IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 10, 2010

ADRIAN K. NELSON v. STATE OF TENNESSEE

Appeal from the Circuit Court for Warren County

No. F-9266 Larry B. Stanley, Jr., Judge

No. M2009-02166-CCA-R3-PC - Filed January 12, 2011

The petitioner, Adrian K. Nelson, appeals the denial of his petition for post-conviction relief,

arguing that he was deprived of the effective assistance of counsel at trial and on appeal.

Following our review, we affirm the post-conviction court’s denial of the petition.

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

ALAN E. GLENN, J., delivered the opinion of the Court, in which THOMAS T. WOODALL and

JAMES CURWOOD WITT, JR., JJ., joined.

Jean M. Brock, McMinnville, Tennessee, for the appellant, Adrian K. Nelson.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney

General; and Lisa Zavogiannis, District Attorney General, for the appellee, State of

Tennessee.

OPINION

FACTS

The petitioner was convicted in 2005 by a Warren County Circuit Court jury of

possession of .5 grams or more of cocaine with the intent to sell, evading arrest, felony

reckless endangerment, leaving the scene of an accident, resisting arrest, and driving on a

suspended license, second offense. He was subsequently sentenced by the trial court as a

Range II, multiple offender to eighteen years for the possession of cocaine conviction, four

years for the evading arrest conviction, four years for the felony reckless endangerment

conviction, thirty days for the leaving the scene of an accident conviction, six months for the

resisting arrest conviction, and eleven months, twenty-nine days for the driving on a

suspended license conviction. The trial court ordered that the sentences for evading arrest
and felony reckless endangerment be served concurrently to each other but consecutively to

the eighteen-year sentence for possession of cocaine. The court ordered that the remaining

sentences be served concurrently to each other, for a total effective sentence of twenty-two

years in the Department of Correction. On direct appeal, this court affirmed the convictions

and sentences with the exception of the conviction for felony reckless endangerment, which

we reversed and remanded for a new trial. See State v. Nelson, 275 S.W.3d 851, 856-71

(Tenn. Crim. App. 2008).

Our direct appeal opinion provides the following account of the evidence that led to

the petitioner’s convictions:

Immediately preceding trial, the trial court held a hearing on the motion

to suppress. During that hearing, Officer Chris DeLong of the McMinnville

Police Department testified that he was patrolling the area around Bobby

Branch Road and Cascade Road after receiving information about suspected

drug activity in that area. While parked approximately fifty feet away from

Mark’s Market, Officer DeLong observed a red vehicle pull into the parking

lot and park next to a gold vehicle. Officer DeLong saw a man get out of the

gold vehicle and get into the red vehicle where it “appeared to [him] that an

exchange of some kind took place.” Officer DeLong was unable to see what,

if anything, was exchanged but believed it to be a “possible drug transaction.”

When the red vehicle left the parking lot, Officer DeLong followed the

vehicle. He noticed that the license plate was not securely attached to the

vehicle. According to Officer DeLong, the license plate was “hanging a little

bit uneven” and was “slightly tilted to one side.” At that time, Officer DeLong

activated the blue lights on his patrol car. Rather than stopping, the red vehicle

increased speed. Officer DeLong continued to pursue the red vehicle until it

struck another vehicle. Officer DeLong then p[e]nned the red vehicle between

his patrol car and the other vehicle in an intersection. [The petitioner], the

driver of the red vehicle, fled on foot. Officer DeLong pursued [the petitioner]

on foot. After chasing [the petitioner] for some time, Officer DeLong caught

up to him. A scuffle ensued while Officer DeLong was trying to arrest [the

petitioner]. Officer DeLong recovered a blue container “approximate to the

scene of the scuffle” that contained several white rocks of a substance

appearing to be cocaine. [The petitioner] also had a check for an unspecified

amount and $114 in cash on his person.

Because of [the petitioner’s] failure to stop when Officer DeLong

activated his blue lights, the trial court determined that the seizure of the blue

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container by Officer DeLong was proper, regardless of whether the officer had

a reasonable suspicion to initiate the stop based on the license plate. The trial

court noted that the “exchange” witnessed by Officer DeLong was not a reason

to initiate a stop of [the petitioner].

At the conclusion of the hearing, the trial court denied the motion to

suppress, and the trial began. At trial, Officer DeLong’s testimony was mostly

repetitive of his testimony at the hearing on the motion to suppress with the

addition of information that the rock-like substance was tested and was .5

grams of cocaine.

[The petitioner] took the stand at trial. [The petitioner] testified that he

drove his girlfriend’s car to Mark’s Market to buy a cigar so that he could

smoke crack. [The petitioner] saw an acquaintance, Mr. Barnhill, in the

parking lot of the market. [The petitioner] claimed that Mr. Barnhill did not

get into his vehicle that day. [The petitioner] saw Officer DeLong sitting in

his patrol car at the nearby intersection and was “kind of paranoid” because he

was “high.” [The petitioner] testified that he “had been up all night” using

drugs. When Officer DeLong activated his blue lights, [the petitioner’s]

“intention was to pull over.” However, when [the petitioner] “got to the

stop-sign [sic],” Officer DeLong “pushed [him] into the truck.” [The

petitioner] admitted that he ran from the vehicle with his drugs in a blue

container that were for “personal use.” [The petitioner] ran until he was “out

of gas” and “tired.” [The petitioner] stated that he “never resisted” arrest, but

that Officer DeLong “slammed [him] to the ground.” [The petitioner]

admitted that he had been using drugs since he was seventeen. He denied ever

selling drugs even though he admitted that he had several prior convictions

that involved the sale of drugs. At the conclusion of the proof, the jury found

[the petitioner] guilty of the offenses as charged in the indictment.

Id. at 857-58 (footnote omitted).

The petitioner filed a timely petition for post-conviction relief on November 25, 2008,

and, following the appointment of counsel, an amended petition on March 2, 2009, in which

he raised the claim of ineffective assistance of trial and appellate counsel. He alleged that

trial counsel was ineffective for, among other things: failing to file a motion to disqualify

the district attorney’s office on the grounds that the district attorney had represented the

petitioner in a previous drug case; failing to file a motion in limine to exclude the petitioner’s

prior drug convictions; failing to raise the admission of the prior convictions as an issue in

the motion for new trial and failing to adequately represent the petitioner at the motion for

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new trial; failing to prepare an adequate defense to the cocaine evidence; failing to request

a jury instruction on the inference of casual exchange; failing to challenge the trial court’s

application of enhancement factors; failing to object to the timing of the hearing on the

motion to suppress; and failing “to fulfill obligations as petitioner’s defense counsel.” The

petitioner additionally alleged that appellate counsel was ineffective for failing to provide

argument or citation to authority when raising the enhancement factor issue in the appellate

brief.

At the evidentiary hearing, trial counsel, who said he was licensed in 2001, testified

that on the day of the trial he was seriously ill with a brain injury that had been misdiagnosed

as a sinus condition. Although he was taking large amounts of pseudoephedrine, he was in

intense pain, “extremely confused” and “[u]nable to concentrate, . . . hear, speak, pay

attention[,] . . . read [his] own notes [or] remember if [he] had asked a particular question or

not.” He had prepared questions to ask the witnesses, but because he was unable to read at

the time of trial due to his illness, he “kind of scrapped it all and . . . was winging it poorly.”

Trial counsel stated that he should not have been in the courtroom that day, and he opined

that the petitioner was prejudiced by his poor trial performance.

Trial counsel acknowledged that he asked no questions of the Tennessee Bureau of

Investigation (“TBI”) chemist who had analyzed the cocaine and testified that he never

considered having the cocaine reweighed by an independent expert. He stated that he

discussed the petitioner’s prior convictions with him and was aware that he had several drug

convictions, including a conviction for possession with intent to sell. He was unaware,

however, that the Warren County District Attorney had represented the petitioner in one of

those earlier drug cases.

Trial counsel said he knew that the hearing on the motion to suppress was going to be

held immediately prior to the trial due to logistics problems. He acknowledged that he did not

file a motion to exclude the petitioner’s prior drug convictions but explained that he thought

they would come in regardless because their defense strategy consisted of attempting to

convince the jury that the petitioner was an addict rather than a dealer:

I mean it would have come in anyway. Our defense was that [the petitioner] is

addicted. He’s an addict. He’s not a dealer. He’s an addict and his record

would show that, you know. He’s been around drugs his whole life and he is

an addict.

Trial counsel had no recollection of the prosecutor’s statement at trial that the parties

had stipulated to the drug conviction evidence as “going to the intent needed for the

possession with intent to sell,” stating that he must have misunderstood, as he thought the

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evidence was being introduced solely for impeachment purposes. He agreed that such a

stipulation was highly prejudicial and that it defeated the defense theory of the petitioner’s

having been solely a user.

Trial counsel testified that he prepared for the sentencing hearing and was feeling

better physically at that time but that he was not supposed to have been involved. He later

explained that the petitioner had asked for a different attorney and that the petitioner’s brother

had hired several different lawyers to represent him. The trial court, however, had not yet

relieved trial counsel, which led to “a lot of confusion with other attorneys that were

involved.” Trial counsel said that he filed a motion for new trial because he was unsure if any

of the other lawyers had filed anything and he wanted to preserve the petitioner’s issues for

appeal. He stated that he was finally relieved from representation at the hearing on the motion

for new trial and that another attorney took over the case at that point.

On direct and cross-examination, trial counsel acknowledged that he wasthirty minutes

late to court on a day in which the State presented one of its plea offers in the case, which left

him with only twenty minutes in which to discuss the offer with the petitioner. He said that

the petitioner was very upset about his late arrival, that he believed the petitioner’s resulting

hostility made it difficult for him to communicate with him, and that, had the circumstances

been different, the petitioner might have had a different response to the offer.

On cross-examination, trial counsel testified that his medical problem on the day of the

trial was a cluster headache. He acknowledged that he was experiencing a similar kind of

headache on the first day of the bar examination, which he passed on the first attempt, but said

that he believed the bar examination required a different kind of performance from that

required at trial. He further acknowledged that he knew that the petitioner was going to testify

that he did not sell drugs, which would “open[] the door” for his prior convictions to be

introduced.

Trial counsel testified the case was set for trial three different times and that he was

fully prepared at each setting. He acknowledged that he did not ask for a continuance on the

day the case went to trial and said that, in hindsight, he probably should have done so. He

further acknowledged that the State made a plea offer to the petitioner approximately two

years before the trial and a second verbal plea offer approximately one year later, both of

which were rejected by the petitioner.

Trial counsel testified that he did not challenge the findings of the TBI expert as to the

drug evidence because the cocaine weighed less than the weight listed in the original charge

by the time the laboratory had completed its testing and he had no reason to suspect any

irregularities in the TBI’s analysis of the evidence. He said he did not ask for a jury

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instruction on the inference of casual exchange because the petitioner was indicted for

possession with the intent rather than for the sale of cocaine.

Larry Bryant testified that he was a former assistant district attorney and had

prosecuted the case against the petitioner. He identified the certified judgments of the

petitioner’s prior convictions introduced at trial and said that there was nothing on them to

indicate that Dale Potter, the District Attorney, had represented the petitioner on any of the

cases. In addition, the petitioner never mentioned Potter’s name or indicated that he knew

him. Bryant could not recall his discussions with trial counsel surrounding the stipulation but

said that he had researched the law and that the petitioner’s “convictions to prove intent . . .

would have come in whether or not he stipulated to it because that was the status of the law

at the time.” He also recalled, after reviewing the transcript, that the petitioner opened the

door to the introduction of the prior convictions by mentioning them in his testimony. Bryant

agreed that it would have been improper for the trial court to instruct the jury on casual

exchange because the petitioner was charged with possession with the intent to sell rather than

sale of cocaine and said that, given the facts of the case, the only proper lesser-included

offense instruction, which was issued by the trial court, would have been for simple

possession. He recalled that trial counsel had “runny sinuses” during the trial but otherwise

appeared fine and that he made an appropriate and coherent argument. Finally, he explained

that the hearing on the motion to suppress was held immediately prior to the start of the trial

as a matter of convenience to the arresting officer, who had left law enforcement to enter

private business in North Carolina.

The petitioner, testifying in rebuttal, stated that District Attorney General Potter had

represented him for a couple of months in 1997 in one of his previous drug cases until he fired

him and hired another attorney. He said that during the course of Potter’s representation he

divulged the prejudicial information that he had sold drugs. He also stated that trial counsel

informed him about the State’s first plea bargain offer while he was in jail, mentioning a

possible three-year sentence and telling the petitioner that he would return to talk with him

again after further discussion with the State. According to the petitioner, counsel did not

return until three months later, at which time he told him that the three-year offer was no

longer on the table.

The post-conviction court denied the petition at the conclusion of the hearing, issuing

detailed oral findings of fact and conclusions of law, followed by a lengthy written order

entered on February 23, 2010. Thereafter, the petitioner filed a timely notice of appeal to this

court, challenging the post-conviction court’s finding that he received effective assistance of

counsel.

ANALYSIS

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I. Post -Conviction Standard of Review

The post-conviction petitioner bears the burden of proving his allegations by clear and

convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2006). When an evidentiary

hearing is held in the post-conviction setting, the findings of fact made by the court are

conclusive on appeal unless the evidence preponderates against them. See Tidwell v. State,

922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely factual issues,

the appellate court should not reweigh or reevaluate the evidence. See Henley v. State, 960

S.W.2d 572, 578 (Tenn. 1997). However, review of a trial court’s application of the law to

the facts of the case is de novo, with no presumption of correctness. See Ruff v. State, 978

S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel, which presents

mixed questions of fact and law, is reviewed de novo, with a presumption of correctness given

only to the post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450, 458

(Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

II. Ineffective Assistance of Counsel

To establish a claim of ineffective assistance of counsel, the petitioner has the burden

to show both that trial counsel’s performance was deficient and that counsel’s deficient

performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S.

668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting

that same standard for determining ineffective assistance of counsel that is applied in federal

cases also applies in Tennessee). The Strickland standard is a two-prong test:

First, the defendant mustshow that counsel’s performance was deficient.

This requires showing that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the deficient performance

prejudiced the defense. This requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687.

The deficient performance prong of the test is satisfied by showing that “counsel’s acts

or omissions were so serious as to fall below an objective standard of reasonableness under

prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing

Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The

prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a “probability

sufficient to undermine confidence in the outcome,” that “but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.

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The same principles apply in determining the effectiveness of both trial and appellate counsel.

Campbell v. State, 904 S.W.2d 594, 596 (Tenn. 1995).

III. Specific Allegations of Ineffective Assistance

A. Failure to Move for Disqualification of District Attorney’s Office

The petitioner first contends that trial counsel provided ineffective assistance for

failing to file a motion to disqualify the district attorney’s office from prosecuting his case on

the grounds that the district attorney had represented the petitioner in a previous drug case.

The post-conviction court made the following findings of fact and conclusions of law with

respect to this claim:

Defendant/Petitioner alleges that Mr. Dale Potter[] had been his trial attorney

for a brief period of time in approximately the early part of 1997, and therefore

should not have prosecuted the Defendant/Petitioner in this cause. The

testimony of counsel was that he had not been told that the Defendant/Petitioner

had ever been represented by Mr. Potter. There was no statement by the

Defendant/Petitioner that he ever let his trial counsel know that Mr. Potter had

represented him many years before. Therefore his attorney had no reason to

raise that as an objection. The proof showed that the Defendant/Petitioner was

not prejudiced.

The record fully supports the findings and conclusions of the post-conviction court.

According to the evidence presented at the evidentiary hearing, neither trial counsel nor the

prosecutor was aware of any former association between the district attorney and the

petitioner. Moreover, there was nothing in the judgment forms of the petitioner’s prior

convictions to indicate the district attorney’s involvement in any of those cases. Indeed, as

the State points out, there is no proof in the record, aside from the petitioner’s own testimony,

to show that the district attorney actually represented the petitioner in one of the prior cases

or that the petitioner divulged information that would have resulted in an unfair trial in the

case at bar. As such, the petitioner has not met his burden of showing either a deficiency in

counsel’s performance or resulting prejudice to his case.

B. Failure to File Motion to Exclude Prior Convictions

The petitioner next contends that trial counsel provided ineffective assistance for

failing to file a motion in limine to exclude his prior drug convictions and for stipulating to

the admission of the evidence at trial. In denying relief on the basis of this claim, the postconviction court found that “it would have been appropriate” for trial counsel to file a motion

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to exclude the convictions and that trial counsel was therefore “deficient in that regard,” but

it would not have changed the outcome of the trial “based on the fact that the

Defendant/Petitioner was going to testify and did testify regarding his use of [c]ocaine.”

With respect to this allegation, we agree with the State that the petitioner has not met

his burden of showing either deficient performance or resulting prejudice. Trial counsel

essentially testified that he saw no reason to move to exclude the convictions, as his trial

defense strategy, which he maintained throughout his lengthy preparation for the case,

consisted of attempting to show that the petitioner was a drug addict rather than a drug dealer,

which meant that the evidence was going to come in regardless of any motion he might have

filed. He also testified that he knew beforehand that the petitioner was going to claim during

his testimony that he was a drug addict rather than a dealer, which would then open the door

to the prior convictions as impeachment evidence.

In assessing an allegation of ineffective assistance of counsel, the reviewing court must

indulge a strong presumption that the conduct of counsel falls within the range of reasonable

professional assistance,see Strickland, 466 U.S. at 690, and may notsecond-guess the tactical

and strategic choices made by trial counsel unless those choices were uninformed because of

inadequate preparation. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). In light of the

relatively damning evidence against the petitioner, trial counsel’s defense strategy, which, if

successful, might have resulted in the jury’s finding the petitioner guilty of the lesser-included

offense of simple possession, was not unreasonable. Since the defense strategy depended in

large part on the petitioner’s testimony about his history of drug abuse and his claim that he

was not a dealer, we cannot conclude that counsel was deficient for his failure to file a motion

to exclude the prior convictions or that the petitioner was prejudiced by his failure to do so.

C. Ineffective Assistance at Motion for New Trial

The petitioner contends that trial counsel provided ineffective assistance by failing to

raise the admission of the prior convictions as an issue in the motion for new trial and by

failing to adequately represent him at the hearing on the motion. The post-conviction court

made the following findings of fact and conclusions of law with respect to this claim:

In regards to ineffective assistance of counsel in the

Defendant/Petitioner’s Motion for New Trial and on Appeal, the Court of

[Criminal] Appeals ruled on the Motion for New Trial. This Motion was filed

and stipulated that there was an Amendment to said Motion. This Court ruled

on those issues and the Court of [Criminal] Appeals reviewed the issues then

subsequently upheld the Trial Court. The Court did not find anything presented

in this hearing that should have been included that was not. There is no

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evidence that counsel was ineffective or that Defendant/Petitioner was

prejudiced.

The record supports the findings and conclusions of the post-conviction court. Trial

counsel explained the confusion surrounding the petitioner’s representation, which resulted

from the actions of the petitioner and his family. He also testified that he filed a motion for

new trial to preserve the petitioner’s rights. As the State points out, neither the motion for

new trial nor the transcript of the hearing is included in the record before this court. Our

recitation of facts in the direct appeal opinion, however, corroborates trial counsel’s account:

The record reflectsthat [the petitioner] was convicted on April 15, 2005.

On May 12, 2005, [the petitioner] filed a timely motion for new trial through

trial counsel. [The petitioner] was sentenced in September of 2005, and in

January of 2006, trial counsel filed a motion to amend the motion for new trial.

In that motion, trial counsel explained:

[The petitioner’s] family has hired several attorneys who, for

reasons unknown, have yet to announce. The original motion

was filed in the confusion created by several attorneys to

preserve [the petitioner’s] rights. The presumption was that who

ever argued this motion would amend it. Due to circumstances

beyond [the petitioner’s] control, that task has fallen back to me,

trial counsel. . . . Therefore, I respectfully request this motion be

granted to preserve [the petitioner’s] constitutional rights.

The trial court held a hearing on the motion for new trial in February of

2006. At that hearing, the trial court noted that trial counsel was never

“removed as the attorney of record”despite some concerns by [the petitioner]

that he wanted to change attorneys. Prior to sentencing, there was apparently

some confusion as to who was going to represent [the petitioner]. [The

petitioner] mentioned one attorney as a possibility. Some time later, [the

petitioner] even indicated to the trial court that he had retained a third attorney

to proceed with the motion for new trial and on appeal. All three of these

attorneys appeared at the hearing on the motion for new trial. One of the

attorneys expressed a desire to go forward with the motion as filed by trial

counsel. The trial court commented that there did not “need to be any proof on

a Motion for New Trial” and stated that it was prepared to “review the motion”

and make a ruling.

Nelson, 275 S.W.3d at 862-63.

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In the direct appeal, we rejected the petitioner’s claim that he was prejudiced because

no argument was made on the motion, finding that “the trial court properly considered the

motion on the merits before denying the motion” and that the petitioner had “failed to show

that he was prejudiced in this process.” Id. at 863.

Here, the petitioner has not met his burden of showing that counsel was deficient in his

performance with respect to the motion for new trial or that he was prejudiced as a result of

the alleged deficiencies. We conclude, therefore, that the petitioner is not entitled to relief on

the basis of this claim.

D. Failure to Provide Defense to Cocaine Evidence

The petitioner contends that trial counsel provided ineffective assistance by failing to

provide an adequate defense to the cocaine evidence. Specifically, he complains of trial

counsel’s failure to cross-examine the TBI expert or to have the drugs analyzed by an

independent expert. In denying relief on the basis of this claim, the post-conviction court

found that there was no reason for trial counsel to cross-examine the TBI agent, as there was

“never any question” that the substance was cocaine and the weight of the substance was

lessened in the testing and transportation process. We agree that the petitioner has not shown

that counsel’s decision not to cross-examine the TBI agent or to hire an independent expert

constituted deficient performance, or that the petitioner suffered any prejudice. We conclude,

therefore, that the petitioner is not entitled to relief on the basis of this claim.

E. Failure to Request Jury Instruction on Casual Exchange

The petitioner next contends that trial counsel provided ineffective assistance by his

failure to request a jury instruction on the inference of casual exchange pursuant to Tennessee

Code Annotated section 39-17-419, which provides as follows:

It may be inferred from the amount of a controlled substance or

substances possessed by an offender, along with other relevant facts

surrounding the arrest, that the controlled substance or substances were

possessed with the purpose of selling or otherwise dispensing. It may be

inferred from circumstances indicating a casual exchange among individuals

of a small amount of a controlled substance or substances that the controlled

substance or substances so exchanged were possessed not with the purpose of

selling or otherwise dispensing in violation of the provisions of § 39-17-417(a).

The inferences shall be transmitted to the jury by the trial judge’s charge, and

the jury will consider the inferences along with the nature of the substance

possessed when affixing the penalty.

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The post-conviction court found no merit to this claim, noting that this court has “ruled

that [c]asual [e]xchange is not a lesser included offense of [p]ossession with the [i]ntent to

[s]ell” and finding that the proof at trial “shows that there [was] no allegation that any

controlled substances ever changed hands.”

The petitioner raised the trial court’s failure to instruct on the inference of casual

exchange as an issue in his direct appeal. We deemed the issue waived due to the fact that it

was not requested at trial or raised in the motion for new trial, but we also noted that “casual

exchange is not a lesser included offense of possession of cocaine with the intent to sell.”

Nelson, 275 S.W.3d at 865 (citing State v. Timothy Wayne Grimes, No. M2001-01460-CCAR3-CD, 2002 WL 31373472, at *6 (Tenn. Crim. App. Oct. 16, 2002)). That fact alone,

however, does not mean that the trial court should not have instructed the jury on the

inference of casual exchange. In Grimes, we concluded that an instruction on the inference

of casual exchange was warranted, even though an instruction on casual exchange as a lesserincluded offense of possession with intent to deliver was not, because there was evidence

from which a jury could have reasonably inferred that the defendant’s sending of a

Clonazepam pill to a fellow jail inmate was due to his friendship with the inmate and not as

a part of his business of selling pills in the jail. Grimes, 2002 WL 31373472, at *6.

We respectfully disagree with the post-conviction court’s finding that there was no

evidence in the case at bar that any controlled substances ever changed hands. Although the

officer was unable to see what, if anything, was passed between the petitioner and the second

man who entered the petitioner’s vehicle, he testified that he saw what appeared to him to be

an exchange of some kind taking place inside the vehicle. Thus, there was some evidence in

support of a jury instruction on the inference of casual exchange. However, in light of the

petitioner’s testimony that no one entered his vehicle, as well as the fact that the jury was

instructed on the lesser-included offense of simple possession, we cannot find that counsel was

deficient for not requesting the instruction or that the petitioner was prejudiced as a result. We

conclude, therefore, that the petitioner is not entitled to relief on the basis of this claim.

F. Failure to Challenge Enhancement Factors

The petitioner contendsthat trial counsel wasineffective for failing to challenge the trial

court’s application of enhancement factors on the basis that the court’s finding of the factors

violated his Sixth Amendment right to trial by jury. The State argues that the trial court would

have been justified in sentencing the petitioner above the minimum in his range, even had trial

counsel raised a Blakely v. Washington, 542 U.S. 296 (2004), challenge to the sentences, based

on the petitioner’s extensive criminal history. We agree with the State. Although we declined

to exercise plain error review of the sentences in the direct appeal opinion, we nonetheless

observed that

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[the petitioner’s] previous criminal convictions justified the enhancement of his

sentence. The presentence report indicates that [the petitioner] had an extensive

criminal history, including, among other things, four convictions for possession

of cocaine, one conviction for criminal trespassing, three convictions for

resisting arrest, one conviction for evading arrest, one conviction for criminal

impersonation, two convictions for driving with a suspended license, one

conviction for theft, and a weapons offense.

Nelson, 275 S.W.3d at 870.

We conclude, therefore, that the petitioner has not met his burden of demonstrating

prejudice as a result of counsel’s failure to challenge the application of the enhancement

factors.

G. Failure to Object to Timing of Suppression Hearing

The petitioner contends that trial counsel provided ineffective assistance for failing to

object to the fact that the suppression hearing was scheduled immediately before the start of

the trial, arguing that “he was not afforded due process of law because his counsel did not have

adequate time to determine the strategy of his defense after the judge’s ruling on the motion.”

He also complains of trial counsel’s failure to raise the timing of the suppression hearing as

an issue in the motion for new trial, which prevented him from being able to raise the issue in

his direct appeal.

We find no merit to this claim. Trial counsel testified that the case was set for trial on

three different dates and that he was fully prepared at each setting. He also testified that he

was aware that the suppression hearing was scheduled immediately before the start of the trial

and that his trial defense strategy remained consistent throughout his preparation for the case.

Trial counsel did not express any concerns with the scheduling of the hearing, but he did opine

that he was so ill on that date that he could not have provided effective assistance of counsel

to the petitioner at the hearing or at the trial that followed. He acknowledged, however, that

he had not read the trial transcripts and could not point to any particular instances of

deficiencies in his representation. The petitioner has not, therefore, shown any deficiency in

counsel’s performance based on his failure to object to the timing of the suppression hearing

or that he suffered any prejudice as a result.

H. Failure to Fulfill Obligations as Defense Counsel

The petitioner next contends that trial counsel provided ineffective assistance when he

“encountered several other issues which he should have brought to the attention of the court

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to fulfill his obligations to [the petitioner].” Specifically, he complains about trial counsel’s

late arrival to court on the date of the plea offer, his failure “to fulfill his obligation to

investigate the case fully,” and his failure to inform the court of his serious illness and to

request a continuance of the trial.

The post-conviction court made the following findings and conclusions pertinent to this

claim:

In regards to trial counsel[’s] ineffectiveness for failure to prepare a

proper defense, the Court has read the transcript of the pretrial and the trial

testimony. It appearsthat counsel for the Defendant/Petitioner asked appropriate

questions and also engaged in a Motion to Suppress which was overruled. The

appropriate legal arguments appeared to be made and coherent. Therefore, they

were simply not granted. There is no evidence that trial counsel was ineffective

or that Defendant/Petitioner was prejudiced.

. . . .

Trial counsel indicated confusion during the trial and during the Motion

to Suppress. The transcript indicates just the opposite, that trial counsel was

coherent, knew what was happening, heard the Motion to Suppress and went on

to try the case while asking appropriate questions.

The record fully supports the findings and conclusions of the post-conviction court. We

do not doubt counsel’s testimony that he felt wretched on the day of trial and was unable later

to recall any of the specifics of what transpired. However, as the post-conviction court noted,

there is nothing in the transcript to reflect that trial counsel did not adequately perform his

duties as defense counsel at the suppression hearing and at trial. We conclude, therefore, that

the petitioner is not entitled to relief on the basis of this claim.

I. Appellate Counsel’s Failure to Provide Argument or Citation in Brief

Finally, the petitioner contends that appellate counsel provided ineffective assistance

by failing to provide argument or citation to authority when raising the enhancement factor

issue in the appellate brief. The State argues, among other things, that the petitioner has not

met his burden of demonstrating any prejudice, as he has not shown a reasonable probability

that he would have prevailed on the issue had it been properly briefed on appeal. We agree

with the State.

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CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgment of the postconviction court denying the petition for post-conviction relief.

_________________________________

ALAN E. GLENN, JUDGE

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