Jayson Bryant Collier v. State of Tennessee

03/08/2022

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs December 15, 2021

JAYSON BRYANT COLLIER v. STATE OF TENNESSEE

Appeal from the Circuit Court for Montgomery County

Nos. 63CC-2016-CR-843, 63CC-2016-CR-986 William R. Goodman III, Judge

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No. M2021-00209-CCA-R3-PC

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The Petitioner, Jayson Bryant Collier, appeals the denial of his petition for post-conviction

relief from his convictions for possession of one-half ounce or more of marijuana with the

intent to sell or deliver within 1000 feet of a school, possession of a firearm with the intent

to go armed during the commission of a dangerous felony, theft of property valued at five

hundred dollars or less, unlawful possession of drug paraphernalia, driving on a revoked

license, and speeding. On appeal, he argues that he received ineffective assistance of

counsel, that his sentence violates the Eighth Amendment to the United States Constitution

and article I, section 16 of the Tennessee Constitution, and that his sentence is illegal under

Tennessee Rule of Criminal Procedure 36.1. After reviewing the record, the parties’ briefs,

and the applicable law, 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 JOHN EVERETT

WILLIAMS, P.J., and D. KELLY THOMAS, JR., J., joined.

Taylor R. Dahl, Clarksville, Tennessee, for the Appellant, Jayson Bryant Collier.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant

Attorney General; John W. Carney Jr., District Attorney General; and C. Daniel Brollier

Jr., Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

Factual Background. In 2016, the Petitioner was indicted in case number 63CC-

2016-CR-843 for possession of one-half ounce or more of marijuana with the intent to sell

or deliver within 1000 feet of a school, possession of a firearm with the intent to go armed

during the commission of or attempt to commit a dangerous felony, theft of property valued

at more than five hundred dollars, and unlawful possession of drug paraphernalia. The

Petitioner was also indicted in case number 63CC-2016-CR-986 for driving while his

license was cancelled, suspended, or revoked and for speeding. The Petitioner was tried

for the charges in case number 63CC-2016-CR-843 and case number 63CC-2016-CR-986

at the same time.

At the Petitioner’s trial, Officer Ronald Myers of the Clarksville Police Department

testified that on the morning of Wednesday, March 9, 2016, he was sitting in his patrol car

at Cunningham Lane, which is in a school zone, in Clarksville. He stated that it was around

7:48 a.m. and he was “running radar” when he stopped the Petitioner for driving thirty-two

miles per hour in a twenty mile-per-hour zone. At the time, the school zone lights were

flashing, and people were coming and going from the two schools. Officer Myers said that

when he activated his emergency lights, the Petitioner stopped on “the gravel parking lot

right before the digital school sign” of Minglewood Elementary School. He approached

the Petitioner’s car, informed the Petitioner and the woman with him that he had stopped

the Petitioner for speeding, and asked the Petitioner for his license and registration. Officer

Myers observed the smell of marijuana coming from the Petitioner’s car, and when he

asked the Petitioner about it, the Petitioner admitted that he had smoked marijuana in the

car one hour earlier and that he had about an ounce of marijuana in his vehicle. After

running the Petitioner’s license number through the law enforcement database, he

discovered that the Petitioner’s license was revoked. Officer Myers conducted a search of

the Petitioner’s car, which revealed a Mason jar full of a substance appearing to be

marijuana that was separated into several bags, a digital scale, a substantial amount of cash

that had been shoved underneath the driver’s seat, 140 sandwich bags inside a backpack in

the backseat, some cigarillos, and a loaded handgun. Upon running the gun’s serial number

through the database, he discovered that the gun was stolen. The Petitioner asserted that

he did not know the gun was stolen and that the money under the seat belonged to his

girlfriend. Officer Myers acknowledged that the location of the Petitioner’s stop was the

largest school zone in Clarksville because it had it had two school zones back-to-back.

Lon Chaney, a narcotics investigator with the Clarksville Police Department,

testified that the Petitioner admitted that the gun and the marijuana found in his car

belonged to him. He said that he field tested the substance in the larger bag, which tested

positive for marijuana, but did not field test the substance in the two smaller bags because

they contained material similar to the material in the larger bag. Investigator Chaney said

the combined weight of all three bags was 32 grams and that the combined street value of

the marijuana found in the Petitioner’s car was approximately $375. He said the Petitioner

initially told him he got the gun a year prior, which was impossible based on the police

report for the stolen gun. Investigator Chaney said that the cash found in the Petitioner’s

vehicle totaled $2000 and was in mostly twenty dollars bills, although there were a few

five and ten dollar bills as well. He said the Petitioner initially told him that the recovered

cash belonged to his girlfriend and that he had deposited it into a bank account and recently

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withdrawn it. The Petitioner then told him that the cash belonged to him and his girlfriend

together and then later said that the cash was payment for his labor at his mother’s lawn

care service. Investigator Chaney noted that a Regions bank deposit for $2000 had been

found in the Petitioner’s car. He explained that sandwich bags, like the ones found in the

Petitioner’s car, were “often used for resale, where [people] break off portions of your

larger amount[] of drugs” and “put them in smaller baggies for resale.” Investigator

Chaney asserted that the number of sandwich bags, along with the other items found in the

car, showed the Petitioner’s intent to sell the marijuana.

Officer Bill Van Beber, a fatal crash investigator with the Clarksville Police

Department, testified that he was asked to measure some distances relevant to the

Petitioner’s case. Officer Van Beber stated that the location where the Petitioner’s car was

stopped was inside the property line for Minglewood Elementary School, meaning that the

Petitioner was stopped on school property. In addition, he said that the spot where the

Petitioner was first verified as speeding was 75 feet from the building of the Providence

Middle School.

Special Agent William Stanton, a forensic scientist with the Tennessee Bureau of

Investigation, testified that his testing determined that one of the bags recovered from the

Petitioner’s car contained 27.27 grams of marijuana. As relevant to the Petitioner’s

charged marijuana offense, he explained that one-half ounce is equal to 14.175 grams.

Agent Stanton said that the two other bags recovered from the Petitioner’s car weighed

6.92 grams; however, he did not analyze the material in those bags because it was under

the threshold weight set by the laboratory.

Latisha Collier, the Petitioner’s mother, testified that Arthur Hill, her fiancé of five

years, had given the Petitioner a check for $2000 on March 8, 2016, to cover his car

payment and other bills.

Arthur Hill testified that he had written the Petitioner a $2000 check to pay for the

Petitioner’s car note the day before the Petitioner’s arrest. A carbon copy of this check was

admitted into evidence at trial. Hill explained that he was a cosigner on the loan for the

Petitioner’s car and that the Petitioner was five months behind on his car payment.

Kelsey Campbell, the Petitioner’s girlfriend, testified that she was with the

Petitioner when he was stopped and arrested on March 9, 2016. Campbell denied that the

Petitioner sold marijuana and denied that the Petitioner was selling marijuana in March

2016. She stated that she smoked two or three grams of marijuana every day, that the

Petitioner smoked slightly more than that each day, and that the two of them smoked

approximately one ounce of marijuana a week. Campbell said that the night before the

Petitioner was stopped in this case, they bought an ounce of marijuana that they intended

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to split. She asserted that the sandwich bags were in the car so that she and the Petitioner

could divide up the marijuana they had purchased and that they had the digital scale to

check the amount of marijuana they were buying and to split it between them. She also

said that the $2000 in cash recovered from the car was money from tips that the Petitioner

was holding for her because she did not have a bank account. Campbell denied that she

and the Petitioner intended to sell the marijuana at the schools near the location of the stop.

She said that although the Petitioner claimed that all of the marijuana belonged to him, in

reality, half an ounce of it belonged to her, and half an ounce belonged to him. Campbell

admitted that when the Petitioner was arrested, she lied to Investigator Chaney when she

told him the phone belonged to her so he would allow her to take it. She also admitted that

she deleted everything from this phone but claimed that she did so because she had

“personal videos” on it that she did not want the police to see.

The Petitioner testified at trial that he was currently twenty-four years old but had

been twenty-three years old at the time of his arrest. He said the night before his arrest, he

had spent the night with his girlfriend Kelsey Campbell, and they were “headed to pay

some bills[,]” including his car payment, when he was stopped. He acknowledged that he

was driving over the speed limit prior to his stop and claimed that he had not seen the sign

flashing for the school zone that day. The Petitioner said he knew he was in a school zone

when he was stopped; however, he denied that he planned to sell marijuana to school

children that day. He also denied intending to sell the marijuana at all and claimed that the

marijuana in his car was for personal use.

The Petitioner admitted that he had smoked marijuana that morning in his car prior

to being stopped. He said that he had purchased an ounce of marijuana the day before his

arrest for $280 or $290 and that he had bought this marijuana for him and his girlfriend to

share. He stated that he told the police that all of the marijuana belonged to him because

he was trying to protect his girlfriend.

The Petitioner admitted that he had misled the police when he explained where he

had gotten his gun. He maintained that he had borrowed money from Arthur Hill the day

before to get caught up on his bills, specifically his car payment. However, the Petitioner

said that the cash in his car belonged to his Kelsey Campbell. He said that Campbell had

earned this money at her job at Kelly’s Big Burger and that he was just holding this money

for her because she did not have a bank account. The Petitioner asserted that at the time

they were pulled over, he and Campbell were counting the money, and he “got scared.”

He maintained that the scale was for weighing the marijuana that he purchased and that the

sandwich bags were for dividing up the marijuana with his girlfriend and for storing their

marijuana. The Petitioner stated that he had the handgun “for protection.”

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The Petitioner denied that he was a drug dealer and denied that he ever planned to

sell drugs to the children at Minglewood Elementary School that morning. He also denied

that he planned to sell drugs within 1000 feet of a school that morning. He admitted that

his drivers license was revoked but denied knowing that his gun was stolen. The Petitioner

acknowledged that when Campbell informed him that she had erased all of the messages

and calls on his phone, he told her, “You did good, babe.”

At the conclusion of this trial, the jury found the Petitioner guilty of possession of

one-half ounce or more of marijuana with the intent to sell or deliver within 1000 feet of a

school, possession of a firearm with the intent to go armed during the commission of a

dangerous felony, theft of property valued at five hundred dollars or less, unlawful

possession of drug paraphernalia, driving on a revoked license, and speeding. The

Petitioner failed to appear at his sentencing hearing for these convictions and was later

apprehended.

Thereafter, the Petitioner was sentenced in case number 63CC-2016-CR-843, by

agreement of the parties, in Count 1 to two years at one hundred percent for the conviction

for possession of one-half ounce or more of marijuana with the intent to sell or deliver

within 1000 feet of a school; in Count 2 to three years at one hundred percent for the

conviction for possession of a firearm with the intent to go armed during the commission

of a dangerous felony, served consecutively to the sentence in Count 1; in Count 3 to eleven

months and twenty-nine days for the conviction for theft of property valued at five hundred

dollars or less, served concurrently with the sentence in Count 2; in Count 4 to eleven

months and twenty-nine days for the conviction for unlawful possession of drug

paraphernalia, served concurrently with the sentence in Count 2. In case number 63CC-

2016-CR-986, the Petitioner was sentenced by agreement of the parties in Count 1 to six

months, served concurrently to Count 2 in case number 63CC-2016-CR-843, for the

driving on a revoked license conviction and was given only a fine for the speeding

conviction in Count 2.

Following the Petitioner’s convictions in this case, trial counsel was allowed to

withdraw, and counsel was appointed to represent the Petitioner on appeal. Thereafter, the

Petitioner timely filed a motion for new trial. Because of a conflict, new appellate counsel

was appointed to proceed with the Petitioner’s appeal. However, on February 13, 2019,

the Petitioner, with the help of appellate counsel, voluntarily dismissed his motion for new

trial and waived all rights to appeal.1

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In furtherance of his desire to dismiss his appeal, the Petitioner signed an affidavit, which stated

in pertinent part:

“I have decided not to pursue my appeal in this matter; After reviewing my sentence and

of my own volition [I] have made this decision on my own; I have instructed my attorney

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On October 1, 2019, the Petitioner filed a pro se “Petition for Relief From

Conviction or Sentence,” generally asserting that he received ineffective assistance of

counsel. On November 13, 2019, the Petitioner was appointed post-conviction counsel.

On July 15, 2020, the Petitioner, citing Tennessee Rule of Criminal Procedure 36.1,

filed a pro se “Motion to Correct Illegal Sentence,” arguing in pertinent part that his

convictions and sentences were void or voidable because they violated his rights under the

Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and article I,

sections 8, 9 and 16 of the Tennessee Constitution and that his five-year sentence for his

non-violent drug offense directly contravened Tennessee Code Annotated sections 39-17-

417 and 39-17-432.

On November 20, 2020, with the assistance of appointed counsel, the Petitioner filed

an amended petition for post-conviction relief. In this amended petition, the Petitioner

incorporated the grounds for relief he alleged in the original petition and additionally

argued, in pertinent part, that (1) his sentence was in violation of the Eighth Amendment

to the United States Constitution and article I, section 16 of the Tennessee Constitution

because he was entitled to retroactive application of the amendment to Code section 39-

17-432, which reduced the drug-free school zone from 1000 feet of a school to 500 feet of

a school and removed the mandatory service of a minimum sentence; (2) trial counsel

provided ineffective assistance in failing to file any pretrial motions, including a motion to

suppress his statements to law enforcement; in failing to request funding for an expert to

evaluate whether the Petitioner’s statement to law enforcement was voluntary and knowing

given that he was under the influence of marijuana when he gave his statement; and in

failing to communicate properly with him, especially regarding the State’s offer; and (3)

appellate counsel provided ineffective assistance in failing to preserve issues on appeal.

At the post-conviction hearing, the post-conviction court recognized that this

hearing concerned not only the petition for post-conviction relief but also the Petitioner’s

pro se motion to correct an illegal judgment pursuant to Rule 36.1. Thereafter, appellate

counsel testified that he was appointed to represent the Petitioner “solely on appeal” after

the Petitioner had been convicted and sentenced and a motion for new trial had been filed.

He stated that he been involved in 500 to 1000 appeals, had represented clients in seventy-

five appeals that resulted in published opinions, and had handled cases before the United

States Supreme Court, the Federal Court of Appeals, Military Courts, and state court.

to dismiss the appeal in this matter; I understand that by dismissing this appeal, I will be

barred from filing an appeal in this matter in the future . . . .”

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Appellate counsel said that on February 6, 2019, he received a notarized letter from

the Petitioner, stating that “the primary issue was [his] sentence” and that “if he came to

court he would lose his job at the prison” and “would lose some work credits,” and that

“upon weighing everything[,]” he had decided he wanted to “dismiss the appeal.”

Appellate counsel stated that he had the Petitioner sign an affidavit on February 13, 2019,

which specified that the Petitioner understood that if he dismissed his motion for new trial,

it would “kill his appeal.” He noted that the Petitioner’s February 6, 2019 letter came “out

of the blue” and that he had the Petitioner sign the affidavit after discussing the issue with

him to ensure that the Petitioner “understood what he was doing[.]” He said that after the

Petitioner signed this affidavit, he dismissed the Petitioner’s appeal. Appellate counsel

stated that he believed the Petitioner understood the consequences of dismissing his appeal.

He said that the Petitioner made the decision to dismiss his appeal voluntarily and that he

did not force him or ask him to dismiss his appeal. He asserted that the Petitioner’s letter

to him was “attached to the motion to dismiss” that was filed on February 12, 2019, and

that the Petitioner’s affidavit was filed on February 13, 2019.

Appellate counsel asserted that most of the conversations with the Petitioner took

place over the phone or by mail, although he “presume[d]” that since he “notarized . . . the

affidavit” the Petitioner signed, he and the Petitioner had a “face-to-face” conversation that

day. He said the Petitioner’s main issue appeared to be his sentence, although he

acknowledged that he had not yet received the transcripts from the trial and sentencing

hearing that the trial court had ordered. He said he told the Petitioner that if the Petitioner

waived his appeal, he could not appeal his sentence. Appellate counsel noted that section

five of the February 13, 2019 affidavit, which was signed by the Petitioner, specifically

stated, “I understand that by dismissing this appeal I will be barred from filing an appeal

in this matter in the future” Appellate counsel said the reason the Petitioner wanted to

dismiss his appeal was because “he wanted to keep whatever job he had at the prison and

not lose credits.” When asked if he and the Petitioner ever discussed whether he believed

his sentence would only be served at thirty percent, appellate counsel replied,

To be honest, I don’t remember. I would have looked at the

paperwork and stuff. But as I say, we were waiting for transcripts.

And most of what I do on appeal, since it’s kind of like looking at a

photograph, I’m stuck with whatever has happened. You generally wait until

the photographs develop, which [in this case] would be transcripts.

Appellate counsel was also asked if he recalled any discussions with the Petitioner

about the school zone enhancement to a one hundred percent sentence or the weapons

charge being a one hundred percent sentence, and appellate counsel replied, “The only part

of the recollection I have with that, the sentencing had already been done, so that should

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have been a known factor, because sentencing had already been done before I came on.”

When asked if he knew of any case law indicating that there was some question regarding

the constitutionality of the drug-free school zone enhancement law, appellate counsel

replied, “the school zone enhancement issues had been litigated fairly extensively,

including I’ve had some appeals. The Court is pretty clear. I think it’s a nasty law, but at

least at the time, it was fairly cut and dry.”

The Petitioner testified that trial counsel provided ineffective assistance by failing

to properly communicate with him. Although he acknowledged that trial counsel conveyed

a proposed settlement offer of three years to be served at one hundred percent, he asserted

that trial counsel never explained that he would be eligible for sentence reductions. He

said trial counsel told him he would have to serve the three year sentence “day-for-day”

with “no good time” credits and “nothing coming off.” The Petitioner said he later learned,

after reviewing the statute, that he would be eligible for up to a fifteen percent sentence

reduction. He said that if he had known about this fifteen percent sentence reduction, he

“would have taken the plea.”

The Petitioner also asserted that when he provided a statement to police, he was

under the influence of marijuana, which he had been smoking at the time he was stopped.

He admitted that he did not tell the officer he was under the influence of marijuana when

he gave his statement, but he could not recall whether the officer specifically asked him if

he was under the influence of any drugs. The Petitioner stated that when he gave his

statement, he “wasn’t paying attention” because he was “high.” He added that he went

“back-and-forth” and tried to “recant certain statements” because he was impaired from

the marijuana and did not know what he was doing. The Petitioner said he never told trial

counsel that he was under the influence of drugs at the time he gave his statement to police.

He stated that trial counsel reviewed the videotape of his interview, but they never

discussed his impairment during his statement. The Petitioner asserted that trial counsel

never filed a motion to suppress his statement to police and that trial counsel never had an

expert review his videotaped interview to determine whether he was impaired at the time

of his statement.

The Petitioner noted that in addition to the post-conviction petition, he also filed a

motion to correct an illegal sentence. He said that his sentence for the marijuana charge

had been enhanced because he was in a school zone and that he believed the enhancement

statute had been changed since his trial. When asked if he would have been in a school

zone under the new statute, the Petitioner replied, “I’m not sure, because I—didn’t it

change to 500 feet? I probably would have been [in a school zone] because it’s like the

longest school zone in Clarksville. But I think I would have, but not like on the actual

property. I’m not sure, though.” The Petitioner asserted that the amended enhancement

statute placed a burden on the State to prove that the defendant was actually in the school

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zone selling drugs. He also claimed that because he was merely speeding with marijuana

in his vehicle at the time of his stop rather than actually selling drugs in the school zone,

his sentence would not have been enhanced under the amended enhancement statute. The

Petitioner asserted that the sentence he was serving was now illegal because of the

amendment to Code section 39-17-432.

The Petitioner stated that under the 2020 amended statute, he would not have

received the same sentence that he received under the statute as it existed at the time of his

offense. However, he admitted that he was not claiming his sentence was illegal at the

time it was given. The Petitioner said that his main issue on post-conviction was that he

did not understand the plea negotiations and that if he had understood them, he would have

accepted the State’s offer of three years, which was better than the sentence of five years

that he received after being convicted at trial.

The Petitioner acknowledged that the road that he was travelling on prior to his stop

was actually the road on which the school was located. He also admitted that the location

of his stop was on school property. When he was asked whether he was easily within 500

feet of the school property, the Petitioner responded that his location when the officer first

put on his lights on was “way before that.”

The Petitioner admitted that Investigator Chaney had not coerced him into giving

his statement; instead the issue was that he “wasn’t thinking right” when he gave his

statement because he had just smoked marijuana. He acknowledged that he was not under

the influence of any drugs other than marijuana at the time of his statement. The Petitioner

said that when he and trial counsel were going over the facts of the case, which included

the police finding several rolled joints in his car, trial counsel had asked him if he was

under the influence at the time, and he thought he had told him he was under the influence

of marijuana, although they did not have an in depth discussion about it.

The Petitioner said that he remembered “[m]ost” of his interview and that he was

“pretty sure” he remembered his interview before his trial. He acknowledged that he and

trial counsel reviewed his interview and trial counsel talked to him about the contents of

his interview. The Petitioner admitted he said things during his interview that were not

true and claimed he “recanted” statements because he was “under the influence.” He

claimed that Investigator Chaney should have known he was impaired at the time of the

interview because of the appearance of his “eyes” and because his “speech wasn’t clear”

and he “mumbled.” He said that he had smoked two or three joints of marijuana the

morning of his stop, that he had been smoking a joint at the time of his stop, and that this

marijuana use had caused him to speed that day. The Petitioner admitted that he smoked

marijuana on a regular basis at the time of his stop and that it was not unusual for him to

smoke two or three joints before driving. When he was asked whether smoking marijuana

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affected his ability to function, the Petitioner said he would not smoke marijuana if he had

something important to do or had to work. He said that if he went places after he smoked

marijuana, people could usually tell that he was “high” because of the way he looked.

The Petitioner said that when trial counsel informed him of the State’s offer of three

years at one hundred percent, and he was “really shocked” about the plea. He asked trial

counsel if there was any way to reduce the sentence, and trial counsel told him, “No . . .

that’s final. That’s what it is.” The Petitioner said that after that, there were no more

attempts to negotiate the State’s offer. He also said that there was “only one” settlement

offer conveyed to him by trial counsel.

The Petitioner asserted that trial counsel asked him at trial if he was under the

influence of marijuana at the time he was pulled over. He reiterated that he was smoking

marijuana at the time of the stop and that the officer said he could see the smoke coming

from his vehicle. The Petitioner confirmed that after his arrest he was transported directly

to the police station to give his statement.

Trial counsel testified that he represented the Petitioner at trial and that he and the

Petitioner discussed the plea negotiations during his case. When asked about the State’s

offer and whether he discussed this offer with the Petitioner, trial counsel stated:

My recollection of the offer was three [years] at 100 [percent] and

then another two [years] on probation, after he served the three. That was

the offer I got from the State and that’s what I discussed with him. . . .

And we had extensive discussions about whether or not that was a

legal sentence. Because legally speaking, the three years is mandatorily

consecutive to the two years, because that’s the marijuana charge. But he

had to serve a sentence on it too.

And it was his first felony conviction, is my recollection of it[,] too.

He didn’t understand why he should have to serve a prison sentence [the]

first time he ever got convicted of a felon[y], and [he] refused to do so.

When trial counsel was asked whether he told the Petitioner that he could only serve

eighty-five percent of the one hundred percent sentence, he said,

We never got that far. He refused to serve a prison sentence for the

crimes he was charged with. He wasn’t—like, that wasn’t even an option for

him. . . . . He’s not going to serve a jail sentence. That’s his attitude; I’m

not going to serve a jail sentence the first time I’ve ever been convicted of

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[a] felony. This is an excessive punishment for the crimes I was charged

with; is his attitude.

So it never got to the point where . . . my recollection of it, we never

discussed good time credits or anything like that, because once he heard

prison sentence he was checked out.

Trial counsel said that the Petitioner “was an everyday smoker” who was “high

every time” he saw him. He said he was “pretty sure” the Petitioner told him he was

smoking marijuana when he got stopped. Trial counsel acknowledged that they never

discussed whether the Petitioner’s smoking marijuana would have affected his statement

to police; however, trial counsel asserted that being “high” was the Petitioner’s “everyday

state.” He added, “[W]hen you’re high all the time, it doesn’t affect your judgment.” He

also said he did not remember the Petitioner confessing to anything during the interview.

He insisted that “there was no, ‘I sell weed for money,’ confession” although there were

“some inconsistencies, obviously”

Trial counsel noted that the police recovered receipts detailing the source of the

money in the Petitioner’s car. He asserted, “[W]here the money came from was probably

the bigger issue, and . . . that was mostly what the [Petitioner’s] lies were about, I guess, in

the interview, if there were any lies.” He added that the Petitioner’s mother was “willing

to produce evidence and testify that the lies were true” and that the Petitioner’s mother

testified along those lines at trial.

Trial counsel said he never really considered filing a motion to suppress the

Petitioner’s statement because he “didn’t feel like it would be successful” As to whether

he considered having the Petitioner’s interview evaluated by an expert to determine

whether he was impaired, trial counsel said he did not consider it because the Petitioner

“couldn’t afford an expert” and rarely came to talk to trial counsel because he owed him

money. He noted that the Petitioner “had the perfect constellation of bad facts” because

“he was speeding in a school zone with a gun and an ounce of weed” and “the Judge made

them count the sandwich baggies[,]” which did not help his case.

Trial counsel stated that although the Petitioner was always “high” when he came

to his office to discuss his case, the Petitioner was a “very intelligent person” who

“understood clearly” what they were discussing about his case. He said that when the

Petitioner’s bond was not revoked after being convicted, the Petitioner disappeared for six

months because “he knew” he should have been imprisoned immediately upon being

convicted.

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Trial counsel said the State was adamant that the Petitioner serve three years in the

offer because the Petitioner was serving a sentence on probation when he was charged in

this case. He stated that he did not recall the State making an offer of just three years to

serve without requiring the Petitioner to serve an additional two years on probation.

Trial counsel identified emails between the State and him wherein he attempted to

negotiate something less than a one hundred percent sentence. He said he unsuccessfully

asked for a sentence of three years at forty-five percent with the Petitioner entering a guilty

plea to a Class E felony out of range; however, despite his negotiation efforts, the State

never agreed to a reduction of its offer of three years at one hundred percent for the weapon

charge. Trial counsel asserted that he talked to the Petitioner about his charges and the

possible punishments for his charges. He noted that even after the Petitioner was

convicted, the State offered him the same deal of three years at one hundred percent

followed by two years of probation, but the Petitioner “stopped coming to court.”

Trial counsel said he was “sure” he talked to the Petitioner about the fact that he

could get out at eighty-five percent on the one hundred percent sentence, but the Petitioner

“wasn’t willing to plead to the ‘D” [felony] at 100 percent. So it never got any further

[than] that.” He asserted that the Petitioner told him, “I’m not going to do it. I’ll take my

chances at trial.” He added, “For the record, [the Petitioner] would have got[ten] three

[years] at 100 percent at trial anyway. Why would he plead to it?”

Sergeant Lon Chaney of the Clarksville Police Department, testified that he had

been a narcotics investigator with the department when he interviewed the Petitioner in this

case. When he asked if there was anything about the Petitioner’s condition at the time of

the interview that made him believe the Petitioner did not understand what was happening,

Sergeant Chaney said, “No sir. I would have noted that early on[.]” He said that although

he sometimes interacted with people who were so highly impaired that they could not be

interviewed, he believed the Petitioner understood everything discussed during his

interview. He said he routinely asked individuals to recall their address, their cars, and

their social security number, and he did not see anything in the Petitioner’s responses that

raised a red flag that the Petitioner was impaired.

Sergeant Chaney said he knew the Petitioner had been smoking marijuana at the

time he was stopped and that six joints of marijuana had been recovered from the

Petitioner’s car. He said, “I’m disputing . . . [the Petitioner’s] level of intoxication. I—I

don’t dispute that he smoked marijuana a lot.” He added,

[The Petitioner] was not to where he didn’t understand, wasn’t able to recall

or understand the gravity of what was going on. He was able to speak to me

intelligently[,] and he was able to come up with different various options of

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how this evidence was piled on him. He was able to come up with ulterior

theories, which shows me that he was able to think on his feet, at that time.

On February 8, 2021, the post-conviction court entered a written order denying both

the petition for post-conviction relief and the motion to correct an illegal sentence.

Regarding the alleged unconstitutionality of the Petitioner’s sentence, the court held:

Petitioner contends that the sentence imposed i[s] in violation of the

Eight Amendment to the U.S. Constitution and Article I, Section 16 of the

Tennessee Constitution, by virtue of being cruel and unusual punishment

given the nature of the offense for which Petitioner was convicted. The issue

of the constitutionality of the school zone provisions of T[enn]. C[ode]

A[nn]. § 39-17-432, ha[s] previously been considered and upheld, State v.

Smith, 48 S.W.3d 159 (Tenn. [Crim. App.] 2000). In State v. Smith, id[.],

the Court cited United States v. Rodriguez, 961 F.2d 1089, 1094 (3d Cir.

1992), in which the court stated:

The mere presence of substantial quantities of drugs increases

the risk of gunfire and other violence . . . . In addition, a person

possessing drugs may abandon them while fleeing from the

police . . . . The drugs may also be lost or stolen near a school

and may then find their way into students’ hands.

Petitioner argues that the mandatory sentence rendered in the case pursuant

to T[enn]. C[ode] A[nn]. § 39-17-432, was arbitrarily imposed and should be

deemed as disproportionate to the crime committed. Based on State v. Smith,

id[.] and the cases cited therein[,] this issue is found to be without merit.

Regarding the Petitioner’s ineffective assistance of counsel claims, the trial court

made the following findings and conclusions:

The trial transcript reflects that Petitioner was advised of his rights under

Miranda and that he talked freely with [Sergeant] Chaney. Petitioner went

on to voluntarily state, “It’s all mine.” As to his state of intoxication, the

proof at trial indicated that Petitioner had smoked some marijuana one hour

prior to being stopped and that he smoked marijuana daily. Trial counsel

testified that Petitioner was high or at least had smoked every time that

counsel met with Petitioner, that Petitioner seemingly understood the issues

in the case, the offer of settlement made by the state and was able to

effectively communicate with counsel. It is recognized that intoxication or

mental unsoundness is not alone sufficient to bar the introduction of

- 13 -

statements made by an accused if the evidence also shows the accused was

capable of understanding his rights. State v. Green, 613 S.W.2d 229 (Tenn.

Cr[im]. App. 1980). There was no proof the Petitioner’s use of marijuana

prevented him from understanding the fact that he was giving a statement to

law enforcement or that he did not understand the significance of the Miranda

warnings give to him. . . .

. . . Petitioner makes specific reference to counsel’s failure to file a

Motion to Suppress[] Petitioner’s statement to law enforcement. This court

does not find there is a reason to believe that such a motion would have been

successful and further that[,] given the proof at trial[,] that the exclusion of

Petitioner’s statement would have resulted in a different outcome. On this

basis this court does not find that either prong of Strickland . . . has been

established as to this issue.

Petitioner complains that trial counsel failed to request funding for an

expert to evaluate Petitioner’s confession to determine whether the Petitioner

lacked capacity to make a knowing and voluntary waiver of his right and/or

to understand whether his detention was voluntary or involuntary, or to have

the capacity to give a statement to law enforcement in his intoxicated state.

Petitioner has presented no proof that any expert could have made such an

evaluation or what the results would have been from an attempted evaluation.

The burden of proof is on the Petitioner to establish by clear and convincing

evidence such factual allegations. T[enn]. C[ode] A[nn]. § 40-30-110(f);

Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006). As to this issue this court

finds that Petitioner has not met the burden of proof.

Petitioner complains that trial counsel failed to . . . explain the State’s

offer of settlement. Trial counsel testified that he met with Petitioner on

several occasions, that trial counsel repeatedly attempted to obtain [a] more

advantageous settlement offer from the [S]tate and discussed that one of the

most critical issues in the case was the money in the vehicle. Defense counsel

cannot force the prosecution to make any settlement offer other than an offer

to which the prosecution is agreeable. The testimony in the Post[-]

Conviction Hearing[] reflected that the prosecution insisted on the Petitioner

serving time in incarceration and that the Petitioner was not agreeable to any

offer which required that he be incarcerated, therefore there was no

agreement. . . .

Petitioner mentions in his testimony that had he known there would

have been a sentence credit of 15% that he would have accepted the offer of

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the State, but counsel failed to advise him accordingly. This court notes that

the sentence credit is not a guaranteed credit, but must be “earned[,”]

therefore[,] the sentence of five (5) years in this case was a 100% sentence.

Also, the transcript of the “Sentencing/Plea” reflects that the trial court

specifically inquired of the Petitioner if he understood the terms of the

sentence, to which Petitioner replied in the affirmative. Therefore, this issue

is found to be without merit.

Regarding the Petitioner’s “Motion to Correct Illegal Sentence,” the trial court held:

In this case the date alleged in Count 1 of the indictment on which the

Petitioner was convicted[] is March 9, 2016, at which time the distance of

the school zone was 1,000 feet [of] the real property of a school. Tenn. R.

Crim. P. 36.1(a) states:

(2) For purposes of this rule, an illegal sentence is one that is

not authorized by the applicable statutes or that directly

contravenes an applicable statute.

Petitioner was charged with violation of . . . T[enn]. C[ode] A[nn]. §

39-17-417[] on March 9, 201[6], and convicted. The subsequent amendment

of the statute does [not] present a colorable claim so as to give a basis for

finding an illegal sentence has been imposed on the Petitioner.

Following entry of this written order denying relief, the Petitioner timely filed a

notice of appeal.

ANALYSIS

I. Ineffective Assistance of Counsel. The Petitioner argues that the post-

conviction court erred in denying him relief because both trial counsel and appellate trial

counsel provided ineffective assistance. Specifically, he asserts that trial counsel was

ineffective in failing to file a motion to suppress his statement to law enforcement, which

he claims he gave while under the influence of marijuana, and in failing to have an expert

examine his recorded interview. He also claims trial counsel was ineffective in failing to

properly communicate the State’s offer. Finally, he asserts that appellate counsel provided

ineffective assistance in failing “to review the sentencing” with him. The State counters

that the post-conviction court properly denied relief on these ineffective assistance of

counsel claims. We agree with the State.

- 15 -

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); Hicks v. State, 983

S.W.2d 240, 245 (Tenn. Crim. App. 1998).

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 conclusions of law, decisions involving mixed questions of law and

fact, and its application of law to its factual findings 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)). “Accordingly, appellate

courts are not free to 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)). “As a general

matter, 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 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) the 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). 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.” Goad, 938

S.W.2d at 369 (citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975)). To establish prejudice in the context of a guilty plea, a petitioner must show

that, but for counsel’s errors, the petitioner would not have entered his guilty plea and

would have proceeded to trial. Serrano v. State, 133 S.W.3d 599, 605 (Tenn. 2004) (citing

Hill v. Lockhart, 474 U.S. 52, 59 (1985)). “Because a petitioner must establish both prongs

- 16 -

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 370.

In assessing an attorney’s performance, 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 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).

Regarding the claim that trial counsel was ineffective in failing to file a motion to

suppress his statement and in failing to have an expert review his statement, the Petitioner

asserts that his convictions were based on “a coerced confession and violation of the

privilege against self-incrimination” and that his statement was “given involuntarily and

unknowingly since he was under the influence of marijuana.” The Petitioner maintains

that had his statement “been suppressed after examination by an expert, this would have

resulted in a different outcome at trial.” At trial, Officer Ronald Myers testified that he

stopped the Petitioner and his girlfriend for speeding in a school zone. During the stop,

Officer Myers smelled marijuana coming from the Petitioner’s car. During the search of

the Petitioner’s car, he found more than an ounce of marijuana, a digital scale, two thousand

dollars of cash, 140 sandwich bags, and a loaded gun that was later found to be stolen. At

the post-conviction hearing, the Petitioner never introduced the video recording of his

interview with the police.

In addition, the Petitioner never presented testimony from an expert stating his

statement was unknowing and involuntary. See Black v. State, 794 S.W.2d 752, 757 (Tenn.

Crim. App. 1990) (“When 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.”). The Petitioner admitted that

Sergeant Chaney never coerced him into providing a statement during his interview and

acknowledged that his actual claim was his impairment from marijuana at the time of his

statement. Trial counsel testified that the Petitioner was “an everyday smoker” who was

“high” every time he saw him. He said that although the Petitioner was always under the

influence of marijuana when he came to his office, the Petitioner was a “very intelligent

person” who “understood clearly” what they were discussing regarding his case. Trial

- 17 -

counsel said he never really considered filing a motion to suppress the Petitioner’s

statement because he did not believe it would be successful. He also asserted that the

Petitioner would not have been able to afford an expert to evaluate his statement because

the Petitioner owed trial counsel money for his representation in this case.

Sergeant Lon Chaney testified that although he knew that the Petitioner had been

smoking marijuana prior to his stop, the Petitioner was able to speak to him “intelligently”

and was able to come up with different explanations for how the evidence came to be in

his car. Sergeant Chaney said that although he had interviewed people who were so highly

impaired that they could not be properly interviewed, the Petitioner seemed to understood

everything they discussed.

In its order denying relief, the post-conviction court concluded that the Petitioner

had failed to present any proof that his use of marijuana prevented him from understanding

that he was giving a statement or prevented him from understanding the significance of his

Miranda warnings. The post-conviction court also held the Petitioner failed to show that a

motion to suppress his statement would have been successful or that if his statement had

been suppressed, it would have changed the outcome of his trial. The record fully supports

the post-conviction court’s findings of fact and conclusions on these issues. Because the

Petitioner has failed to establish that trial counsel provided ineffective assistance in failing

to file a suppression motion or in failing to have an expert review his statement, the

Petitioner is not entitled to relief on these claims.

Next, we turn to the Petitioner’s claim that trial counsel was ineffective in failing

to communicate the State’s offer. The Petitioner asserts, mirroring his testimony at the

post-conviction hearing, that had trial counsel properly explained his eligibility for

sentence reduction credits of fifteen percent on the State’s offer of three years at one

hundred percent, he would have accepted the offer, which would have been a better result

than the five-year sentence he received following his convictions. At the post-conviction

hearing, an email was admitted memorializing the State’s offer, which detailed that in case

number 63CC-2016-CR-843, the Petitioner in Count 1 would enter a guilty plea to

possession of marijuana within the intent to sell, without the drug-free school zone

enhancement, for a two-year suspended sentence to be served consecutively to the sentence

in Count 2; in Count 2, the Petitioner would enter a guilty plea to possession of the handgun

during the commission of a dangerous felony and would receive a mandatory three-year

sentence at one hundred percent; in Count 3, the Petitioner would enter a guilty plea to

theft of the handgun for a two-year suspended sentence, to be served concurrently to the

sentence in Count 1; the drug paraphernalia charge in Count 4 would be dismissed; and the

charges in case number 63CC-2016-CR-986 would be dismissed. Trial counsel testified

that he presented this offer to the Petitioner, but the Petitioner refused to consider any plea

deal that required him to be incarcerated for his first felony conviction. Trial counsel said

- 18 -

he was “sure” he talked to the Petitioner about the potential to get released after serving

eighty-five percent on the one hundred percent sentence, but the Petitioner was not willing

to plead guilty to the Class D felony, “[s]o it never got any further [than] that.” He also

explained that even after the Petitioner was convicted, the State offered him the same deal

of three years at one hundred percent followed by two years of probation, but the Petitioner

failed to appear at his sentencing hearing.

In the order denying relief, the post-conviction court found that the fifteen percent

sentence reduction was “not a guaranteed credit” and had to be “earned” and that the offer

from the State was properly characterized as a one hundred percent sentence. Here, the

record clearly shows that the Petitioner refused to accept the State’s offer, not because he

was not informed of the possibility of a fifteen percent sentence reduction, but because he

did not want to serve any time in incarceration for these offenses. Because the Petitioner

has failed to show that trial counsel provided ineffective assistance regarding his

communication of the State’s offer, the Petitioner is also not entitled to relief on this issue.

Finally, we address the Petitioner’s claim that appellate counsel was ineffective.

The Petitioner asserts that although appellate counsel acknowledged that the Petitioner’s

main issue was sentencing, he nevertheless voluntarily dismissed the Petitioner’s motion

for new trial and waived all rights to an appeal, including his sentencing issue. At the post-

conviction hearing, appellate counsel testified that he was appointed to represent the

Petitioner on appeal after the Petitioner had been convicted and sentenced and the motion

for new trial had already been filed. Appellate counsel said that on February 6, 2019, he

received a notarized letter from the Petitioner, wherein he stated that his “primary issue

was [his] sentence” and that “if he came to court he would lose his job at the prison” and

“would lose some work credits” and that after “weighing everything,” he had decided he

wanted to “dismiss the appeal” Appellate counsel said he discussed this issue with the

Petitioner to ensure that he knew what he was doing and then had the Petitioner sign an

affidavit on February 13, 2019, which stated that the Petitioner understood that if he

dismissed the motion for new trial, it would “kill his appeal.” He said that after the

Petitioner signed this affidavit, he dismissed the Petitioner’s appeal pursuant to the

Petitioner’s instructions. Appellate counsel asserted that he believed the Petitioner

understood the consequences of dismissing his appeal, that the Petitioner made the decision

to dismiss his appeal voluntarily, and that he had never forced or asked the Petitioner to

dismiss his appeal. He said that the Petitioner’s February 6, 2019 letter came “out of the

blue” and that he discussed this issue with the Petitioner to ensure he “understood what he

was doing” before having the Petitioner sign the affidavit. Appellate counsel said he

attached the Petitioner’s February 6, 2019 letter to the motion to dismiss he filed on

February 12, 2019, and that he filed the Petitioner’s affidavit on February 13, 2019.

- 19 -

The proof presented at the post-conviction hearing overwhelmingly shows that the

Petitioner instructed appellate counsel to dismiss his appeal and that appellate counsel fully

discussed this issue with the Petitioner before following the Petitioner’s instructions and

dismissing his appeal. Moreover, the sentencing transcript shows that the Petitioner’s

sentence was the result of an agreement between the parties, which was approved by the

trial court, and that the Petitioner was specifically informed that his sentences of

imprisonment in Count 1 and Count 2 would be served at one hundred percent and would

be served consecutively by law. Because the Petitioner has failed to show that appellate

counsel provided ineffective assistance in failing to discuss his sentencing or in dismissing

his appeal, he is not entitled to relief on this issue.

II. Sentence is Unconstitutional. The Petitioner also contends that his sentence

on the marijuana charge violates the prohibition against cruel and unusual punishment in

both the Eighth Amendment to the United States Constitution and article I, section 16 of

the Tennessee Constitution, “particularly following the change in law after his trial with

respect to drugs in a school zone.” He claims that because Code section 39-17-432 has

been amended “to not only reduce the distance to 500 [feet of a school] but also to remove

the mandatory service of the minimum sentence,” there is a “rebuttable resumption” in his

favor. See Tenn. Code Ann. § 39-17-432 (2020). The Petitioner, referencing Montgomery

v. Louisiana, 577 U.S. 190, 200 (2016), and Schriro v. Summerlin, 542 U.S. 348, 353

(2004), asserts that because Code section 39-17-432 “now alters the range of conduct and

the class of persons that the law punishes[,]” the amended version of Code section 39-17-

432 “should be applied retroactively.” He claims that “the sentencing enhancement

contained in Tenn. Code Ann. § 39-17-432 (2014) was arbitrarily used in [his] case, despite

it being disproportionate to the crime committed.” The Petitioner asserts that there was

“[n]o evidence . . . demonstrating that [he] was in the school zone to sell drugs or [to]

otherwise expose vulnerable persons [to drugs]” and that “it was undisputed at trial that

[he] was simply traveling through the school zone with marijuana in his vehicle when he

was pulled over for speeding[;]” accordingly, he maintains that “[u]nder the current

statutory scheme, he would not have received such a severe sentence.” Lastly, the

Petitioner claims, although this is totally at odds with his trial transcript, that an officer

testified at his trial that the location of his traffic stop was over 500 feet from the school,

which places his offense “outside the current Drug Free School Zone Act.” In response,

the State contends that based on the application of the Drug-Free School Zone Act as it

existed at the time of the Petitioner’s offense, conviction, and sentencing, the Petitioner is

not entitled to relief. We conclude that the sentencing provisions of Code section 39-17-

432 that were in effect at the time of the Petitioner’s offense did not violate the prohibitions

against cruel and usual punishment. We also conclude that the amendment to Code section

§ 39-17-432 does not amount to a “new rule” requiring retroactive application.

Accordingly, the Petitioner is not entitled to relief.

- 20 -

The record shows that the Petitioner committed the offense of possession of

marijuana with the intent to sell or deliver within a school zone on March 9, 2016. He was

convicted on February 28, 2017, and sentenced on June 18, 2018. Then, more than two

years after the Petitioner was sentenced and more than four years after the Petitioner

committed the relevant offense, the Tennessee General Assembly amended the Drug-Free

School Zone Act, which became effective on September 1, 2020. See Act of July 15, 2020,

ch. 803, §§ 1-9 (S.B. 2734) (effective Sept. 1, 2020) (codified as amended at Tenn. Code

Ann. § 39-17-432 (2020)). The General Assembly specifically provided that this amended

act applied to offenses “committed on or after” September 1, 2020. See id.

The version of the Drug-Free School Zone Act that was in effect at the time of the

Petitioner’s offense, provided the following, in pertinent part:

(b)(1) A violation of § 39-17-417 . . . that occurs on the grounds or facilities

of any school or within one thousand feet (1,000’) of the real property that

comprises a public or private elementary school, middle school, secondary

school, preschool, child care agency, or public library, recreational center or

park shall be punished one (1) classification higher than is provided in § 39-

17-417(b)-(i) for such violation.

....

(c) Notwithstanding any other law or the sentence imposed by the court to

the contrary, a defendant sentenced for a violation of subsection (b) shall be

required to serve at least the minimum sentence for the defendant's

appropriate range of sentence. Any sentence reduction credits the defendant

may be eligible for or earn shall not operate to permit or allow the release of

the defendant prior to full service of the minimum sentence.

Tenn. Code Ann. § 39-17-432(b)(1), (c) (2014) (amended in 2020).

The 2020 amended statute, which gave the court greater discretion to apply the

sentencing enhancement and reduced the distance triggering the enhancement from 1000

feet to 500 feet of a school’s real property, provides, in pertinent part:

(b)(1) A violation of § 39-17-417 . . . may be punished one (1) classification

higher than is provided in § 39-17-417(b)-(i) if the violation . . . occurs:

(A) On the grounds or facilities of any school; or

- 21 -

(B) Within five hundred feet (500’) of or within the area bounded by

a divided federal highway, whichever is less, the real property that

comprises a public or private elementary school, middle school,

secondary school, preschool, child care agency, public library,

recreational center, or park.

....

(c)(1) Notwithstanding any other law or the sentence imposed by the court

to the contrary, a defendant sentenced for a violation of subsection (b) may

be required to serve at least the minimum sentence for the defendant’s

appropriate range of sentence.

(2) There is a rebuttable presumption that a defendant is not required to serve

at least the minimum sentence for the defendant’s appropriate range of

sentence. The rebuttable presumption is overcome if the court finds that the

defendant’s conduct exposed vulnerable persons to the distractions and

dangers that are incident to the occurrence of illegal drug activity.

(3) If the defendant is required to serve at least the minimum sentence for the

defendant’s appropriate range of sentence, any sentence reduction credits the

defendant may be eligible for or earn must not operate to permit or allow the

release of the defendant prior to full service of the minimum sentence.

Id. § 39-17-432(b)(1), (c) (2020) (emphases added).

As an initial matter, we note that this court has repeatedly held that the sentencing

provisions of the Drug-Free School Zone Act, under which the Petitioner was sentenced,

do not violate the constitutional prohibitions against cruel and unusual punishment. State

v. Smith, 48 S.W.3d 159, 173 (Tenn. Crim. App. 2000); State v. Jenkins, 15 S.W.3d 914,

919-20 (Tenn. Crim. App. 1999); State v. Jordan Thomas Peters, No. E2014-02322-CCA-

R3-CD, 2015 WL 6768615, at *11 (Tenn. Crim. App. Nov. 5, 2015); State v. Steve Duclair,

No. E2012-02580-CCA-R3-CD, 2014 WL 1663152, at *11 (Tenn. Crim. App. Apr. 23,

2014).

We also reject the Petitioner’s claim that the 2020 amendment to the Drug-Free

School Zone Act somehow constitutes a “new rule” that applies retroactively to his

sentence. In order to properly analyze this issue, we must consider federal and state

precedent regarding the retroactive application of a “new rule.” While new constitutional

rules of criminal procedure announced in United States Supreme Court decisions generally

do not apply retroactively to cases on collateral review, new substantive rules announced

- 22 -

in such decisions do apply retroactively. Teague v. Lane, 489 U.S. 288, 310 (1989);

Schriro, 542 U.S. at 351; Welch v. United States, 578 U.S. 120, 128 (2016). Substantive

rules alter “the range of conduct or the class of persons that the law punishes.” Schriro,

542 U.S. at 353. On the other hand, procedural rules “regulate only the manner of

determining the defendant’s culpability[.]” Id. When a new substantive rule of federal

constitutional law dictates the outcome in a case, the United States Constitution requires

state collateral review courts to give retroactive effect to that rule under the Teague

framework. Montgomery, 577 U.S. at 200. “[A] court has no authority to leave in place a

conviction or sentence that violates a substantive rule, regardless of whether the conviction

or sentence became final before the rule was announced.” Id. at 203.

As for new constitutional rules announced in state appellate decisions, the

Tennessee Supreme Court held that Tennessee Code Annotated section 40-30-122 of the

Post-Conviction Procedure Act governs the retroactive effect of new constitutional rules

announced in state appellate decisions for post-conviction petitioners. Bush v. State, 428

S.W.3d 1, 16 (2014); see Tenn. Code Ann. § 40-30-122 (“A new rule of constitutional

criminal law shall not be applied retroactively in a post-conviction proceeding unless the

new rule places primary, private individual conduct beyond the power of the criminal law-

making authority to proscribe or requires the observance of fairness safeguards that are

implicit in the concept of ordered liberty.”). The Bush court concluded that “by adopting

Tenn. Code Ann. § 40-30-122, the General Assembly intended to replace the retroactivity

standard this Court adopted in Meadows v. State with the functional equivalent of the

federal standard from Teague v. Lane[.]” Bush, 428 S.W.3d at 20.

Despite the Petitioner’s claims to the contrary, the 2020 amendment to the Drug-

Free School Zone Act did not create a “new rule” entitled to retroactive effect. While the

2020 amendment undoubtedly made some changes to Code section 39-17-432, these

changes were not the result of a judicial decision on an existing statutory provision. Schriro

v. Summerlin clarified that judicial decisions result in “new rules” for retroactive

application:

When a decision of this Court results in a “new rule,” that rule applies

to all criminal cases still pending on direct review. Griffith v. Kentucky, 479

U.S. 314, 328, 107 S. Ct. 708, 93 L.Ed.2d 649 (1987). As to convictions that

are already final, however, the rule applies only in limited circumstances.

New substantive rules generally apply retroactively. This includes decisions

that narrow the scope of a criminal statute by interpreting its terms, see

Bousley v. United States, 523 U.S. 614, 620-621, 118 S. Ct. 1604, 140 L. Ed.

2d 828 (1998), as well as constitutional determinations that place particular

conduct or persons covered by the statute beyond the State’s power to punish,

see Saffle v. Parks, 494 U.S. 484, 494-495, 110 S. Ct. 1257, 108 L. Ed. 2d

- 23 -

415 (1990); Teague v. Lane, 489 U.S. 288, 311, 109 S. Ct. 1060, 103 L. Ed.

2d 334 (1989) (plurality opinion).

542 U.S. at 351-52 (emphasis added) (footnote omitted); see State v. Ariel Ben Sherman,

No. E2006-01226-CCA-R3-CD, 2007 WL 2011032, at *3 (Tenn. Crim. App. July 12,

2007), aff’d, 266 S.W.3d 395 (Tenn. 2008) (recognizing that “Schriro addressed the impact

of a judicial decision on existing statutory provisions for judge-sentencing; it did not

involve the amendment of statutory provisions”) (concluding that Schriro did not afford

the defendants the benefit of the General Assembly’s post-offense narrowing of the scope

of the child neglect statute).

In this case, the Petitioner has failed to identify, and this court has been unable to

find, any decision by the United States Supreme Court or by a Tennessee appellate court

that resulted in a “new rule” that requires retroactive application of the 2020 amendment

to the Drug-Free School Zone Act. Here, the General Assembly’s 2020 amendment, which

provided the sentencing court with greater discretion to apply the enhancement and reduced

the distance triggering the enhancement from 1000 feet to 500 feet of a school’s real

property, simply does not constitute a “new rule” that must be applied retroactively. In

fact, the General Assembly specifically stated that the 2020 amendment was to apply to

offenses “committed on or after” September 1, 2020. For these reasons, the Petitioner is

not entitled to relief.

III. Sentence is Illegal under Rule 36.1. Regarding this issue, the Petitioner’s

appellate brief states, “Petitioner filed, pro se, a Motion to Correct Illegal Sentence” and

“[t]hat argument is incorporated herein, as counsel seeks to ensure this issue is

preserved[.]” The brief then asserts that the Petitioner’s Rule 36.1 motion, which was

attached to the brief, “was based largely upon the change in the Drug Free School Zone

Act under Tenn. Code. Ann. § 39-17-432[, which was argued in the previous section]” and

“[t]hat argument is incorporated herein as if repeated fully herein.” The State responds

that because the Petitioner’s sentence for possession of marijuana with the intent to sell

within a Drug-Free School Zone adheres to the applicable law, it is not illegal. We

conclude that the Petitioner has waived this issue and that waiver notwithstanding, he is

not entitled to relief.

Initially, we recognize that the Petitioner provided no argument, no citations to

authorities, and no references to the record for this issue in his brief, and we conclude that

post-conviction counsel’s mere attachment of the Petitioner’s pro se motion to the brief is

woefully insufficient to satisfy these requirements. Accordingly, this issue is waived.

“Issues which are not supported by argument, citation to authorities, or appropriate

references to the record will be treated as waived in this court.” Tenn. Ct. Crim. App. R.

10(b); see Tenn. R. App. P. 27(a)(7) (A brief shall contain “[a]n argument . . . setting forth

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. . . the contentions of the appellant with respect to the issues presented, and the reasons

therefor, including the reasons why the contentions require appellate relief, with citations

to the authorities and appropriate references to the record . . . relied on[.]”). Failure to

comply with this basic rule will ordinarily constitute a waiver of the issue. State v. Schaller,

975 S.W.2d 313, 318 (Tenn. Crim. App. 1997) (citing State v. Hammons, 737 S.W.2d 549,

552 (Tenn. Crim. App. 1987)). Waiver notwithstanding, we conclude that the Petitioner is

not entitled to relief.

Rule 36.1 allows a defendant or the State to seek the correction of an unexpired

illegal sentence. See Tenn. R. Crim. P. 36.1(a)(1); State v. Brown, 479 S.W.3d 200, 211

(Tenn. 2015). For the purposes of Rule 36.1, “an illegal sentence is one that is not

authorized by the applicable statutes or that directly contravenes an applicable statute.”

Tenn. R. Crim. P. 36.1(a)(2). “Sentencing errors fall into three categories—clerical errors,

appealable errors, and fatal errors[,]” and “[o]nly fatal errors render sentences illegal.”

State v. Wooden, 478 S.W.3d 585, 595 (Tenn. 2015) (citing Cantrell v. Easterling, 346

S.W.3d 445, 448-49 (Tenn. 2011)). Examples of illegal sentences include:

(1) a sentence imposed pursuant to an inapplicable statutory scheme; (2) a

sentence designating a RED [Release Eligibility Date] where a RED is

specifically prohibited by statute; (3) a sentence ordered to be served

concurrently where statutorily required to be served consecutively; and (4) a

sentence not authorized for the offense by any statute.

Davis v. State, 313 S.W.3d 751, 759 (Tenn. 2010) (citations omitted).

To avoid summary denial of an illegal sentence claim brought under Rule 36.1, the

defendant must establish a colorable claim that the sentence is illegal. Tenn. R. Crim. P.

36.1(b)(2). For the purposes of Rule 36.1, a colorable claim is “a claim that, if taken as

true and viewed in a light most favorable to the moving party, would entitle the moving

party to relief under Rule 36.1.” Wooden, 478 S.W.3d at 593. The determination of

whether a Rule 36.1 motion states a colorable claim is a question of law, which this court

reviews de novo. Id. at 589 (citing Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007)).

The determination of whether a sentence is illegal is also a question of law, which this court

reviews de novo. State v. Dusty Ross Binkley, No. M2014-01173-CCA-R3-CD, 2015 WL

2148950, at *2 (Tenn. Crim. App. May 7, 2015) (citing Summers, 212 S.W.3d at 255).

Although the Petitioner appears to argue that his sentence is illegal because of the

subsequent amendment to the Drug-Free School Zone Act, the Petitioner’s sentence was

authorized by the applicable law. The Petitioner committed the relevant offense on March

9, 2016. The Petitioner was sentenced, by agreement of the parties, to two years at one

hundred percent for his conviction for possession of one-half ounce or more of marijuana

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with the intent to sell or deliver within 1000 feet of a school. Code section 39-17-417(g)(1)

(2014) provides that possession of half an ounce or more of marijuana is a Class E felony.

Pursuant to Code section 39-17-432(b)(1) (2014), as it existed at the time of the Petitioner’s

offense, the trial court was required to impose a sentence “one (1) classification higher than

is provided in § 39-17-417(b)-(i) for such violation.” The sentencing range for a Range I

offender convicted of a Class D felony is “not less than two (2) nor more than four (4)

years[.]” Tenn. Code Ann. § 40-35-112(a)(4) (2014). Accordingly, the Petitioner’s

sentence was authorized by the applicable statutes. To the extent that the Petitioner is

claiming his sentence is illegal under Rule 36.1 because it violates the Eighth Amendment

to the United States Constitution and article I, section 16 of the Tennessee Constitution, we

note that “[c]hallenges to the constitutionality and interpretation of sentencing statutes are

not cognizable claims for relief under Rule 36.1.” State v. Jermaine Carpenter, No. E2016-

00450-CCA-R3-CD, 2016 WL 5416350, at *3 (Tenn. Crim. App. Sept. 28, 2016). Here,

the Petitioner’s sentence was clearly authorized by the applicable statutes and did not

contravene an applicable statute. See Tenn. R. Crim. P. 36.1(a)(2). Because the

Petitioner’s sentence does not constitute an illegal sentence under Rule 36.1, the Petitioner

is not entitled to relief.

CONCLUSION

Based on the record, the applicable authorities, and the aforementioned analysis, the

judgment of the post-conviction court is affirmed.

_________________________________

CAMILLE R. MCMULLEN, JUDGE

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