James C. Breer v. State of Tennessee

The Appellant, James C. Breer, appeals the Henry County Circuit Court’s dismissal of his petition for post-conviction relief. On appeal, Breer argues that trial counsel was ineffective for (1) failing to investigate and prepare for trial, and (2) failing to advise him of his right to testify at trial in violation of Momon v. State, 18 S.W.3d 152 (Tenn. 1999). After review, we conclude that issue (1) is without merit. However, with regard to issue (2), we conclude that the record does not support the trial court’s finding that Breer personally waived his right to testify as required by Momon.  Moreover, because the procedural guidelines adopted in Momon for determining whether the error was harmless were not followed, we find it necessary to remand for resolution of this issue.