Larry Payne v. State of Tennessee

The petitioner, Larry Payne, was convicted by a jury of four counts of aggravated robbery, Class B felonies, against two victims. On direct appeal, the Court of Criminal Appeals merged the four convictions into two, one for each victim, and otherwise affirmed the judgments. The Tennessee Supreme Court declined discretionary review. The petitioner then brought this timely post-conviction petition, asserting various claims of ineffective assistance of counsel. The petitioner’s sole issue on appeal is whether he was denied the effective assistance of counsel due to his trial counsel’s failure to request a jury instruction on the lesser included offense of theft. After a thorough review of the record, we conclude that the petitioner has not established any prejudice resulting from his counsel’s failure to request a jury charge on the lesser included offense of theft. The petitioner’s failure to establish prejudice is fatal to his ineffective assistance claim. The judgment of the court below is affirmed.