The opinion
12/02/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs April 23, 2019
DANNY SANTARONE v. STATE OF TENNESSEE
Appeal from the Criminal Court for Sullivan County
No. C66904 James F. Goodwin, Jr., Judge
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No. E2018-01312-CCA-R3-PC
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Petitioner, Danny Santarone, appeals the denial of his petition for post-conviction relief.
Petitioner argues (1) that he was wrongfully convicted based on the fruits of an
unconstitutional search and (2) that he was denied effective assistance of counsel.
Following a review of the briefs and the record, we affirm the judgment of the post-
conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
THOMAS T. WOODALL, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ROBERT W. WEDEMEYER, JR., JJ., joined.
Samuel E. White, Kingsport, Tennessee, for the appellant, Danny Santarone.
Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Assistant
Attorney General; Barry Staubus, District Attorney General; and Barry Carrier, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Background Leading to Conviction
Petitioner was indicted by the Sullivan County Grand Jury for possession of
dihydrocodeinone within 1,000 feet of a school with the intent to sell or deliver,
possession of oxycodone within 1,000 feet of a school with the intent to sell or deliver,
possession of drug paraphernalia, possession of .5 grams or more of cocaine within 1,000
feet of a school with the intent to sell or deliver, and possession of heroin within 1,000
feet of a school with the intent to sell or deliver. The trial court dismissed the drug
paraphernalia charge at the request of the State prior to trial. Following a jury trial,
Petitioner was convicted on all counts. Affirming his convictions on appeal, a panel of
this Court summarized the proof presented at Petitioner’s trial:
On Saturday, July 16, 2011, Matthew Henriksen, an operations manager
with Federal Express (“FedEx”) in Blountville, was monitoring a conveyor
belt of newly-arrived packages when he noticed an envelope that was
bulging open, revealing what appeared to be a large prescription bottle.
The package was addressed to Defendant at an address in Johnson City.
Upon further inspection, the label on the bottle appeared to be worn, and
the packaging was inconsistent with a shipment from a pharmacy.
Suspicious, Mr. Henriksen contacted Detective Burk Murray of the
Sullivan County Sheriff’s Office. Detective Murray asked Mr. Henriksen
to try to identify the pills in the bottle. Mr. Henriksen pulled out of the
bottle some brown paper, a clear bag with white powder in it, and some
yellow pills that appeared to be consistent with Vicodin. Detective Murray
then came and took possession of the package. Mr. Henriksen suggested
that he could tell the intended recipient that the package had been delayed
because the truck it was on had broken down.
After the scheduled delivery time of noon had passed, Defendant contacted
FedEx and inquired about the package. The employee who spoke with him
informed Defendant that the package had been delayed. Mr. Henriksen
instructed the employee to let Defendant know that they would stay open
thirty minutes after their normal closing time if he wanted to pick up the
package that day, otherwise it would be delivered the following business
day. Defendant insisted on picking the package up that day and asked for
directions to the FedEx facility.
Mr. Henriksen called Detective Murray to let him know that Defendant
would be coming to pick up the package. Detective Murray did not have
time to set up a controlled delivery in a different county, so he brought the
package back to the FedEx facility and Mr. Henriksen repackaged it.
Detective Murray had patrol units set up on either side of the FedEx facility
so that they would be able to intercept Defendant if he left in either
direction. Detective Murray parked in the parking lot next door so that he
could observe when Defendant arrived.
Around 3:30 p.m., Defendant arrived with his daughter, Rachael Santarone.
The FedEx employees unlocked the door for them. Defendant signed for
the package, took possession of it, and left. Mr. Henriksen called Detective
Murray to let him know that Defendant left with the package. Detective
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Murray was able to identify Defendant from the driver’s license photo that
corresponded to the name and address on the package.
Officer Jessie Nunley of the Sullivan County Sheriff’s Office parked his
vehicle where he could observe Defendant’s vehicle if he left the FedEx
facility and headed toward the airport. Another officer set up on the other
side of the FedEx facility in case Defendant left traveling in that direction.
Detective Murray radioed that Defendant had left toward the airport and
described his vehicle as a green Isuzu. Officer Nunley saw the vehicle pass
his position, turned out behind it, and initiated a traffic stop. Defendant
stopped his vehicle on Highway 75, and Officer Nunley directed him to
pull over on a side street out of traffic. Both the initial stop location and the
side street were within 1000 feet of the real property of Holston Elementary
School.
Both Defendant and his daughter were removed from the vehicle and
arrested. When the police officers searched the vehicle, they recovered the
FedEx package from the center console, an ibuprofen bottle from the
driver’s side floorboard, and a Tylenol bottle, a small prescription bottle, a
set of brass knuckles, and a cut off straw in Rachael’s purse. The FedEx
package contained a large prescription bottle in the name of Sabrina Fisher,
two small baggies containing white powder, and a broken yellow pill.
Agent Carl Smith, a forensic scientist with the Tennessee Bureau of
Investigation, tested the various pills and powders found in Defendant’s
vehicle. Within the FedEx package, Agent Smith identified 110 tablets of
dihydrocodeinone, 1.3 grams of cocaine, .14 grams of heroin, and 43 tablets
of oxycodone; Agent Smith did not identify the broken yellow pill. The
small prescription bottle found in Rachael’s purse, which was labeled as a
prescription of oxycodone for Linda Santarone, contained 59 and a half
tablets of hydromorphone. The Tylenol bottle found in Rachael’s purse
contained 33 tablets of oxycodone. The ibuprofen bottle found on the
driver’s side floorboard contained 69 tablets of a different brand of
oxycodone.
Rachael Santarone, Defendant’s daughter and Co-defendant, testified for
the State at trial. In December of 2010, when Rachael was eighteen years
old, she came to live with her father and stepmother in Tennessee. Prior to
that, she was living in Florida with her mother. She admitted that she was
addicted to oxycodone and that her drug problem was the reason her
parents decided that she should move away from Florida. However,
Rachael would obtain pills from her father and her drug problem got worse
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while she lived with him. After their arrest, she moved out to live with her
boyfriend.
Rachael testified that Defendant, her stepmother, and her adult stepsister
were unemployed from the time she moved in in December 2010 until she
and Defendant were arrested in July 2011. During this time, Defendant and
her stepmother traveled to Florida about once a month. Upon their return,
Rachael would notice both an increase in the number of visitors to their
home as well as an improvement in the family’s finances. The visitors
would occasionally go to a back bedroom for a few minutes and then leave.
On one occasion, Rachael was in the car with Defendant when he
exchanged pills with a man for money, but she did not know the man’s
name or how many pills Defendant gave him. Rachael recognized the pills
as oxycodone because she was addicted to them at the time. Rachael also
recalled that Defendant often received packages from Florida. Some of
these packages were addressed to Rachael, and she became upset with
Defendant and asked him to tell his friends to no longer address the
packages in her name.
On July 16, 2011, Defendant woke Rachael from a nap and asked her to go
with him to the FedEx office to pick up a package. She was suspicious that
the package contained drugs. Rachael entered the FedEx facility with
Defendant. Defendant signed for the package, then brought it back to the
car. He placed the package in the center console without opening it. Also
in the center console were three smaller pill bottles. When Defendant was
being pulled over by the police, he told Rachael to put the smaller bottles in
her purse. She described the situation as “chaotic,” and one of the bottles
did not end up in her purse. She denied that the pill bottles were hers or
that she knew they were in the car. She admitted that the brass knuckles
and the straw found in her purse were hers and that she used the straw to
ingest oxycodone.
Rachael made a statement to the police the day after her arrest. She denied
that the police made her any promises in exchange for her statement. In
exchange for her truthful testimony, Rachael pled to the reduced charges of
possession of dihydrocodeinone, a Class D felony, and of possession of
oxycodone, a Class C felony, as well as misdemeanor possession of drug
paraphernalia and possession of a prohibited weapon. The charges of
possession of cocaine and heroin for sale or delivery within 1000 feet of a
school were dismissed. Rachel received a probationary sentence.
Defendant’s wife, Linda Santarone, testified on her husband’s behalf. She
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explained that she and Defendant had legitimate prescriptions for
oxycodone to cope with the pain associated with various injuries. Even
though they had been living in Tennessee for five years, Linda and
Defendant still obtained their prescriptions from a pain management doctor
in Florida. In 2011, they were each prescribed 360 oxycodone pills and 90
Xanax per month. She explained that the couple drove to Florida every
month to obtain their pills as well as visit family and friends.
Linda testified that Defendant, who had made his living as a carpenter, was
unable to work due to his various injuries. She explained that they were
able to pay for their medications and trips to Florida with money that
Defendant received as an inheritance after his father passed away, as well
as from buying and selling cars and jewelry and from back child support
payments. She denied that either she or Defendant sold any of their pills.
Linda explained that a lot of friends came to help around the house after
Defendant broke his leg. She denied that there would be an increase in
visitors after the couple returned from Florida or that they would meet
anyone privately in a back bedroom. Even though Linda had earlier
testified that she and Defendant always took all of their prescribed
medication, she testified that both she and Defendant would regularly give
pills to friends who said they were in pain, and the friends would repay
them in kind once their own prescriptions had been filled. She also testified
that she noticed some of her pills would go missing in large quantities after
Rachael moved in with the family.
On cross-examination, Linda admitted that Defendant was obtaining pain
medication from a doctor in Tennessee after he broke his leg as well as
continuing to obtain medication from the doctor in Florida. By the time of
trial, she and Defendant were no longer seeing the doctor in Florida and
were obtaining their pills from a pain management doctor in Knoxville.
She denied that Defendant received regular packages from Florida but
stated that Rachael often received packages. Linda explained that they put
the oxycodone pills in the Tylenol and ibuprofen bottles to try to hide them
from Rachael. She denied that the hydromorphone in the old oxycodone
prescription bottle belonged to her. Linda testified that Sabrina Fisher, the
name on the large prescription bottle in the FedEx package, was the
girlfriend of John Balmer, a friend of Defendant’s from Florida.
Amber Phelps, Linda Santarone’s daughter and Defendant’s stepdaughter,
also testified for the defense. Ms. Phelps testified that she was the only one
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in the household who did not use drugs. She admitted that her parents had
a drug problem and that they would exchange pills with others who had
prescriptions. She denied that they ever bought or sold pills. Ms. Phelps
testified that she had seen her stepsister Rachael steal pills from her parents
on a few occasions. She said that Rachael was using both oxycodone and
cocaine and that Rachael was getting the drugs in packages sent from
Florida by Rachael’s mother. She characterized Rachael as a habitual liar.
Defendant testified on his own behalf. He testified that he had various
injuries from his years of working as a carpenter and that he could no
longer work due to his injuries. He was prescribed medication by a pain
management doctor in Florida. Both he and his wife were prescribed 360
oxycodone pills per month. Defendant testified that he has since started
seeing a doctor in Tennessee and that his prescription had been reduced to
148 pills per month.
Defendant testified that in July 2011, a friend of his from Florida named
John Balmer was coming to Tennessee to visit Defendant. Defendant was
expecting a package to be delivered to his house prior to Mr. Balmer’s
arrival. Defendant knew that the package was to be delivered on Saturday
and that Mr. Balmer would be arriving a day or two after. When the
package did not arrive as scheduled, Defendant called FedEx. He was told
that the package could not be delivered because the truck had broken down
and that he would have to pick up the package. Defendant drove to the
FedEx facility with his daughter, Rachael, following the directions given to
him over the phone. On cross-examination, Defendant testified that he was
insistent on picking up the package that day because the FedEx employee
did not provide a redelivery date and he wanted to be sure that he had the
package when Mr. Balmer arrived.
Defendant denied that he put the drugs in Rachael’s purse when they were
pulled over, but admitted that he did have a bottle of oxycodone in the
center console of the car. He stated that he had not opened the FedEx
package and that he did not know what was inside of it. He explained that
he intended to take the package home and store it until Mr. Balmer arrived.
Defendant denied that he used heroin or hydrocodone. He admitted that he
had been convicted of selling cocaine over 15 years ago but denied that he
currently uses cocaine. Defendant admitted knowing that there would be
prescription medication in the package, but denied knowing that the
cocaine or heroin would be in there. He denied ordering any of the contents
of the package.
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The jury convicted Defendant as charged of possession of
dihydrocodeinone within 1000 feet of a school with the intent to sell or
deliver, possession of oxycodone within 1000 feet of a school with the
intent to sell or deliver, possession of cocaine within 1000 feet of a school
with the intent to sell or deliver, and possession of heroin within 1000 feet
of a school with the intent to sell or deliver. After a sentencing hearing, the
trial court sentenced Defendant to concurrent sentences of 6 years for the
dihydrocodeinone conviction, 12 years for the oxycodone conviction, and
25 years for both the cocaine and the heroin convictions. On July 11, 2014,
the trial court denied Defendant’s motion for a new trial. Defendant then
filed a notice of appeal.
State v. Santarone, No. E2014-01551-CCA-R3-CD, 2015 WL 5766684, at *1-4 (Tenn.
Crim. App. Oct. 1, 2015).
Post-Conviction Hearing
Petitioner filed his petition for post-conviction relief on July 22, 2016. On March
16, 2018, the trial court held an evidentiary hearing, and three witnesses were called to
testify.
Petitioner was the first witness to testify at the hearing. He stated that he was
represented by trial counsel for his jury trial and that appellate counsel represented him
on his appeal. Petitioner recounted that on the day of his arrest he had received several
calls from a friend about a package that was supposed to arrive at his house. He testified
that his daughter called FedEx to inquire about the status of the package, and an
employee told her that they were going to track the package and call her back. Petitioner
explained that after multiple phone calls, he was told that he needed to come pick the
package up from the store because it could not be delivered. He stated that he went to the
store to retrieve the package following their conversation. After leaving the store with
the package, Petitioner testified that he was driving down the road “about [a] quarter, half
a mile” when he noticed two police officers pull behind him and in front of him with their
vehicles’ lights on. Petitioner stated that the officers inquired about the package in
between his seat. He said he “threw it between the seat not opening it” and that the
officers “searched [his] vehicle and arrested [him and his daughter].”
Petitioner testified that he felt that the location of his arrest was “deliberate” and
that law enforcement had planned to stop him in that particular place. He believed that
the officers could have arrested him while he was in the parking lot of the FedEx store,
instead of waiting until Petitioner entered a school zone. Petitioner testified that he did
not find out he was stopped in a school zone until “way later in the proceeding[,]” and
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that he believed the FedEx worker and law enforcement worked together to arrest him.
Additionally, Petitioner testified that he told law enforcement that the package contained
his friend’s medication.
Regarding trial counsel’s representation, Petitioner testified that he hired trial
counsel in 2012. He stated that while he and trial counsel met about “four or five times”
before his trial, there were some times where Petitioner tried to meet with him and it was
unsuccessful. During their meetings, Petitioner stated that he gave trial counsel his
medical records, any potential witnesses, cell phones, phone records, and pharmacy
records. He explained that he gave trial counsel that information because he wanted to
prove that the pills in his car were from a legal prescription and to refute the co-
defendant’s testimony. However, he believed trial counsel did not use any of the
information given to him for Petitioner’s defense.
Petitioner testified that there were four witnesses that were important to his
defense. He stated that two of the witnesses were the individuals who sent the package to
Petitioner. Another witness was a woman who lived with Petitioner’s daughter and heard
his daughter talking about the trial. However, Petitioner believed his trial counsel did not
take any interest in pursuing any of them.
Petitioner testified that in his discussions with trial counsel, he was not advised of
the maximum sentence for what he was charged. Additionally, he stated that trial counsel
did not seem to know everything that he should have known for Petitioner’s plea offer.
Petitioner believed trial counsel did not adequately investigate his case. Further,
Petitioner stated that his trial counsel should have asserted an entrapment defense at trial.
He explained that there were discussions about using entrapment as a defense but that
trial counsel never brought it up. Petitioner believed the defense was important because
law enforcement “forced [Petitioner] to come pick up the package” and then arrested him
in a school zone.
Additionally, Petitioner stated that he was concerned about his co-defendant
testifying against him. He believed that “she’d lie and perjure herself to obtain a plea
bargain offer by the [S]tate[.]” He stated that he expressed these concerns with his trial
counsel, but trial counsel never filed any pretrial motions to suppress her testimony.
Petitioner testified that trial counsel should have tried to suppress her testimony because
she was an accomplice to the crime. In addition, he believed the suppression would have
been better handled prior to, rather than during, the trial.
Petitioner testified that he was surprised at the length of his sentence. He stated
that trial counsel remained his attorney when he filed a motion for a new trial. However,
Petitioner was appointed a new counsel for his appeal. Regarding his appeal, Petitioner
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stated that he was dissatisfied with this Court’s opinion because this Court failed to
discuss the entrapment issue. Overall, Petitioner felt that his trial counsel’s
representation was ineffective.
On cross-examination, Petitioner acknowledged that his trial counsel had “very
vast experience” in criminal law. He affirmed that trial counsel had 30 years of
experience as a prosecutor and would know where “holes” should be in a prosecutor’s
case. He did not believe trial counsel had any conflicts of interest with his case. He
acknowledged that trial counsel cross-examined the witnesses at Petitioner’s trial and
testified that trial counsel had “done okay on” tripping up the witnesses.
Petitioner stated that trial counsel did not “say much of what was going to happen”
and that he did not “keep [Petitioner] informed even throughout the whole course of [his
trial.]” Petitioner conceded that his name was not on any of the prescription bottles for
the medication but stated that his prescription was kept “in an Ibuprofen bottle or
something like that.” Petitioner was unsure if it was established at trial that he was taking
the medications or that he was addicted to them.
Petitioner acknowledged that the potential witnesses for his defense were not
actually at the scene of his arrest or the FedEx office. He also conceded that he knew
medications were controlled under the law. Petitioner also recalled talking to trial
counsel about plea offers, and he believed that the State offered him eight years to be
served at 85%. However, he conceded that after discussion, he rejected the State’s offer.
On the day of his arrest, Petitioner recalled that he did not talk to any law
enforcement prior to arriving at the FedEx store and that the only discussion about
coming to pick up the package was with a FedEx employee. He conceded that law
enforcement did not force him to pick up the package. Additionally, Petitioner stated that
he had no training in law and acknowledged that there are rules in law that do not
necessarily allow the suppression of certain things. He stated that he would not have
expected trial counsel to do anything to violate those rules.
On redirect, Petitioner explained that he believed the witnesses from Florida could
have testified to the fact that they were on their way for a visit and were going to retrieve
the package that Petitioner had picked up. He reaffirmed that he believed the package
had his friend’s medication in it. He testified that he made “personal efforts” to try and
understand what was going on in his case even though he was not a lawyer, and he did
not feel that trial counsel fully investigated his case or talked to all of the witnesses.
Petitioner stated that he felt that “there could have been done more to, put more
investigation into [his case]” on the part of his trial counsel. Additionally, Petitioner
acknowledged that the witnesses who trial counsel did not call to testify, would not have
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contradicted the basic facts in his case that he went to pick up the package containing
narcotics and that law enforcement stopped him after he left the FedEx office.
Petitioner’s appellate counsel testified at the evidentiary hearing. He stated that
his main argument on appeal was concerning the school zone enhancement factor in
Petitioner’s case. He explained that he had argued a similar case with the same issue
before a panel of this Court but that in his former case, this Court failed to address his
issue. Therefore, he explained that he wanted to “lookout for a case that [he] could take
on [the same] issue again because [he] thought it was a good issue.” He stated that he
had done research on the legislative history of the school zone enhancement factor. He
argued that it was against public policy for law enforcement to allow defendants to enter
the school zone when they could have been arrested in another location outside of it.
Additionally, appellate counsel stated that he raised the credibility issue for Petitioner
even though he felt that it was not a strong issue to raise.
Appellate counsel testified that he presented oral arguments to a panel of this
Court on Petitioner’s case. He explained to this Court that the school zone was intended
to be a safe harbor and that law enforcement should not be given “credit” for putting a
defendant in that safe zone. In response to the appeal, appellate counsel stated that this
Court held that Petitioner was trying to “backdoor [the issue] as an entrapment[.]”
However, appellate counsel stated he did not raise entrapment as an issue on appeal
because trial counsel had waived the issue and did not ask for jury instructions on that
defense. Appellate counsel added that he believed trial counsel went after the co-
defendant in Petitioner’s case “vigorously[.]”
Appellate counsel testified that he was passionate about law enforcement not
being able to benefit from arrests similar to Petitioner’s, and he believed that Petitioner
should have been arrested before he entered the school zone. After being asked about
limitations with Petitioner’s case, appellate counsel testified that he did not feel like he
was limited and that he had what he needed for the issue he was raising.
On cross-examination, appellate counsel stated that he had been a public defender
full time for 19 years. He stated that from 1993-1999, 70% of his practice was criminal
law. Since 1999, 100% of his practice has been criminal law. At the time of Petitioner’s
case, he had handled other cases before the Tennessee Court of Criminal Appeals and had
some experience representing clients in the Tennessee Supreme Court.
Appellate counsel explained that he became involved with Petitioner’s case when
he was assigned to it by the Public Defender’s office. He testified that he raised the
accomplice testimony issue because Petitioner wanted him to do so, but he did not
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believe it was an issue Petitioner would be successful on because the package itself was
evidence enough to corroborate the co-defendant’s testimony.
Additionally, appellate counsel explained his belief that there was no merit to a
challenge to the search of Petitioner’s vehicle:
THE STATE: In your review of the case did you find any merit in
that, anything you could get traction on, on that?
COUNSEL: No, and then I mean once again an independent third
party had noted that the – had found the drugs inside
this package. It had opened up and the police officers
were informed by the FedEx personnel about this and
they set up this little thing. There is no doubt, zero
doubt that he picked up, I mean he admitted to that on
the stand. I mean picked it up. His reasons for that are,
you know, over here but the fact that he had it in his
possession, they knew he had it in his possession. I
think through, you know, there was that – that really
takes the issue away. They now have probable cause
once they stop him to get that package which they did.
The last witness called at the evidentiary hearing was Petitioner’s trial counsel.
Trial counsel stated that he was a defense attorney. He explained that prior to his current
occupation, he was a training officer during Vietnam for four years. Following the
military, trial counsel worked in private practice for a year and then was an assistant
district attorney for ten years. He stated that he then ran successfully for two terms as the
District Attorney General. In total, he had 30 years of experience as a prosecutor. Trial
counsel explained that he now works in private practice doing “a mixture of legal
work[,]” but primarily works on criminal matters.
Trial counsel testified that he reviewed what case law he was familiar with in
analyzing the search that Petitioner believed to be unconstitutional, but he felt that
“[r]easonable doubt for probable cause certainly existed in [Petitioner’s] case.” He
believed Petitioner’s case was “a wonderful case of putting a case together of setting a
trap[,]” but was not entrapment. He stated that he searched diligently to find what he
could have said to a jury in light of the testimony and other evidence presented against
Petitioner. He could not find anything in the record to prove entrapment.
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Trial counsel testified that law enforcement could have arrested Petitioner before
Petitioner entered the school zone, but trial counsel believed that the undercover officer
was only there to observe Petitioner picking up the package containing narcotics. He
conceded that the undercover officer could arrest a suspect “if they choose to do that[,]”
but generally “if [law enforcement is] approaching someone that is obtaining drugs
illegally [they] try to have a backup, at least one and maybe more.” Trial counsel stated
that he considered the fact that Petitioner was caught in a school zone, but could not find
anything in the record to support that an officer was assigned specifically to arrest him in
that particular spot. Trial counsel explained that the best defense for Petitioner was to
show that he did receive some drugs from Florida, but that he was a “hardworking man”
who had become addicted to drugs following treatment for some injuries. Further, he
wanted to show that Petitioner’s family had also developed a drug problem, but that
neither Petitioner nor his family were “drug sellers and drug dealers[.]” His main
concern was whether the jury would perceive Petitioner as a drug dealing man or a
“fellow who was addicted himself and feeding his own addictions[.]”
Trial counsel could not recall if he specifically told Petitioner that he could be
facing a sentence of 25 years. However, trial counsel stated that if he had computed the
numbers, it was possible that he told Petitioner that he could receive 20-25 years. Trial
counsel acknowledged that he gave notice that he was going to raise entrapment as a
defense, but he explained that as the case developed he could not find any motivation by
law enforcement to catch Petitioner in the school zone. Further, he stated that he had
seen the entrapment issue argued many times and did not believe that he would be able to
change the jury’s mind on “what has clearly been the law[.]” Trial counsel testified that
in Petitioner’s case, “the facts were hopelessly clear.” Trial counsel testified that he did
not know of any motions that could have been pursued to keep the co-defendant from
testifying, and he did not believe her testimony would have been excluded.
On cross-examination, trial counsel testified that he received discovery from the
State, he received information on Petitioner’s medical records, he interviewed witnesses,
he attempted to discredit Petitioner’s daughter, and he cross-examined the State’s
witnesses. Trial counsel denied having any conflicts of interest with Petitioner’s case.
He stated he tried to keep Petitioner informed about things that were happening with the
case.
Trial counsel testified that he brought a lot of experience to Petitioner’s case.
When trial counsel investigated the scene, he discovered that it did not matter which
direction Petitioner left the FedEx office because he would be traveling through a school
zone in either direction. Trial counsel did not believe there was anything else he could
have done in Petitioner’s case. Regarding the co-defendant, trial counsel testified that he
“vigorously” cross-examined her, and he acknowledged that the credibility of a witness is
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for a jury to determine. When redirected, trial counsel recalled that the State offered
Petitioner a plea deal either right before court or while in court, which Petitioner rejected.
At the conclusion of the evidentiary hearing, the post-conviction court found that
Petitioner was not entitled to relief on his claims. An order was subsequently entered,
and Petitioner filed a timely notice of appeal.
ANALYSIS
Unconstitutional Search
First, we address the stand alone claim Petitioner has asserted in this appeal.
Petitioner argues that he is entitled to post-conviction relief because his conviction is
based on an unconstitutional search and seizure. Petitioner concedes that there was likely
probable cause to arrest him, but he asserts that he was charged and convicted with intent
to distribute within 1,000 feet of a school only because law enforcement deliberately
stopped him there. Therefore, he argues the drug-free zone enhancement is
unconstitutional. The State contends that Petitioner waived this claim by failing to raise
it at trial or on direct appeal, and thus, the post-conviction court properly denied it. We
agree with the State.
“A post-conviction petition is not a vehicle to review errors of law as a substitute
for direct appeal.” French v. State, 824 S.W.2d 161, 163 (Tenn. 1992). “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.” T.C.A. § 40-30-106(g). Upon review of the record,
Petitioner failed to present this issue to the trial court or on direct appeal. Therefore,
Petitioner has waived this claim, and he is not entitled to relief on this issue.
Ineffective Assistance of Counsel
Petitioner asserts four claims of ineffective assistance on the part of his trial
counsel: (1) trial counsel failed to adequately and fully investigate Petitioner’s case; (2)
trial counsel failed to file any pretrial motions to suppress evidence; (3) trial counsel
failed to adequately argue an entrapment defense; and (4) trial counsel failed to file a
pretrial motion to suppress the testimony of Petitioner’s co-defendant at trial. The State
contends that Petitioner failed to prove by clear and convincing evidence the factual
allegations of these claims. We agree.
To obtain post-conviction relief, a petitioner must prove that his or her conviction
or sentence is void or voidable because of the abridgement of a right guaranteed by the
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United States Constitution or the Tennessee Constitution. T.C.A. § 40-30-103. A post-
conviction petitioner bears the burden of proving his or her allegations of fact by clear
and convincing evidence. T.C.A § 40-30-110(f); Dellinger v. State, 279 S.W.3d 282,
293-94 (Tenn. 2009). “Evidence is clear and convincing when there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.”
Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009) (quoting Hicks v. State, 983
S.W.2d 240, 245 (Tenn. Crim. App. 1998). In an appeal of a court’s decision resolving a
petition for post-conviction relief, the court’s findings of fact “will not be disturbed
unless the evidence contained in the record preponderates against them.” Frazier v.
State, 303 S.W.3d 674, 679 (Tenn. 2010).
A defendant has a right to “reasonably effective” assistance of counsel under both
the Sixth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). The right to
effective assistance of counsel is inherent in these provisions. Strickland v. Washington,
466 U.S. 668, 685-86 (1984); Dellinger, 279 S.W.3d at 293. When a claim of ineffective
assistance of counsel is made, the burden is on the petitioner to show (1) that counsel’s
performance was deficient and (2) that the deficiency was prejudicial. Strickland v.
Washington, 466 U.S. at 687. Failure to satisfy either prong results in the denial of relief.
Id. at 697.
The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Strickland, 466 U.S. at 688; Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)). Furthermore, the reviewing court must indulge a strong
presumption that the conduct of counsel falls within the range of reasonable professional
assistance, see Strickland, 466 U.S. at 690, and may not second-guess the tactical and
strategic choices made by trial counsel unless those choices were uninformed because of
inadequate preparation. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The
prejudice prong of the test is satisfied by showing a reasonable probability, i.e. a
“probability sufficient to undermine confidence in the outcome,” that “but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
First, Petitioner argues that his trial counsel was ineffective for failing to fully
investigate his case. Petitioner contends that trial counsel did not seek out potential
evidence for trial, including phone records and potential witnesses and that such evidence
could have provided “additional context” for his defense. Only Petitioner, his trial
counsel, and his appellate counsel testified at the evidentiary hearing. While Petitioner
testified that there were potential witnesses who could have refuted the co-defendant’s
testimony or proved to the jury that Petitioner was picking up the package for someone
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else, he did not present these witnesses at the evidentiary hearing to testify. It has long
been established that “[w]hen 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.” Taylor v. State, 443 S.W.3d 80,
85 (Tenn. 2014) (quoting Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990)).
Without this proof, this Court is unable to determine that trial counsel was either deficient
in his investigation of the witnesses or that the lack thereof was prejudicial for
Petitioner’s case. Additionally, the post-conviction court found that Petitioner lacked
credibility regarding trial counsel’s investigation with his case:
Petitioner testified that he only briefly spoke with trial counsel four or five
times; and that trial counsel did not discuss pertinent matters with him
when they did meet and that trial counsel didn’t seem interested in the
information that Petitioner tried to provide. However, Petitioner also
testified during cross-examination that trial counsel and he discussed the
entrapment issue, the school-zone issue, credibility issues with the co-
defendant, and that they discussed information the Petitioner was trying to
provide. Petitioner contradicts himself during his testimony at the post-
conviction hearing. The Court does not credit the testimony of the
Petitioner.
The post-conviction further attributed trial counsel’s performance by finding that
trial counsel had received and reviewed discovery, reviewed the records, took a statement
from the co-defendant, cross-examined the State’s witnesses, filed pre-trial motions,
explained the State’s plea offer to Petitioner, and updated Petitioner on his case. Because
Petitioner has failed to present any proof of how the alleged lack of investigation
prejudiced the outcome of his trial, he is not entitled to relief on this claim.
Second, Petitioner argues that his trial counsel was ineffective for failing to file a
pretrial motion to suppress evidence. Specifically, Petitioner asserts that the evidence
taken by law enforcement from the search incident to his arrest should have been
suppressed by his trial counsel and failure to do so was prejudicial to the outcome of his
trial. As previously addressed, this Court has established that a petitioner must present
witnesses at his evidentiary hearing if he is asserting that his trial counsel was ineffective
for failing to discover, interview, or present witnesses in support of the defense. Taylor,
443 S.W.3d at 85. This same standard applies when a petitioner argues that his trial
counsel was ineffective for failing to file pre-trial motions to suppress evidence. Cecil v.
State, No. M2009-00671-CCA-R3-PC, 2011 WL 4012436, *8 (Tenn. Crim. App. Sept.
12, 2011) (no perm. app. filed). In order to show prejudice, a petitioner must show by
clear and convincing evidence that (1) a motion to suppress would have been granted and
(2) there was a reasonable probability that the proceedings would have concluded
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differently if counsel had performed as suggested. Id. In essence, a petitioner should
present a motion to suppress hearing within petitioner’s evidentiary hearing. Id. In the
case at hand, Petitioner failed to put on this “hearing within a hearing” to determine the
prejudicial value of his trial counsel’s failure to file a pretrial motion to suppress the
evidence. Without such proof, this Court would be granting relief based on mere
speculation, and we decline to do so. Petitioner is not entitled to relief on this claim.
Third, Petitioner asserts that his trial counsel was ineffective for failing to argue
entrapment as a defense. Petitioner argues that entrapment was not sufficiently addressed
at his trial, and the decision to withdraw entrapment as a defense denied Petitioner “an
avenue for defending himself during the appeals process.” Petitioner contends that the
entrapment defense needed to be properly argued and pursued at the trial level. Trial
counsel testified at the evidentiary hearing that he gave pretrial notice of entrapment as a
defense, but that as Petitioner’s case developed, he could not find facts in the record to
support that Petitioner’s stop was motivated by law enforcement intentionally arresting
Petitioner in a school zone. Additionally, appellate counsel testified that he did not
believe entrapment “was a good issue” and that “[e]ntrapment in a drug case is almost
impossible to prove.” Further, appellate counsel stated that the issue was not
“entrapment for drugs” but “trying to do entrapment for an enhancement factor.”
Petitioner failed to present any proof to show that an entrapment defense would have
been successful had it been asserted as a defense at his trial. The post-conviction court
found that trial counsel’s decision to proceed without entrapment as a defense was not
deficient representation, and we agree. Also, the failure to present any evidence for the
basis of a defense of entrapment by calling law enforcement witnesses results in the lack
of proof of prejudice. See Taylor, 443 S.W.3d at 85. Petitioner is not entitled to relief on
this issue.
Fourth, Petitioner asserts that his trial counsel was deficient for failing to file a
pretrial motion to suppress the testimony of his co-defendant and this deficiency was
prejudicial to his defense. Petitioner contends that the co-defendant had “glaring
credibility issues” and trial counsel should have filed a motion to suppress her testimony.
As previously addressed, when a petitioner asserts that his trial counsel was ineffective
for failing to file a pretrial motion to suppress, the petitioner must show by clear and
convincing evidence that (1) a motion to suppress would have likely been granted and (2)
there was a reasonable probability that the proceedings would have concluded differently
if counsel had performed as suggested. Cecil, 2011 WL 4012436 at *8. Here, Petitioner
has failed to present any proof that a motion to suppress his codefendant’s testimony
would have been granted. In its order denying relief, the post-conviction court also noted
the insufficient proof for this claim:
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Petitioner admitted on cross-examination that he was not a lawyer and was
not familiar with legal rules and procedures. He also conceded on cross
that he would not expect his lawyer to do something that was in violation of
those rules and procedures. Trial counsel testified that credibility of a
witness was the province of the jury, and that he was not aware of any
ground by which he could prohibit the co-defendant from testifying.
Further, trial counsel testified at the evidentiary hearing that he was unaware “of any way
[he] could have prevented [the co-defendant] from testifying” and that trial counsel
addressed the issue of the co-defendant’s credibility on cross-examination. Petitioner is
not entitled to relief on this issue.
CONCLUSION
Based on the foregoing, the judgment of the post-conviction court is affirmed.
____________________________________________
THOMAS T. WOODALL, JUDGE
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