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

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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 denied 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 

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

process by a State sentencing offer 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 an 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

ROGER A. PAGE, J., delivered the opinion of the Court, in which CAMILLE R. MCMULLEN

and ROBERT L. HOLLOWAY, JR., 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 Attorney General, for the Appellee, State of Tennessee.
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OPINION

I. Facts 

Petitioner was found in possession of Dilaudid tablets, a Schedule II drug, on June 

27, 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 documents 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. Petitioner focused on the fact that Kenneth Wilson, 

the director of the DTF crime lab at the time of the incident, was arrested on drug charges

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. at *1. 

He was sentenced to serve twenty years in the Tennessee Department of Correction as a 

Range I, standard offender. Id. Petitioner unsuccessfully 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 asserted 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. Petitioner alleged that at Mr. Wilson‟s 

sentencing hearing, Mr. Wilson “admitted that he tampered with all evidence that was 

tampered with, and [trial counsel] never questioned him about that.” Petitioner believed 

Mr. Wilson‟s testimony was “huge to [his] case, because [Mr. Wilson] clearly told the 

Judge that he was tampering with evidence for two years . . . .” The court noted that Mr. 

Wilson admitted to taking five hundred pounds of marijuana but that he denied taking or 

tampering with any of the drugs related to petitioner‟s case. In support of his assertions, 

petitioner attempted to enter into evidence an incomplete transcript of Mr. Wilson‟s

sentencing hearing in which Mr. Wilson admitted to being responsible for the 
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maintenance of evidence at the time petitioner‟s evidence was stored. The State objected

to its admission into evidence. The court 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 exchange 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 thousand was gonna go to [the prosecutor].” On crossexamination, petitioner was unable to offer any proof of the alleged collusion between 

trial counsel, the judge, and the prosecutor. 

On direct 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 Mr. 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 court 

concluded that petitioner‟s trial counsel rendered reasonable “professional assistance 

under the prevailing norms.” The court found 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 his conviction. Therefore, the court 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 evidentiary 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. 
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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 United 

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 serious 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 counsel.

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 performance 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 “„reasonableness 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: 
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“[T]he assistance of counsel required under the Sixth Amendment is 

counsel reasonably likely to 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 perspective 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 probability 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 petitioner‟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 claims 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) (“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.”).
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Furthermore, we note that even if the claims were not waived, they would still be 

meritless as petitioner 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 witnesses to 

highlight the discrepancy between the local and TBI tablet counts, petitioner failed to 

prove deficiency or prejudice. Both tablet counts were more than twelve times the 

weight necessary to support his conviction; therefore, the discrepancy was insignificant. 

Furthermore, as stated above, petitioner failed to present those witnesses at the postconviction hearing or even show that such witnesses existed. 

Regarding petitioner‟s assertion 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 with 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 made during the course of the 

proceedings.” Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006) 

(internal citation omitted). Petitioner has failed to show that trial 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 

petitioner‟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. Petitioner 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 offered no proof in support of his claim. Both trial counsel and the 

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

Petitioner argues that the post-conviction court erred in excluding an incomplete 

transcript of Mr. Wilson‟s sentencing hearing. The State responds that the postconviction 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 application. Tenn. 

R. Evid. 402. The transcript was incomplete, from 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 trial 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. 

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ROGER A. PAGE, JUDGE