Jerome Dance v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 3, 2009

JEROME DANCE v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Gibson County

Nos. 16296, 16297 Jerry Scott, Judge

No. W2008-00692-CCA-R3-PC - Filed August 12, 2009

The petitioner, Jerome Dance, appeals the Gibson County Circuit Court’s denial of his petition for

post-conviction relief. He was convicted of two counts of sale of cocaine over .5 grams, Class B

felonies, and one count of sale of cocaine less than .5 grams, a Class C felony. Subsequently, he was

sentenced, as a Range II offender, to an effective term of thirty-five years in the Department of

Correction. On appeal, the petitioner contends that he was denied effective assistance of counsel.

He specifically argues that trial counsel was ineffective in failing to: (1) object to an insufficient

Notice of Enhancement Factors filed by the State; (2) file a motion for recusal of the trial judge; (3)

adequately prepare for the sentencing hearing; (4) inform the petitioner of a plea offer and to

adequately advise him that he would not be sentenced as a Range I offender if he proceeded to trial;

and (5) pursue a Rule 11 application to appeal with the Tennessee Supreme Court or to properly

withdraw. Following review of the record, the denial of post-conviction relief is affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which J.C. MCLIN and CAMILLE

R. MCMULLEN , JJ., joined.

Barbara Hobock and Cynthia Chandler-Snell, Humboldt, Tennessee, for the appellant, Jerome

Dance.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Senior Counsel; Garry

G. Brown, District Attorney General; and Stephanie J. Hale, Assistant District Attorney General, for

the appellee, State of Tennessee.

OPINION

Factual Background

Following three undercover buys, the petitioner was arrested and charged with two counts of

sale of cocaine over .5 grams and one count of sale of cocaine under .5 grams. State v. Jerome

Dance, No. W2004-00576-CCA-R3-CD (Tenn. Crim. App., at Jackson, Feb. 25, 2005), perm. to

appeal denied (Tenn. May 31, 2005). Following his conviction by a jury for the charged offenses,

the petitioner was sentenced, as a Range II offender, to an effective term of thirty-five years in the

Department of Correction. He filed a direct appeal to this court challenging only the sentence, which

a panel of this court affirmed. Id.

The petitioner then filed a timely pro se petition for post-conviction relief, as well as an

amended pro se petition, asserting, among other grounds, that he was denied the effective assistance

of counsel. Following the appointment of counsel, a second amended petition was filed with the

court. At a subsequent post-conviction hearing, both the petitioner and trial counsel testified.

Post-Conviction Hearing

Trial counsel testified that he was appointed to represent the petitioner and did so through

the trial level. He testified that the petitioner was arrested approximately one year to eighteen

months after the undercover sales. During the intervening time, the petitioner had moved to

Kentucky and was making an effort to improve his life by getting away from the drug culture.

However, when he returned to Tennessee for a visit, he was arrested and charged with the prior

crimes. According to trial counsel’s notes, the State originally conveyed an offer to trial counsel for

a term of twenty years as a Range III offender. Trial counsel relayed this offer to the petitioner, who

refused the agreement. A second offer was made by the State for the petitioner to serve ten years as

a Range I offender. The petitioner also rejected this offer, stating that he wanted an agreement which

allowed him to serve any sentence in rehabilitation. Trial counsel informed the petitioner that the

ten-year offer was the best that he could negotiate with the State and that it was a good offer. Letters

from trial counsel to the petitioner were introduced as evidence at the post-conviction hearing, and

these letters detailed both plea offers extended to the petitioner. In the letter regarding the ten-year

offer, trial counsel characterized the offer as “an extremely good offer” and warned the petitioner

that the State’s evidence was “more than adequate for a jury to convict him.” Nonetheless, the

petitioner insisted upon proceeding to trial. Prior to trial, counsel informed the petitioner that he

would not be sentenced as a Range I offender if he was found guilty.

Trial counsel testified that, prior to trial, he received notice from the State of their intent to

rely upon certain enhancement factors and notice that, based upon the petitioner’s prior convictions,

they intended to seek a sentence in a higher range. He acknowledged that the Notice to Seek

Enhanced Punishment did not specify which range the State would seek to apply to the petitioner.

However, he testified that this was standard practice and that it put him and the petitioner on notice

that the petitioner would not be sentenced as a Range I offender. Trial counsel also testified that the

Notice of Enhancement Factors did not contain a description of the petitioner’s various prior

convictions.

Trial counsel testified that prior to sentencing, he reviewed the presentence report, which he

stated did not have prior judgments of conviction attached. Again, he testified that this was standard,

and he made no objection to the admission of the report. Trial counsel stated that, at the sentencing

hearing, he attempted to present evidence that the petitioner had changed his life prior to trial. Trial

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counsel testified that he was not aware of a possible conflict of interest between the sentencing

judge, a former prosecutor, and the petitioner.

Contrary to trial counsel’s testimony, the petitioner testified that he was not informed of any

plea offers extended by the State. He stated that he did not receive the letters which had been

admitted into evidence. According to the petitioner, trial counsel informed him that he would

receive a sentence of twenty to thirty years. He acknowledged that trial counsel had informed him

that, due to his prior felony convictions, he could be sentenced outside Range I. However, he

testified that he did not believe that would occur because his prior felonies had been in that category

and that he was surprised that he went from a Range I to a Range III, skipping Range II completely.

He also acknowledged on cross-examination that the trial courts which had taken his prior plea

agreements had informed him that the convictions could be used to enhance future convictions.

After hearing the testimony and reviewing the evidence presented, the post-conviction court

concluded that trial counsel was not ineffective and denied the petition. The petitioner appeals that

decision.

Analysis

On appeal, the petitioner contends that the post-conviction court erred in finding that he had

not been denied his Sixth Amendment right to the effective assistance of counsel. Specifically, he

contends that trial counsel was ineffective by failing to: (1) object to an insufficient Notice of

Enhancement Factors filed by the State; (2) file a motion for recusal of the trial judge; (3) adequately

prepare for the sentencing hearing; (4) inform the petitioner of a plea offer and to adequately advise

the petitioner that he would not be sentenced as a Range I offender; and (5) pursue a Rule 11

application to appeal with the Tennessee Supreme Court or to properly withdraw. To succeed on

a challenge of ineffective assistance of counsel, the petitioner bears the burden of establishing the

allegations set forth in his petition by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006).

The petitioner must demonstrate that counsel’s representation fell below the range of competence

demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984), the petitioner must

establish (1) deficient performance and (2) prejudice resulting from the deficiency. The petitioner

is not entitled to the benefit of hindsight, may not second-guess a reasonably based trial strategy, and

cannot criticize 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). This deference to the

tactical decisions of trial counsel is dependent upon a showing that the decisions were made after

adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

It is unnecessary for a court to address deficiency and prejudice in any particular order, or

even to address both if the petitioner makes an insufficient showing on either. Strickland, 466 U.S.

at 697, 104 S. Ct. at 2069. In order to establish prejudice, the petitioner must establish 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

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outcome.” State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999) (quoting Strickland, 466 U.S. at 694, 104

S. Ct. at 2068).

The issues of deficient performance by counsel and possible prejudice to the defense are

mixed questions of law and fact. Id. at 461. “[A] trial court’s findings of fact underlying a claim of

ineffective assistance of counsel are reviewed on appeal under a de novo standard, accompanied with

a presumption that those findings are correct unless the preponderance of the evidence is otherwise.”

Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13(d); Henley v. State, 960

S.W.2d 572, 578 (Tenn. 1997)). However, conclusions of law are reviewed under a purely de novo

standard with no presumption that the post-conviction court’s findings are correct. Id.

The post-conviction court, specifically accrediting the testimony of trial counsel, found that

the advice given and services rendered by trial counsel “were clearly within the range of competence

demanded of attorneys in criminal cases.” Review of the record reveals nothing which preponderates

against this finding.

I. Sufficiency of Notice of Enhancement Factors

First, the petitioner contends that the Notice of Enhancement Factors filed in the case was

insufficient. Specifically, he argues that the State “failed to substantially comply with part (b) of

Tennessee Code [Annotated section] 40-35-202, in that the Notice of Enhancement factors ‘must set

forth the nature of the prior felony convictions, the dates of the convictions and the identity of the

courts of conviction.’” He contends that the State’s failure to comply with this rule and trial

counsel’s failure to object to the lack of compliance resulted in his being misled for the purposes of

properly informing him of how the notice could be used against him and diminished his ability to

make an informed decision as to his guilty plea or assist in his defense at sentencing. He further

argues that the “language used by the State in their Notice of Intent to Seek Enhanced Punishment,

which stated that the [petitioner] ‘should be sentenced as a Multiple, Persistent or Career Offender

as may be applicable’ was insufficient to give [him] proper notice of the sentence to which he was

exposed,” which hindered his ability to evaluate plea offers.

In support of his argument regarding the Notice of Enhancement Factors, the petitioner relies

upon State v. Taylor, 63 S.W.3d 400, 412 (Tenn. Crim. App. 2001), and State v. Adams, 788 S.W.2d

557, 559. However, his reliance is misplaced. Both of those cases dealt with a Notice of Intent to

Seek Enhanced Punishment rather than a Notice of Enhancement Factors. The language quoted by

the petitioner indicating that the notice “must set forth the nature of the prior felony convictions, the

dates of the convictions and the identity of the courts of the convictions,” comes not from subsection

(b) of Tennessee Code Annotated section 40-35-202(a) but from subsection (a). Subsection (a)

details the proper procedure and requirements for a Notice of Intent to Seek Enhanced Punishment.

With regard to this notice, case law has provided that, at a minimum, the statute requires that the

State file: (1) written notice; (2) clearly expressing the State’s intention to seek sentencing outside

of the standard offender range; (3) setting forth the nature of the prior felony convictions, the dates

of the convictions, and the identity of the courts of the convictions. State v. Livingston, 197 S.W.3d

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710, 713-14 (Tenn. 2006). However, the court has held that notice is not insufficient merely because

certified copies of prior convictions are not included. State v. Alton Tappan, No. W2006-00168-

CCA-R3-CD (Tenn. Crim. App., at Jackson, May 29, 2007). After reviewing the Notice of Intent

to Seek Enhanced Punishment in this case, though not challenged by the petitioner in this case, we

conclude that it complies with these requirements. Included with each of the six convictions relied

upon by the State are the date, the case number, the convicting court, and the type and class of each

conviction. The petitioner’s argument that it fails to specify which range the State would seek to

classify the petitioner within is without merit.

Subsection (b) of Tennessee Code Annotated section 40-35-202 does govern the Notice of

Enhancement Factors. However, contrary to the petitioner’s contentions, this notice is discretionary

in that the statute provides that “the court may require” a district attorney general to “file a statement

with the court setting forth any enhancement or mitigating factors” believed to be applicable.

However, there is no requirement that such notice contain a description of prior convictions if the

State intends to rely upon the enhancement factor for prior criminal history.

Because we have concluded that the notices filed by the State in this case were sufficient,

we cannot conclude that trial counsel was deficient for failing to object to said notices. Moreover,

regardless of the sufficiency of the notice, the petitioner has wholly failed to establish any resulting

prejudice. His claim that he was unable to adequately assess possible exposure based upon the

notice is negated by trial counsel’s testimony and the letter introduced as evidence that he

specifically informed the petitioner of the likelihood that he would be sentenced as a Range III

offender to a term between twenty and thirty years.

II. Motion for Recusal

Next, the petitioner contends that trial counsel was ineffective for failing to file a motion for

recusal of the sentencing court. His entire reference and argument to this contention in his brief are

as follows: “The [petitioner’s] counsel failed to file any motion that the judge recuse himself in the

[petitioner’s] case, even though the judge had in fact been the District Attorney who had played some

role in prosecuting the [petitioner] in his prior criminal convictions.”

After review, we conclude that the petitioner has failed to establish this claim. The petitioner

testified at one point, though later contradicting himself, that he did not inform trial counsel of any

possible conflict of interest with the sentencing judge. Trial counsel testified that he was unaware

of a conflict. While some testimony was given that, at the time of the petitioner’s prior convictions,

the trial judge was, in fact, the elected district attorney, no evidence was put forth that he was in any

way actively involved with the petitioner’s cases. Thus, the petitioner failed to establish that a

conflict existed. As such, trial counsel cannot be found deficient for failing to file a motion for

recusal.

III. Failure to Adequately Prepare for the Sentencing Hearing

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With regard to this assertion, the petitioner contends that trial counsel was ineffective in

failing to call witnesses at the sentencing hearing who could testify to his suitability for rehabilitation

and by failing to have the petitioner evaluated to see if he was a proper candidate for drug and

alcohol rehabilitation. Despite the petitioner’s claim, little or no proof was presented on this claim

at the post-conviction court hearing. Trial counsel did testify that, at the sentencing hearing, he had

tried to establish that the petitioner had attempted to change his life prior to his arrest. However, he

acknowledged that he did have the petitioner evaluated. Regardless of any possible deficiency in

trial counsel’s performance at sentencing, the petitioner has failed to establish prejudice. At the post-

conviction hearing, the petitioner failed to call witnesses whom he claims could have testified at

sentencing or to provide any evidence suggesting he would have been a candidate for rehabilitation.

Without such testimony or evidence at the post-conviction hearing, any finding of prejudice by a

court would be mere speculation. Thus, the petitioner’s failure to present such evidence precluded

a finding of prejudice. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).

IV. Failure to Inform the Petitioner of Plea Agreement and Advise on Sentencing Range

Next, the petitioner contends that trial counsel failed to inform him of a ten-year plea offer

made by the State and failed to adequately advise him that he would not be sentenced as a Range

I offender if he proceeded to trial. He urges this court to consider that, while the petitioner had been

informed that he “could” be sentenced outside Range I, based upon his prior criminal record, he “had

been lulled into a false sense of security” because he had not been so sentenced in past pleas despite

the same warning. At least, he contends, trial counsel should have made clear that it was not a “step-

up” process where the petitioner would progress through the consecutive ranges. This argument is

wholly without merit. The petitioner acknowledges that he was informed by both trial counsel and

prior trial courts that his prior convictions could be used to enhance future sentences. His argument

appears to ask this court to again reward the petitioner with a lower sentence because he had

previously been given the benefit of not being punished to the fullest extent. That is not the province

of this court.

The post-conviction court rejected the petitioner’s contention that he had not been informed

of the ten-year plea agreement offered by the State. The court, specifically accrediting the testimony

of trial counsel, found that the petitioner had been informed of the offer and adequately advised of

the possibility that he would be sentenced outside Range I. We find nothing in the record to

preponderate against the finding. As previously noted, credibility determinations are best made by

the lower court, and we will not disturb such determinations on appeal. State v. Young, 196 S.W.3d

85, 107 (Tenn. 2006).

V. Appeal to Tennessee Supreme Court

Finally, the petitioner contends that trial counsel “failed to pursue the case further than the

Court of Criminal Appeals and failed to alternatively withdraw as counsel from the case, virtually

destroying the [petitioner’s] ability to successfully move forward with his case following the appeal.”

According to the petitioner’s brief, trial counsel failed to properly withdraw pursuant to Rule 14 of

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the Rules of the Supreme Court, resulting in prejudice “because the [petitioner] proceeded pro se in

his application” to our supreme court without knowledge of proper procedures.

From our review of the record, this issue was not raised in the petitions nor was it asserted

at the post-conviction hearing. Moreover, no evidence presented at the hearing in any way

establishes the validity of this claim. Thus, the petitioner has waived review of his assertion by his

failure to raise the issue as well as his failure to establish it. See Black v. Blount, 938 S.W.2d 394,

403 (Tenn. 1996). Indeed, the only testimony elicited at the post-conviction hearing regarding the

appeal of the petitioner’s case established that trial counsel was not the attorney who handled the

direct appeal of the petitioner’s case.

CONCLUSION

Based upon the foregoing, the denial of the petition for post-conviction relief is affirmed.

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JOHN EVERETT WILLIAMS, JUDGE

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