### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs Ja nuary27, 200 4

FRANK CHE STER BRIGH T, JR. v. ST ATE OF TEN NES SEE

Direc t Appeal from the Cr im inal Cou rt for Davidson Coun ty Case No. 97- A-597 J. Randall Wyatt, Jr., Judge

No. M2003- 00239-CCA -R3-P C - F iled May 18, 2004

A Davidson County

jury convicted the Petitioner, Fr ank C hester Brig ht, J r., of possession with i ntent to de liver over twenty -six g rams of a substance containing cocaine, a Class B fe lony , and fa cilitation of possession of a deadly wea pon, a Class A misdemeanor. The trial c ourt sentenc ed the Petitioner
a s a c ar e e r o f f e n d e r t o t h i r t y ye ar s i n p r i s o n o n t h e p o s s e s s i o n c o u n t a n d e l e v e n m o n t h s a n d t w e n t ynine day s in prison on the fac ilitation count, with t he sen t en ces to run concur rently . On direc t appea l, this Court aff

irmed the conviction, and the T ennesse e Supreme Court denied the Petitioner’s application for

permissi o n t o ap p ea l. The Petitioner then filed a petition seeking post-conviction
r e l i e f i n t h e tr i a l c o u r t , w h i c h t h e c o u r t d i s m i s s e d

. O n ap p e a l , t h e P e t i t i o n e r a s s e r t s t h a t th e po stc on vic tio n c ou rt

e rr e d w he n it

dis mis se d h is p e tit ionfi nd ing th at th e rewa s n o me ri t to his c la ims that: (1) he w as denied eff ective assistance of counsel at his sentenc ing hearing; (2) t he prose cutor committed prosecutorial misconduct at the sentencing hearing; and (3) the trial court’s instructions to the jury

violated his due proc ess rig hts. Finding no err or, we aff irm the post-conviction court’s dismiss al of the pe tition.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

R OB E R T W. W EDEMEYER , J ., delivere d the opinion of the court, in which G AR Y R. W ADE , P.J ., and A L AN E. G L EN N , joined.

Pe te r T . Sk e ie , N a sh vil le , T e nn e sse e , f or the Ap pe llant, F rank

Che ste r B ri g ht.

P au l G

. S u m m e r s , A t t o r n e y G e n e r a l a n d R e p o r t e r ; M i c h a e l M o o r e , S o l i c i t o r G e n e r a l ; J e n n i f e r L. B le ds oe , A ssi stant A tto rn e y Ge ne ral; Vi cto r S . Joh ns on , D ist ri c t A tto rn e y

Ge ne ra l; andJohn C. Z immerman, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

. OP IN ION I. F ac tu al B ac kgr ound

This Court summ arized the unde rl y i ng fac ts of the Petitioner’s ca se on direc t appea l as fo llo ws :-2-

The a rre sts of the defe ndant, Shawntava Shields, and L isa Rice on Oc tober 1, 1996,
wer e the r esult of an underc over operation c arried out by Serg eant Gr eg Bunc h of the Eig hteenth Judi cial District Ta sk Forc e. In September 1996, Rice was in jail on an ag g ravated burg lary

char g e. While in jail, R ice a g ree d to arrang e a pur chase of five ounces of cocaine for another fe male inm ate whom she knew a s Tere sa. The pla n wa s f or Ric e to ar rang e the sa le thr ou g h he r sup pli e r, on c e sh e wa s r e le a se d f ro m jail, and deliver

the coc aine to Te resa ’s boy friend, Chris. On Octobe r 1, 1996, Rice wa s rele ased on C o m m unity

Correc tions, and that same day she wa s contac ted by telephone by

the per son she thoug ht was Chris. I n fac t, Se rge ant Bunch had be en informed by

a conf idential informant of the proposed sale, and it wa s Bunc h, posing as “Chris,” w ho made this and subseque nt calls to Rice t o arr ang e the dr ug sale. “Chris ” p ro mised to pay Rice $1,000 for

setting up the deal. Rice pag ed the defe ndant to set up the sale. H er home phone nu m ber w as ente red in the be eper rec overe d from the de fendant at the crime scene

. Arrang ements wer e made for the
sa le of fi ve ou nc e s of c oc a ine fo r $5 ,0 00

. Th e de fe nd a nt pr omi se d Ric e a n “ e ig htball” of c ocainefor making the contac t. Once a location for the sale wa s established, Shields, the defend an t ’s “som etimes” g irlfriend, dr ove a N issan Maxi ma to the ag ree d location, with the defe ndant in the front passeng er seat and Rice in the back seat. On the way

to the location, the defe ndant showed Rice five bag s of cocaine and a g un, which he thr eate ned to use if the de al turned out to be a setup.

The de fendant, Shields, and R ice arrived at the agr eed location shortly afte r Serg eant B unch and pa

rked c lose to his car. Rice g ot out o f t h e back se at and approa ched Ser g eant B unch, who se nt her ba ck to the Maxima for the drug s befor e he wa s willing to hand ove r the money . Once she re turned with the c ocaine and handed it to Serg eant B unch, other underc over p o l i ce office rs, who had be en mon ito ri ng the situatio n f ro m c los e by

in thr ee s e pa

rate ve hic le s, mov e d in , w ith strobe lig hts and sirens activated, to block the Ma x ima. As these police vehicles b l o ck ed that of the suspec ts, Shi elds, who wa s operating the suspe cts’ vehic le, rammed the vehicles in both her front and re ar. The defe ndant then jumped fr om the passeng er se at into Shields’s lap an d b e g an oper ating the g ear

lever himself, ramming the po lic e ve hic le s bloc kin g his ow n. Ho we ve r, the de fe nd a nt w a s u ns uc c e ssf ul i n extr ic a ti n g th e v e h ic le , a n d h e a n d Sh ie ld s w e r e arr e s te d

. T h e p is to l, f o u n d on the passeng er se at wher e the de fendant had bee n sitti ng , was fully l o ad ed. Rec overe d
wer e two bag s of coc aine, one weig hing 14.2 g rams and theo t h er we i ghing 9.4 g rams, on the driver’s se at of the Ma x ima; a bag of 2.7 g rams of cocaine and a ba g of 2.6 g rams of marijuana on the defe ndant’s person; and on Shields’ s p erson, twenty - one small bag s of marijuana wi t h a t o t al weig ht of 19.2 g rams and a marijuana joint laced with coc aine ba se.
Othe r e vid e nc e fr om the sc e ne inc lud e d th e ba g of c oc a ine Ric e ha d g ive n to Serg eant B unch, which w eig hed 5.1 grams, and the def endant’ s wallet, conta ining-3-

a drive r’s licen s e in the name of “Mervy n L eo Jordan,” the pe rson the def endant claimed to be w hen he w as ar rested.

State v. Fran k Chester B rig ht, J r., No. 01C01-9807-CR-00291, 1999 WL 743604, at *1-2 (T enn. C ri m

. Ap p

. , at Nashville, Sept. 24, 1999), perm. app. de nied (Tenn. O ct. 23, 2000) (f ootnotes omitted).

On direc t appeal, this C ourt aff irmed the c onvictions, an d t h e Tennessee Supreme Court denied the D efe ndant’s application f or permission to a

ppeal. The Petitioner filed a pro se pe tition for post-c onviction relief. T he p o st-conviction court appointed an attorney to repre sent the Petitioner, and the attorney filed an amended post-c onviction petition. I n this amended pe tition, t he Petitioner asserte d that his conviction “must be voided and a ne w trial orde red.” After a hea ring , the post-conviction court dismi ssed the petition, and the Petitioner filed a timely notice of appea l. O n appea l, the Petitioner asserts that the post-c onviction court er red w hen it dismiss ed h is petition finding that there was no merit to the Petit ioner’s c laims that: (1) he wa s denied e ffe ctive assistanc e of c ou ns e l a t hi s se nte nc ing he ari ng wh e n h is t ri a l c ou ns e l, R ob e rt

Tu rn e r ( “ Cou ns e l” ), faile d to arg ue that the e vidence showed that the Petitioner wa s not a ca ree r off ender ; (2) the pr osecutor committed pr osecutoria l misconduc t at the sentenc ing hearing; and (3) the trial court’s instructions to the jury

vio la te d h is d ue pr oc e ss rig hts

. The followin g ev i d en ce wa s p re s en t ed att h e p o s t -c o n v i ct i o n h ea ri n g. T h e P et i t i o n er te stified that Counsel “showed up . . . ri gh t around time for the first trial.” H e explained that the first trial
e nd e d w itha

hu ng jury

a ndthat he wa s r e tr ie d a fe w w e e ks la te r. The P eti ti on er st ated that bo th Cou ns e l a ndSte ve n We lls we re his la wy e rs a t th e fi rs t tria l. H e e xpla ine d that w hil e Wel ls w a s f ir stc ha ir , b oth Cou ns e l a nd Wel ls qu e sti on e d wi tne sse s. Th e Pe tit ion e r e xpla ine d that, prior to the fi rs t trial, he met with one of

the attorne y s twice, onc e for about ten minutes an d o n ce for a bout five minutes, but that he did not speak with Counsel at all betwee n the first and se cond trial. The Petitioner stated that the only time he met with Counsel following the first trial was on the day of the se c on d tr ia l in a

ba c k r oo m of

the c ou rt ho us e . T he Pe tit ion e r s ta te d th a t bo th C ou ns e l a ndWel ls
wer e involved in the sec ond trial. The Petitioner explained that to his knowledg e neither Counsel
no r We lls int e rv ie we d e ith e r o f the c o- de fe nd a nts or po lic e of fi c e rs inv olv e d inhis arr e st.

The Petitioner testified that he wa s char g ed with some serious charg es as we ll as some lesseri n cl u d ed o ff

en s es

. He s t at ed t h ath e n ev erd i s cu s s ed wi t h C o u n s el t h e p o s s i b i l i t y o f s ee k i n g a conviction on one of

the lesser -included of

fense s in order to avoid a c onviction on the most serious char g e of posse ssion with int ent to deliver. The Petitioner stated that he “ didn’t know an y thing
abo ut l e sse r- inc lud e d o ff e ns e s” andthat, w he n h e a sk e d Co un se l a bo ut l e sse r- inc lud e d o ff

e ns e s,

“ [Cou ns e l] sa id .

. . do n’ t w or ry abo ut that” be c aus e the y we retry ing to a c hie ve a

hu ng jury

a g a in in the second trial. The Petitioner testified that neither Counsel nor Wells eve r told him t hat, if he
was c onvicted of posse ssion with int ent to deliver, he could re ceive a thirty -y ear ma n d atory sentenc e. The Petitioner re counted that Counse l and Assis tant District Attorney Gene ral John Zimmerman discussed, in open c ourt, possible jail time if he was convicted of possession with intent to deliver. T h e P e t i t i o n e r

s t a t e d t h a tC o u n s e l a s k e d f o r t h e l o w e r e n d o f

t h e r a n g e , e i g h tt o f

i f t e e n ye ar s a tf

o r t y--4-

fi ve pe rc e nt, a ndthat G e ne ra l Z imm e rm a n a sk e d fo r the hig he r e ndof the rang e , tw e nty

to thirty y e ars a t f orty -f ive pe rc e nt. The Petitioner explained that, at that time, he did not understand e nhance ment and mitigating fac tors in sentencing and that no one e x plained these fac tors to him unti l after he wa s convicted. The Petitioner stated that, during the trial, he be lieved he w ould rec eive be tween e ight and thirty y ear s in prison at forty -five pe rce nt or less if he wa s convicted. The Petitioner testified that he would ha ve considere d try ing to g et an acquittal on the pos session with intent to deliver char g e by focusing the jury ’s attention on the fac ilitation of possession of a deadly wea pon char g e if Counsel had e x plained to him that he would re ceive a thirty -y ear sentenc e at sixt y -five pe rce nt if convicted of possession with intent to deliver.
The Petitioner testified that, during jury deliberations, the jury came back into the c ourtroom during a re cess a nd saw, in ad d i t ion to the evidenceused ag ainst him during the trial, a television and “othe r stuff” that was evidence in an unre lated trial. The Petitioner speculate d that the jury was confuse d by

the evidenc e f

ro m the other tria l and mistakenly believed that he had other char g es pe nd ing a g a ins t hi m.
O n c r o s s

- e xa mi n a ti o n , th e Pe ti ti o n e r r e it e r a te d th a t h e d idn o t u n d e r s tan d le s s e r

- in c lu d ed offe nses and stated that the judge never instructed the jury

in his first trial on lesser-inc luded offe nses beca use “it was all or not hing [ at] the first t rial.” ThePetitioner testified that the sec ond trial was also “a ll or nothing” and that the judg e neve r instructed on lesser- included offenses. The State then int ro du c e d in to e vid e nc e c op ie s o f j ury c ha rg e s f ro m bo th t

ri a ls.

The Petitioner explained that he only understood what “Rang e I ” meant but did not know that afte r multiple convictions his sentenc e would be enhanc ed. F urther, the Petitioner testified that no other judg e had e ver e x plained to him that h i s co n v ictions would be used to enhance f uture pu nis hme nts

. The Petitioner stated that, befor e his f irst trial, Wells visited him twice and Counsel spoke to h im o n th e te le ph on e on c e

. Th e Pe tit ion e r expl a ine d tha t, at th e fi rs t tria l, We lls wa s “ the ma in la wy e r” bu t th a t a t the se c on d tr ia l Cou ns e l w a s th e le a d atto rn e y . T he Pe tit ion e r s ta te d th a t he did
no t ha ve a

pr ob le m w ithe ith e r atto rn e y ’s re pr e se ntatio n d uring the fi rs t tria l.

The Petitioner denie d that he wa s caug ht with twenty -six g rams of c ocaine and that he tried to ge t away

by smashing a

police ca r. He admitted that he wa s in the vehicle but c laimed t h at he “wa s in the passeng er side” and that he never drove the vehicle . The Petitioner ac knowledg ed that he knew he could be convicted of possession with intent to deliver and that h e had a prior re cord. The Petitioner testified that he had multipl e prior felonies, “about f our, may be, five . But not six .” The Petitioner explained that he wa s not a “care er c riminal.” The Petitioner state d that he wa s positive that he did not have six felony convictions, and that if the j udg ments from prior c onvictions i n d i ca t ed t h ath e h ad s i x co n v i ct i o n s , t h e j u d gm en t s we re wr o n g.-5-

Counsel was ca lled by the Petitioner. He state d that, initially , the Petitioner reta ined him and Wells as counsel, but that, subse quently , they wer e court-a ppointed. Counsel stated that he only had a portion of t he P etitioner’s file. Counsel explained that Wells was now living in Alaska a nd that he too k s ome of

the Pe tit ion e r’ s f

ile s whe n he le ft

. Cou ns e l sta te d tha t the rewe retw o tria ls, the fi rs t ended w ith a hung jury and the second ended with a conviction. Counsel explained that he only had a vag ue re collection of wh at happene d at the two trials. Counsel stated that he and Wells filed a
re qu e st f or dis c ov e ry , a ndthe State re sp on de d to that r e qu e st.
Counsel testified that, during plea ne g otiations, the St ate of fer ed the Petitioner a

sentenc e of “eig hteen y ear s, Rang e I I , [consecutive to] the sentence he wa s [currently ] serving, w ith ana d d it io n al
e ig ht y e ars c on c ur

re nt w iththe e ig hte e n y e ars , Range I I .” Couns e l th e n r e a d a po rt ionof

Wel ls’
n o t e s t h a ti n d i c a t e dt h a tt h e S t a t e m a d e a s e c o n d o f

f e r t o t h e P e t i t i o n e r

f o r “ t w e n t y ye ar s , a tf

o r t yfive pe rce nt, Rang e I I I , consec utive [t o the twelve y ear s at t hirty -per cent which the P etitioner wa s curr ently serving ], and then eig ht y ear s concur rent [with t h e t we nty

y ear s at forty -five pe rce nt] .” Counsel testified that he met with the Petitioner and explained to him, with the aid of a sentenc ing matrix , “what he was looking at if he wa s convicted.” Counsel stated that he we nt over the State’ s offe r at that time, but the Petitioner “wa s not interested in . .

. any type of plea. He was inter ested in beating the ca se.” Counsel testified that, at the time he met with the Petitioner, he kne w and understood that the Petitioner wa s fac ing a “ca ree r criminal type of sentenc e” if he wa s convicted, based on the Petitioner’s prior re cord.

I , specific ally , rec all [] having his recor d and having his Discovery from the state and
us ing the s enten c ing ma tr ix an d s ho wi ng him wh e re

. . . h e fe ll o n th a t. I do n’ t, specific ally , rec all say ing, [P etitioner,] y ou’re a car eer offe nder, y ou fall over here or y ou ’r e a pe rs ist e nt o ff

e nd e r. I kn e w he ha d a ve ry le ng thy c ri min a l r e c or d. An d if h e w o u ld h a v e b e e n a c ar e e r o f f e n d e r a t th a t t im e , I

w o u ldh a v e s a id , o n th is matrix, thi s [is ] wh e re y ou fa ll.
Counsel expl ained that, afte r discussing the Petitioner’s possible sentence with him, the Petit ioner’s
rea ction was that he could beat the cha rg es. Counsel stated that the Petitioner “ wanted to g o to trial and beat the case ” and did not e ntertain the ple a ag ree ments that Counsel and Wells had neg otiated fo r h im.

Cou ns e l te sti fi e d th a t he sp ok e wi th the le a d d e te c tiv e a ndoth e r p oli c e of fi c e rs inv olv e d in the Pe tition e r’ s c a se , b ut h e c ou ld n ot r e c a ll w he the r h e didso prior to the fi rs t or

se c on d tria l. Co u n s e l f u r th e r s tate d th a t he c o u ld n o t r e c a ll w h e th e r h e s p o k e w ith o r in te r v ie w e d Jo s e Rami r e z. C o u n s el explained that, in prepa ration for the trial, he and Wells met with the Petitioner, filed a motion for discovery

and re viewed the materia ls, he ld ple a neg otiations with the State, made a copy of the Pr e lim ina

ry He ari ng tr a ns c ri pt, a ndsp ok e wi th the le a d d e te c tiv e a ndoth e r p oli c e of fi c e rs

. Counsel testified that “ther e wa s a joint trial in the first trial, and then Lisa [R ice, a co-de fendant,] pled, and may

be testified at the second tria l.” Counsel testified t hat he did not interview Rice be fore the se c on d tria l be c aus e sh e wa s r e pr e se nte d b y c ou ns e l.-6-

Cou ns e l e xpla ine d th a t th e the ory of the c a se wa s th a t th e Pe tit ion e r w a s si mpl y wi th Lisa Rice at the time of the offe nse and that the drug s were not his. Couns el testified, “Lisa [R ice] was closer to [the drug s] than hi m. And based upon the fa cts . . . [the Petit ioner] couldn’t have known that the cocaine was in the car[,] but [R ice] would be the one that knew a bout it.” Counsel ex plained that th e Pe tit ion e r h a d d ist a nc e d h ims e lf fr om R ic e a nd “ so me ho w or a no the r, he jus t ha pp e ne d to be at the c ar at the time of the drug bust.”

Cou ns e l st a te d th a t he didno t r e qu e st a c op y of thetr a ns c ri pt f

ro m th e fi rs t tr ia l a ndhe did
no t kn ow wh e the r We lls did . Co un se l e xpla ine d, “ I [too k] a lmo st v e rb a tim

no te s” du ri ng the fi rs t trial, and the two of

them worke d off those notes at t he second trial. Counsel acknow ledg ed that they didno t a sk

fo r a c on tin ua nc e in o rd e r t o g e t a c op y of the tr a ns c ri pt f

ro m th e fi rs t tria l.

Cou ns e l te sti fi e d th a t he c ou ld n ot r e c a ll wh e the r S hie lds , th e oth e r c o- de fe nd a nt, ple d g uil ty befor e the se cond trial. He explained that he did not remembe r whe n he fou n d o u t that Rice was g oing to testify

ag ainst the Petitioner at the sec ond trial, but “it seems like it may have be en a surprise . .

. .” Counsel explained that they did not request a c ontinuance be cause they wer e pre pare d to try the case and had just tried it two wee ks befor e. Counsel stated that he ha d no rec ollection as to Shields’ testim ony

at the first trial a nd that he had no r ecollec tion of interviewing her.

Counsel testified that he and Wells discussed the strateg y of ac hi ev i n g a co nviction on a lesser- included off

ense in e x chang e for

an ac quittal on the possession c harg e, but “it was an all or nothing thing ” in the Petitioner’s mind. Counsel expl ained, “ [H] e wa sn’t interested in d o i n g any lesser inc luded offe nses. Other wise, we would have d o n e that.” Counsel stated that, “ I have no doubt that he knew w hat he wa s fac ing, because I went over it with him, and Mr. Wells went over it w ithhim . A ndI

thi nk that th e re wa s o ne oc c a sio n th at we bo th s a t do wn a ndwe nt o ve r i t w ith him.” Counsel expl ained that the Petitioner knew “a lot more than the aver ag e client” beca use he spent time in the prison law library fig uring out what his leg al situation wa s and “how to ge t out of it.”
Counsel testified that, afte r the Petitioner was convicted at the second tria l, Wells handled the ca se fr o m t h e co nviction throug h the sentenc ing he aring . Counsel stated that he ha d no
rec ollection of pre paring for the se ntencing hearing. Counsel indicated that t he sentencing hearing tr a ns c ri pt i nd ic a te d th a t We lls wa s th e on ly on e wh o s po ke to the Cou rt

. On cr oss-examination, Couns el testified that Lisa Rice g ot her d ru g “samples” from the Petitioner. Furthe r, Counsel ac knowledg ed that the Petit ioner kne w of the possible outcome s of the tr ia l, bu t he wa s on ly int e re ste d in be a tin g the c ha rg e s. Cou ns e l e xpla ine d that, a ft e r the fi rs t tria l, he went to the Petitioner with a plea offe r from the State. He state d that he met with the Petitioner and “he wasn’t interested in pleading to anything.” Counsel stated that either he or Wells discussed
e a c h p le a of fe r w iththe Pe tit ion e r, bu t th e Pe tit ion e r w a s u nw ill ing to a g re e to any of the of fers

. Counsel expl ained that, if the Petitioner had ag ree d to a plea of fer , he would have “jumped” at the op po rtun ity

be c aus e the of

fe r w a s th e sa me a s w hat th e y ho pe d w ou ld b e the ou tc ome a t th e tr ia l.-7-

Counsel testified that, if the Petitioner was a car eer offe nder and was c onvicted of the po sse ssi on wi th i nte nt to de liv e r c ha rg e , the on ly

po ssi ble se nte nc e wa s th irty y e ars a t si xty

pe rc e nt. He also ag ree d that the sentenc e was not pr obatable. Counsel stated that,“not only did I think [ the Petitioner] understood [ the possible sentenc es], but he had questions about it. An d we we re

. . . loo kin g a t th e dif

fe re nt p os sib ili ty

on the[se nte nc ing matrix], lik e kin d o f p la y ing c he c ke rs , discussing the m.” Howe ver , C o u nsel explained that, after consulting w ith the Petiti oner, the Pe tit ion e r r e fu se d th e ple a of fe rs a ndthe str a te g y

wa s to be a t th e c ha

rg e s.
The Petitioner next called Ge nera l Z immerman. Genera l Z immerman t estified that he has prac ticed law sinc e 1974 and ha s been a prosec utor since 1981. The Court took judicial notice that in the time Gener al Zimmerman has been a prosecutor, “he’s participated in a number of ca ses.” The g ener al stated that, in pr eparing for a sentenc ing hearing, he would sometimes r ead the pre sentenc e re po rt . He e xpla ine d, “ Us ua lly I ’m loo kin g fo r the de fe nd a nt’ s st a te me nt s inc e I kn ow wh a t th e c a se is about. All I ’m rea lly interested in is what the defe ndant said and w het h er o r n o t

. . . the Pr e se nte nc e Re po rt

write r m a dea ny

c omm e nts abo ut the de fe nd a nt’ s .

. . dr ug us a g e or

wh e n h e la st used d ru g s

. ” H e e xp lain e d th a t th e r e is a s tatu to r y r e q u ir e me n t th a t a p r e s e n te n c e r e p o rt be introduced a s an exhibit at a se ntencing hearing. T he Court took judicial notice that the presentenc e reports a re officia l doc uments prepa red by probation office rs who work for the State in the Probation Depa rtment. Gene ral Zimmerma n stated t hat t he documents should be completed as accurately as possible but that “[probation officer s] m ake mistake s . . . they ’re only human.”

Ge ne ra l Z imm e rm a n te sti fi e d th a t he didno t us e the pr e se nte nc e re po rt wh e n h e ma de his
re c omm e nd a tio n to the jud g e

. He a dmi tte d th a t he re a d th e re po rt bu t e xpla ine d th a t he didno t us e it because he is “mer ely

interested in what the def endant told the writer of the Pre sentenc e Report.” He state d that he wa nted to see if the P etitioner’s statements to the writer of the pre sentenc e re port
wer e self- serving or conta ined an a dmission. Genera l Z immerman ex plained that the presentenc e report contained the Petitioner’ s statement and c riminal history

. Gene ral Z immerman stated that he did not know how the pre sentenc e re ports wer e pre pare d.

Gene ral Z immerman identified the Petitioner’s “re cord car d.” He e x plained that the r ecor d
car d was a n internal doc ument prepa red by secr etaries in the Dist ri ct Att orney ’s Off ice by

“ de c iph e ri ng ” the inf

orma tio n “ a s b e st the y

c a n .

. . fr om the c ov e rs of ou r b lue fi le s a ft e r a c a se is disposed.” He further explained that the rec ord car ds prepa red by the District Attorney ’s Off ice a re not official r ecor ds. Gene ral Z immerman conc eded that rec ord ca rds ar e bus i n es s rec ords, but “they ’re only

[as] reliable as the Assistant D .A. who writes on the blue file a nd the sec reta ry [who] properly takes that from the blue file.” Gene ral Z immerman stated that the rec ord car ds are used by prosec utors to find out whether a defenda nt has prior c onvictions and, if so, what the c onvictions are.

On cr oss-ex am i n at i o n , Ge n er al Zi m m er m an ad m i t t ed t h ath e h ad no indepe ndent re collection of the Pe tit ion e r’ s c a se . H e state d th a t:
[I ]f someone is going to be sentenc ed in a r ang e abovethe Standard Rang e I , then it’s our duty to go g et ce rtified copie s of t he conviction, judgme nts of convictions and theW e n ot e t h at t h e 2003 a men dmen t t o t h e Pos t Conv i ct i on Pr oce du r e Act , Publ i c Act s 1995, c h apt er 207, 1

s ec t i on 1, ch an g ed t h e n u mber i n g of t h e g en er al pr ov i s i on s pa r t of t h e ch apt er t o T en n es s ee Code An n ot at ed s ec t i on 40- 3 0 -1 0 1 , ets eq. -8- indictments if the judgme nts do not ref lect the date of the offe nse. And that’s w hat
we r ely upon, what the a ctual off icial re cords of

the Court are

. He then e x plained that the doc uments relied upon a re o b t ained from the cler k’s offic e, not the internal re cords of

the district attorney ’s offic e. On r e-dire ct, Gene ral Z immerman stated that he had
no rec ollection of having rea d the pre sentenc e re port prior to the post-c onvicti on hearing. H e explained, “I

do know, base d on our D.A. recor ds, I went and f ound the [P etitioner’s] convictions to s ho w Jud g e Wy a tt. We f ile d a No tic e of

Se nte nc e En han cem e nt that he wa s a c are e r c ri min a l. That wa s based on the c ertified c opies of the judg ment of convic tions.”

Follo w in g th ep r e s e n ta

ti o no f th ee v idence , the post-conviction court found that the Petitioner was not denie d eff

ective a ssistance of c ounsel and dismissed the petition. The court stated:

Ba sed on the testimonyand exhibits prese nted at the he aring and the e ntire re cord of both trials, the Court finds that [ Counsel’s] rep re s en t ati on of the Petitioner wa s competent a nd thoroug h. The Court does not find that the Petitioner has pre sented sufficie nt evidence to establish that his trial cou n s el’s re prese ntation at either tria l was de ficient or prejudicial. For these reasons the Court must reje ct t he Petitioner’s ine ff e c tiv e a ssi stanc e of

c ou ns e l c la im.

T h e Co u r t a ls o f

in d s th a t th e ju r y

in s tr u c ti o n s g iv e n w e r e p r o p e r and supported by

the re cord. The Court notes th at t h e T ennessee [Court of Criminal Ap pe a ls] fo un d th a t th e Pe tit ion e r w a s se nte nc e d a pp ro pria te ly

by the Tria l Co urt. The Court, therefo re , i s o f t he opinion that the Petitioner’s cla im that the jury ins truc tio ns we re imp ro pe r, is w ith ou t me ri t.

The Petitioner’s f

inal ar gu ment is that the prosec uting attorney , J ohn Z immerman, committed prosec utorial misconduct by arg uing that the Petitioner was
a ca ree r off ender , even thoug h he knew that the P etitioner was not a ca ree r off ender

. The Petitioner, howe ver, ha s failed to p re sent any evidenc e that Assistant District Attorney Z immerman intentionally mislead the Court. The Court is of the opinion that attorney

Z immerman prose cuted the c ase in a n ethical a nd competent manne r.

II. Ana lys is

I n order to obtain post-conviction relief, a petitioner m ust show that his or her c onviction or sentenc e is void or voi dable because of the a bridg ment of a c onstitut ional rig ht. Tenn. Code Ann. § 40-30-203 (1997). The petiti oner be ars the bur den of pr oving f actua l alleg ations in the petition 1 for post-c onviction relief by clea r and c onvincing evidenc e. Te nn. Code Ann. § 4 0

- 3 0

- 2 10(f) (1997).-9-

A post-conviction court’s fac tual finding s are subject to a de novo revie w by this Court; howeve r, we must ac cord the se fa ctual finding s a pre sumption of corr ectne ss, which is overc ome only when a pre ponderance of

the evidenc e is contrary

to the post-conviction court’s fac tual finding s. Fields
v. State, 40 S.W .3d 450, 456 (Tenn. 2001). A post-conviction court’s conclusions of law are subject to a pure ly

de novo re view by

this Court, wit h no presumption of cor rec tness. I d. at 457.

On app e a l, the Pe tit ion e r a lle g e s that the po st- c on vic tio n c ou rt e rr e d w he n it

dis mis se d h is petition for post-conviction relief

. Specifica lly , he asse rts that the post-conviction court erre d when it found t here was no merit to the P etitioner’s claims that: (1) he was de nied ef fec tive assistance of counsel at his sentencing hearing w hen Counsel fa iled t o arg ue that the pr oof showed that he was not a ca ree r off ender ; (2) the pr osecutor c ommitt ed prose cutorial misconduct at the sentenc ing he ari ng ; a nd(3 ) the tr ia l c ou rt ’s jury ins truc tio ns vio la te d th e Pe tit ion e r’ s rig ht t o d ue pr oc e ss.
A. Ineff ective Assistance of Counsel

Th e ri g ht o f a

c ri min a lly

a c c us e d to re pr e se ntatio n is g ua rante e d b y

bo th the Sixth Amendment to the United States Constit ution and Article I , section 9, of the T ennesse e Constituti on. State v. Whit e, 114 S.W .3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W .3d 453, 461 (Tenn. 1999) ; Ba x ter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). This right to repr esentation includes the rig ht to “re asonably

eff ective” assistance . Burns, 6 S.W .3d at 461. The Te nnessee Supreme Court has held that the issue of ine ffe ctive assistanc e of c ounsel is a mix ed question of law and fa ct and, a s such, is subject to a de novo revie w. I d.

I n revie wing a cla im of ineffe ctive assistanc e of c ounsel, this Court mus t determine w hether the advice g iven or services re ndere d by the attorne y

are within the rang e of c ompetence demande d of attorney s in c riminal case s. Ba x ter, 523 S.W .2d at 936. To prevail on a cl ai m o f i n effective assistance of counse l, a petitioner must show that “counse l’s repr esentation f ell below an obje ctive stand ardof

re a so na ble ne ss, ” Stric klandv. Was hin g ton , 4 66 U. S. 66 8, 68 8 ( 19 84 ), a ndthat th is pe r f o r man c e p r e

ju d ic e d th e d e f

e n s e , r e s u lt in g ina

f a il u r e to p r o d u c e a

r e li ab le r e s u lt , id

. a t 6 8 7; Cooper v. State, 849 S .W.2d 744, 747 (Tenn. 1993). To satisfy the re quirement of pr ejudice, a petitioner must show a re asonable p robabili ty that, but for counse l’s unrea sonable e rror , the fa ct finder w ould have had rea sonable doubt r eg arding the petitioner’s g uilt. S trickland, 466 U.S. at 695. This r easona

ble proba bilitymust be “suffic ient to undermine c onfidenc e in the outcome.” I d. at 694;
see a lso Harris v. St ate, 875 S.W.2d 662, 665 (Tenn. 1994).

W h en ev al u at i n g an i n ef

fe ct i v e a s s i s t an ce o f c o u n s el cl ai m , t h e r ev i ew i n g co u rt s h o u l d j ud ge the attorne y ’s per formanc e within the context of the case as a whole, taking into account a ll releva nt
c ir c ums ta nc e s. Stric kland , 46 6 U. S. a t 69 0; S ta te v. Mit c he ll, 75 3 S. W.2 d 1 48 , 1 49 (T e nn . Crim. App. 1988). The revie wing court must evaluate t h e q u es t ionable conduc t from the attorne y ’s perspe ctive at the time. Strickland, 466 U.S. at 690; Cooper, 849 S.W .2d at 746; Hellar d v. State, 6 2 9 S. W. 2 d 4 , 9 ( T e n n

. 1 9 8 2 )

. I n d o in g s o , th e r e v ie w in g c o u r t mu s t b e h ig h ly d e f e r e n ti a l and “should indul ge a s t rong pre sumption t hat counse l’s conduct f alls within the wide rang e of
rea sonable prof

essional assistance .” Burns, 6 S.W .3d at 462. Counsel should not be deemed to ha veC o unsel did no t represent t he P et i t i o ner at t he sent enci ng heari ng and t est i f i ed t hat he d i d not recal l prep ari ng 2
fo r t he sent enci ng heari ng.
-10- been ine ffe ctive mer ely

beca use a diff ere nt proce dure or

strateg y might have produce d a diffe rent result. Will iams v. State, 599 S.W .2d 276, 279-80 (Te nn. Crim. App. 1980).

I n the ca se under

submissi on, the Petitioner alleg es that he w as denied e ffe ctive assistanc e of counse l at his sentencing hearing w hen Steven Wells failed to a rg ue that the prese ntence report 2 and other evidenc e showe d that the Petitioner was a persistent off

ender and not a c are er of

fende r. The Petitioner ar g ues that the primary issue at his se ntencing hearing w as whe ther he was a “ca ree r offe nder” or a “ persistent off en d er

. ” A car eer

offe nder is def

ined by Tenne ssee Code A nnotated section 40-35- 108 (2003) a s being “a defe ndant who has r ece ived: (1) Any combination of six (6)
or mor e Cla ss A , B or

C prior fe lon y c on vic tio ns , an d th e de fe nd a nt’ s c on vic tio n o ff e ns e is a Cla ss A, B or C felony .” The State has the burde n of proving that a defe ndant is a ca ree r off ender bey ond
a re asonable doubt. Tenn. Code Ann. § 40- 35-1 0 8 (c ). A “pe rsistent offe nder” is defined by Tenne ssee Code A nnotated sec tion 40-35-107 (2003) a s being “a defe ndant who has r ece ived: (1) Any combination of five ( 5) or more prior fe lony convictions within the conviction class or highe r, or within the next t wo (2) lowe r fe lony classes, w here applicable .”

The Petitioner ac knowledg es that t he S tate met its burden of proof of showing he is a ca ree r offe nder by “introducing certified copies of court documents that rec orded all six prior fe lonies as [Cla ss] C f

e lon ie s, ” bu t arg ue s that Wel ls wa s ine ff e c tiv e fo r n ot c on te sti ng thi s e vid e nc e be c aus e “the State’s prese ntence report c ontradicte d the State’s alleg ation that [t he Petitioner] was a c are er [offender ].” The Petitioner alleg es that instead of arg uing that t he Petitioner wa s not a ca ree r offe nder, Wells asked the Court for lenienc y which it could not g ive. The Petitioner contends that the State pr ov ide d We lls wi th ampl e e vid e nc e to raise re a so na ble do ub t a t th e se nte nc ing he ari ng in the form of

the pre sentenc e re port that alleg edly showed he was a

persistent off

ender . The Petitioner alleg es that Wells failed to ade quately revie w the conte nts of either the prese ntence report or the
re c or d c ard , a ndthat th is f a ilu re fa lls be low the rang e of c omp ete nce de ma nd e d o f atto rn e y s in criminal ca ses. The Petitioner maintains that this failure “had an adver se ef fec t on his defense ” be c aus e , h a d We lls raise d th is i ssu e a t th e se nte nc ing he ari ng , it wo uldha ve c re a te d a

re a so na ble doubt as to whether

the Petitioner was a

car eer offe nder. The State asserts that this issue is waived be c aus e the Pe tit ion e r f

a ile d to inc lud e a

tr a ns c ri pt o f the se nte nc ing he ari ng in the re c or d o n a pp e a l. Howeve r , o n Ju n e 1 1 , 2 0 0 3 , u p o n mo ti o n b y th e Pe ti ti o n e r

to s u p p le me n t th e r e c o r d , th is Co u rt ordered that it will take judicial notice of the direc t appellate r ecor d, which includes a sentenc ing he ari ng tr a ns c ri pt. Th e re fo re , w e wi ll d e c ide thi s is su e on its me ri ts.

After thoroug hly

revie wing the sentenc ing he aring transcr i p t and the a ppellate r ecor d, we
co n cl u d e t h at t h e P et i t i o n er wa s n o t d en i ed ef fe ct i v e a s s i s t an ce o f c o u n s el ath i s s en t en ci n g h ea ri n g. At the sentenc ing he aring , the S tate int roduce d certified copies of six judgme nts for c onvictions of burg lary in the second de g ree , a Class C felony . Wells arg ued to the trial c ourt that the Petitioner ha d a se ri ou s dr

ug pr ob le m a nd “ a lot of

theof fe ns e s th a t he ’s c omm itt e d h a ve be e n to su pp ort hi s ha bit .” Wel ls t oldthe tria l c ou rt , “ Yo ur Ho no r, I do n’ t th ink

that . . . th irty

y e ars , s imp ly

be c aus e-11-

he’s a ddicted to drug s, is right. .

. . I wo u l d ask that, . . . in the discre tion of this C ourt, that y ou would find that . . . it’s, perha ps, better to a ddress the problem, rather than just putting him away .” The pre sentenc e re port and the district attorney ’s offic e re cord c ard indicate that the Petitioner wa s c on vic te d of b ur g lary

in the se c on d d e g re e fi ve tim e s a ndbu rg lary on e tim e ; ho we ve r, tho se documents ar e incor

rec t. For case number I F- 5624, the certified copy of the judg ment clea rly states that the Petitioner pled g uiltyto burg lary in the second de g ree o n M ay18, 1989, while the prese ntence report states that the Petitioner was c onvicted of “ burg lary –other than habitation,” and the re cord c ard state s he wa s convicted of burg lary

. “The orig inal or ce rtified copy of the c ourt rec ord of any prior fe lony

conviction, bea

ring the
sa me na me a s th a t by

wh ic h th e de fe nd a nt i s cha rg e d inthe prima

ry of fe ns e , is prima facie evidenc e that th e de fe nd a nt n a me d th e re in i s th e sa me as th e de fe nd a nt b e fo rethe c ou rt , a ndis pr im a fa c ie evidenc e of the fac ts set out therein.” Tenn. Code Ann. § 40-35- 202(a) (2003). The certified copies of the judg ments were sufficie nt to prove bey ond a reasonable doubt that the Petitioner was a car eer offe nder pur suant to Tennesse e Code Annotated sec tion 40-35-108, and the disc repancies in the prese ntence report and the re cord c ard w ould not have raised a rea sonable doubt as to the Petitioner’s status as a c are er of

fende r. Once t he trial court found that the Petitioner was a c are er of fende r, it had
n o discretion in sentenc ing the Petitioner. Moreove r, the Petitioner did not call Wells, his lawy er at the sente ncing hearing, to testify at t he post -convic tion hearing, and C ounsel testified t hat he ha d
no rec ollection of preparing for the sentenc ing hearing. Wit hout any testimonyfrom Wells, we ar e un able to a sc e rt a in w hat he didto p re pa refo r the se nte nc ing he aring or why he c ho se no t to
c ha lle ng e the State ’s prima facie evidenc e of the Petiti oner’ s six prior convic tions. Theref ore, unde r the circ umstanc e s , w ec o nclude that Wells was not ineff ective f or not cha lleng ing the certified copies of the judg ments. Furthe rmore, w e conc lude that the Petitioner failed to p re s en t an y proof that Wells’ repre sentation of the Petitioner at the sentenc ing hearing fell below an obje ctive standa rd of
re a so na ble ne ss andwa s no t wi thi n the rang e of c omp e te nc e de ma nd e d of a tto rn e y s inc ri min a l c a se s. Ac c or din g ly , w e c on c lud e that th e Pe tit ion e r w a s n ot den ie d e ff e c tiv e a ssi stanc e of

c ou ns e l a t hi s s en t en ci n g h ea ri n g.

B. Pr osecutor ial Miscondu ct

Th e Pe tit ion e r n e xt al le g e s th a t th e po st- c on vic tio n c ou rt e rr e d whe n it f

ou ndthat hi s c la im of prose cutorial misconduct wa s without merit. T h e P et i t i oner a sserts that Gene ral Z immerman
c omm itt e d p ro se c uto ri a l mi sc on du c t a t th eP e ti ti o n e r ’ s s e n t e n c i n g h e a ri n g b y “ n e v e r i nf orm[in g ] him or the co u rt that the pre sentenc e re port [Genera l Z immerman] submi tted to the Court contained evidenc e that ca lled for a lesser sentenc e than the ca ree r [offende r] sentence [Genera l] Z immerman wanted the court to impose.” Further, the Petitioner contends that Ge nera l Z immerman ce rtified that the pr e se nte nc e re po rt

wa s f a c tua lly a c c ur a te to the be st o f h is kno wl e dg e wh e n he su bmi tte d it to the Court at the sentenc ing hearing. The Petitioner arg ues that Gene ral Z immerman must be dee med to have known a

bout the “inac cura cies” betwee n the pre sentenc e re port and the judg ments obtained from the c lerk’s of

fice . The Petitioner contends that an attorney “must be deeme d to have known
abo ut the e xone ratin g c on te nt o f the pr e se nte nc e re po rt ,” a nd , r e g ard le ss o f w h e th e r i t wa s kno wi ng ly or inadve rtently , Gene ral Z immerman committed prosec utorial misconduct.T e n n e sse e C o d e A n n o ta te d s e c tio n 4 0 -3 5 -2 0 1 (b )( 1 ) (1 9 9 7 ) p ro v id e d tha t f o r a ll n o n -ca p ital c a se s, if 3

re q u e ste d , t h e trial c o u rt “sh a ll c h a rg e the p o ssib le p e n a lti e s fo r th e o ff e n se c h a rg e d a n d a ll le sse r in c lud e d o ff e n se s.” T h is instr u c tio n “sh a ll inc lud e a n a p p ro x im a te c a lc u la tio n o f t h e m inim u m nu m b e r o f yea rs a p e rs o n se n te n c e d to i mpr i s on men t

. . . mu s t s er v e bef or e r ea ch i n g s u ch pe r s on ’ s e ar l i es t r el ea s e dat e. ” T enn. Code An n

. § 40- 35- 2 0 1 (b )( 2 )( A )( i). S inc e the trial su b ju d ic e , t h is p ro v isio n ha s b e e n re p e a le d so tha t f o r a ll n o n -c a p it a l cr im ina l t ria ls

s ubs equen t t o M ay 19 , 19 98 , “ t he j udge s hal l not i ns t r uct t he j ur y , nor s hal l t he at t orn ey s be per mi t t ed t o com ment at any t i m e t o t he jur y , o n p o ss i b l e p enal t i es f o r t he o f fense cha rged no r al l l ess er i ncl ud ed off enses

. ” T enn. C o d e A nn. § 40

- 3 5

- 2 0 1 (b) (20 0 3 ).
-12- Whil e the post-c onviction court addr essed this issue on the m e rit s , w ec onclude that this issue
was wa i v ed beca

use the Petitioner failed to bring this iss ue on dire ct appe al. Tenne ssee Code An no ta te d s e c tio n 4 0- 30 -2 06 (g ) ( 19 97 ) p ro vid e s th a t: A g round for relief is w aived if the petitioner pe rsonally or throug h an attorne y

failed to present it for de terminati o n in any proce eding befor e a c ourt of compe tent jurisd ic tio n inwh ic h th e g ro un d c ou ld h a ve be e n p re se nte d u nle ss: (1) The claim for r elief is base d upon a constitutional rig ht not recog nized as exis ting at the time of trial if e i t h er t h e fe dera l or state constitution require s retroa ctive application of that rig ht; or
(2) The failure to present the g round was the re sult of state ac tion in viol ation of the fe dera l or state constitution.
The Petitioner’s g round fo r re l i ef that the assistant district attorney committed prosecutorial misconduct should have be en broug ht on direc t appea l, and this claim for re lief is not “base d upon a constitutional rig ht not recog nized as exi sting at the time of trial.” Also, the Petitioner’ s failure to present this claim on direc t appea l was not “the r esult of state a ction in violation of t he fe dera l or state constitution.” Acc ording ly , we c onclude that the Petitioner ha s waived this issue.

C. Jur y I nst r uc ti ons

L a stl y , th e Pe tit ion e r a lle g e s th a t the po st- c on vic tio n c ou rt e rr e d w he n it dis mis se d h is p os tconviction petition finding that the trial court did not violate hi s due process rights when it instructed the jury of his possible sentence if convicte d of possession. The State submits that the trial court’s jury instructions were not errone ous and th at , even if the jury instructions were incorre ct, the Pe tit ion e r f

a ile d to sh ow that it

a ff e c te d th e jury ’s ve rd ic t of g uil t.

At the time of the Petitioner’s se cond jury trial, the trial court was require d to instruc t the jury on the ra ng e of punishment for the cha rg ed off ense a s well as lesser -included of fense s if reque sted to do so by

either pa rty

. See Te nn. C o d e Ann. § 40-35-201(d)(1) (1997 & Supp. 1998). The 3 T e n n e s s e e Su p r e me Co u r t ru le d th a t T e n n e s s e e Co d e A n n o tate s e c ti o n 4 0

- 3 5

- 2 0 1 ( b ) g a ve a de fe nd a nt a

“ c la ima ble statut ory

ri g ht t o h a ve thejury

kn ow the rang e of pu nis hme nt a pp lic able to the cha rges be fore deciding g uilt or innocence ,” and r ejec ted the ar g ument that this raised a-13-

c on sti tut ion a l e rr or . St a te v. Coo k, 81 6 S. W.2 d 3 22 , 3 26 (T e nn . 1 99 1) (e mph a sis a dd e d) . B e c aus e the rig ht to have the jury

know the rang e of punishment ap plicable to the c harg es bef ore de ciding g uilt or innocence is a statutory rig ht and not a constitutional one, the Petitioner should have r aised thi s is su e on dir e c t app e a l.
A post-conviction court shall dismiss claims which have been waived. T enn. Code Ann. § 40-30-206 (g) (1 997). “Ag round for relief is waived if the pe titioner persona lly or throug h an attorney failed to pre sent it for dete rmination in any proce eding befor e a co u rt of compe tent jurisd ic tio n inwh ic h the g ro un d c ou ld ha ve be e n pr e se nte d, ” wi th c e rt a in e xce pti on s n ot a pp lic able in the prese nt case . Tenn. Code Ann. § 40- 30-206(g ).
We conclude that the issue reg arding the trial court’s instructions to the jury of the Petitioner’s p o s s i b l e sentence if c onvicted is dismissed because it is not based on a constitutional rig ht and it w as not raise d in the Petitioner’s direc t appea l of his conviction. See Cook, 816 S.W .2d at 326. Be cause the issue should ha ve been raised on direc t a ppeal, and beca

use it is a statutory

rig ht
a n d n o t a c o n s t i t u t i o n a l o n e , t h e i s s u e i s w a i v e d i n t h i s p o s t

- c o n v i c t i o n p r o c e e d i n g p u r su a nt t o Te nn e sse e Cod e An no ta te d se c tio n 40 -3 0- 20 6( g ). Ac c or din g ly , we c on c lud e that th e Pe tit ion e r i s not entitled to post-conviction relief on this issue.

III. Conclusi on

I n acc ordanc e with the for eg oing r easoning and authorities, we AFF I RM the post-conviction
c ou rt ’s jud g me nt.

___________________________________ ROBERT W. WEDEMEYER, J UDGE