# FILED
July 18, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

AT JAC KSON MA Y 1997 SESSION

WILLIE ED M AYS, ) ) C.C.A . NO. 02C01-9 611-CC-00411 Appellant, ) ) LAKE COUNTY VS. ) ) HON. J. STEVEN STAFFORD, STA TE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-conv iction)

FOR TH E APPEL LANT: FOR THE APPELLEE:
CHARLES S. KELLY JOHN KNOX WALKUP 802 Troy Ave. Attorney Gen eral & Repor ter Dyersburg, TN 38205- 0507 ELLEN H. POLLACK Asst. Attorney

General 450 Jame s Rob erts on Pk wy. Nashvil le, TN 37243-0493 C. PHILLIP BIVENS Distric t Attorney General P. O. Box E Dyersburg, TN 38025

OPINION FILE D:____________________

AF FIRMED
JOHN H. PE AY, Judge2 O P I N I O N

The petitioner

was conv icted by a jury of sel ling over .5 grams of cocaine. Followi ng his convict ion, he pled guilt y to two othe r charges o f sellin g o ver .5 grams of cocaine in exchange for concurrent sentence s on all thre e con vi ctions. In conjunction with tha t plea, he waived his right to appeal the initial conviction. After a hearing in August 1995, he was sentenced to ten years on the ini tial convicti on, and ten years, six months on each of the two subsequent convictions. All se nten ces we re run conc urre ntly. The petitioner fil ed for post-conviction relief, alleging ineff ective assistance of counsel in conjunction with hi s trial and subseque nt guilty pleas. After a h earing, the court below denied reli ef. We affirm.

In support of his app e al, the petitioner contends th at his two defense lawyers were ineffective in the following respects:

1. Failing to file a motion to inspect the substance w hich the State c laimed to be cocaine; 2. Failingto file a Brady motion; 3. Failingto file timely

a motion to dismi ss for delay in prosecuti on; 4. Failingto file a motion for change of venue; 5. Failingto file a motion t o suppress ev idence; 6. Failingto object to th e lack of juri sdiction of the “ arresting and participati ng agents;”

and 7. Coercing him into pleading guilty on the two pending charges. After a hearing at which the petitioner and one of his two defense couns el testified, th e court below

dismissed the petition.

Init ially, we note that “[i]n post-convic tion relief pr

oceedings thepetitioner3

has the burden of prov ing the all egations in his petition by a pr epond erance of the evidence.” McBe e v. State , 655 S.W.2d 191, 195 (Tenn. Cr im. App. 1983). Furthermore, the factual findings

of the trial court in hearings “ ar e conclusive on appeal unless the evidence preponderates ag ainst the judgment.” State v. Buford , 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983 ).

In rev iewi ng thepetit ioner ’s Si xth A me ndmen t clai m of inef fec tive assistan ce of counsel, this Court must dete rmine whethe r the advi ce given or serv ices rendered by the attor ney are within t he range of competence demanded of attorneys in criminal cases. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 19 75). To prevail on a claim of ineffective couns el, a pet i tioner “must show that counsel’s representa tion fell below an objective standard of reasonableness” and that this per

formance prejudic ed the defense. There must be a reasonable probabi lity that but for counsel’s error theresult of the proceeding would have been different. Strickland v. Washington , 466 U.S. 668, 687-88, 692, 694 (1984); Best v. Stat e , 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985). To satisfy the req uirement of prejudice on t he guilty pleas, the peti tioner must demonstrate a reasonable pr

obability that, but for couns el’s error s, he would not h ave pled g uilty and would have insisted on going to t rial. See Hill v. Locka rt , 4 74 U.S. 52, 59 (1985); Bankston v. State , 815 S.W .2d 213, 215 (Tenn . Crim. App. 1991).

This Court should not second-guess t rial counsel’s tactical and strategic choices unless those c h oices wer e uninformed because of in adequate prepar ation, Hellard v. State , 629 S.W .2d 4, 9 (Tenn. 1982 ), and counsel sh ould not be deemed to have been ineffective mer ely because a different procedureor stra tegy m ight h ave produced adifferent result. Williams v. State , 599 S.W.2d 276, 280 (Tenn. Crim. App. 1980).1 Bradyv. Mary land , 373 U.S. 83 (196 3). 4 The petitioner’s cl aims that his counsel erred in fail ing to file a pretrial motion to inspect the cocaine and/or a Brady 1 m otion arise fr om the State’s bel ated discovery

that th e cocaine had been lost or destroyed prior to tr ial. Defense co unsel testified that the State di d not make this di scovery until th e day of trial . The petitioner
reasons that, had his counsel filed thesemotions pretr ial, ev ery one would have discovered the missing cocaine in time for his case to have been di smissed on motion. In addressing this issue the court below held: The unrebutted test imony indicated that the State w as not aware that the drug s cou ld no t be produced unti l the trial date. Therefore, assumingthat this infor mati on could be construed as exculp atory ev idence, the State di d not have any exculpatory evidence in its possession until the trial date. The transcrip t reveals that the defense a ttorneys were informed of the missing evidence as soon as the State became awareof the pr oblem. Assuming that the petiti oner’s counsel had filed a pre- trial motion to exami ne or

weigh the drugs, he would have been in no better leg al position t han he was on the day of tr ia l in requesting a dismissal of the charge. The [trial] Court found that the State had lai d the proper foundati on to allow the lab technician to testify ab out her test results. The petitioner was allowed to argueto the jury the effect of the State’s fail ure to produce the drugs. A pre-tri al motion woul d not have pla ced the petitioner i n any better legal posi tion than wh at he was on the day of tri al. This iss ue is wi thout merit. We agree with the cour t below. This issue is

without mer it.

As to the petitioner’s content ion that he was prejudiced by his counsel’s failure to file timely a motion to dismiss for delay in prosecution, we first note that su ch
a motion was filed, but was not filed timely. However, the trial court permitted evidence to be presented and the motion to be argued in an offer of proof on t he day of trial . The trial court further issued oral findings of fact an d conclusions of law w ith respect t o the merits of the motion, and denie d it. The court below apparently found no er ror in the t rial5

court’s deci sion. Neith er do we. As this Cour t has previ ously stat ed: Del aybetween the commission of an offense and the commencement of adversari al proceedings does not vi olate an accused’s constitutional right to a speedy trial. However, such a < delay may

occur in s uch a mann er that th e defendant’s Fifth Amendment right to due process

-- in cont rast to the Sixth Amendment right to speedy tri al -- is

violated. ’ . . . < W hile there is no con stitution al right to be arrested,

. . . courts have recogniz ed that an unreasonable de lay between the commission of the offense and the arrest may viol ate the defendant ’s constitutiona l rights if the d elay results in pre j udice to him or was part of a deli berate, purposeful and oppressive design for del ay.’ Before an accused is

entitled torelief based upon the delay between the offense and the initiat ion of adversar ial proceedings, the accused must prove that ( a) there was a delay, (b) the accused sustai ned actual prej udice as a direct and proximateresult of the del ay, and (c) the State cau s ed the delay in order to gain tacti cal advantag e over or to harass the accused. State v. Dy kes , 803 S.W .2d 250, 255-56 (Te nn. Crim. App. 1990) (citations om itted).

In the instant case, there was an approxi mate four year de lay between the January 1991 offense and the May 1995 indictment. Thus, the petitioner has carried his burden of provi ng o ne of the t hreepro ngsof t h e test set forth i n Dykes . However, the trial court found that the “indict ments were n ot returned prior to 1995 in order to gain further < intellig ence information,’ po ssibly secu re another buy from this defendant. . .

. [T]he local District Attor ne y Gene ral’s office requested indi ctment information i n the spring of 1995 from the Tennessee Hig hway Pat rol [at w hich time the] i nformation was turned over that resulted in the particular indictment .” The proof adduce d at th e postconvicti on hearing di d not preponderateagainst thes e findings. Thus , the petitioner has failed to prove t hat the State cause d the delay i n order togain a tact ical advan tage over him or to harass him. Moreover, the petiti oner’s testi mony in suppor t of the offer of proof at trial of the prejudice he claims t o have suffered as a result o f the delay was utterly unconvin cing. The petitioner having fail ed to satisfy two prong s of the Dykestest, this2 See T.C.A. § 4-7-10 4 (1991 Repl .) (“I t i s the duty ofthe mem bers of t he Tennessee hig hway patr ol, under t he dir ecti on of t he comm issi oner of safety , t o: ( 1) Patr ol t he stat e high ways and en fo rc e a ll la ws . . . ”) (emp hasis adde d). 6 issue is w ithout merit.

As to the change of venue allegatio n, defense counsel testified thatsuch
a mot ion had been filed but was later

withdraw n by agreement with t he petition er . Defense counsel further testif ied that this decision had be en tactical an d that there had not been da maging p ublicity . We agree w ith the court below that t his issue i s without merit.
The petitioner al so complains th at his tria l counsel did not file a motion to suppress evidence. Defense counsel test ified that “there was really no basis reg arding
a motion to suppres s.” The petiti oner has offered no evidence to the contrary . This issue is therefore w ithout merit.

The petitioner next complains that his lawyers failed to object to the lack of jurisdict ion of the officers wh o participated in the undercov er drug operation. The court below found that the operati on had been conducted by members of the crimi nal investig ation divisi on of the Tennessee Hig hway Patrol and members

of the 27th Judicial District Drug Task Force. Sinc e the Tennessee Hig hway Pat rol has s tatewide jurisdict ion, 2 the court below found this i ssue to be w ithout merit. We agree.

Fina lly, the pet itioner claims th at he woul d not ha ve pled gu il ty to t he two pending charges but

for the ineffective assistance of his coun s el which resulted in the convicti on of the jury- tried offense. However, asnoted by the court below, the peti tioner7

entered his guil ty pleasin ord er to avoid the p ossi bilit y of co nsec utive sentences on all three charges. T he court below further noted that it had “no doubt that the petitio ner understood his rig hts a s we ll as the con cessions he w as obtaining from the State by ente ring t he gu ilty pl eas. ” Acco rdin gly, hi s ple as were knowin g and volun tary.

Moreover, as set forth above, the petitio ner has failed to prove his allegations

of in eff ecti ve assistance of counsel at his jur y trial . Therefore, his c laim that he was “coerced” to enter guilty pleas as the result of an uncon stitutional conviction is without mer it.
The judgment below is affirmed.

______________________________

JOHN H. PEA Y, Judge

CONCUR:

______________________________ GARY R. W ADE, Jud ge

______________________________ THOMAS T. W OODALL , Judge