Bryan Kevin Thomas v. State of Tennessee

11/12/2026 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs August 19, 2026 BRYAN KEVIN THOMAS v. STATE OF TENNESSEE Appeal from the Circuit Court for Blount County No. C-26831 David Reed Duggan, Judge ___________________________________ No. E2025-01437-CCA-R3-PC ___________________________________ The Petitioner, Bryan Kevin Thomas, appeals the denial of post-conviction relief from his convictions for first degree felony murder and theft of property valued at more than $500, for which he received an effective sentence of life imprisonment. He contends that he received ineffective assistance of counsel because (1) Tennessee’s system for appointing and compensating counsel deprived him of effective representation; (2) trial counsel failed to request a recess or tell the State, during trial, that he wished to accept a plea offer; (3) trial counsel failed to request an evaluation of his competency or of a possible mental health defense; (4) trial counsel failed to adequately investigate Investigator Debuty’s termination and failed to seek suppression of the evidence handled by him; and (5) trial counsel failed to request a curative instruction after a witness referred to him by his nickname “Trouble.” He also contends that the cumulative effect of these errors entitles him to relief. Upon our review, we affirm the judgment of the post-conviction court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which ROBERT L. HOLLOWAY, JR., and TOM GREENHOLTZ, JJ., joined. C. John Chavis, Knoxville, Tennessee (on appeal); Ashley Bentley, Maryville, Tennessee (at trial), for the appellant, Bryan Kevin Thomas. Jonathan Skrmetti, Attorney General and Reporter; Ryan W. Davis, Assistant Attorney General; Ryan Desmond, District Attorney General; and Shari Tayloe, Matthew Dunn, and Tyler Parks, Assistant District Attorneys General, for the appellee, State of Tennessee. OPINION  A full recitation of the facts supporting the Petitioner’s convictions may be found in this court’s opinion from the Petitioner’s direct appeal. State v. Thomas, No. E2017- 02247-CCA-R3-CD, 2019 WL 1858525, at *1 (Tenn. Crim. App. Apr. 25, 2019). We take judicial notice of the record from the Petitioner’s direct appeal, No. E2017-02247-CCA- R3-CD. See Tenn. R. App. P. 13(c); State v. Lawson, 291 S.W.3d 864, 868-69 (Tenn. 2009). In summary, the proof at trial showed that the Petitioner, who associated with and used crack cocaine with Kristi Dixon, was picked up by the victim, Steven Payne, who drove them to the victim’s apartment during the early morning hours of November 24, 2010. While at the apartment, the Petitioner told Ms. Dixon that the “TV and stuff” in the victim’s living room belonged to the Petitioner and later stated, “I’m going to have to knock this mother f--ker out.” Thomas, 2019 WL 1858525, at *1. During the night, the Petitioner used the victim’s cellular telephone to contact Buchanan, a drug dealer with whom he had arranged to exchange a television for drugs and directed him to the victim’s apartment before sunrise. Shortly thereafter, the Petitioner instructed Ms. Dixon to go into the bathroom and remain there for several minutes. When she emerged, the apartment was dark, the victim’s television had been moved to block the walkway, a red jacket covered the victim’s head, and the Petitioner quickly ushered her from the apartment. The Petitioner and Mr. Buchanan then removed the victim’s television and Blu-ray player and transported them to a hotel. After leaving the victim’s apartment, the Petitioner told Buchanan that he “might want to get that f--king [cell phone] number changed” and, when asked why, replied, “Don’t worry about it. This ain’t my first rodeo.” The proof further established that shortly after the killing the Petitioner changed clothes and concealed the clothing he had been wearing. Id. at * 1-3. On November 25, 2010, officers discovered the victim dead on his couch with massive blunt-force trauma to the head. Thomas, 2019 WL 1858525, at *3. After discovering that the victim’s cellular telephone was missing, investigators obtained the victim’s phone records, which revealed multiple calls and text messages between the victim’s phone and Buchanan. The resulting investigation led officers to Mr. Buchanan, who disclosed that he had purchased the victim’s television and Blu-ray player from the Petitioner and resold them to his cousin, directed investigators to the hotel where he had taken the Petitioner after the offenses, and ultimately led them to the Petitioner at the Thornhill Trailer Park, where he was arrested. Investigators recovered the victim’s television and Blu-ray player from Buchanan’s cousin, the serial numbers matched those associated with the victim’s property, and forensic testing identified blood matching the victim’s DNA on the Blu-ray player and on the Petitioner’s shoes. Thomas, 2019 WL 1858525, at *4. When later questioned by investigators, the Petitioner initially denied having been at the victim’s apartment before eventually admitting that he had been there and had taken the victim’s television and Blu-ray player, although he insisted that he did not kill the -2- victim. Thomas, 2019 WL 1858525, at *4. In subsequent jail telephone calls to his mother, the Petitioner stated that he was “in trouble,” that the victim had “scared” him and that he “thought he was going to kill me,” while also asserting that Kristi Dixon was lying because she was in the bathroom and “didn’t even see nothing was going on.” Id. The State’s proof included testimony from Ms. Dixon and Mr. Buchanan, cell-phone records linking the Petitioner to the removal of the victim’s property, hotel and surveillance records corroborating his movements after the killing, and DNA evidence connecting him to the crime scene. Although Donnie Debuty, the lead investigator, had been terminated before trial for mishandling evidence in an unrelated case, he provided limited testimony at trial concerning the physical condition of the victim when he was discovered by investigators at the apartment. The State’s case otherwise rested on substantial witness, documentary, surveillance, and forensic evidence. After a four-day trial, the jury convicted the Petitioner of first degree felony murder, theft, and second degree murder as a lesser-included offense of premeditated murder. Id. at *5. The trial court merged the second degree murder conviction into the felony murder conviction and imposed an effective sentence of life imprisonment. On direct appeal, the Petitioner challenged the sufficiency of the evidence, the admission of prejudicial evidence, exclusion of hearsay evidence, and the trial court’s performance of its thirteenth juror duty. Id. at *5-10. This court affirmed the trial court’s judgments. Id. at *10. The Petitioner filed a timely pro se petition seeking post-conviction relief on August 19, 2019, alleging numerous claims of ineffective assistance of counsel and prosecutorial misconduct, including counsel’s failure to seek suppression of evidence, present a third- party-suspect defense, call favorable witnesses, adequately investigate and impeach key State witnesses, object to references to the Petitioner’s nickname “Trouble,” challenge the admission of certain photographs and DNA evidence, object to the State’s closing argument, and raise alleged Brady violations concerning undisclosed agreements with witnesses and other exculpatory information. In the first amended petition filed by counsel, these allegations were reorganized and refined but remained largely the same. Although the second amended petition did not expressly state that the claims asserted in the original and first amended petitions were withdrawn, it stated that the Petitioner wished “to amend his petition to the claims in this filing” and then narrowed the claims to the following six specific grounds for relief: (1) Tennessee’s system for selecting and compensating appointed counsel in homicide cases resulted in ineffective assistance, (2) trial counsel failed to request a recess or communicate the Petitioner’s desire to accept a plea offer during trial, (3) trial counsel failed to request a mental-health evaluation regarding competency or diminished-capacity defenses, (4) trial counsel failed to adequately investigate the termination and conduct of Investigator Debuty and failed to pursue suppression of evidence handled by Investigator Debuty, and (5) trial counsel failed to request a curative instruction after witnesses referred to the Petitioner as “Trouble.” The -3- Petitioner also alleged that the errors, “singularly and in the aggregate,” rendered his convictions void or voidable under the cumulative error doctrine. At the post-conviction evidentiary hearing, the Petitioner testified that prior counsel represented him in general sessions court, but later withdrew, after which trial counsel was appointed. While prior counsel represented him, the Petitioner asserted prior counsel told the Petitioner that the State would offer twenty-five years; the Petitioner “countered him with 15,” and prior counsel said the State would not agree. The Petitioner acknowledged that he “never actually seen the plea” and that he received no other offer. On the second day of trial, as he “seen things crashing in,” he asked trial counsel during a recess whether it was too late to take a plea and asked her to “bring it to me.” He testified that after the recess, “I had forgot about it,” that trial counsel evidently forgot as well, and that the subject never arose again. The Petitioner testified that neither attorney discussed a mental health evaluation with him. He learned from prior counsel that the officer who was investigating this case, Investigator Debuty, had been fired for “stealing and destroying a gun” in another case, and that evidence in his own case had been stored in a cardboard box in a parking garage for about nine months, but he did not “really know exactly what happened” regarding any investigation. He understood that the suppression issue was to be handled through a jury- out hearing at trial, which he stated never occurred. As to the nickname, he testified that only one person called him “Trouble,” and that the pretrial ruling was to “steer away from it.” On cross-examination, the Petitioner confirmed that he had never seen the plea offer, but that he had verbally rejected it. Trial counsel testified that she was sworn in in 2008, that criminal defense made up about ninety percent of her practice, and that this was her first homicide case. She stated that she was paid through the Administrative Office of the Courts (“AOC”) only after the motion for new trial was resolved, years after her appointment. Her investigator was paid directly by the AOC and her only out-of-pocket costs were ordinary office overhead. She stated she “wouldn’t necessarily say it’s a hardship” because she was being paid periodically on other cases, though the month before trial was demanding. Because this was a first degree murder case, she was “able to effectively be paid without a cap.” She believed the AOC compensation model put all appointed counsel “at a detriment.” She was the sole defense attorney against two prosecutors, but she would not have wanted a second attorney because she is a “Type A” attorney who operates better alone. She attended a week-long trial college before trial, spent “[v]olumes of time” preparing, and used an investigator to locate witnesses, investigate alternative suspects, and investigate the State’s witnesses. She testified that she would have sought a continuance had she needed more time. -4-  Trial counsel further testified that she received no plea offer at any time, that she always wrote down offers, that her file contained no notes of any offer, and that she did not recall discussing a plea with the Petitioner during trial. She stated she had never received a mid-trial offer in her career. She did not request a mental health evaluation because the Petitioner was “involved and active in his defense” and nothing suggested any incapacity or diminished capacity. Trial counsel testified that her investigator examined the circumstances of Investigator Debuty’s termination before trial, although further details came to light only at trial; she could not recall whether she subpoenaed records. She stated that during trial, she cross-examined Maryville Police Chief Tony Crisp about the reasons for Investigator Debuty’s termination, including his poor care of evidence in other cases. She explained that her motion to suppress the television, Blu-ray player, and the Petitioner’s shoes was, by agreement with the State, reserved for trial because of the number of witnesses required. After hearing the trial testimony, including that the garage where the evidence was kept had been set up as a secure evidence-storage location, she concluded that the matter had become one of weight and credibility rather than admissibility and chose not to renew the motion. She agreed that excluding the shoes “would have helped,” but she did not believe she had a basis to do so. As to the Petitioner’s nickname “Trouble,” trial counsel testified that her pretrial motion in limine was granted, that a witness volunteered the name at trial, that she objected, and that the court indicated she could request a curative instruction. She declined as a matter of “[s]trategy”: the reference occurred once, early in the trial, and she did not want to “highlight and reiterate the nickname Trouble” for the jury or bring it “back to the forefront of their minds.” She could not recall whether she requested a mistrial. On August 26, 2025, the post-conviction court entered an order, stating: “After hearing testimony from the witnesses and argument from counsel for both parties, the Court finds that the motion is not well taken and it is denied. This case shall be dismissed cost to the State.” The Petitioner timely appealed. However, because the order failed to make specific findings of fact and conclusions of law relating to each issue presented in the underlying petition, as required pursuant Tennessee Code Annotated section 40-30-111(b), this court remanded to the post-conviction court to supplement the record with an order which complied with the requirements. Tate v. State, 679 S.W.3d 631, 632 (Tenn. 2023); see also Tenn. R. Sup. Ct. 28, § (9)(A) (stating that orders granting or denying post- conviction petitions must “contain specific findings of fact and conclusions of law relating to each issue presented”). On September 3, 2026, the post-conviction court issued an amended order, stating in writing its findings and conclusions on each ground and attaching the hearing transcript -5- to the order. The post-conviction court concluded that the Petitioner had failed to carry his burden of proof by clear and convincing evidence and failed to establish any ineffective assistance of counsel for each enumerated ground. The court further stated, “[e]ven if it could be said that there was some ineffective assistance, [the Petitioner] failed to show by clear and convincing evidence that there was a reasonable probability that but for any such deficient performance, if any, the result of the proceeding would have been different.” The court denied relief on all grounds. After the appellate record was supplemented with the post-conviction court’s amended order, neither party filed supplemental briefs. This case is now properly before this court for review. ANALYSIS In his brief, the Petitioner presents a single issue for review: “[w]hether the post- conviction court erred by not granting the [Petitioner]’s motion for post-conviction relief.” Although he does not separately state each issue in the statement of the issues, see Tenn. R. App. P. 27(a)(4), we construe the arguments under the five headings of the brief, read together with the second amended petition and the post-conviction court’s amended order, as raising six claims of ineffective assistance: (1) Tennessee’s system for appointing and compensating counsel deprived him of effective representation; (2) trial counsel failed to request a recess or tell the State, during trial, that he wished to accept a plea offer; (3) trial counsel failed to request an evaluation of his competency or of a possible mental health defense; (4) trial counsel failed to adequately investigate Investigator Debuty’s termination and failed to pursue suppression of evidence handled by him; and (5) trial counsel failed to request a curative instruction after a witness referred to him as “Trouble.” He also contends that the cumulative effect of these errors entitles him to relief. In response, the State contends that each of the Petitioner’s claims is waived, except for his claim regarding appointing and compensating counsel, because the Petitioner’s brief is inadequate. See Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b). Waiver notwithstanding, the State argues the post-conviction court properly denied relief. We review ineffective assistance of counsel claims based on the following well established legal framework. Post-conviction relief is only warranted when a petitioner establishes that his or her conviction or sentence is void or voidable because of an abridgement of a constitutional right. Tenn. Code Ann. § 40-30-103. A post-conviction petitioner has the burden of proving the factual allegations by clear and convincing evidence. Id. § 40-30-110(f); see Tenn. Sup. Ct. R. 28, § 8(D)(1); Nesbit v. State, 452 S.W.3d 779, 786 (Tenn. 2014). Evidence is considered clear and convincing when there is no serious or substantial doubt about the accuracy of the conclusions drawn from it. Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009). -6-  A claim for post-conviction relief based on alleged ineffective assistance of counsel presents a mixed question of law and fact. Mobley v. State, 397 S.W.3d 70, 80 (Tenn. 2013) (citing Calvert v. State, 342 S.W.3d 477, 485 (Tenn. 2011)). This court reviews a post-conviction court’s decision involving mixed questions of law and fact de novo without a presumption of correctness. Whitehead v. State, 402 S.W.3d 615, 621 (Tenn. 2013) (citing Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011); Calvert, 342 S.W.3d at 485). However, a post-conviction court’s findings of fact are conclusive on appeal unless the evidence in the record preponderates against them. Calvert, 342 S.W.3d at 485 (citing Grindstaff, 297 S.W.3d at 216; State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999)). Appellate courts do not “re-weigh or re-evaluate the evidence, nor are they free to substitute their own inferences for those drawn by the post-conviction court.” Whitehead, 402 S.W.3d at 621 (citing State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn. 2001)). Generally, “appellate courts must defer to a post-conviction court’s findings with regard to witness credibility, the weight and value of witness testimony, and the resolution of factual issues presented by the evidence.” Id. (citing Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999)). The right to effective assistance of counsel is protected by both the United States Constitution and the Tennessee Constitution. U.S. Const. amend. VI; Tenn. Const. art. I, § 9. In order to prevail on an ineffective assistance of counsel claim, the petitioner must establish that (1) his lawyer’s performance was deficient and (2) this deficient performance prejudiced the defense. Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Strickland v. Washington, 466 U.S. 668, 687 (1984). “Because a petitioner must establish both prongs of the test, a failure to prove either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim.” Goad, 938 S.W.2d at 369. A petitioner successfully demonstrates deficient performance when the petitioner establishes that his attorney’s conduct fell “below an objective standard of reasonableness under prevailing professional norms.” Id. (citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). Prejudice arising therefrom is demonstrated once the petitioner establishes “‘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 370 (quoting Strickland, 466 U.S. at 694). In assessing an attorney’s performance for the deficiency prong, we “must be highly deferential and should indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462 (citing Strickland, 466 U.S. at 689). In addition, we must avoid the “distorting effects of hindsight” and must “judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.” Strickland, 466 U.S. 689-90. “No particular set of detailed rules for counsel’s conduct can satisfactorily take -7- account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.” Id. at 688-89. “‘However, deference to matters of strategy and tactical choices applies only if the choices are informed ones based upon adequate preparation.’” House v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (quoting Goad, 938 S.W.2d at 369). As an initial matter, we agree with the State, and note that, except for his challenge to Tennessee’s appointed-counsel compensation system, the Petitioner’s arguments are supported by little legal analysis and few citations to authority. See Tenn. R. App. P. 27(a)(7)(A); Tenn. Ct. Crim. App. R. 10(b). Although these deficiencies risk waiver, we elect to address the claims on the merits because the issues are sufficiently identified and the parties have fully responded to them. See Trezevant v. Trezevant, 696 S.W.3d 527, 530-31 (Tenn. 2024). 1. Tennessee’s system for appointing and compensating trial counsel. The Petitioner first argues that Tennessee’s system for appointing and compensating counsel in non-capital homicide cases created “such an unlevel playing field” that he was denied his Sixth Amendment right to counsel. He points to counsel’s inexperience, the deferral of her compensation until the end of the case, her payment of ordinary expenses in the interim, and the absence of compensated co-counsel, and he argues that prejudice should be presumed under Strickland. 466 U.S. at 692. The State responds that systemic funding complaints do not establish ineffective assistance, citing State v. Hoosier, 631 S.W.2d 474, 476-77 (Tenn. Crim. App. 1982), and that the post-conviction court found trial counsel’s performance “superb” and unaffected by the compensation system. At the post-conviction hearing, trial counsel testified that she had been licensed since 2008, that criminal defense comprised about ninety percent of her practice, that she had tried jury cases since her first year of practice, and that this was her first homicide case. She attended a week-long trial college to prepare and devoted “[v]olumes of time” to the case. She was paid through the AOC only after the motion for new trial was resolved, but her investigator was paid directly by the AOC, her only unreimbursed costs were ordinary office overhead, and she did not regard the deferred payment as a hardship apart from the demands of the month before trial. Because this was a first degree murder case, she was effectively paid without a cap. She stated that she would not have wanted a second attorney, and she would have sought a continuance had she needed more time. She expressed the general view that the AOC’s compensation model disadvantages appointed counsel. The post-conviction court denied relief, stating the following: Any allegation of trial counsel’s lack of experience were outside the scope of the petition, but trial counsel did a superb job in representing [the Petitioner]. She did a very fine job and represented her client zealously and -8-  effectively. With respect to the State’s system for selecting and appointing counsel for homicide cases, this case was not a capital case, nor was it a case of life without the possibility of parole. Trial counsel was competent to handle this case, and she represented Petitioner very ably. With respect to the State’s system for selecting and appointing counsel for homicide cases, the State/Administrative Office of the Court’s system is what it is, and it was what it was at the time. There was no evidence before the Court that the system impacted trial counsel’s performance in any way. With respect to the amount of time that trial counsel spent on the case, she testified that she gave the case the time it needed, and that if, indeed, she had worked for a month before trial without compensation from other cases, then she did that. The Court also noted that Petitioner made no challenge to the State’s system on a constitutional or other basis. At no time was the State put on notice that the “system” was being challenged on a constitutional, or any other, basis. In any event, trial counsel did a superb job in representing Petitioner. Petitioner did not carry his burden of proof—and really offered no evidence at all—that trial counsel’s alleged lack of experience, or any alleged defect in the State’s manner of compensation of appointed counsel, including delayed payment to trial counsel as she dedicated substantial time to this case, established a ground for ineffective assistance of counsel. The evidence in the record does not preponderate against the determination of the post-conviction court. Here, trial counsel prepared extensively, used a paid investigator and a defense expert, litigated pretrial motions, cross-examined the State’s witnesses, and secured a verdict of the lesser-included offense on the premeditated murder count. Tennessee courts have consistently rejected the proposition that the structure or timing of appointed counsel compensation, standing alone, renders representation constitutionally deficient. See State v. Hoosier, 631 S.W.2d 474, 476-77 (Tenn. Crim. App. 1982) (holding that the statutory system for appointment and compensation of counsel was the same as that of retained counsel and did not operate to deprive the defendant of effective assistance of counsel); Hodges v. State, No. M1999-00516-CCA-R3-PD, 2000 WL 1562865, at *22 (Tenn. Crim. App. Oct. 20, 2000) (rejecting a claim that fee schedules for counsel appointed in indigent capital defense cases necessarily rendered representation ineffective and holding that, even where a petitioner alleges a financial burden on counsel, the claim must demonstrate actual substandard performance that prejudiced the defense, and the mere existence of a financial hardship on counsel, without proof of its effect on performance, does not establish ineffective assistance). Here, trial counsel’s general criticism of the AOC’s compensation model alone does not establish that her representation of this Petitioner was deficient. Accordingly, the Petitioner has failed to show deficient performance or prejudice under Strickland. See 466 U.S. at 688, 694. The Petitioner is not entitled to relief on this issue. -9-  2. Trial counsel’s alleged failure to communicate the Petitioner’s mid-trial desire to accept plea offer. Next, the Petitioner contends that trial counsel was ineffective for failing to request a recess or communicate to the State his mid-trial desire to accept a plea offer. The Petitioner further argues that “more weight should be given to his testimony” that there was a plea offer rather than to trial counsel’s testimony because trial counsel was “overburdened” by the trial and he “was in a better position to remember the facts of his discussion with counsel.” The State insists the post-conviction court properly rejected this claim because the Petitioner’s testimony was not credible and there is no evidence that a plea offer ever existed. At the post-conviction hearing, the Petitioner testified that he never saw the plea offer. Trial counsel further testified that she did not recall the State ever making an offer in Petitioner’s case. Trial counsel also testified that there were no offers extended during trial, that there were no offers in general and that she did not recall any discussions with the Petitioner during the trial. Trial counsel further testified that she always recorded plea offers in her file, and there were none in the Petitioner’s file. The post-conviction court credited trial counsel’s testimony, and denied relief, stating the following: Trial counsel testified, and the Court finds her testimony to be credible, that the State never made a plea offer to Petitioner. Likewise, she testified that the State did not extend any offer to plead guilty during the trial, in general there were never any offers, and she doesn’t recall having any discussions with Petitioner during trial about a plea offer. The Court finds trial counsel’s testimony in that regard likewise to be credible, and credits her testimony. At one point during his testimony, Petitioner claimed that he asked trial counsel, during trial, if it was too late to plead, but then he said he forgot about it. The Court recalls that Petitioner was asked, something to the effect of, did you ask her about it again, or did you follow up on it, and Petitioner said he forgot about it. The Court noted that if the matter was important to Petitioner, the Court did not understand how he could have forgotten about it, and that to claim that he had allegedly forgotten about it impacted the credibility of the claim. The Court found, in any event, that it credited trial counsel’s testimony that there was simply no plea offer ever made by the State to Petitioner. The evidence does not preponderate against the determination of the post-conviction court. When a petitioner claims that trial counsel provided ineffective assistance during plea negotiations by failing to timely convey, adequately explain, or communicate acceptance of a plea offer, the petitioner must show a reasonable probability that, but for counsel’s deficient performance, he would have accepted the offer, the State would not - 10 - have withdrawn it, the trial court would have accepted its terms, and the resulting conviction or sentence would have been less severe than the judgment ultimately imposed. See Nesbit v. State, 452 S.W.3d 779, 800 (Tenn. 2014). Each showing depends on the existence of an offer. By the Petitioner’s own account, he never saw a written plea offer. Trial counsel also testified that her file did not contain any plea offers from the State. Assuming such an offer existed as the Petitioner claims, the record does not contain any proof that the State would not have withdrawn it or that the trial court would have accepted its terms resulting in a less severe judgment. Accordingly, the Petitioner failed to establish deficient performance or prejudice. He is not entitled to relief on this claim. 3. Trial counsel’s alleged failure to request a mental health evaluation. The Petitioner further argues that trial counsel was ineffective for failing to request an evaluation of his competency or of a possible mental health defense. He does not claim that a mental health condition affected him; he merely asserts that requesting a mental health evaluation would not have harmed the defense. The State responds that trial counsel had no reason to seek an evaluation and that the Petitioner’s “no harm” argument is not the governing standard. At the post-conviction hearing, the Petitioner testified that neither of his attorneys discussed a mental health evaluation with him. Trial counsel testified that she did not request an evaluation because the Petitioner was “involved and active in his defense” and nothing suggested any incapacity or diminished capacity. The post-conviction court credited trial counsel’s testimony, and in denying relief, it found: Trial counsel testified that there was no indication that Petitioner needed an evaluation. He was active in his defense. There was no reason to believe that he had a mental disability. He understood what was going on. He was able to assist in his defense. There was simply no basis to request an evaluation. The Court credits trial counsel’s testimony. To the extent Petitioner might have, in essence, testified that, well, it wouldn’t have done any harm to ask for an evaluation, maybe it wouldn’t have done any harm, but that is a far cry from showing or establishing that there was a reasonable probability that but for the alleged deficient performance of trial counsel, the result of the proceeding would have been different. And that’s the standard in a post-conviction proceeding. There was no evidence of that; it simply wasn’t established in the evidentiary hearing on the petition. There is no basis to believe, and no evidence to suggest, that trial counsel had any basis to file a motion seeking to have Petitioner mentally evaluated. The evidence does not preponderate against the determination of the post-conviction court. The Petitioner presented no expert testimony, no medical or mental health records, - 11 - and no testimony from anyone, including himself, describing any symptom, diagnosis, or treatment that would have necessitated a mental health evaluation. The Petitioner has not established deficient performance or prejudice. He is not entitled to relief on this claim. 4. Trial counsel’s alleged failure to adequately investigate Investigator Debuty and failure to pursue suppression of evidence handled by him. The Petitioner argues that trial counsel failed or was unable to adequately investigate the termination of Investigator Debuty for mishandling evidence and failed to fully litigate the impact of those deficiencies on the integrity of the evidence in this case. The Petitioner further asserted that, although counsel filed a motion to suppress evidence handled by Debuty, counsel abandoned the agreed-upon jury-out hearing and failed to pursue suppression of critical evidence, including the Petitioner’s shoes, thereby depriving him of effective assistance of counsel. The State responds that trial counsel filed the motion, made credibility arguments to the jury, and that, given the overwhelming evidence of guilt, the Petitioner cannot establish either deficiency or prejudice. The record shows that trial counsel filed two motions in limine to suppress the Petitioner’s shoes, the television, the Blu-ray player, and the related test results for lack of a proper chain of custody. At the hearing on the motions, the trial court asked whether the issue could be handled “during the trial with jury-out hearings coupled with testimony on the stand,” and trial counsel agreed that this was “an option as a way to handle it.” At trial, Investigator Debuty acknowledged that he had been fired for destroying evidence in an unrelated case, and trial counsel cross-examined him about his handling of the evidence in this case, eliciting that the shoes had been left unbagged in the crime lab overnight. He denied planting evidence. Chief Crisp testified that the department kept no test tubes or anticoagulants in the crime lab. Trial counsel did not request a jury-out hearing, and she stated “[n]o objection” when the shoes were admitted. In closing argument, trial counsel argued that “proper evidence handling was not adhered to,” told the jury that Investigator Debuty “was fired for destroying evidence in one case” and “had a pattern and practice of not following proper evidence handling procedure,” and asked, “How can you truly believe the accuracy and reliability of the evidence when they’re not following the procedures?” In the motion for a new trial, she did not challenge the chain of custody of the physical evidence. At the post-conviction hearing, the Petitioner testified that he understood the suppression issue would be handled through a jury-out hearing that never occurred. Trial counsel testified that, after hearing the State’s witnesses, she concluded that the garage where evidence was stored was a designated and secure storage location, and that the remaining concerns went to the weight of the evidence rather than its admissibility. She acknowledged that excluding the shoes “would have helped,” but she did not believe she had a basis to do so. The post-conviction court denied relief, stating the following: - 12 -  The Court noted in the hearing that it had already stated earlier in the [post- conviction relief] hearing that there had been a pretrial hearing on May 3, 2013, and that there had been several motions that day. Some of the motions were withdrawn. On that May 3 date it was announced to the Court that the decision had been made to just deal with the suppression of evidence at the trial. That was the agreement made by the attorneys. Trial counsel testified that she made the strategic decision not to ask for a jury-out hearing, and not to ask for exclusion of the evidence, because as the testimony came out at trial, she felt like it was no longer necessary based on what the witnesses had testified to, including that the garage—or whatever the law enforcement building was where things were being stored—was a secure location. She thought she would just ask the questions about Debuty, and about the evidence chain, and then argue it to the jury. She thought she could not prevail on a motion to suppress, or to exclude during the trial. And we have already seen that she in fact argued those points about the chain of evidence, along with the points about Debuty, to the jury. The jury obviously did not find that argument persuasive. And, the Court noted that it had agreed with this jury as Thirteenth Juror, which the Court reiterated at the [post- conviction] hearing, and that the Court believed that the reason the jury had not been persuaded by trial counsel’s argument was that the evidence against Petitioner was overwhelmin