### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE Fe brua ry 26, 200 8 S es sio n
DA NE LEE D UC KETT v. ST ATE OF TEN NES SEE
Appeal from t he Criminal Court for Cumberland Coun ty No. 7479 David Patter son, Ju dge

No. E2007-02128-CC A-R3- PC - Filed July 1, 2008

Pe tit ion e r, Da

ne L e e Du c ke tt, wa s c on vic te d b y a Cu mb erl and County Jury of a tte mpt to manufa ct u re methamphetamine, posse ssion of marijuana, dr iving on a revoke d license, a

nd po sse ssi on

of dr ugpa ra ph e rn a lia . A s a

re su lt, he wa s se nte nc e d to an e ff e c tiv e se nte nc e of

six y e ars

. His convictions and sente nce w ere aff irmed on direc t appea l. See Sta te v . D an e Le e Du c k e tt , No. E2004-02321-CC A-R3-CD, 2005 WL2777378, at *7 (Te nn. Crim. App., at Knoxvi lle, Oct. 26, 2005). In this appeal fr om the denial of post-c onviction relief, Petitioner asser ts that the trial court im p r o p e r ly d is mi s s e d

h is p e ti ti o nb e c a

u s e h e r e c e iv e d in e f

f e c ti v e a s s is ta

n c e o f c o un s e l a t tr ia l. We deter mine that Petitioner did not rec eive ineffec tive assistance of counsel and, therefor e, af firm the judgme nts of the post-conviction cour t.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt s o f the Cr im ina l C our t a r e Affir m e d.

J ER R Y L. S MI TH , J ., d el i v er ed t he opinion of the c ourt, in which A L AN E. G L EN N and R OB E R T W. W EDEMEYER , J J ., joined.

F . Chri s Ca

wo od , K ing sto n, Te nn e sse e , f or the a pp e lla nt, Da ne L e e Du c ke tt.
Robert E. Cooper, Jr., Attorney Gene ral a

nd Reporter ; Rachel W es t Ha rmon, Assistant Attorney Gene ral; B ill Gibson, Dist rict Attorney Gene ral; and Ma

rk E. Gor e, Assis tant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

I n J uly of 2003, the Cumberla

nd County

Gra nd J ury indicted Petitioner with d ri v i ng on a revoke d license, posse ssion of marijuana, attempt to m a n u f a c tu r e me th a mp hetamine, a

nd possession of drugpara

pherna lia. After

a jury trial, Petitioner was c onvicted of a ll offense s as cha rg ed in the indictment. The trial cour t sen t en ce d P etitioner to an e ffe ctive sente nce of six y ear s. Petiti oner-2-

a pp e a le d b oth

his c on vic tio ns and

se nte nc e to thi s Cour

t. On a pp e a l, thi s Cour

t summa ri zed the fa c ts of the c a se a s f

oll ow s:
Deputy Ri c h ar d T in c ho f

th e Cumb e r la

n d Co un ty Sh e r if f ’ s D e p artm e nt testified that on Fe bruar

y 28, 2003, he was on patrol and pulled into the L antana Marke t in order to buy

a soft drink. As he pulled into the par king lot, De puty

Tinch noticed a blue Oldsmobile parked at a gas pump a nd saw the a

ppellant g etting out of the d ri ver’ s seat. The appellant shut the c ar door and beg an pumping g as, and Deputy Tinch we nt into the store

. As Deputy Tinch ca me out, the appe llant passed him. Deputy

Tinch re cog nized the appell an t and believe d that the appe llant’s dr ive r’ s li c e ns e ha d b e e n s us pe nd e d. Whil e the a pp e lla nt w a s in the st ore , D e puty Tinch ra n a computer

chec k on the Oldsmobile’s license plat e an d lear ned that the plate wa s not r e g ist e re d to the c ar. Whe n th e a pp e lla nt c ame out of

the sto re , D e puty Tinch confronted him about t he car and his driver’s lice nse. The a ppellant told the deputy that his license had been suspended but that he r ece ntly had sent money

to the State of Tenne ssee in orde r to have the license re i n s t ated. Deputy Tinch ra n a computer c heck on the appellant’ s license, learne d that it had been suspe nded, and

arr ested the a

ppellant for dr iving on a

suspended lice nse. Deputy Tinch l ear ned that the license tag on the car was reg istered to F ranc es Morrison, the a ppellant’s mother.
Deputy Tinch appr oache d the Oldsmobile a nd saw Mar

k Hamby sitti ng in the front passe ng er se at and Tiff any Marsha ll s i t t i n g in the back se at. A blac k leather jacke t was in the driver ’s seat. Deputy Tinch sear ched the jacke t pockets and f ound

a sy ring e and a partially -smoked marijuana cig are tte. Deputy

Tinch sea rche d the ca

r
and fo un d a jar c on ta ini ng a wh ite liq uid un de rn e a th the pa sse ng e r se a t. T he liq uid

w a s f i e l d

- t e s t e d , an d

i tt e s t e d p o s i t i v e f o r e p h e dr i n e

. D e p u ty T i n c hs a i d th a tth e k e ys
we re in the c ar’ s ig nit ion and that a roa c h cli p an d a bra ss- c olo re d s po on wi th s ome residue on it we re attached to the ke y chain. De pu t y T i n ch called for a supervisor, and L ieutenant Gary Cox came to the s cene

. L ieutenant Cox then ca lled L ieutenant David Gibson to the L antana Marke t. When L ieutenant Gibson a rrived, the office rs opened the car ’s trunk and f ound box es of matc hbooks, iodine, packe ts of pseudoephe drine, a

larg e bottle of lig hter fluid, plastic tubing , car buretor c leane r, coff ee f ilters, leather

work g loves stained dar

k red, a nd a P y rex baking dish. The office rs also found a

second ja r conta ining a

liquid.

On cr oss-examination, Deputy Tinch testified that he never saw the a ppellant driving the Oldsmobile, that the re was no indication the jacke t be longe d to the appellant, a

nd that he found no dr

ug para pherna l i a o n the appe llant’s person. He stated that he did not reme mber the appellant’ s telling him that the appe llant was not driving the ca

r and that it was possi b l e Ha m b y or Mar shall had bee n driving . He stated that the police did not dust t he car or the items found in it for fing erpr ints and that he cha

rg ed eve ry one in the ca r wi th attempting to manuf actur e methamphetamine.-3- L ieutenant David Gibson of the Cumberland County Sheri ff’s Depa rtment testified that he wa s trained in dete cting and dea ling with meth am p h etamine laboratories an d wa s cer

tified to handle methamphetamine labs. On F ebrua ry 28, 2003, h e w a s d is p a tc h e d to th e L an ta

n a M ar k e t. H e s tate d

th a t o n ly

s o me o ne
cer tified in methamphetamine la boratorie s co uld handle the items found in the c ar trunk bec ause the materia ls used to manufa cture methamphetamine c ould cause an explos ion. He stated that the most common method used to make methamphetamine in that are a of Te nnessee was the r ed phosphorus method, which require d ephedr ine, iodine, and phosphorus. He stated that the ephedr ine could be obtained fr om Sudafed tablets and that the phosphor us coul d be obtained by

taking the striker plates off matchbook c overs a

nd soaking them in ace tone. He stated that people of ten wore g loves to make methamphetamine and that iodine would stain the gl o ves reddish-br own. He sa id that he field-te sted the liquid found in the car ’s t ru nk and that it tested positive for methamphetamine oil. L ieutenant Gibson tra nsported the i t e m s f o u n d i nt h e O l d s m o b i l e t o th e T e n n e s s e e B u r e a u o f In v e s t i g a t i o n ’ s ( T B I) Crime L aboratory . On cr oss-examination, L ieutenan t G ib s on testified that the striker plate s f ound in t he Ol ds mob ile ha d n ot b e e n r e mov e d fr om t he matc hb oo k c ov e rs , that he did not find any

ace tone or hy drog en per ox ide in the ca r, and that he neve r saw the a ppellant driving the Oldsmobile.

Robert M ar k Y o u n g , a

f o r e n s ic s c ie n ti s t w it

hth e T B ICr im e L a

b o r a tor y te sti fi e d th a t he re c e ive d tw o liq uid s, a po wd e r s ub sta

nc e , a nd a ha nd -r oll e d c ig are tte butt for testin g . He state d that one of the liquids t ested positive for methamphetamine a

nd that the other te sted positive fo r p s eu d o ephedr ine. The powder also tested positive for pse udo ep h ed ri n e. He tested the c iga rette a nd discovere d that it contained mar ijuana.

Fr ance s L ouise Morrison testified for the appellant that she was his mother and that she had never owned a blue Oldsmobile. She stated that she did not know why her lice nse plate w as on the c ar.

Da neLe e Du c k

e tt , 2005 W L 2777378, at *1-3. This Court aff irmed Petitioner’s convic tions and sentenc e. Id. a t *7

. S ub se qu e ntl y , Pe tit ion e r f ile d a pr o s e pe tit ion

fo r p os t- c on vic tio n r e lie f i n wh ic h h e a lle g e d th a t he re c e ive d ine ff e c tiv e a ssi sta

nc e of c ouns e l at tri a l bec a us e tr ia l c ouns e l di d not adequately

convey the State’s plea

offe r to Petitioner, failed to objec t to the c hara cter ization of the e vid e nc e by

c ouns e l f or the State and fa ile d to ob

je c t to a re fe re nc e to Pe tit ion e r’ s pr ior ba d a c ts during closing argument of the State. The post-convic t ion court re viewed the petition and deter mined that Petitioner prese nted a “ colora ble claim” fo r re lief. The post-c onviction court appointed counse l, and an amended pe tition for relief w as filed in which Petitioner a rgued that trial counsel fa iled to “conve y sentenc e limits t o Petitioner” in addition to the gro unds raised in the orig inal petition.-4- Evidenc e at the Post-Conviction He aring

The trial court held a hear ing on the post-conviction petition. At the hear i n g, P etitioner t e s t i f i e d t h a th e m e tt r i a l c o u n s e l i nt h e j a i l f o r t h e f i r s tt i m e

. T h i s m e e t i n g l a s t e da b o u t“ [ t ] h i rty, forty [-] five mi nutes or l ong er.” At that time, trial counsel discussed the char g es that Petitioner was f a c ing but d id n o t d is c u s s th e p o te n ti a l s e n te n c e s Pe ti ti o n e r c o u ld r e c e iv e if

c o n v ic te d

. T h e n e xt meetingbetwee n Petitioner and trial counse l was held at trial counsel’s of fice

.
Petitioner claimed that trial counsel did not know any thing a bout discovery

motions t hat had been f iled. Petitioner admitted that trial counsel filed a pre trial motion to suppress the evidenc e seized but claimed that he did not rec eive a copy of the motion. Petiti oner did re member spe aking with trial counsel on the tele phone re g ardingthe hea ring . The motion to suppress was de nied.

Pe tit ion e r t e sti fi e d th a t he re c e ive d s e ve ra l pl e a of fe rs fr om t

he State pr ior to t

ri a l. T he fi rs t offe r wa s for 219 da

y s, and trial counsel advised him about t his offe r. Petitioner did not acc ept the g uil ty ple a of fe r b e c a us e he c la ime d that he wa s n ot guil ty . T ri a l c ouns e l di sc us se d th e of fe r w ith Petitioner for a

second time, but Petitioner ref used to take the offe r bec ause he insisted that he was not guilty

. Petitioner told tria l c ounsel that he wa nted to “bea

t” the cha rg es ag ainst him. According to Petiti oner, trial counsel advised him that they had a “g ood chanc e” of succe ss at trial. Petitioner claimed that it was pa

rtially due to trial counsel’s a dvice that he chose not to ac cept the ple a off er. Fur ther, Petitioner stated that trial counsel ne ver infor med him about the “e x tent” of his “e x posure” for se ntencingpurposes.

Petitioner rec alled that he w aived the r ight to testify at trial so that his prior cr iminal hist ory could not be used a g ainst him. P etitioner thoug ht that this was a g ood decision. Petitioner claimed that he ha d n o id e a

ho w m any

y e ars of inc arc e ra

tio n he wa s fa c ing a s a re su lt of the c ha rg e s a g a ins t him and possible convictions.

Petition er at t em p t edt o co n t ac tt ri al co un s el s ev er al t i m es b et we en th e t ri al an d th e sentencing hear ing a nd claimed that trial counsel’s off ice r efuse d to acc ept ca lls from the jail. Petiti oner claimed that the State offer ed him a five -y ear sentenc e prior to se ntencing . Petitioner stated that he turned down this offe r bec ause he thought it was the maxi mum sentence he could r ece ive.

Petitioner admitted that trial counsel made himself available to Petiti oner a nd that he had no issues with communicating with trial counsel. Petitioner also admitted that he did not show up for

a mee ting that wa s scheduled w ith trial counsel for the day prior to trial.

Trial counse l testified that he had se vera l meeti n gs wi t h Petitioner prior to trial but that Pe tit ion e r f

a ile d to sh owup fo r a

sc he du le d me e tin g on the da y be fo re tr ia l wa s su

pp os e d to sta

rt

. Trial counse l planned on talking about final t rial st rate g y and discussing a plea

offe r fr om the State. Tr ia l c ouns e l a lso re me mbe re d th a t Pe tit ion e r w a s late fo r t ri a l.-5-

Trial counse l did not reca ll what documents he pro v i d ed t o P etitioner prior to trial. He

re me mbe re d f

ili nga mot ion fo r d isc ov e ry

and a mo ti on to su pp re ss a

nd state d th a t th e State
c omm un ic a te d s e ve ra l pl e a

of fe rs to hi m pr ior

to t ri a l. T ri a l c ouns e l c ou ld n ot s pe c if ic a lly re c a ll what discussions he had w ith Petit ioner prior to trial about the amount of pr ison time he was fac ing

as a r esult of the indictments. Howe ver, tria l counsel t estified that it was his “habit” a nd “pra ctice” to discuss such matters with hi s clients prior to trial. Trial counsel did reca ll that he was c oncer ned about whethe r Petitioner would be c lassified as a Rang e I or Rang e I I offe nder be cause of the number of his prior convic tions.

At the c on c lus ion

of the he ari ng , th e po st-conv ic tio n c ourt de nie d th e pe tit ion

fo r p os tconviction re lief. The tr ial court late r issued a written final order denying the petition in which the post-conviction cour

t determined:

The Court f

inds that a ll c ompetent evidenc e prese nted by the p etitioner

re late d o nly

to h is f ir st a ll egati on : th e fa ilure to p ro pe rl y c on ve y se nte nc e lim its to the pe tit ion e r. Re g ard ingthi s is su e , th e Court fi nd s:

1. Pri or to trial an of

fer of settlement wa s conveyed to, and under stood by

the p et itioner. The pe titioner reje cted this offe r.

2. I t is the pr a c tic e of [tria l cou ns e l] to dis c us s sentenc ing issues w it h his clients, and the matter of enhanc ed punishment was of co ncer n to [ trial counsel] and was c onsidered by the petitioner.
3. The pe titioner did not attend an importa nt pre-tr ial confe renc e with [trial counsel] to fu rther disc uss the S t a t e ’ s o f f e r an d tr i a l s tr a t e g y. 4. The pe titioner has pre sented no e viden ce of ine ff e c tiv e a ssi sta

nc e of c ouns e l r e g ard ingth is alleg ation.

The Court fur

ther finds be cause there was no e vidence prese nted re g arding the pe tit ion e r’ s se c on d a

nd thi rd a lle g a tio ns : f

a ilure of de fe ns e c ouns e l to ob

je c t to mischara cter ization of evidence , and fa ilure of defe nse counse l to object to State’s ref ere nce in c losing a

rgument to defe ndant’s prior bad acts, that these alleg ations are without merit.

This Court finds that the petit ioner was not prejudice d nor adve rsely aff ecte d by trial [counsel] and that this claim of inef fec tive assistance of counse l was not p ro v en d uri n g t h i s h ea ri n g.-6- None of the proof of

fer ed by the petitioner supports this claim that trial [counsel] was inef

fec tive in his repre sentation.
The pe titioner has not car ried this burden.

There is no basis to gra

nt the relief

soug ht by

the petitioner . . . .

Petitioner filed a timely notice of appea l, se eking our re view of the post-conviction cour t’s dismiss al of his petition for post-convic tion relief.

An aly sis Post-Conviction Standard of Review
The post-c onviction court’s finding s of fa ct are conc lusive on appea l unless the evidenc e preponde rate s otherwise. See State v . Burns , 6 S.W .3d 453, 461 (Tenn. 1999). Duringour re view of the iss ues raised, we will aff ord t hose findings of fact t he weight of a jury verdic t, and this Court is bound by

the post-conviction cour t’s finding s unless the ev i d en ce in the rec ord pre ponderates ag ainst those finding s. Se e He nle yv . S tate , 9 60 S.W. 2d

57 2, 57 8 ( Te nn . 1 99 7) ; Al le yv . S tate , 958 S.W .2d 138, 147 (Tenn. Crim. App. 1997). This C ourt may not rewe igh or

re- evaluate the evide nce, nor substitute its i nfer ence s for those dr awn by the post-conviction cour t. Se e Sta te v . H

on e y c utt , 54 S.W .3d 762, 766 (Tenn. 2001) . Howeve r, the post-c onviction court’s c onclus i ons of law a re revie wed unde r a pur ely de novo standard with no presumption of cor rec tness. Se e Sh ie lds v . S

tate , 40 S.W .3d 450, 458 (Tenn. 2001)

. Ineffec tive Assistance of Counsel
When a petitioner see ks p o s t-conviction re lief on the ba sis of ineffe ctive assistanc e of counsel, the pe titioner bear s the burden of showing that (a) the s ervic es re ndere d by trial counsel

wer e def icient and ( b) that the de fi ci ent performanc e wa s prejudicial. Se e Po we rs v . S tate , 942 S.W .2d 551, 558 (Tenn. Crim. App. 1996) . I n order to demonstrate de ficient pe rf o rm ance , the petitioner must show that the servic es re ndere d or the a dvice g iven was below “the r ang e of competenc e dema

nded of attorney s in criminal case s.” Ba x te r v . R os e , 523 S.W .2d 930, 936 (Tenn. 19 75 ). I n o rd e r t o d e mon str a te pr e jud ic e , t he petitio ne r m

us t sh owthat th e re is a

re a so na ble probability

that, but for counse l’s d ef i ci en t perf

ormanc e, the r esult of the proc eedingwould have been dif fer ent. See Strick

land v. W ashington , 46 6 U. S. 66 8, 69 4 ( 19 84 ). “ B e c a us e a pe tit ion e r m

us t
e sta bli shbo th p ro ng s o f t

he te st t o p re va il o n a

c la im o f i ne ff

e c tiv e a ssi sta

nc e of c ouns e l, fa ilure to prove e ither def

icient per formanc e or r esulting pr ejudice pr ovides a suff icient b as i s t o deny

relief on the claim.” He nle

yv . S tate , 960 S.W .2d 572, 580 (Tenn. 1997)

.
As no te d a

bo ve, this Co ur

t w ill a ff or d th e po st- c on vic tio n c ourt ’s fa c tua l f ind ing s a presumption of cor

rec tness, rende ring them conclusive on a ppeal unless the rec o rd preponderates-7-

ag ainst the court’s findings. See id. at 578. Howeve r, our supre me cour t has “de termined that issues of def icient per formanc e by

counsel a nd possible prejudice to the defe nse ar e mix ed questions of law and fa ct . . . ; thus, [ appe l l at e] re v i ew of [t hese issues] is de novo” with no pre sumption of

corr ectne ss. Burns , 6 S.W .3d at 461.

F ur the rm or e , o n c la ims of

ine ff e c tiv e a ssi sta

nc e of c ouns e l, the pe tit ion e r is not entit le d to the bene fit of hindsight. Se e Ad k ins v . S tate , 911 S.W .2d 334, 347 (Tenn. 1994) . This Court may not second-guess a r easona bly -base d trial strategy , and we cannot g rant relief based on a sound, but

unsucce ssful, tactica l decision made dur ing the course of the proc eeding s. See id. Howeve r, such defe re nce to the ta ctical de cisions of counsel a pplies only

if counsel make s those decisions af ter
a d e qu a te p r e p ar a ti o n f

o r th e c ase. See Coope r v . S tate , 847 S.W .2d 521, 528 (Tenn. Crim. App. 1992).

A. AdviceRegarding Sentenc e

F ir st, Pe tit ion e r c on te nd s that tr ial couns e l w a s in e ff e c tiv e fo r f

a ili ngto p ro pe rl y

a dv ise Petitioner of the potential sente nce he could rec eive if he went to trial. Specifica lly , Petitioner argues that trial counsel’ s failure to pr operly advise him resulted in a “six -y ear sentenc e whe n it could have been 219 da

y s or no more tha

n five y ear s.”

I n its order de nying the petition for post-conviction re lief, the post-c onviction court noted that tr ia l c ouns e l’ s h a

bit wa s to disc us s po tent ia l se nte nc e s w ithc lie nts pr ior to t ri a l. T he po stconviction cour

t also noted that Petitioner admitted at the hea ring that he did not on the eve of the t r i a l a t t e n d

a s c h e d u l e d p r e
- t r i a l m e e t i n g w i thtr i a l c o un s e l

. T h e e v i d e n c e d o e s n o tp r e po nd e ra te
a g a ins t th e jud g me nt o f t

he po st- c on vic tio n c ourt . Pe tit ion e r h a s f a ile d to c arr

y his burd e n in

thi s reg ard.
B. Failure to Object to Closing Argument

Next, P etitioner claims ineffe ctive assist ance of counsel occur red when trial counse l failed t o o b j e c tt o ani n a

p p r o p r i a t e s t a t e m e n tm a d e b y t h e S t a t e d ur i n g c l o s i n g ar g u m e n t

. S p e c i f i c a l l y, Petitioner complains that trial counsel did not object whe n the State made the following comment during closing argument, “He ’s done it befor e, he’s g oing to do it ag ain.” The S tate counters that Petitioner waived the argument for f ailure to include a copy

of the trial tra

nscript.

I nitially , we note that P et i t i o n er has failed to include the direc t appea l rec ord with the post-conviction re cord on appea l. Howeve r, P etitioner asked this court to take judicial notice of the direc t a ppeal r ecor d. This court may take judicial notice of the dire ct appe al re cord. Se e Sta te e xre l. W ilkerson v. Bom ar , 376 S.W .2d 451, 453 (Tenn. 1964) . We have r eviewe d the trial transc ript.

Howeve r, Petitioner has the bur den of establishing his post-conviction alleg ations by clea r and convinc ing e vidence. T

. C.A. § 40-30-110(f ). Petitioner her ein offe red no e vidence at the post-conviction hea

ring that trial counsel’ s failure to object to the State’s comment was any thing-8-

other than a

tactica l decision not to call attention to the comment. Even if the failure to objec t to the pr os e c uto r’ s st a te me nt w a s an o ve rs ig ht, the re is n oth ingin t he re c or d to su g g e st that th e fa ilure to object pre judiced him, espec ially

in view of the substantial e vidence ag ainst him.

Conclusion

For the fore g oing r easons, the judg ment of the post-c onviction court is aff irmed.

___________________________________ J ERRY L . SMI TH, JUDGE