# FILED
July 16, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COUR T OF CRIMIN AL APPEALS OF TENN ESSEE AT JACKSON MARCH 1997 S ESSION

CHARLES "ACE " BARBEE, * * Appellant, * VS. * * STATE OF TENNESSEE, * * Appellee. *

* C.C.A. # 02C0 1-9610-CC- 00372

DYERCOUN TY Hon. Joe G. Riley, Jud ge (Post-Conv iction)

For Appellant : William K. Randolph 120 North Mi ll Street Suite 303 P.O. Box 611 Dyersburg, TN 38025-061 1 For Appellee: Charles W. Burson Attorney Gen eral & Repor ter Deborah A. Tullis Assistant Att orney Gener al Criminal J ustice Div ision 450 James Roberts on Parkway Nashvil le, TN 37243-0493 James E. Lanier Assistant D istrict A

ttorney Gener

al P.O. Drawer E Dyersburg, TN 38024

OPINION FILE D:

AFFIRMED

GARY R. WADE, JUDGE2 OPINION The petitioner, Charles "Ace " Barbee, appeals f rom the trial court’s dismissal of hi s petition for po st-convi ction reli ef. The single i ssue presented for our review is whethe r the trial court erre d by finding that counsel w as not ineffectiv e for (1) failing to file a motion t o seek a sev erance of four separat e counts of selli ng cocaine and (2) failing to full y advi se the petitione r of the potential punishment in the event of a gui lty v erdict.

We af firm the judgment of the trial cour t.
On January 13, 1994, the petiti oner was found g uilty of four c ounts of selling cocaine. The tr ial court i mposed a six- year sentenc e on each of the four
coun ts. Be caus e thr ee of the s ente nces were or dere d con secu tive, the e ff ecti ve sentence is ei ghteen year s. This court

affirmed the convi ction on dire ct appeal. State v. Ch arles "Ace" Bar bee , No. 02C01-940 9-CC-00191 (Tenn. Crim. App., at Jackson, Apr. 26, 1995), appeal denied (Tenn., Sept. 11, 19 95). The petiti oner filed this, his fir

st petition for post-convi ction reli ef, on May 7, 199 6. After the appointment of counsel and an evidenti ary heari ng, the tri al court deni ed relief.

The trial cour

t found as fact that defense c ounsel made a sound strategy decision not to request a severance of the charges. It further held that the four drug sal es made to the same under cover ag ent and under simi lar circumstances

over a five-week per iod constitute d separate offenses commit ted under a common sche me or plan. The trial court thus f ound that a severance would not have been warranted and, i n consequence, that the petitio ner was not prejudiced by defense cou nsel's failure to request separate trials. Th e trial court also found that the peti tioner, w ho had received a writ ten plea offer for concur rent,3 Range I four-a nd-one-half-y ear sentences on each of the four charg es, had been adequately

informed by hi s counsel of the r isks of the tri al and the potenti al for consecutiv e sentences as a Range III offender.

The defen dant, who insisted that he was innocent of the charges, testified that he ne ver sold the undercove r agent coc aine. He cl aimed that he had merely acc ommodated the agent by drivin g him to various locat ions to purchas e the cocaine from others

.

When a petitioner seeks post- convicti on relief on the bas is of ineffective assi stance of counsel, he must first est ablish that the service s rendered or the advise given was below "the range of competence dem anded of atto rneys in criminal c ases." Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Seco nd, he must show that the deficienci es "actually had an advers e effect on the defense." Strickland v. Washington , 466 U.S. 668, 693 (1984). Shoul d the petitioner fail to establish either factor, he is not entitled to relief. Recently, our supreme court described the standard of review as follows:

Becaus e a petit ioner mu st estab lish bot h prongs of the test, a failure to prove ei ther deficiency or prejudice pr

ovides a s ufficient basis to deny reli ef on the ineffective assi stance claim. Indeed, a court need not address the componen ts in any particular order or even address both if thedefendant makes an insuffici ent showing of one component. Goad v. State , 938 S.W .2d 363, 370 (Tenn . 1996).

Moreover , in claims of ineffective counsel , the petitioner is not entitl ed to th e ben efi t of hind sight , may n ot se cond -gues s a rea sona bly ba sed t rial s trat egy, and cannot crit icize a sound, but unsucce ssful, tactica l decision madeduring the course of the proc eedings. Adkins v. State , 911 S.W.2d 334, 347 (Tenn. Crim. App

.4 1994); See State v. Martin , 627 S.W.2d 139, 142-43 (Tenn. Cri m. App. 1981). Such deference to tac

tical decis ions of counsel appl ies only if the choices ar e made after adequate pre paration for the c ase. Cooper v. State , 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992 ).

The findings of f act made by a trial court at an evidentiary hearing for post-convi ction reli ef have the w eight of a jur y ver dict and w ill not be di sturbed on appeal unless th e evidence pr eponderates agai nst those finding s. Clenny v . State , 576 S.W.2d 12, 14 (Tenn. Crim. App. 19 78). The burden i s on the petiti oner to show that th e evidence pr eponderates agai nst those finding s. Id.

I The peti tion er fi rst co nten ds th at hi s def ense coun sel was inef fec tive for failing to request a severance of h is four drug charges. Because a severance was not warranted under the facts of this cas e, we cannot fault counsel for fail ing to seek one. By

the terms of Tenn. R. Crim. P. 14( b)(1), a defendant has a right to have the offenses severed "unless theoffenses are part of a co mmon scheme or plan and the ev idence of one woul d be admissibleupon the trial of the others." While severance is or

dinarily a matter wh ich rests w ithin the sound discretion of the trial court, that general rule is not necessarily applicable in relation to th e severance of offenses. State v. Peacock , 638 S.W.2d 837 (Tenn. Crim. App. 198 2).

To qualify as

"part of a common scheme o r plan" wi thin the governing rule, the offenses must be so similar in modus operandi and occur within such relatively close character, time, and location to each o ther that there can be little doubt that the of fenses were committed by the sam e person. The off enses must appear to consti tute part of a common sc heme or plan. Webster v. State , 4255 S.W.2d 799, 811 (Tenn. Crim. App. 1967) . In our v iew, theseoffenses qualify. In State v. Stev

e Mosley , No. 01C01-921 1-CC-00345 (Tenn. Crim. App., at Nashvi lle, Sept . 9, 1 993 ), th is cou rt he ld th at a s evera nce wa s not warran ted wh en th e five indicted drug offenses occurred w ithin a six-week per iod, and all of the offenses "involved the same controlled substan ce, the same def endant, the same informants, and the same wi tnesses." Sli p op. at 9. See also State v. Ro ger D. Pul ley , No. 01C01-9501-CC -00013, slip op. at 5 (Tenn. Cr im. App., at Nas hville, Sept. 20, 1995) (sev erance inappropr iate where the five drug offenses "occurred w ithin eigh t week s of one a nother

and in volved vi rtual ly t he same seque nce of events, t he same confide ntial informa nt, and the sa me esta blish ed proc edure. ") H ere, t he same police agent

arranged and completed four drug buys w ith the petiti oner. The transactions occurred in the same area, and the same subst ance was involved in each purchase. Small amounts of cocai ne were sol d each time.

Secondly, t he circumstanc es must fall w ithin the ex ception to the general rule prohibiting evidence of other crimes in tha t they are "so related to each other that proof of one te nds to establi sh the others." 20 Am. Jur. Ev idence, § 314 (1939); Collard v . State , 526 S.W.2d 112, 114 (Tenn. 1975).

Rule 404 of the TennesseeRules of Evi dence is perti nent: (b) Other C rimes, Wrongs, or Acts .--Evi dence of other crimes, w rongs, or acts is not ad missible to p rove the character of a person in order to sh ow action in conformity w ith the charac ter trait. It may, however, be admissible for other purpo ses. The conditions which must be satisfied b efore allowi ng such ev idence are:6 (1) The court upon request mus t hold a hearin g outside the jur

y's pres ence; (2) The court must determine that a material i ssue exists ot her than conduct conforming w ith the charac ter trait and must u pon request s tate on the recor d the material iss ue, the ruling , and the reasons for admitting the evidence; and (3) The court must exclu de the evidenc e if its probative value is outweighed by the danger of unfair prejudice. The general r ule prohibiti ng evidenc e of other crimes has sever

al exceptions. If tied to a rel evant issu e, proof of a common scheme or plan may be one of those. See State v. Hallock , 875 S.W.2d 285, 289-90 (Tenn. Cri m. App. 1993). The procedur

e outlined in t he rule req uires a jur y-out hear ing, a finding that the "other act" addr

esses a relev

ant issue such as a common scheme or plan, and a balancing of pr

obative value against

unfair prejudi cial effect. Fact ors in w eighing the probative v

alue include t he prosecution' s need for the ev idence, the li kelihood the defendant committed the other crimes, and t he degree of its relevanc e. The similarit y of the acts makes the probativ e value par

ticularly significant . Often, a common scheme or pla n is used to pr ove identit

y. Neil P. Cohen, et al ., Tennessee Law of Evidence , § 404.11 (2d ed. 1990). The disti nctive des ign in the commission of a series of cri mes may serve as a basis for either admitti ng evidenc e of other crimes or hav ing consol idated trial s.

The defendant's ver

sion of events was that he never sol d cocaine to the undercover agent and merely drove the agent to various location s to purchase the cocaine from other s. Thus, proof of the i ntentional commis sion of the other crimes would be admissible under Ten n. R. Evid. 404(b) to rebut the defe ndant's claim that he was a mere observ er. In State v. Wayne Hymes Richards , No. 03C01- 9503-CR-00102, slip op. at 6(Tenn. Crim. App., at Knoxv ille, July 8, 1996), our
cour t hel d sev

eran ce w as no t w arrante d on t wo s eparate c harg es of del iv ery of7 marijuana, w here the proof of the "defendant' s participation in each offense was probative o f both his identit y and his g uilty kn owledge as to the other o ffense."
At the post-conv iction ev identiary hearing, defensecounsel testi fied that he could not remem ber many of the details of the petitioner's case. He did recall that he reviewed the petitioner's file bef ore the hearing. Based on his mem ory and the information i n the file, he test ified that he had past experienc e before the same trial c ourt represen ting defendants faci ng multiple charges for s elling dr ugs to a single undercover police agent. It was trial counsel's experience that the court woul d not s ever

charg es wh en "the same offi cer, s ame age nt, bas icall y thesame facts but different dates" were inv olved. Bas ed on this ex perience, he made t he judgment to not s eek a sever ance in the peti tioner's cas e. This recor d does not demonstrate w hy a motion to sever would have been s uccessful. The peti tioner wa s not, therefore, prejudiced by the failure to s eek a sever ance.

Moreover , counsel als o acknowle dged that therewas a noti ce of impeaching convictions in the file. Althou gh the petitioner would have qualified as a Range III offender, t he state had failed t o file any noti ce of enhanced rang e. A delay in the proceedings may have given the state the opportun ity to rectify this app aren t over sight . Thu s, co unse l's de cisio n not to as k fo r a seve ranc e cou ld ha ve been based on strat egy. The facts establish that the state coul d have soug ht enhanced punishment of the defendant as a Range III offender; that the defendant was already elig ible for consec utive senten ces might al so sugges t that the chances of concurrent sent encing w ere better in a consolidated t rial. Eit her objective may have quali fied as a reasonabl e trial str ategy for not

seeking theseverance.

II8 Next, the pe titioner cl aims that defense couns el failed to inform him of the possible max imum prison sent ence he faced if he w ere found guilt y. The petitioner testified at th e evidentiary hearing that defense coun sel failed to explain that there w as a potential t hat all four sent ences could be or dered consecuti ve to each other. He testified tha t the state off ered him a sentence of four and one half years for eac h drug charge to be run c oncurrently with each other. The petit ioner claimed that because th e maximum sentence f or his range was six years, it w as his understanding that he was only ri sking another

one and a half year

s by demanding a trial; had he known that there was a potential ma ximum of twenty-four years' incarcerati on, he would have never gone to tri al and woul d have taken t he plea agreement.

Defense counsel tes tified that w hile he could not remember many details of the peti tioner's cas e, it was his practi ce to alwa

ys expl ain the terms of the plea agreement, including consecutiv e sentences, to a client; he felt sure he had done so in the peti tioner's cas e. The petitioner rejected the o ffer. The petitioner had a lengthy

criminal hi story w hich included a 1977 misdemeanor co nviction for possession of mari juana, a 1981 drug convicti on, three 1984 conv ictions for diazepam and mari juana, two 1 989 convict ions for attempting to sell coc aine, and two 1989 conv ictions for s elling c ocaine. The tri al court acc redited the tes timony of defense counsel and r uled that the peti tioner, becauseof his familiari ty wi th the criminal j ustice system, clearl y understood the meaning of consec utive senten ces.

Whether defense counsel fully ex plained the plea agreement to the petitioner is a question of f act. Here the trial court found tha t defense counse l
adequately

explained t he consequences . The evidencedoes not preponder ate9 against the find ing of the tri al court.

Accordingl y, the judg ment is affirmed.

Gary R. W ade, Ju dge CONCUR:

Joe B. Jones, Pr

esiding Ju dge

Curwood Witt, Judge