### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE Assigned on Briefs July 21, 2015

MARIO D. JONES v. STATE OF TENNESSEE

Appeal from the Criminal Court for Bradley County No. 13CR443 Don R. Ash, Judge

No. E2014

- 02460

- CCA

- R3

- PC

– Filed August 7, 2015



### ____________________________

Petitioner, Mario D. Jones, was convicted of possession with intent to sell more than fifty (50) grams of a Schedule II controlled substance, a Class A felony. He was sentenced to twenty years in confinement . Petitioner filed the instant petition for post

- conviction relief, in which he alleged that he received ineffective assistance of counsel and was denied his due process rights . Following an evidentiary hearing, the post

- conviction
court denie d relief. On appeal, petitioner argues that he received ineffective assistance of
counsel when trial counsel: (1) failed to call unspecified witnesses to challenge the weight of the tablets that he possessed and (2) failed to call the officer who was

resp onsible for the storage of evidence. Petitioner also argues that he was denied due

pro cess by a State sentencing off er that was contingent upon his payment of a $500,000

fine

. Finally, petitioner alleges that the post

- conviction court erred by excluding from the evidentiary hearing a n incomplete transcript of a sentencing hearing in an unrelated case regarding an officer involved in petitioner‟s case. After our review of the parties‟ briefs, the record, 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 Criminal Court Affirmed

R OGER A. P AGE

, J.

, delivered the opinion of the Court, in which C AMILLE R. M C M ULLEN and R OBERT L. H OLLOWAY

, J R

., JJ.

, joined.

John C. Cavett, Jr., Chattanooga, Tennessee, for the Appellant

, Mario D

. Jones.

Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler , Assistant Attorney General; M. Neal Pinkston , District Attorney General; and Andrew D. Watts

, Assistant District Attorn ey General, for the Appellee, State of Tennessee.- 2

- OPINION

I. Facts

Petitioner was found in possessio n of Dilau di d tablets , a Schedule II drug, on June

2 7, 2002

. State v. Mario Jones

, No. M2004

- 00077

- CCA

- R3

- CD

, 2012 WL 4392643

, at *1, * 3 (Tenn . Crim. App. Sept. 26, 2012). The weight of the tablets was 629.58 grams.
Id. at *4

. Lieutenant Bobby Queen , an officer with the Bradley County Drug Task Force ( “ DTF ” ) , became suspicious when petitioner was following a vehicle too closely on the interstate, a common violation for “drug smugglers.” Id. at * 2. After petitioner voluntarily stopped at a gas station, Lieutenant Queen searched the vehicle and found three bags of yellow tablets , $970 cash, and doc uments referencing what appeared to
reflect notes of sale. Id. at *5

.

At trial, petitioner highlighted the discrepancy between the tablet counts conducted by the DTF and the Tennessee Bureau of Investigation‟s ( “ TBI ” ) crime lab. Id.
at *9

. Lieutenant Queen‟s initial count of the tablets was 6,702 , while the TBI crime lab‟s official count was 6,992

. Id. P etitioner focused on the fact that Kenneth Wilson,
the d irector of the DTF crime lab at the time of the incident, was arrested on drug cha rges in late 2002. Id. at *3 . However, at trial, Mr. Wilson testified that “it would have been extremely difficult to impossible” to tamper with the evidence in the present case. Id.

Subsequently, petitioner was convicted of possession with intent to sell or deliver a Schedule II controlled substance with a weight of more than fifty (50) grams. Id. a t *1

. He was sentenced to serve twenty years in the Tennessee Department of Correction as a Range I, standard offender. Id. Petitioner u nsuccessfu lly appealed his convictions to this

court

. Id.

Petitioner filed a timely petition for post

- conviction relief, and the evidentiary hearing occurred on November 10, 2014.

At the hearing, petitioner a sserted that trial counsel was ineffective for failing to
introduce the transcript of the sentencing hearing from Mr. Wilson‟s federal convictions for tampering with marijuana evidence . Petitione r alleged that at Mr. Wilson‟s sentencing hearing , Mr. Wilson “admi tted that he tampered with all evidence that was tampered with, and [trial counsel] never questioned him about that.” Petitioner believed
Mr. Wilson‟s test imony was “huge to [his] case, because [ Mr. Wilson] clearly told the Judge that he was tampering wit h evidence for two years . . . .” The c ourt noted that Mr. Wilson admitted to taking f ive hundred pounds of marijuana but that he denied taking or

ta mpering with any of the drugs related to petitioner‟s case

. In support of his assertions, petitioner atte mpted to enter into evidence an incomplete transcript of Mr. Wilson‟s sentencing hearing in which Mr. Wilson admitted to being responsible for the- 3

-

maintenance of evidence at the time petitioner‟s evidence was stored

. The State objected
to its admission into evidence. The c ourt sustained the objection but accepted the incomplete transcript as an offer of proof

.

Petitioner also alleged that trial counsel presented him with a plea deal, whereby petitioner would pay the State a $500,000 fine in exchang e for the minimum fifteen

- year sentence. The fine was to be paid via cash or cashier‟s check; the State would not accept a personal check. This deal was offered after petitioner indicated that he was a beneficiary of an estate worth “billions,” though at the hearing

, he stated that he received nothing from the estate. Petitioner asserted that the fine was really extortion : “[trial counsel] said that a hundred thousand was gonna go to him, two hundred was gonna go to [ the judge] ; the other two hundred tho usand was gonna go to [ the prosecutor] .” On cross

examination, petitioner was unable to offer any proof of the alleged collusion between trial counsel, the judge, and the prosecutor.

On dire ct examination, trial counsel stated that it was a strategic decision to not
call Mr. Wilson as a witness. In a letter sent to trial counsel by petitioner, petitioner stated that “[trial counsel] was right about not bringing Ken Wilson to testify, so please disregard the subpoena of M r. Wilson.”

Both trial counsel and the prosecutor testified that a legitimate sentencing offer
was made but they denied that they colluded with one another or the trial judge to extort petitioner. They further denied having any knowledge of the estate of which petitioner allegedly was a beneficiary.

The post

- conviction court found that petitioner was not credible. The c ourt concluded that petitioner‟s trial counsel rendered reasonable “ professional assistance

un der the prevailing norms. ” The c ourt f ound that petitioner failed to prove the factual allegations in his petition with clear and convincing evidence so as to entitle him to a
reversal of h is conviction. Therefore, the c ourt denied the petition for post

- conviction
relief.

II. Analysis

On appeal, petitioner argues that he received ineffective assistance of counsel when trial counsel failed to call unspecified witnesses to challenge the quantity of tablets
stolen and failed to call Kenneth Wilson as a witness

. Petitioner also asserts that he was denied due process by the State ‟s sentencing offer that was contingent upon his payment of a $500,000 fine . Finally, petitioner argues that the post

- conviction court erred in refusing to admit at the evidenti ary hearing a portion of Mr. Wilson‟s testimony from Mr.
Wilson‟s sentencing hearing. The State responds that the post

- conviction court properly denied the petition for post

- conviction relief. We agree with the State.- 4

- A. Standard of Review

To obtain relief in a post

- conviction proceeding, a petitioner must demonstrate that his or her “conviction or sentence is void or voidable because of the abridgement of any right guaranteed by the Constitution of Tennessee or the Constitution of the Unite d States.” Tenn. Code Ann. § 40

- 30

- 103. A post

- conviction petitioner bears the burden of proving his or her factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40

- 30

- 110(f). “„Evidence is clear and convincing when there is no seriou s or substantial doubt about the correctness of the conclusions drawn from the evidence.‟”

Lane v. State , 316 S.W.3d 555, 562 (Tenn. 2010) (quoting Grindstaff v. State , 297 S.W.3d 208, 216 (Tenn. 2009)).

Appellate courts do not reassess the trial court‟ s determination of the credibility of
witnesses. Dellinger v. State , 279 S.W.3d 282, 292 (Tenn. 2009) (citing R.D.S. v. State

, 245 S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of witnesses is a matter entrusted to the trial judge as the trier of fact. R.D.S. , 245 S.W.3d at 362 (quoting State v.
Odom , 928 S.W.2d 18, 23 (Tenn. 1996)). The post

- conviction court‟s findings of fact are conclusive on appeal unless the preponderance of the evidence is otherwise. Berry v.
State , 366 S.W.3d 160, 169 (Tenn. Crim. App. 2011) (citing Henley v. State , 960 S.W.2d 572, 578

- 79 (Tenn. 1997); Bates v. State , 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997)). However, conclusions of law receive no presumption of correctness on appeal.
Id. (citing Fields v. State

, 40 S.W.3d 450, 453 (Tenn. 2001)). As a mixed question of law and fact, this court‟s review of petitioner‟s ineffective assistance of counsel claims is de novo with no presumption of correctness. Felts v. State , 354 S.W.3d 266, 276 (Tenn. 2011) (citations omitted).

The Sixth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, and article I, section 9 of the Tennessee Constitution require that a criminal defendant receive effective assistance of c ounsel.
Cauthern v. State , 145 S.W.3d 571, 598 (Tenn. Crim. App. 2004) (citing Baxter v. Rose

, 523 S.W.2d 930 (Tenn. 1975)). When a petitioner claims that he received ineffective assistance of counsel, he must demonstrate both that his lawyer‟s performanc e was deficient and that the deficiency prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 687 (1984); Finch v. State , 226 S.W.3d 307, 315 (Tenn. 2007) (citation omitted). It follows that if this court holds that either prong is not met, we are not compelled to consider the other prong. Carpenter v. State , 126 S.W.3d 879, 886 (Tenn. 2004).

To prove that counsel‟s performance was deficient, petitioner must establish that his attorney‟s conduct fell below an objective standard of “„reasonabl eness under prevailing professional norms.‟” Finch , 226 S.W.3d at 315 (quoting Vaughn v. State , 202 S.W.3d 106, 116 (Tenn. 2006)). As our supreme court held:- 5

-

“[T]he assistance of counsel required under the Sixth Amendment is counsel reasonably likely t o render and rendering reasonably effective assistance. It is a violation of this standard for defense counsel to deprive a criminal defendant of a substantial defense by his own ineffectiveness or incompetence. . . . Defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client‟s interest, undeflected by conflicting
considerations.”

Id. at 315

- 16 (quoting Baxter , 523 S.W.2d at 934

- 35). On appellate review of trial counsel‟s performance, this court “must make every effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel‟s conduct, and to evaluate the conduct from the p erspective of counsel at that time.” Howell v. State , 185 S.W.3d 319, 326 (Tenn. 2006) (citing Strickland , 466 U.S. at 689).

To prove that petitioner suffered prejudice as a result of counsel‟s deficient performance, he “must establish a reasonable pro bability that but for counsel‟s errors the result of the proceeding would have been different.” Vaughn , 202 S.W.3d at 116 (citing
Strickland , 466 U.S. at 694). “A „reasonable probability is a probability sufficient to
undermine confidence in the outcome. ‟” Id. (quoting Strickland , 466 U.S. at 694). As such, petitioner must establish that his attorney‟s deficient performance was of such magnitude that he was deprived of a fair trial and that the reliability of the outcome was called into question. Finch , 226 S.W.3d at 316 (citing State v. Burns , 6 S.W.3d 453, 463 (Tenn. 1999)).

B. Ineffective Assistance of Counsel

Petitioner argues that trial counsel was ineffective by failing to call unspecified witnesses to highlight the disparity between the tablet count by local law enforcement
and the TBI crime lab

. Petitioner further argues that trial counsel was deficient in failing
to call Mr. Wilson as a witness.

Both of p etitioner ‟s specific allegations of ineffective assistance of counsel were

raised for the first time on appeal , so they are considered waived

. See State v. Turner

, 919 S.W.2d 346, 356

- 57 (Tenn. Crim. App. 1995) (holding that “[a] party may not raise an issue for the first time in the appellate court

. ”)

. The claim s are also waived because during the post

- conviction hearing, petitioner failed to call any of the purported witnesses regarding the disparity in tablet count or to call Mr. Wilson

. See Black v. State , 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990) (“W hen a petit ioner 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

. ”).- 6

-

Furthermore , we note that even if the claims were not waiv ed

, they would still be
meritless as p etitioner failed to demonstrate that “ his lawyer‟s performance was deficient and that the deficiency prejudiced the defense. ” Strickland , 466 U.S. at 687; Finch , 226
S.W.3d at 315 (citation omitted).

Regarding petitioner‟s claim that trial counsel should have called witness es to highlight the discrepancy between t he local and TBI tablet counts, petitioner failed to

prove deficiency or prej udice. B oth tablet counts were more than twelve times the weight necessa ry to support his conviction; therefore, the discrepancy was insignificant. Furthermore, as stated above, petitioner failed to present those witnesses at the post

conviction hearing or even show that such witnesses existed.

Regarding petitioner‟s assert ion that trial counsel was deficient in choosing not to call Mr. Wilson as a witness, trial counsel explained that he decided not to call Mr. Wilson because his testimony was unhelpful to petitioner‟s case. Trial counsel testified
that petitioner agreed w ith the decision

. It is well

- settled that “ on claims of ineffective assistance of counsel, petitioner is not entitled to the benefit of hindsight. This Court may not second

- guess a reasonably

- based trial strategy, and we cannot grant relief based on a sound, but unsuccessful, tactical decision mad e during the course of the proceedings.” Granderson v. State , 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006) (inter nal citation omitted). Petitioner has failed to show that tri al counsel ‟s strategy was deficient

. In addition

, petitioner was not prejudiced by the lack of Mr. Wilson‟s testimony , as Mr. Wilson has maintained that he did not tamper with the evidence in

p etitioner‟s case. Petitioner is not entitled to relief.

C. Due Process and the State‟s Settlement Offer

Petitioner argues that he was denied due process of law when the State made a settlement offer contingent upon his payment of a $500,000 fine. Petit ioner further alleges that trial counsel, the prosecutor, and the judge colluded to extort him. The State responds that the claim is waived and meritless.

Petitioner has offer ed no proof in support of his claim. Both trial counsel and the
prosecutor denie d petitioner‟s allegation that they colluded with the judge to extort petitioner. The Court did not find petitioner to be credible with regard to this claim

. “ The weight an d credibility of the witnesses‟ testimony are matters entrusted exclusively to the
. . . triers of fact.” State v. Black , 924 S.W.2d 912, 915 (Tenn. Crim. App. 1996). Accordingly, petitioner is not entitled to relief with regard to this issue.- 7

-

D. Exclusion of Incomplete Transcript of Kenneth Wilson ‟s Sentencing Hearing

Petitioner argues that the post

- conviction court erred in excluding a n incomplete transcript of Mr. Wilson‟s sentencing hearing . The State responds that the post

conviction court did not err in excluding the incomplete transcript . We agree with the
State.

The determination of whether evidence is relevant and admissible at trial is a
matter left to the sound discretion of the trial court and will not be reversed absent an
abuse of that discretion. State v. Dellinger , 79 S.W.3d 458, 485 (Tenn. 2002); State v.
McLeod , 937 S.W.2d 867, 871 (Tenn. 1996). “Relevant evidence” is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401. All relevant evidence is admissible unless specifically excepted by constitution, statute, rules of evidence, or rules of general ap plication. Tenn.
R. Evid. 402. The transcript was incomplete, fr om an unrelated case, and involved a different defendant. Furthermore, the statements that petitioner sought to introduce were not even made by the officer involved in petitioner‟s case but by the officer‟s attorney. Due to this tenuous connection, the tr ial court did not abuse its discretion in excluding the partial transcript from evidence.

CONCLUSION

Based on the parties‟ briefs, the record, and the applicable law, we affirm the judgment of the post

- conviction court.

_________________________________ ROGER A. PAGE

, JUDGE