IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 25, 2012

DWIGHT RANDY ROWE v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Davidson County

No. 2009-C-2470 Steve Dozier, Judge

No. M2011-01148-CCA-R3-PC

The Petitioner, Dwight Randy Rowe, pled guilty to sale of a controlled substance in a

drug-free school zone and to possession of a weapon during the commission of a

dangerous felony. The trial court sentenced him to an effective sentence of eleven years

in the Tennessee Department of Correction. The Petitioner filed a petition for postconviction relief, claiming his trial counsel was ineffective because he incorrectly advised

him of parole eligibility and failed to throughly investigate the case or prepare a defense.

After an evidentiary hearing, the post-conviction court dismissed the petition. After a

thorough review of the record and applicable law, we affirm the post-conviction court’s

judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which D. KELLY

THOMAS, JR., J., joined. JERRY L. SMITH, J., not participating.

William E. Griffith, Nashville, Tennessee, for the appellant, Dwight Randy Rowe.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant

Attorney General; Victor S. Johnson, III, District Attorney General; Rachel Sobrero,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Facts

A. Guilty Plea Hearing

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This case arises from the Petitioner’s sale of crack cocaine to a confidential police

informant. Based on this conduct, a Davidson County grand jury indicted the Petitioner

for sale of under .5 grams of cocaine within 1,000 feet of a school zone, possession with

the intent to sell or deliver .5 grams or more of cocaine within 1,000 feet of a school zone,

possession of a firearm during the commission of a dangerous felony, felony reckless

endangerment, and evading arrest.

At the Petitioner’s plea submission hearing, the State offered the following facts as

a basis for the Defendant’s guilty plea:

[O]n May 19 , 2009, Metro police officers were working with a

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confidential informant. The confidential informant was given 20 dollars of

previously photocopied buy money and went to Lewis Street where the

[confidential informant] met up with individuals that included the

[Petitioner], Dwight Rowe.

During the confidential informant’s interaction with [the Petitioner],

the confidential informant purchased a small amount of crack cocaine from

[the Petitioner]. The confidential informant then walked away and gave the

signal to the police officers. As Metro Police Officers came onto the scene

in an effort to conduct the takedown, the [Petitioner] took off running. The

[Petitioner] at one point during this, threw an additional bag of crack

cocaine that was recovered by the police officers.

He also had in his possession at that time, a loaded handgun. During

the course of the takedown, he took the loaded [h]andgun out and attempted

to throw it away from his body. But during the course of this action, the

gun actually discharged and [the Petitioner] shot himself in the hand. He

was taken down and taken into custody, the gun was recovered. The

additional crack cocaine was recovered.

And during the time that [the Petitioner] was in the hospital being

treated for his wounds and after having been read his rights pursuant to

Miranda, the [Petitioner] made statements to the police officers. The

statement was recorded and on the tape recorded statement - - I don’t

believe, [the Petitioner] knew at the time it was being recorded, [the

Petitioner] made statements admitting that he had purchased cocaine earlier

that day fro [sic] the purpose of selling, for the purpose of making money

and that he had purchased the gun as well for the purpose of protection.

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All of this occurred here in Davidson County.

After the Petitioner was placed under oath, the trial court inquired as to whether

the Petitioner was under the influence of drugs or alcohol or suffered from any mental

health problems. The Petitioner responded in the negative. The trial court reviewed with

the Petitioner the charges and the potential sentences for each. The Petitioner confirmed

that he was “somewhat” satisfied with his attorney’s (“Counsel’s”) representation, and

agreed that there was not anything that he had requested of Counsel that Counsel had

failed to do. The trial court reviewed the parties’ recommended sentence with the

Petitioner, and the Petitioner stated that he understood the plea agreement. The Petitioner

agreed that he was waiving his right to a trial and his right to appeal from a trial verdict.

The Petitioner identified his signature on the guilty plea documents, and he acknowledged

that he was freely entering the plea bargain agreement. The Petitioner pled guilty to the

charges of sale of controlled substance in a school zone and possession of a weapon

during a dangerous felony. The trial court accepted the Petitioner’s guilty plea, finding

that the plea was “knowingly and voluntarily entered” and that a factual basis existed for

the guilty plea. The trial court imposed an eight-year sentence for the sale of a controlled

substance in a school zone conviction, to be served consecutively to a three-year sentence

for the possession of a weapon during a dangerous felony conviction. The effective

sentence was eleven years, to be served at 100%.

B. Post-Conviction Hearing

The Petitioner filed a petition for post-conviction relief, claiming that he received

the ineffective assistance of counsel. The post-conviction court held an evidentiary

hearing wherein it heard the following evidence: The Petitioner testified that Counsel

represented him on these charges in both general sessions court and criminal court. The

Petitioner said that, when Counsel met with the Petitioner, he only discussed the State’s

plea offers and never presented any information as to the Petitioner’s charges. The

Petitioner said that he repeatedly asked Counsel for the discovery in his cases. When

Counsel did not provide discovery to the Petitioner, the Petitioner addressed the trial court

about his discovery and the trial court provided the Petitioner with the discovery in his

cases. The Petitioner said that he and Counsel never reviewed together or discussed the

discovery.

The Petitioner testified that, in general sessions court, he entered an information

agreement with the State for a five-year sentence to be served at 30%. Once the cases

were transferred to criminal court, the State retracted the offer and instead offered eight

years to be served at 30%. The Petitioner said that he declined this offer, explaining that

Counsel had explained to him that, if he accepted the new offer, he would serve five

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years. The Petitioner said that later, after his guilty plea, he learned that he would have

been incarcerated for about two and a half years on the State’s offer of an eight-year

sentence to be served at 30%. The Petitioner said that, had he known this at the time of

the offer, he would not have declined the State’s offer. Subsequently, the State offered a

twelve-year sentence to be served at 30% and also offered a twelve-year sentence to be

served at 35%, both of which the Petitioner declined. The Petitioner said that, during the

course of negotiations for a settlement, he believed that Counsel should have been trying

to fight the charges rather than focus on plea bargains.

The Petitioner testified that he never received any motions filed by Counsel or

attended any court hearings other than the hearing where the Petitioner requested Counsel

be relieved from representation.

On cross-examination, the Petitioner agreed that he received the discovery for his

cases in November 2009 after requesting it from the Court. The Petitioner said that he

was not aware that the State did not provide discovery for his cases until November 2009.

Counsel testified that the general sessions court appointed him to represent the

Petitioner. Counsel, at the time of the post-conviction hearing, had been licensed to

practice law for twenty-two years. During his career, he had served as a judge and had

been in private practice since 2006 with approximately 80% of his practice consisting of

criminal defense work. Counsel said that he met with the Petitioner five times while the

Petitioner was in jail awaiting disposition of the charges. Counsel recalled telling the

Petitioner that the State’s evidence was such that the Petitioner would likely be convicted

at trial. Counsel said that because the police, through a confidential informant, purchased

the drugs from the Petitioner and were present when the Petitioner dropped his gun and it

discharged, there was not much of a defense argument.

Counsel testified that he spoke with various members of the Petitioner’s family six

or eight times during the course of his representation of the Petitioner.

Counsel said that there was a discrepancy between the weight of the drugs as

reported by the police and as reported by the Tennessee Bureau of Investigation (“TBI”).

Counsel looked into the discrepancy and found that when police initially weigh drugs

recovered in the field, they weigh the drugs in the packaging while the TBI does not.

Counsel agreed that he represented the Petitioner when the Petitioner entered the

information agreement for a five-year sentence to be served at 30%. The information

agreement was later stricken by the State, and Counsel filed a motion to enforce the

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agreement, arguing that the State should be required to honor its original offer. Counsel

said that he believed it was unfair for the offer to be stricken in light of the fact that the

Petitioner had no previous arrests and a “clean record.” The trial court, however, denied

Counsel’s motion.

Counsel testified that the State made a second offer that he conveyed to the

Petitioner. The Petitioner would not accept the offer and told Counsel he wanted to

proceed to trial. Counsel said that he told the Petitioner that he did not think that “was a

good idea” because the State’s proof against the Petitioner was so strong. Counsel said

that he did not specifically recall advising the Petitioner on the length of time he would be

incarcerated before being paroled. He explained that he had a parole eligibility chart that

he used when discussing offers with clients. The State made several additional offers that

the Petitioner declined, maintaining he wanted a trial on his charges.

Counsel said that eventually the Petitioner agreed to plead guilty to eleven years at

100%. Counsel recalled that the Petitioner was “very dissatisfied.” At one point in the

plea submission hearing, the trial court suggested Counsel step out of the courtroom to

discuss again with the Petitioner whether he wanted to plead guilty. Counsel said that he

specifically asked the Petitioner if he wanted to plead guilty and the Petitioner responded

that he did. Counsel said that the Petitioner never said anything that indicated that the

Petitioner did not understand the plea or his decision to enter into a plea agreement.

On cross-examination, Counsel agreed that he had no independent recollection of

using the parole eligibility chart in his discussions with the Petitioner, but he maintained

that it was his “usual habit.”

Based upon this testimony, the post-conviction court denied post-conviction relief.

It is from this judgment that the Petitioner now appeals.

II. Analysis

On appeal, the Petitioner contends that the post-conviction court erred when it

dismissed his petition. The Petitioner argues that Counsel failed to investigate his case

and prepare a defense and that Counsel gave the Petitioner incorrect release eligibility

information. The State responds that the post-conviction court accredited Counsel’s

testimony that he advised the Petitioner about the State’s overwhelming evidence against

him and about the Petitioner’s parole eligibility date and, therefore, properly denied the

Petitioner post-conviction relief. We agree with the State.

In order to obtain post-conviction relief, a petitioner must show that his or her

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conviction or sentence is void or voidable because of the abridgment of a constitutional

right. T.C.A. § 40-30-103 (2006). The petitioner bears the burden of proving factual

allegations in the petition for post-conviction relief by clear and convincing evidence.

T.C.A. § 40-30-110(f) (2006). Upon our review, the trial judge’s findings of fact are

given the effect and weight of a jury verdict, and this Court is “bound by the trial judge’s

findings of fact unless we conclude that the evidence contained in the record

preponderates against the judgment entered in the cause.” Black v. State, 794 S.W.2d

752, 755 (Tenn. Crim. App. 1990). Thus, this Court will not re-weigh or re-evaluate the

evidence below; all questions concerning the credibility of witnesses, the weight and

value to be given their testimony and the factual issues raised by the evidence are to be

resolved by the trial court judge, not the appellate courts. Momon v. State, 18 S.W.3d

152, 156 (Tenn. 1999); Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). A postconviction court’s conclusions of law, however, are subject to a purely de novo review by

this Court, with no presumption of correctness. Fields v. State, 40 S.W.3d 450, 457

(Tenn. 2001).

The right of a criminally accused to representation is guaranteed by both the Sixth

Amendment to the United States Constitution and article I, section 9, of the Tennessee

Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d

453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The

following two-prong test directs a court’s evaluation of a claim for ineffectiveness:

First, the [petitioner] must show that counsel’s performance was deficient.

This requires showing that counsel made errors so serious that counsel was

not functioning as the “counsel” guaranteed the [petitioner] by the Sixth

Amendment. Second, the [petitioner] must show that the deficient

performance prejudiced the defense. This requires showing that counsel’s

errors were so serious as to deprive the [petitioner] of a fair trial, a trial

whose result is reliable. Unless a [petitioner] makes both showings, it

cannot be said that the conviction or death sentence resulted from a

breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417,

419 (Tenn. 1989).

In reviewing a claim of ineffective assistance of counsel, this Court must

determine whether the advice given or services rendered by the attorney are within the

range of competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at

936. To prevail on a claim of ineffective assistance of counsel, a petitioner must show

that “counsel’s representation fell below an objective standard of reasonableness.” House

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v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Strickland, 466 U.S. at 688).

When evaluating an ineffective assistance of counsel claim, the reviewing court

should judge the attorney’s performance within the context of the case as a whole, taking

into account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell,

753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court must evaluate the

questionable conduct from the attorney’s perspective at the time. Strickland, 466 U.S. at

690; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court

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. Finally, we note that a defendant in a criminal case is not entitled to

perfect representation, only constitutionally adequate representation. Denton v. State, 945

S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of

ineffective assistance of counsel, ‘we address not what is prudent or appropriate, but only

what is constitutionally compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting

United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed

to have been ineffective merely because a different procedure or strategy might have

produced a different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App.

1980). “The fact that a particular strategy or tactic failed or hurt the defense does not,

standing alone, establish unreasonable representation. However, deference to matters of

strategy and tactical choices applies only if the choices are informed ones based upon

adequate preparation.” House, 44 S.W.3d at 515 (quoting Goad v. State, 938 S.W.2d 363,

369 (Tenn. 1996)).

If the petitioner shows that counsel’s representation fell below a reasonable

standard, then the petitioner must satisfy the prejudice prong of the Strickland test by

demonstrating “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at

694; Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability

must be “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at

694; Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994).

In its order denying the Petitioner relief on this issue, the post-conviction court

made the following findings:

The Court credits the testimony of trial counsel that he gave the petitioner

advice regarding parole. His advice was not a misstatement as the

petitioner claims; even if the petitioner’s version is accurate, he could have

to serve five to six years on an eight (8) year sentence. Regardless, the

petitioner has not shown that but for the trial counsel’s advice he would not

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have pled guilty.

. . . .

After reviewing the plea transcript, the Court finds that the petitioner

entered into his plea agreement knowingly. The petitioner was not forced

to enter the plea and there were no promises made regarding the plea.

. . . .

Based upon the foregoing analysis, the Court is of the opinion the

petition for post-conviction relief shall be denied. He has not demonstrated

by the requisite standard of clear and convincing evidence that counsel’s

performance was deficient or that counsel was not acting with the

competence required of attorneys in criminal cases, or that he would have

determined to go to trial absent the deficient performance. The petition is

dismissed.

(Citations omitted).

The evidence in this case does not preponderate against the trial court’s findings

on this matter. Counsel testified at the post-conviction hearing that he met with the

Petitioner in jail five times and spoke with the Petitioner’s family members six or eight

times. Counsel testified that the State’s evidence against the Petitioner was strong. The

police bought drugs from the Petitioner through a confidential informant and then

observed the Petitioner with the gun during his flight from arrest. Counsel explained that

this evidence against the Petitioner made it difficult to create a defense. As to his

investigation and preparation of a defense in this case, Counsel said that he noted a

discrepancy in the weight of the drugs reported by police and the TBI. Upon further

investigation, however, he learned that the methods of weighing the drugs differed and

thus accounted for the discrepancy. Counsel acknowledged no independent recollection

of using his parole eligibility chart while advising the Petitioner; however, he testified

that it is his general practice to use the chart when discussing State offers with his clients.

The trial court specifically credited Counsel’s testimony in his written order.

Accordingly, the evidence in the record does not preponderate against the trial court’s

finding that Counsel was not deficient.

III. Conclusion

After a thorough review of the record and relevant authorities, we conclude that

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the post-conviction court properly denied post-conviction relief. Accordingly, we affirm

the judgment of the post-conviction court.

_________________________________

ROBERT W. WEDEMEYER, JUDGE

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