### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A pr il 13, 200 4 S es sio n
CHA RLE S ORLANDO FIEL DS v. S TAT E OF TEN NES SEE

Direc t Appeal from the Circ uit Court for Obi on Coun ty No. 3-03 William B. Acre e, Jr., Judge

No. W2003-02051-C CA-R 3-P C - F iled Jun e 23, 2004

The pe titioner, Charles Orlando F ields, was found g uiltyby a jury in the Obion CountyCircuit Court of one c ount of selling .5 g rams or more of a substance containing cocaine wit hin one thousand fe et of a sc hool zone. The petitioner wa s sentence d to thirty -three y ear s incarc eration in the Tennessee Depa rtment of C o rr ec t i on. Subsequently , the petitioner filed a petition for post-conviction re lief, alleg ing that he re ceive d the ineff ective assistance of trial counse l. After an evidentiary hearing, the post-conviction court found that the petitioner’ s claims wer e wa ived and that reg ardle ss of waiver , the petitioner failed to prove pre judice. The petitioner appeals. Upon our r eview of the re cord a nd the parties’ brief

s, we a ffirm the judg ment of the post-c onviction court.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Ci r c uit

Co ur t i s A ffirm e d.

N OR MA M C G EE O G LE , J ., delivere d the opinion of the court, in which D AVI D G. H AYES and J AM ES C UR WO OD W I TT , J R ., J J ., joined.

J ohn W. P almer and J ason L . Hudson, Dy ersbur g , Tenne ssee, f or the a ppellant, Charles O rlando F ie lds

. Paul G. Summers, Attorney Gene ral a nd Reporter ; Thomas E. Wil liams, I I I , Assistant Attorney Gene ral; and Thoma s A. Thomas, District Attorney Gene ral, for

the appe llee, State of Te nnessee

. OP IN ION

I. F ac tu al B ac kgr ound

Th e pe tit ion e r w a s ind ic te d by a n Ob ion Cou nty Gr a ndJury

on on e c ou nt o f s e lli ng .5 g rams or more of

a substance containing cocaine wit hin one thousand fe et of a school zone and one c ount of delivering .5 grams or more of a substanc e conta ining c ocainewithin one thousand fee t of a school zone. Counsel was appointed (her einaf ter “appointed counsel” ), and a trial was he ld on the char g es on April 19, 2000. The jury was una ble to rea ch a ve rdict, re sulting in a mistrial.-2-

Subsequently , the petitioner re tained counse l ( here inafter “re tained counsel” ), and a second trial was he ld on Aug ust 14, 2000. At trial, the State prese nted the t estimony of two women w ho boug ht cra ck coc aine f

rom the petitioner. The first witness, Amanda B ell, testified that she ha d been
wo rking a s an u nd e rc ov e r a g e nt w he n s he a ssi ste d th e c on fi de nti a l in fo rm a nt, Ki m H a mli n, in purcha sing c rac k cocaine from the pe tit i oner. B ell asser ted that the petitioner w as an A fricanAmeric an male, but she did not discover his name during the purcha se. Howe ver, B ell stated that at the time of the purchase the petitioner had a g old tooth. Bell ac knowledg ed that she did not know if the petitioner c urre ntly

had a g old tooth, but s he maintained that a removable g old tooth could be inexpensivelyand ea silypurcha sed fr om a nea rby beauty supply store.

Hamli n, a kn ow n d ru g us e r, te sti fi e d th a t whil e sh e wo rk e d as a c on fi de nti a l in fo rm a nt w ith the Twe nty -seve nth District Drug Task F orce , she and B ell purcha sed cr ack c ocaine from the pe tit ion e r. Hamli n a lle g e d th a t sh e did no t se e the pe tit ion e r w ith a g oldtoo th. Re g ard le ss, Ha mli n po sit ive ly ide nti fi e d th e pe tit ion e r a s th e pe rs on wh o s oldthe dr ug s to he r andB e ll.

The p e ti ti o n e r a n d h is mo th e r te s ti f ie d th a t th e p e ti ti o n e r n e v e r h a d a g o ldtooth. Additionally , the petitioner spec ifically denied se lling drug s to Bell and H amlin.

At the conc lusi o n o f t h e second tria l, the petitioner wa s found g uiltyof both counts of the indictment. Howeve r, the trial court merg ed the delivery conviction i nto the sale c onviction. Prior to the sentenc ing he aring , reta ined counse l m o v ed t o wi thdraw f rom repr esenting the petitioner, citing that the petitioner had filed a g rieva nce ag ainst him. The trial court g rante d reta ined counse l’s motion to wit hdraw and substituted appointed counse l.

Af te r the se nte nc ing he ari ng , the tr ia l cou rt se nte nc e d the pe tit ion e r, a s a Ra ng e I I mul tip le offe nder, to thirty -three y ear s incarc eration. Following sentenc ing, the petitioner filed a motion for
ne w t ri a l. In th e mot ion , the pe tit ion e r ra ise d sev e ra l issu e s for re vie w, inc lud ing the ine ff e c tiv e ne ss of retained counsel. At the hea ring on the motion for new trial, the petitioner testified c oncerning the sp e c if ic ins ta nc e s of ine ff

e c tiv e ne ss. Th e tr ia l cou rt de te rm ine d th a t th e pe tit ion e r h a d f a ile d to prove pr ejudice and denied the motion. The petiti oner appea led t o this court, ne g lecting to raise the issue of the inef

fec tiveness of reta ined counsel. On appea l, this court a ffirme d both the petitioner’s convictions and sente nces. See State v. Charles Orlando Fields, No. W2001-00124-CCA-R3-CD, 2002 WL 1558575, at *1 (Te nn. Crim. App. at J ackson, Jan. 2, 2002).
Subsequently , the petitioner filed a petition for post-conviction re lief, ag ain alleg ing that he
rec eived the ine ffe ctive assistanc e o f re t ai ned counse l. At the post-conviction hea ring , reta ined counsel stated that he re prese nted the petitioner a t the second trial. Retained c ounsel was lice nsed to prac tice law in 1972, spe nt ten y ear s prac ticing in Te x as, and a lso pract i ce d i n Kentucky . The
rema inder of his practice was in Tenne ssee. Reta ined counse l asserte d that he pra cticed c riminal law “fr om the beg inning.”

Retained c ounsel stated that he me t with the petitioner two or thre e times prior to trial. He maintained that his file re g arding the petitioner’s c ase did not re flec t the ex tent of the wor k he-3-

perf ormed in the c ase be cause he “was taug ht in the Texas Crimi nal Def ense L awy ers Assoc iation” that he should “not write every thing down bec ause it could be subpoenae d.” Counsel asserted that he and the petitioner discussed that the char g es alleg ed that the of fense occur

red w ithin one thousand fe e t of a sc ho ol zo ne . H e a lso dis c us se d w ith the pe tit ion e r a ll p le a of fe rs a nd se nte nc ing c on c e rn s.
Retained c ounsel stated that he interviewed w itnesses prior to t rial, but he did not interview the wi tne sse s sug g e ste d b y the pe tit ion e r. He e xpla ine d th a t th e pe tit ion e r d id n ot p ro vid e him wi th t h e c o n t ac ti n fo rm at i o n fo r t h e s u gges t ed wi t n es s es , an d t h e p et i t i o n erh ad n o tp ai d h i men o u gh money to hire an inve stigator. Retained c ounsel stated that he did not petiti o n t h e court for additional funds for an investigator beca use, from his e x perie nce pr acticing in Texas, such motions
wer e alway s denied. Retaine d counsel a cknowle d ged t hat he c ould not name the witnesses he interviewe d, but he alleg ed that he w as able to find any nece ssary information from the “ g rape vine.”

Retained c ounsel maintained that he spoke w ith appointed counsel re g arding the petitioner’s fir s t tria l. A p p o in te d c o u n s e l to ld r e tain e d c o u n s e l th a t th e r e w a s li tt le d is c o v e r y to b e had in the petitioner’s c ase. A ccor dingly , reta ined counse l never pursued discove ry

from the State.

When asked if he ever

rese arc hed the e vents of t h e p et itioner’s first trial, re tained counse l state d, “ I re a d it , s ome . N ot a

tr a ns c ri pt, bu t I

jus t re a d the re c or ds , y ou kn ow , the arr e st w arr a nts and just thing s like that.” Retained counsel admitted that beca use he did not revie w the petitioner’ s fi rs t tria l, h e wa s u na wa

re that th e pe tit ion e r, the peti ti on er’s mothe r, a ndthr e e oth e r w itn e sse s, na me ly De rr e ll Sn ow , Re ve re ndAl be rt E. Mc Ca dn e y , a ndSta c y Mc Ew e n, ha d te sti fi e d at th e fi rs t trial that the petitioner ne ver ha d a gold t ooth. Retained counsel alleg ed that the petitioner c ould not aff ord to have the first hea

ring transcribed.

Retained c ounsel alleg ed that he could not specifica lly rec all jury

selec tion in the petitioner’s
c a se . H ow e ve r, he a dmi tte d th a t he ma y ha ve e xclu de d A fric a n- Am e ri c a ns fr om the jury be c aus e “[o] ther pe ople ar e har d on us, but black people are harder on black people t han anybody else in the world.”

Retained c ounsel stated that Ha mlin did not testify at the first trial, but she did testify at the second. Additionally , Be ll testified at both trials. Retained c ounsel opined that, as a witness, “one [of the women] was super.” Retained counsel also opined that all of the State’ s witnesses wer e “strong .”

Retained c ounsel stated that he d i d not rec all at trial re fer ring to the photogr aphs included in the lineup as “mug shots.” He f urther stated that he “n ev er t h oug ht about” such a comment imply ing that the petitioner had a criminal history

. Finally , reta ined counsel explained that, following the petitioner’s tria l, he “disassoc iated” him se lf fr om the pe tit ion e r. Re ta ine d c ou ns e l di d s o b e c a us e the pe tit ion e r f ile d a “ c omp la int

wi th the g rieva nce c ommitt ee in Na shville.”-4-

Appointed counse l testified at the post-conviction hearing that he re prese nted the petitioner at hi s first trial, and ag ain at the se ntencing hearing and motion for new tria l following the second trial. Howe ver, a

contra ct public defender repr esente d the petit ioner on appeal. Appointed c ounsel acknow ledg ed that he r aised the issue of the ineff ective a ssistance of r etai n ed co unsel in the petit i o n er ’s m otion for new trial, but the issue was not pursue d on appea l. Appointed counsel
e xpla ine d th a t he raised th e is su e of the ine ff e c tiv e a ssi stanc e of

re ta ine d c ou ns e l “ to a c c omp lis h some judicial ec onomy .”
Appointed counse l stated that Be ll testified at the petitioner’s f irst trial, while both Be ll and Hamlin testified at the se cond trial. B ell testified t hat s he boug ht cra ck coc aine f rom the petitioner and that he had a g old tooth. At the f irst trial, appointed counse l called the pe titioner; the petitioner’s mother; the petitioner’ s pastor, Rever end Mc C adney ; the petitioner’s boss, Stacy McEwe n; and Der rell Snow to testify that the petit ioner ne ver ha d a g old tooth. Appointed counsel stated that at both tr i al s , the State, throug h Be ll, demonstrated how e asily a fa ke g old tooth could be obtained. Additionally , McEwe n testified that the petitioner was working for him on the day of the drug purcha se, but McEwe n could not aff irmatively state the time frame that the petitioner wor ked that day . Appointed counse l rec alled that McEw en had an extensive criminal history

. The petitioner testified at the post-conviction hearing that he completed the tenth g rade and ha d th e abil ity

to r e a d a ndwrite

. He e xpla ine d that Ros e Ca nn on re fe rr e d him to r e ta ine d c ou ns e l. The pe titioner claimed that prior to trial he and re t ai n ed co u n sel met twice in pe rson and ha d one telephone disc ussion. The petitioner g ave r etained c ounsel the name s of McEwe n, Revere nd McCad n ey , an d S now. The pe titioner expl ained that he told retained c ounsel that Rever end McCadney ’s chur ch wa s in Union C i ty and would be e asily

located. A dditionally , he informe d reta ined counsel that “y ou can a sk any body wher e [Snow] lives.” Howe ver, the petitioner admitted that he did not know how to locate McEwe n. The pe titioner alleg ed that the discussion of witnesse s was the only

conver sation he had w ith retained c ounsel in ref ere nce to his ca se.

T h e p et i t ioner stated that he did not meet with appointed counse l prior to sentenc ing and complained that no one explained sentencing to him. Additi onally , the petitioner maintained that he neve r spoke with appe llate counse l.
The pe titioner contende d that the indictment char g ing him with selling cra ck coc aine in a
sc ho ol zo ne wa s in adeq uat e. He expla ine d, “ I did n’ t kn ow it w a s th e sc ho ol zo ne . A ll i t say is a thousand fee t of some school, and T.C.A. No. 39-17-417( a)[(3)] is the actua l char g e of sa le of Count I . . . . So, I don’t fee l that I was put in notice of the school zone.” The petitioner re marke d that “y ou cannot se e the sc hool from the house . I didn’t know it was a sc hool there.” Acc ording ly , the petitioner fe lt that r et ai ned counse l was ineff ective f or fa iling to cha lleng e the suff iciency of the ind ic tme nt.

After the pos t-conviction hearing , the pos t-conviction court issued a written orde r, deta iling the court’s conclusions of law and finding s of fa ct. The post-c onviction court stated that r etained-5-

c ou ns e l “ ma y

ha ve be e n de fi c ie nt” in h is r e pr e se ntatio n o f the pe tit ion e r, bu t th e pe tit ion e r f a ile d to prove that he s uffe red any prejudice by the represe ntation. Additionally , the post-conviction court
rema rked:

T h er e is one additional re ason why the petition should be dismiss ed. The issue of ineffe ctive assistance of counsel wa s raised by the petitioner in his motion for new tria l. As p reviously stated, pe tit ion e r’ s [r e ta ine d] c ou ns e l wi thdre w a ft e r the tr ia l a ndthe pu bli c defe nder’ s office [t hroug h appointed counse l] there afte r re prese nted the petit ioner. I n his moti on for ne w trial, the pe titioner asserte d that there wer e matters that wer e not done by [t he petitioner’s] couns el that r e su lte d inine ff

e c tiv e a ssi stanc e of

c ou ns e l.

The orde r denying the motion for judgme nt of ac q uittal and motion for new tria l provided [that the petitioner had failed to prove p r e ju d ic e ].

Th e iss ue of

ine ff e c tiv e a ssi stanc e of c ou ns e l ha s p re vio us ly be e n li tig a te d. Al tho ug h th a t is su e wa s not ra ise d on dir e c t app e a l, i t could have been.
On appe al, the petitioner c halleng es the post-c onviction court’s ruling

.
II. Ana lys is

To be succ essful in his claim for post-conviction relief , the petitioner must prove all fac tual alleg ations contained in his post-conviction petition by clea r and convincing evidenc e. See T enn. Code Ann. § 40-30-110( f) (2003). “‘Clea r and convincing evidenc e mea ns evidenc e in which ther e is no seri o u s or substantial doubt about the cor rec tness of the c onclusions drawn f rom the
e vid e nc e .’ ” State v. Ho lde r, 15 S.W. 3d 90 5, 91 1 (T e nn . Crim . App . 199 9) (q uo tin g Ho dg e s v . S. C. To of & Co. , 83 3 S.W. 2d 89 6, 90 1 n .2 (T e nn . 1 99 2) ). I ssu e s r e g ard ing the c re dib ili ty of wi tne sse s, the weig ht and value to be acc orded their testimony , and the f actua l questions raised by the evidenc e adduce d at trial ar e t o b e re s o l v ed by the post-conviction court as the trier of fa ct. See He nley

v. S t at e, 9 6 0 S

. W

. 2 d 5 7 2 , 5 7 9 (T en n

. 1 9 9 7 ). T h er ef o re , we af fo rd th e p o s t -c o n v i ct i o n co u rt ’s fi n d i n gs of fa ct the weig ht of

a jury verdic t, with such findings be ing c onclusive on appe al abse nt a showing that the evidenc e in the re cord pr eponder ates a g ainst those finding s. I d. at 578.

I t is wi tho ut q ue sti on that iss ue s that ha ve be e n p re vio us ly de te rm ine d c a nn ot s up po rt a ba sis for post-c onviction relief. See Tenn. Code A nn. § 40-30-106( f) ( 2003); Har ris v. State, 947 S.W .2d 156, 174 (Tenn. Crim. App. 1996) . “A g round for relief is previously d et er m i n ed if a c ourt of competent jurisdiction has ruled on the m erits after a full and fa ir hea ring . A full and fair hea

ring has occur red wher e the petitioner is a ffor ded the opportunity to c all witnesses and othe rwise pr esent-6-

evidenc e, reg ardle ss of whether the petitioner actually introduced any evidenc e.” T enn. Code Ann. § 40-30-106( h).

I n the i nstant case , the petit ioner raised and litigated the claim of the ine ffe ctive assistanc e of re ta ine d tria l c ou ns e l in his mot ionfo r n e w t ri a l. I n doin g so , the pe tit ion e r pr oc e e de d at his pe ri l. See Mohammed F . Ali v. State, No. E2001-00183-CCA-R3-PC, 2003 WL 1877242, at *22 (Tenn. Cr im. Ap p. a t Kno xvill e , Apr . 11, 20 03 ), pe rm . to app e a l de nie d, (T e nn . 2 00 3) . A c c or din g ly , th is issue has been previously determined and may not be addr essed in the pe titioner’s post-conviction proce eding . Moreove r, we note that in his post-conviction petition the petitioner raised f actua l bases for his cla im of ineffe ctive assistanc e of r etained c ounsel that he did not initially raise in his mot ion for new trial. Howeve r, ineffe ctive assistance of counsel g ener ally constitutes a sing le g round for relief . See Thompson v. State, 958 S.W.2d 156, 161 (Te n n

. C ri m

. App. 1997). Ac cording ly , the petitioner m ay not seek to relitig ate the previously determined issue simplyby providing additional fac tual alleg ations. See Cone v. S tate, 927 S.W .2d 579, 582 (Tenn. Crim. App. 1995). There fore , the pos t -conviction court properly denied the pe titioner’s claims of the ine ffe ctive assistanc e of reta ined trial counse l on this basis.

We n ote that w hil e the pe tit ion e r’ s c la ims re g ard ing his re ta ine d tria l c o u n s e l ha ve pr e vio us ly been de termined, a ny

claims reg arding the ineff ective assistance of appointed counsel who assisted during th e m o t i o n for ne w trial stag e or the appellate counsel who dr afte d the petitioner’s dire ct appea l have not bee n so previously determined. Howeve r, this issue was not addressed in the petition for post-conviction re lief. An issue raised for the first time on appea l is considered w aived. See State v. Alvar ado, 961 S.W.2d 136, 153 (Tenn. Crim. App. 1996). More over, the petitioner failed to support his claim in his appellate brief with any citation to authority , which also c onstitut es a g r o u n d f o r w a i v e r

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. R e g r e t t ab l y, we may not addre ss this i ssue for the first time on appea l.

III. Conclusi on

B a se d u po n th e fo re g oin g , w e a ff ir m th e jud g me nt o f the po st- c on vic tio n c ou rt

.

___________________________________ NORMA McGEEOGLE, J UDGE