IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 14, 2017

JAMIE N. GRIMES V. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2008-C-3179 Monte Watkins, Judge

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No. M2017-00319-CCA-R3-PC

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The Petitioner, Jamie N. Grimes, appeals the Davidson County Criminal Court’s denial 

of his petition for post-conviction relief from his conviction of selling twenty-six grams

or more of cocaine within one thousand feet of a school and resulting twenty-five-year 

sentence. On appeal, he contends that he received the ineffective assistance of counsel

and that the State violated the mandatory joinder rule. Based upon the record and the 

parties’ briefs, we affirm the judgment of the post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT 

WILLIAMS and ALAN E. GLENN, JJ., joined.

Carrie A. Lowery, Nashville, Tennessee, for the appellant, Jamie N. Grimes.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant 

Attorney General; Glenn R. Funk, District Attorney General; and Roger D. Moore, 

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

OPINION

I. Factual Background

On September 26, 2008, the Davidson County Grand Jury filed a three-count 

indictment, charging the Petitioner as follows: count one, selling twenty-six grams or 

more of cocaine within one thousand feet of a school on November 10, 2006; count two, 

selling or delivering twenty-six grams or more of cocaine within one thousand feet of a 

school on November 17, 2006; and count three, selling or delivering twenty-six grams or 

more of cocaine on November 30, 2006. The State proceeded to trial only on count one. 

04/19/2018
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At the February 2011 trial, a detective testified that he set up an undercover drugbuy and that the Petitioner sold cocaine to a confidential informant in the Petitioner’s 

truck on November 10, 2006. State v. Jamie N. Grimes, No. M2012-00530-CCA-R3-

CD, 2013 WL 576130, at *1-2 (Tenn. Crim. App. at Nashville, Oct. 22, 2013), perm. app. 

denied, (Tenn. Feb. 24, 2014). The State played an audio recording of the drug-buy for 

the jury, and the jury convicted the Petitioner of selling twenty-six grams or more of 

cocaine within one thousand feet of an elementary school, a Class A felony. Id. at *2. 

After a sentencing hearing, the trial court sentenced him as a Range II, multiple offender 

to twenty-five years in confinement. Id. at *1.

On direct appeal of his conviction to this court, the Petitioner raised numerous

issues, including that the State was required to join the offense in this case with an

offense in another case for which he was previously tried and convicted because they 

were part of the same criminal episode. Id. at *2. The Petitioner also alleged that he was 

denied his right to a speedy trial and that he was prejudiced by the delay because he “‘lost 

the opportunity to locate two witnesses necessary for his defense and gather evidence in 

support of his defense.’” Id. at *5.

This court concluded that the joinder issue was “without merit,” explaining as 

follows:

Prior to his trial for this offense, the Defendant was convicted of 

possession of 300 grams or more of cocaine with intent to sell for an 

offense that occurred on December 8, 2006. State v. Bobby Lee Robinson

and Jamie Nathaniel Grimes, No. M2009-02450-CCA-R3-CD, 2011 WL

6747480 (Tenn. Crim. App. Dec. 22, 2011), perm. app. denied, (Tenn. May 

17, 2012). On that day, the same confidential informant used in this case 

arranged to purchase cocaine from the Defendant and two co-defendants. 

Id. at *1-2. However, unlike this case, the officers arrested the Defendant 

and his co-defendants before the sale could take place. Id. at *2-3. The 

officers recovered approximately 160 grams of crack cocaine from the 

Defendant’s truck. Id. at *3. The Defendant also consented to a search of 

his home where police discovered “a little over 300 grams” of cocaine. Id.

at *3-4.

. . . .

[Tennessee Rule of Criminal Procedure] 8(a) requires mandatory 

joinder of offenses that are “based on the same conduct or arise from the 

same criminal episode.” “Same conduct” offenses involve “a single act that 

results in a number of interrelated offenses.” State v. Johnson, 342 S.W.3d 
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468, 473 (Tenn. 2011). “Same criminal episode” or “single criminal 

episode” offenses “normally are generated by separate physical actions.” 

Id. at 474 (quoting 2 ABA Standards for Criminal Justice § 13-1.2 cmt., at 

13.10). However, the acts “must occur simultaneously or in close sequence 

and must occur in the same place or in closely situated places.” Id. A gap 

in time between the acts “may be sufficient to interrupt the temporal 

proximity required for a single criminal episode to exist.” Id. at 475.

. . . .

The charges against the Defendant arose from two separate acts; 

therefore, the offenses must have been part of the same criminal episode in 

order for Rule 8(a) to apply. While the same confidential informant was 

used in both cases, the offenses occurred almost a month apart and at 

different locations. Additionally, the offense at issue in this case was a 

completed sale of cocaine whereas the Defendant was stopped on 

December 8, 2006, before the sale could be completed. The cocaine at 

issue in the December 8, 2006 offense was discovered as a result of the 

search of the Defendant’s truck and the consensual search of his home. 

There is no evidence that proof of one offense is inextricably connected 

with or forms a substantial portion of the proof of the other.

As such, we do not believe that the two offenses which occurred 

almost a month apart and at different locations were part of the same 

criminal episode even though the same confidential informant was used in 

both cases. See State v. Steve Edward Houston, No. 01C01-9711-CC00510, 1998 WL 749414, at *2-4 (Tenn. Crim. App. Oct. 28, 1998) 

(concluding that separate drug sales using the same undercover informant 

did not require mandatory joinder but could constitute evidence of a 

common scheme or plan for purposes of permissive joinder); State v.

Dunning, 762 S.W.2d 142, 143-44 (Tenn. Crim. App. 1988) (concluding 

that the “separate acts of selling cocaine to different officers from two 

distinct law enforcement investigations on different days is not a single 

action but a series of independently motivated occurrences”). Accordingly, 

we conclude that this issue is without merit.

Id. at *4. 

Regarding the speedy trial claim, this court stated that while the Petitioner titled 

the issue as a “speedy trial” violation, he appeared to be arguing that his right to due 

process was violated by the delay between the commission of the offense and the filing of 
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the indictment. Id. at *4-5. Thus, this court addressed the issue as one of preindictment 

delay, not speedy trial, and concluded that while there was a delay of almost two years 

between the offense and the filing of the indictment, the Petitioner failed to show that the 

State caused the delay to gain a tactical advantage or that he was actually prejudiced by 

the delay. Id. This court affirmed the Petitioner’s conviction and sentence. Id. at *9.

The Petitioner retained new counsel, and new counsel filed an application for 

permission to appeal pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure. 

After our supreme court denied the Petitioner’s application, counsel filed a petition for 

post-conviction relief, arguing that the Petitioner received the ineffective assistance of 

counsel because trial counsel failed to communicate with the Petitioner adequately 

regarding trial strategy, plea offers, and sentencing under the Drug-Free School Zone Act 

and because trial counsel failed to argue the joinder and speedy trial issues competently 

on direct appeal. The Petitioner also argued that the State violated the mandatory joinder 

rule, which interfered with trial counsel’s ability to negotiate and defend the Petitioner 

and violated the Petitioner’s rights to due process and a speedy trial.

At the post-conviction evidentiary hearing, trial counsel testified for the Petitioner 

that he represented the Petitioner at trial, filed the notice of appeal, and filed the appellate 

brief in the direct appeal of the Petitioner’s conviction. Trial counsel withdrew, and 

another attorney “argued the appeal” to this court. Prior to the trial in this case, trial 

counsel also represented the Petitioner for the charge of possessing three hundred grams 

of cocaine with intent to sell on December 8, 2006. Trial counsel said he filed a motion 

to join that offense with the three offenses charged in this case because he “felt like . . .

[the assistant district attorney general] was stacking, kind of holding back a few cards to 

play should he need them.” Trial counsel made that argument to the trial court but was 

unsuccessful. Trial counsel also raised the joinder issue in the Petitioner’s motion for 

new trial. He described his research of the issue as “extensive” and said he collaborated 

with the Petitioner, “who had extensively briefed the issue as well.” 

Trial counsel testified that he understood the difference between Fifth Amendment 

preindictment delay and Sixth Amendment right to a speedy trial. Post-conviction 

counsel asked why trial counsel argued preindictment delay but not speedy trial on direct 

appeal, and trial counsel answered, “I wouldn’t be able to explain it.” Post-conviction 

counsel also asked if trial counsel remembered anything about the two witnesses who 

could not be located, and trial counsel said no. 

On cross-examination, trial counsel testified that he became licensed to practice 

law in 1992 or 1993 and acknowledged that a “significant amount” of his practice 

involved criminal law. The Petitioner’s family retained him to represent the Petitioner

for a “rent-a-car charge,” and he and the Petitioner formed an attorney-client relationship. 
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The Petitioner’s family then retained him to represent the Petitioner in the case for the 

charge of possessing three hundred grams of cocaine with intent to sell on December 8, 

2006. Trial counsel filed a “bond motion” in that case. At the hearing on the motion, 

trial counsel learned about the charges in the instant case. He said that he was “hot as 

fish grease” at the assistant district attorney general for “stacking” the charges and that 

the Petitioner’s family retained him to represent the Petitioner in this case. 

Trial counsel acknowledged that he and the Petitioner did not have any trouble 

communicating and that the Petitioner cooperated with him. However, counsel was “sick 

a whole lot” and “out of the office and back and forth in the hospital.” He stated, “And 

seems like I recall explaining that to [the Petitioner’s mother]. And, at some point, my

conversations were almost entirely with [her], which I can understand relaying some of 

the information, [the Petitioner] may not have gotten it.” The State asked if trial counsel 

remembered anything about the two witnesses who could not be located, and he 

answered, “No. I would’ve guessed that one of them may have been the confidential 

informant, but I’m not sure.” He acknowledged that the trial court sentenced the 

Petitioner to the minimum punishment in the range, twenty-five years, for the offense.

In a written order, the post-conviction court denied the petition for post-conviction 

relief. The court accredited trial counsel’s testimony that he met with the Petitioner and 

that he raised issues in the motion for new trial and on direct appeal that he thought were 

“necessary and appropriate in light of the issues raised prior to and during trial.” The 

post-conviction court noted that trial counsel filed “numerous motions” in this case and 

concluded that the Petitioner failed to show trial counsel was deficient or that he was 

prejudiced by any deficiency.

1

 

II. Analysis

On appeal, the Petitioner contends that he received the ineffective assistance of 

counsel because trial counsel failed to address the speedy trial issue and failed to argue 

the preindictment delay issue competently on direct appeal of his conviction. He also 

contends that he received the ineffective assistance of counsel because trial counsel failed 

to communicate with him regarding trial and appellate strategy, plea offers, and the 

severe consequences of a conviction under the Drug-Free School Zone Act. Finally, he 

 

1 We note that there are errors in the post-conviction court’s order. First, the postconviction court stated in the order that “trial counsel testified that he met with the defendant on 

numerous occasions and advised him of the evidence against him. Further, defendant was 

advised of [the] likelihood of conviction and the range of punishment.” Our review of the 

transcript of the post-conviction evidentiary hearing, though, shows that counsel gave no such 

testimony. The post-conviction court also stated in the order that it did not find the Petitioner’s 

testimony to be credible. However, the Petitioner did not testify at the evidentiary hearing.
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contends that he is entitled to post-conviction relief because the State failed to follow the 

mandatory joinder rule. The State argues that the Petitioner is not entitled to relief. We 

agree with the State. 

A. Ineffective Assistance of Counsel

To be successful in a claim for post-conviction relief, a petitioner must prove the 

factual allegations contained in the post-conviction petition by clear and convincing 

evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means 

evidence in which there is no serious or substantial doubt about the correctness of the 

conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. 

Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 

1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded 

their testimony, and the factual questions raised by the evidence adduced at trial are to be 

resolved by the post-conviction court as the trier of fact. See Henley v. State, 960 

S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court’s findings of fact are 

entitled to substantial deference on appeal unless the evidence preponderates against 

those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

A claim of ineffective assistance of counsel is a mixed question of law and fact. 

See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction 

court’s findings of fact de novo with a presumption that those findings are correct. See

Fields, 40 S.W.3d at 458. However, we will review the post-conviction court’s 

conclusions of law purely de novo. Id.

When a petitioner seeks post-conviction relief on the basis of ineffective 

assistance of counsel, “the petitioner bears the burden of proving both that counsel’s 

performance was deficient and that the deficiency prejudiced the defense.” Goad v. 

State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 

687 (1984)). To establish deficient performance, the petitioner must show that counsel’s 

performance was below “the range of competence demanded of attorneys in criminal 

cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the 

petitioner must show that “there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the 

outcome.” Strickland, 466 U.S. at 694. Generally, 

[b]ecause a petitioner must establish both prongs of the test, a 

failure to prove either deficiency or prejudice provides a 

sufficient basis to deny relief on the ineffective assistance 

claim. Indeed, a court need not address the components in 
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any particular order or even address both if the [petitioner] 

makes an insufficient showing of one component. 

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697). 

Initially, we note that the fact section of the Petitioner’s brief fails to comply with 

Rule 27(a)(6), Tennessee Rules of Appellate Procedure, which requires that an 

appellant’s brief contain “[a] statement of facts, setting forth the facts relevant to the 

issues presented for review with appropriate references to the record.” The statement of 

facts in the Petitioner’s brief does not contain any evidence presented at the postconviction evidentiary hearing.

As to the Petitioner’s claim that trial counsel was ineffective for failing to argue 

the speedy trial issue on direct appeal, the right to a speedy trial, which is guaranteed by 

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

Tennessee Constitution, “attaches at the time of arrest or indictment, whichever comes 

first, and continues until the date of the trial.” State v. Vickers, 985 S.W.2d 1, 5 (Tenn. 

Crim. App. 1997). To determine whether a defendant’s constitutional right to a speedy 

trial has been violated, this court must conduct the balancing test set forth in Barker v.

Wingo, 407 U.S. 514 (1972). See State v. Wood, 924 S.W.2d 342, 346 (Tenn. 1996); 

State v. Baker, 614 S.W.2d 352, 353 (Tenn. 1981). Under the Barker analysis, the 

following four factors must be considered: (1) the length of the delay; (2) the reasons for 

the delay; (3) the accused’s assertion of the right to a speedy trial; and (4) the prejudice 

resulting from the delay. 407 U.S. at 530. The most important consideration is the 

prejudice factor. State v. Simmons, 54 S.W.3d 755, 760 (Tenn. 2001).

Here, the Petitioner was indicted in September 2008 and tried in February 2011, a 

delay of more than two years. A delay of one year or longer will usually trigger an 

inquiry into a speedy trial violation. State v. Vickers, 985 S.W.2d 1, 5 (Tenn. Crim. App. 

1997). However, our review of the trial record shows that the Petitioner did not allege a 

Sixth Amendment speedy trial violation in the trial court. Instead, he filed a motion 

again arguing Fifth Amendment preindictment delay. During a pretrial hearing on the 

motion, trial counsel argued that the delay between the November 2006 offenses and the 

September 2008 indictment was unreasonable, and the assistant district attorney

explained that the reason for the delay was that another prosecutor was supposed to 

present the November drug-buys to the grand jury but failed to do so. Trial counsel never 

argued that the delay between the September 2008 indictment and the February 2011 trial 

was unreasonable, and therefore, the State never offered a reason for that delay. 

Moreover, the Petitioner did not provide any reason for the delay at the post-conviction 

evidentiary hearing. Most importantly, the Petitioner failed to present any proof at the

hearing to show he was prejudiced by the delay. Although he claims he was prejudiced 
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by his inability to locate two witnesses, he has offered no explanation as to how the 

witnesses would have helped his case and did not present the witnesses at the evidentiary 

hearing. Generally, “[w]hen 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.” Black v. State, 794 S.W.2d 752, 

757 (Tenn. Crim. App. 1990). We may not speculate on what benefit these witnesses 

might have offered to the Petitioner’s case. Id. Applying the Barker balancing test, the 

Petitioner has failed to show that he received the ineffective assistance of counsel for 

counsel’s failure to raise a speedy trial violation on direct appeal of his conviction.

The Petitioner also contends that trial counsel was ineffective for failing to argue 

the preindictment delay issue competently on direct appeal because “a competently 

argued due process issue would have been cause for reversal of his judgment.” 

Generally, to establish a due process violation stemming from a preindictment delay, an 

accused must prove the following prerequisites, also known as the Marion-Dykes test: 

(1) there was a delay; (2) the accused sustained actual prejudice as a direct and proximate 

result of the delay; and (3) the State caused the delay in order to gain a tactical advantage 

over the accused or to harass the accused. State v. Utley, 956 S.W.2d 489, 495 (Tenn. 

1997) (citing United States v. Marion, 404 U.S. 307, 324-25 (1971), and State v. Gray, 

917 S.W.2d 668, 671 (Tenn. 1996)); see also State v. Carico, 968 S.W.2d 280, 284-85 

(Tenn. 1998). 

On direct appeal of the Petitioner’s conviction to this court, this court found that 

the Petitioner was not entitled to relief because he failed to show that the State caused the 

delay to gain a tactical advantage or that he was prejudiced by the delay. Jamie N. 

Grimes, No. M2012-00530-CCA-R3-CD, 2013 WL 576130, at *5. The Petitioner also 

failed to present any proof of prejudice at the post-conviction evidentiary hearing. 

Therefore, even if trial counsel was deficient for failing to argue the issue competently on 

direct appeal, the Petitioner has failed to show he was prejudiced by the deficiency. 

Finally, the Petitioner contends that he received the ineffective assistance of 

counsel because trial counsel failed to communicate with him regarding trial and 

appellate strategy, plea offers, and the severe consequences of a conviction under the 

Drug-Free School Zone Act. Trial counsel testified at the evidentiary hearing that he 

represented the Petitioner in previous cases, that they established a working relationship, 

and that the Petitioner’s family hired him in this case. He said that he and the Petitioner 

did not have any trouble communicating, that the Petitioner cooperated with him, and that 

they “collaborated” on their research of the joinder issue. The Petitioner, who called trial 

counsel to testify at the hearing, did not question counsel about counsel’s trial or 

appellate strategy, any plea offers, or counsel’s communications with the Petitioner about 

potential punishments under the Drug-Free School Zone Act. The post-conviction court 
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accredited trial counsel’s testimony and found that he communicated with the Petitioner. 

Nothing preponderates against the finding of the post-conviction court. Thus, the 

Petitioner is not entitled to relief on this issue.

B. Mandatory Joinder

The Appellant maintains that the State violated the mandatory joinder rule and 

claims that the State’s doing so interfered with trial counsel’s ability to negotiate and 

defend him. He argues that the State was required to join the three charges indicted in 

this case, two of which the State later dismissed, with the charge of possessing 300 grams 

or more of cocaine on December 8, 2006, because they were part of “a single, escalating 

criminal episode, orchestrated and calculated by the same law enforcement officers, 

which occurred within a span of three weeks.” However, as noted by the State in its 

brief, this court previously determined that the offenses committed on November 10 and 

December 8, 2006, were not part of the same criminal episode. Tenn. Code Ann. § 40-

30-106(h). Accordingly, the Petitioner also is not entitled to relief on this issue.

III. Conclusion

Based upon the record and the parties’ briefs, we affirm the judgment of the postconviction court.

_________________________________ 

NORMA MCGEE OGLE, JUDGE