials
with the client but to send copies only if requested. Trial counsel said in this case, they
sent the petitioner the initial discovery materials and sent the remaining materials when the
petitioner asked for them.
During cross-examination, trial counsel testified that it could take a long time
to get certain discovery materials, “especially from hospitals because hospitals are
notoriously slow for giving information to either the State or Defense attorneys.” When
he and co-counsel met with the petitioner, they reviewed any discovery materials that they
had received since their last visit. Trial counsel said that it was his usual practice to meet
with a client after arraignment to “go over what the charge is, what level of punishment it
carries; talk about the elements; talk about the facts of the case.” He stated that he
explained to the petitioner his potential sentencing exposure. He recalled that the State
made a plea offer with an effective 40-year sentence but that the State was unwilling “to
budge very much at all” in this case.
Trial counsel said that the petitioner remembered “very little” about the night
of the accident because of his head injury. He reiterated that the potential witnesses
identified by the petitioner could not provide helpful information, noting that “there was
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no way to get around the fact that” the petitioner was “pulled . . . out from beneath . . . the
driver’s dashboard.” Trial counsel explained that calling an expert witness to testify about
the possible speed the petitioner was driving at the time of the crash would not have
benefited the defense because the evidence showed that the vehicle’s “brakes were not
locked up” and that “the vehicle went flying 20 feet in the air,” which indicated that it was
traveling “at a high rate of speed.” Trial counsel said that this was a case with a “lot of bad
evidence” against the petitioner and very little evidence supporting a defense.
Trial counsel also said that, because the petitioner could not remember
anything of the night of the crash, he could not enter an open plea because the trial court
would not accept a guilty plea if the petitioner could not admit guilt. Trial counsel testified
that they discussed the possibility of a best interest plea and that the petitioner was willing
to enter a best interest plea for a 15-year sentence, but the State did not agree.
Trial counsel said that the parties discussed the jury instructions with the trial
court. The court supplied the parties with copies of the intended jury instructions and asked
for the parties’ input. Trial counsel said that the court’s instructions were “up to date” and
followed the “most recent” edition of the pattern jury instructions. He did not find any
error in the court’s jury instructions.
Upon questioning by the court, trial counsel clarified that there was a
discussion about the correct language to use in the jury charge regarding circumstantial
evidence and that co-counsel favored out-of-date language, but the trial court used the
current language in the charge it gave to the jury.
At the close of the hearing, the post-conviction court took the matter under
advisement. In its written order denying relief, the post-conviction court found that the
petitioner had failed to establish that he was entitled to new counsel before trial or that his
defense at trial was prejudiced by the trial court’s denial of his motion for new counsel.
The post-conviction court concluded that counsel did not perform deficiently, finding that
the direct examination questions to which the petitioner asserts that counsel should have
objected were either not leading questions or, to the extent that they may have been leading,
were not suggestive of an answer and did not prejudice the petitioner’s trial. Further, the
post-conviction court concluded that the State properly admitted the victims’ autopsy
reports into evidence via a doctor who did not perform the autopsies. As to the petitioner’s
remaining claims, the post-conviction court concluded that the petitioner had failed to
establish prejudice.
In this timely appeal, the petitioner reasserts his claims that he was denied
his constitutional right to counsel at trial because the trial court denied his motion to appoint
new counsel and because he was deprived of the effective assistance of counsel at trial.
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We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “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.” T.C.A. § 40-30-103. A post-conviction petitioner bears
the burden of proving his or her factual allegations by clear and convincing evidence. Id.
§ 40-30-110(f). On appeal, the appellate court accords to the post-conviction court’s
findings of fact the weight of a jury verdict, and these findings are conclusive on appeal
unless the evidence preponderates against them. Henley v. State, 960 S.W.2d 572, 578-79
(Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997). By contrast,
the post-conviction court’s conclusions of law receive no deference or presumption of
correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).
Before a petitioner will be granted post-conviction relief based upon a claim
of ineffective assistance of counsel, the record must affirmatively establish, via facts
clearly and convincingly established by the petitioner, that “the advice given, or the
services rendered by the attorney, are [not] within the range of competence demanded of
attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and
that counsel’s deficient performance “actually had an adverse effect on the defense,”
Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, the petitioner “must
show that there is 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.” Id. at 694. Should the
petitioner fail to establish either deficient performance or prejudice, he is not entitled to
relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
. . . that course should be followed.” Strickland, 466 U.S. at 697.
When considering a claim of ineffective assistance of counsel, a reviewing
court “begins with the strong presumption that counsel provided adequate assistance and
used reasonable professional judgment to make all significant decisions,” Kendrick v.
State, 454 S.W.3d 450, 458 (Tenn. 2015) (citation omitted), and “[t]he petitioner bears the
burden of overcoming this presumption,” id. (citations omitted). We will not grant the
petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or
provide relief on the basis of a sound, but unsuccessful, tactical decision made during the
course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).
Such deference to the tactical decisions of counsel, however, applies only if the choices are
made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).
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Initially, we note that the petitioner’s claim that the trial court erred by
denying his pretrial motion for substitution of counsel qualifies as waived because the
petitioner did not present the issue as a ground for relief on direct appeal. See T.C.A. § 40-
30-106(g) (“A ground for relief is waived if the petitioner personally or through an attorney
failed to present it for determination in any proceeding before a court of competent
jurisdiction in which the ground could have been presented . . . .”); Brown v. State, 489
S.W.2d 268, 270 (Tenn. Crim. App. 1972) (“All trial questions are first determined in the
trial court. If the losing party chooses to accept that determination without appeal, it is as
final and binding as if affirmed by the highest appellate court.”).
To the extent that the petitioner argues that counsel was ineffective for failing
to raise the issue in the motion for new trial and on appeal, the petitioner has failed to show
that he was prejudiced by that omission. At a hearing in June 2015, the petitioner asked
the trial court to appoint new counsel because he alleged that trial counsel and co-counsel
had not spoken with him in a year and had not provided him with all discovery materials.
The trial court continued the trial to a later date because a superseding indictment was
issued and ordered the petitioner, who was incarcerated at the time, to be held locally for a
few days to allow his counsel time to meet with him and to review discovery materials.
Thus, the trial court addressed the petitioner’s concerns, albeit via an avenue other than
appointment of new counsel. Furthermore, as we will discuss more thoroughly below, the
petitioner’s attorneys were not ineffective, and, consequently, the petitioner cannot
establish that the trial court’s denial of his motion for new counsel prejudiced him at trial.
Here, the petitioner has failed to establish deficient performance by counsel
or that he was prejudiced by counsels’ representation. During the evidentiary hearing, the
petitioner testified that he did not understand his sentencing exposure or know that the
State’s evidence would show that he was driving the vehicle; however, the petitioner also
said that he learned of his sentencing exposure through means other than counsel and that,
even if he had known all of the relevant information during plea negotiations, he likely
would not have accepted a plea offer. Also, the petitioner asserts that his attorneys were
generally unprepared for trial as indicated by their use of an old edition of the Tennessee
Pattern Jury Instructions and co-counsel’s allegedly unprofessional conduct, but the
petitioner has failed to show what counsel could have done differently that would have
benefited his defense. Counsel investigated the meager leads that the petitioner was able
to provide, the trial court relied on a current edition of the Tennessee Pattern Instructions
in preparing the jury charge, and the petitioner has pointed to no specific evidence or trial
strategy that counsel could have discussed with him that would have achieved a different
outcome. That the petitioner may have been more confident in counsels’ representation
had they communicated with him more frequently and brought the current version of jury
instructions to court is irrelevant to the outcome of the trial.
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Furthermore, we agree with the post-conviction court that, to the extent that
the State asked leading questions on direct examination, the questions did not suggest
particular answers and did not rely on facts not yet in evidence. For example, the petitioner
alleges that Trooper Barry Qualls had not yet identified the petitioner as an occupant of the
vehicle when the State asked: “And you’ve indicated that this third person was the
[petitioner]?” The record reveals, however, that Trooper Qualls had already testified:
“When Mr. Story was in the vehicle checking for the pulse of Mr. Lazas, that’s when he
heard the [petitioner] moaning. That’s how we knew that there was a third person inside
the vehicle.” The State’s question did not go beyond confirming what Trooper Qualls had
already said. The only question that directly provided an answer for the witness was when
the State asked Trooper Qualls if one of the victims was from Sparta, Tennessee. Even if
counsel had objected to the use of this leading question, the name of victim’s hometown
had no bearing on the outcome of the trial.
As to counsel’s failure to object to the State’s offering the victims’ autopsy
reports into evidence via a supervising doctor, trial counsel testified that there was no legal
basis on which he could object. Our supreme court has held that an autopsy report may be
properly admitted through an appropriate expert witness other than the doctor who
performed the autopsy. See State v. Hutchison, 482 S.W.3d 893, 914-15 (Tenn. 2016).
Additionally, trial counsel indicated that he did not object to the admission of the autopsy
reports because the victims’ cause of death was not at issue. This is precisely the sort of
strategic decision left to the discretion of counsel.
Similarly, trial counsel testified that he did not call an expert witness because
he did not believe it to be beneficial to the defense. Again, this is a decision left to the
professional judgment of counsel, and we will not now second guess that strategy.
Moreover, because the petitioner failed to present at the evidentiary hearing the testimony
of the proposed expert witness, the petitioner has failed to establish that he was prejudiced
by counsels’ decision to forgo the use of an expert witness. See Black v. State, 794 S.W.2d
752, 757 (Tenn. Crim. App. 1990) (“When a petitioner contends that trial counsel failed to
discover, interview, or present witnesses in support of his defense, these witnesses should
be presented by the petitioner at the evidentiary hearing.”). Consequently, the petitioner
has failed to establish any instance of deficient performance by counsel.
Accordingly, the judgment of the post-conviction court is affirmed.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
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