IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

October 25, 2011 Session

STATE OF TENNESSEE v. JAKE L. MONROE, ALIAS

Appeal from the Criminal Court for Knox County

No. 87861 Bob R. McGee, Judge

No. E2011-00315-CCA-R3-CD - Filed June 22, 2012

The Defendant, Jake L. Monroe, alias, appeals as of right from a jury conviction for

possession with intent to sell and deliver a controlled substance within a drug-free school

zone, a class B felony. The Defendant contends that he received ineffective assistance of

counsel at trial. Following our review, we affirm the judgment of the trial court but remand

the case for correction of the judgment.

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

Case Remanded.

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE

OGLE, J., joined. JERRY L. SMITH, J., not participating.

Mitchell T. Harper, Knoxville, Tennessee (at trial); and Richard Gaines, Knoxville,

Tennessee (on appeal); for the appellant, Jake L. Monroe, alias.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney

General; Randall E. Nichols, District Attorney General; and Leon Franks, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

On October 3, 2007, the Defendant was indicted for possession with intent to sell a

controlled substance and possession with intent to deliver a controlled substance within 1,000

feet of a school. After several continuances and a change of assistant district attorneys, the

Defendant’s trial was held on August 25, 2009.
At trial, both the principal and the school resource officer from the Defendant’s high

school testified regarding the charges against the Defendant, who was a high school student

at the time of the offense. The principal explained that the Defendant was found to be in

1

possession of a pill, which was a violation of school policy. He conducted a search of the

Defendant’s person, and the search yielded additional pills: three in a napkin, nine in the

Defendant’s right shoe, and thirty in his left shoe. The principal asked the Defendant to write

a statement explaining why the pills were in his possession. In the statement, the Defendant

admitted that he purchased the pills and intended to sell them for a profit. The school

resource officer, Chris McNew, also testified, and his testimony essentially corroborated that

of the principal. The Defendant testified at trial. He explained that he made the inculpatory

statement about selling drugs at school because he just “told them what they wanted to hear.”

The Defendant testified that he had taken 18-24 of the pills in his possession while waiting

to speak with the principal and was “throwing up and passing out by the time he got to the

jail.” However, Officer McNew testified on rebuttal about the Defendant’s physical and

mental state during transport to jail, explaining that the Defendant seemed “completely okay

except for being scared.”

The jury convicted the Defendant of the charged offenses. On November 4, 2009,

through newly retained counsel, the Defendant filed two motions for new trial, alleging that

the State presented insufficient evidence to sustain his conviction and that the verdict was

against the weight of the evidence.

A sentencing hearing was held on November 5, 2009, and the court merged the

delivery charge into the sale charge and sentenced the Defendant to eight years in

confinement. On February 16, 2010, the Defendant filed a Motion For New Trial Date,

2

requesting a forty-five day extension of the date set for hearing the motion for new trial. The

unopposed motion was granted, and a hearing on the motion for new trial was set for March

15, 2010. The Defendant then filed a motion to supplement his motion for new trial on

March 9, 2010, alleging that he “received ineffective assistance of counsel at pretrial and trial

levels of his case.” That same day, the Defendant also filed another motion for a

continuance, this time requesting a sixty-day extension and explaining that his expert witness

was unavailable until mid-to-late April. On September 1, 2010, the Defendant filed an

additional amended motion for new trial, which specifically stated the grounds on which the

The trial testimony summarized here is gleaned fromthe trial court’s order denying the Defendant’s motion 1

for new trial because the trial transcript was not included in the record. Also, the principal is not referred

to by name because the principal is not referred to by name in the trial court’s order.

The judgment incorrectly reflects that the Defendant has a 30% release eligibility. However, the Defendant 2

actually has a release eligibility of 100% because he was convicted under the Drug Free School Zone Act. 

The judgment correctly reflects that the Defendant was convicted under the Drug Free School Zone Act.

-2-
Defendant alleged trial counsel was ineffective. The motion also requested that the court

“facilitate the interview by the psychologist with [the Defendant] to determine whether there

is crucial testimony that could be relevant and affect the issues before the court.” The court

granted the motion and ordered a full-contact visit between the Defendant and the

psychologist, Dr. James Murray.

I. New Trial Hearing

The hearing on the motion for new trial was held on January 4, 2011. The

Defendant’strial counsel testified that he had been practicing law approximately eleven years

and that he had previously worked as an assistant district attorney until going into private

practice in 2005. Trial counsel testified that he was retained by the Defendant’s mother, who

attended most of his meetings with the Defendant in the early stages. Trial counsel also

testified that when he was hired, the case was in felony sessions court, and “the school zone

portion of the case was not in play.” Trial counsel testified that he waived the preliminary

hearing in exchange for an earlier, open-file discovery, explaining that it was a common

practice in Knox County. Trial counsel explained that early in negotiations, the State offered

the Defendant a plea agreement for 10 years and said that he could apply for probation. Trial

counsel testified that the Defendant rejected this offer and consented to allow the case to

proceed to the grand jury.

Trial counsel admitted that he continuously told the Defendant and his family that he

was working on a plea agreement with the State and that he continued to work towards an

agreement with the State until the day of trial. Trial counsel explained that because the

Defendant did not have any prior convictions and was charged with a non-violent crime, he

believed that they could eventually reach a more favorable agreement with the State. Trial

counsel testified that he explained the charges against the Defendant, including the effect of

the Drug Free School Zone Act, to both him and his family. Trial counsel also testified that

he relayed to the Defendant the amount of time he faced if convicted of the offenses as

charged.

Trial counsel admitted that his ultimate trial strategy, to argue that the statement was

coerced and the Defendant was solely guilty of misdemeanor possession, was contradictory

to the handwritten statement the Defendant had given at school. Counsel explained that he

did not try to suppress the inculpatory statement because he could not conceive a legal theory

to keep the statement out. However, trial counsel did testify that he conducted legal research

to identify other viable defenses, albeit unsuccessfully.

The Defendant’s mother, Tama Monroe, also testified at the hearing. The essence of

her testimony was that trial counsel continuously told her and the Defendant that he would

-3-
not have to serve jail time, so the family was shocked when the Defendant was taken to jail.

Ms. Monroe also testified that both she and the Defendant were unaware that the trial would

actually proceed on the scheduled trial date because trial counsel assured them that the case

was “going to get worked out.” She explained that as the scheduled trial date approached,

trial counsel was “still saying that he’s going to file for diversion and that [the Defendant]

should get a year’s probation and then [get] it expunged.” Ms. Monroe testified that she was

at every meeting that trial counsel had with the Defendant, and trial counsel never mentioned

that the Defendant was charged with a violation of the Drug Free School Zone Act. She

explained that trial counsel “acted like he was as dumb as me when it c[a]me to the drug free

school zone[,]” and he never prepared the Defendant for his testimony at trial. Ms. Monroe

testified that she and the Defendant first learned of the possible eight-year sentence on the

morning of trial, and when the Defendant asked trial counsel if the sentence was eligible for

probation, he responded, “We’re going to have to go to trial.”

The Defendant’s father, Jerry Monroe, testified that he went to see trial counsel

around 4:30 p.m. or 5:30 p.m. the day before trial, and trial counsel assured him that

everything was taken care of and his son would not receive jail time. Mr. Monroe testified

that when he left trial counsel’s office, he was under the impression that the only remaining

issue to work out was the length of the Defendant’s probation. Mr. Monroe testified that he

was in shock when the trial commenced the following day, and he was never aware that the

Defendant was facing an 8 to 12 year sentence with mandatory imprisonment.

At the close of proof, the trial court explained that it was taking the matter under

advisement and would issue an order, including its findings of fact and conclusions of law,

after reviewing the trial notes.

II. Trial Court’s Order

The trial court issued a detailed order denying the Defendant’s motion for new trial

on January 20, 2011. First, the court summarized the evidence presented at trial. Then, the

trial court addressed each of the Defendant’s bases for alleging that trial counsel was

ineffective. The trial court stated that “the cases came out of the grand jury charging the

more serious school zone violations[; trial counsel] testified that he did meet with defendant

and explained the penalty, including the 100 % sentencing provision.” The trial court

explained that during its observations of the jury and overall trial, it noticed that the

Defendant lost his credibility with the jury when his testimony regarding his physical state

upon arrival at the jail was impeached by the transporting officer. In support of its denial,

the trial court issued the following findings of fact:

-4-
[T]rial counsel found out all there was to find out about [the Defendant’s]

case, that he conferred with the [D]efendant promptly and as frequently as

needed, that he correctly assessed the admissibility of the evidence, that he

conducted legal research, that he earnestly attempted to settle the case by

offering to plead guilty to a lesser offense, that he had a theory of defense, and

that he got his theory of defense, along with argument to support it, to the jury.

. . . Further, the [D]efendant has offered no evidence that but for counsel’s

ineffectiveness, the result in this case would have been different.

In sum, the court concluded, as a matter of law, that the Defendant did not receive ineffective

assistance of counsel and that its acceptance of the jury verdict was not error.

ANALYSIS

The Defendant contends that his trial counsel’s “near-complete lack of pretrial and

trial preparation” falls below the range of competence demanded of attorneys in criminal

cases, and it is the cumulative effect of many factors that indicate that counsel was not

adequately prepared. The Defendant cites a litany of factors that form the basis of his

3

ineffective assistance of counsel claim, but the essence of the claim is that “trial counsel

prepared his case purely for the purposes of trying to ‘work the case out.’” The State

4

responds that the trial court correctly found that the Defendant’s trial counsel was not

ineffective and that the Defendant failed to prove that trial counsel’s deficient performance

resulted in prejudice.

Although a defendant may raise an ineffective assistance of counsel claim on direct

appeal, this court has repeatedly noted that “the practice . . . is ‘fraught with peril’ since it ‘is

[typically] impossible to demonstrate prejudice as required’ . . . ” at this stage of the

proceedings. State v. Blackmon, 78 S.W.3d 322, 328 (Tenn. Crim. App. 2001) (citations

The Defendant’s briefsimply lists multiple actions or omissions by trial counsel, in bullet format, in support

3

of his claim that trial counsel was ineffective. However, these facts are only set out in the statement of facts

and are not listed with supporting authority or placed in the argument section of the brief, making appellate

review difficult. See Stacey Dewayne Ramsey v. State, No. W2006-01827-CCA-R3-PC, 2008WL 4117963,

at *5 (Tenn. Crim. App. Sept. 3, 2008). 

The trial court characterizes the factual bases for the Defendant’s argument that trial counsel was deficient 4

as follows: (1) trial counsel’s decision to waive the Defendant’s preliminary hearing in return for open-file

discovery at the Sessions Court level; (2) trial counsel’s failure to file pretrial motions, namely a motion to

suppress the Defendant’s inculpatory statement to school officials; (3) and general complaints that trial

counsel did not warn the Defendant or his family of the “great jeopardy” the Defendant was facing. 

-5-
omitted). Nevertheless, there is no prohibition against litigation of ineffective assistance of

counsel claims on direct appeal, as opposed to collateral proceedings. E.g., State v. Burns,

6 S.W.3d 453, 461-63 (Tenn. 1999) (granting relief in direct appeal on ineffective assistance

of counsel claim); see State v. James Paris Johnson, No. E2008-02555-CCA-R3-CD, 2010

WL 3565761, at *17 (Tenn. Crim. App. 2010).

The same standard applies to claims of ineffective assistance of counsel raised on

direct appeal and post-conviction proceedings. See Burns, 6 S.W.3d at 461 n.5 (emphasis

added). In a post-conviction proceeding, the burden is on the petitioner to prove the

underlying facts of counsel’s alleged error by clear and convincing evidence. Tenn. Code

Ann. § 40-30-110(f); Dellinger v. State, 279 S.W.3d 282, 293 (Tenn. 2009). Once a

defendant/petitioner establishes the fact of counsel’s alleged error, the trial court must

determine whether the errors resulted in the ineffective assistance of counsel. Dellinger, 279

S.W.3d at 293; see Strickland v. Washington, 466 U.S. 668, 687 (1984).

On appeal, we are bound by the trial court’s findings of fact unless we conclude that

the evidence in the record preponderates against those findings. Fields v. State, 40 S.W.3d

450, 456-57 (Tenn. 2001). Because they relate to mixed questions of law and fact, we review

the trial court’s conclusions as to whether counsel’s performance was deficient and whether

that deficiency was prejudicial under a de novo standard with no presumption of correctness.

Id. at 457.

Under the Sixth Amendment to the United States Constitution, when a claim of

ineffective assistance of counsel is made, the burden is on the defendant to show (1) that

counsel’s performance was deficient and (2) that the deficiency was prejudicial. Strickland,

466 U.S. at 687; see also Lockart v. Fretwell, 506 U.S. 364, 368-372 (1993). In other words,

a showing that counsel’s performance was deficient is not enough; rather, the defendant must

also show that but for counsel’s deficient performance, “the result of the proceeding would

have been different.” Strickland, 466 U.S. at 694. The Strickland standard has been applied

to the right to counsel under article I, section 9 of the Tennessee Constitution. State v.

Melson, 772 S.W.2d 417, 419 n. 2 (Tenn.1989).

A defendant will only prevail on a claim of ineffective assistance of counsel after

satisfying both prongs of the Strickland test. See Henley v. State, 960 S.W.2d 572, 580

(Tenn. 1997). The performance prong requires a defendant raising a claim of ineffectiveness

to show that the counsel’s representation fell below an objective standard of reasonableness

or was “outside the wide range of professionally competent assistance.” Strickland, 466 U.S.

at 690. The prejudice prong requires a defendant to demonstrate that “there is a reasonable

probability that, but for counsel’s professional errors, the result of the proceeding would have

been different.” Id. at 694. “A reasonable probability means a probability sufficient to

-6-
undermine confidence in the outcome.” Id. Failure to satisfy either prong results in the denial

of relief. Id. at 697.

In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that

attorneys should be held to the general standard of whether the services rendered were within

the range of competence demanded of attorneys in criminal cases. Id. Further, the court

stated that the range of competence was to be measured by the duties and criteria set forth

in Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974), and United States v.

DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). In reviewing counsel’s conduct, a “fair

assessment of attorney performance requires that every effort be made to eliminate the

distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466

U.S. at 689. “Thus, the fact that a particular strategy or tactic failed or even hurt the defense

does not, alone, support a claim of ineffective assistance.” Cooper v. State, 847 S.W.2d 521,

528 (Tenn. Crim. App. 1992). Deference is made to trial strategy or tactical choices if they

are informed ones based upon adequate preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn.

1982); see also DeCoster, 487 F.2d at 1201.

The Defendant essentially argues that the cumulative effect of all counsel’s errors

resulted in prejudice, referring this court back to the twenty-nine bulleted factual statements

recited in the facts section of his brief. However, the trial court found as a matter of law that

counsel was not deficient, and without a finding of deficiency, a prejudice analysis is not

warranted. We conclude from our review of the record that the evidence does not

preponderate against the trial court’s findings. The trial court accredited trial counsel’s

testimony, concluding that trial counsel found “all there was to find out about the

Defendant’s case, that he conferred with the Defendant promptly and asfrequently as needed,

that he correctly assessed the admissibility of the evidence, that he conducted legal research,

that he earnestly attempted to settle the case by offering to plead guilty to a lesser offense,

that he had a theory of defense, and that he got his theory of the defense, along with

argument to support it, to the jury.” In accrediting trial counsel’s testimony, the trial court

also implicitly found that trial counsel advised the Defendant of the sentencing range of the

Drug Free School Zone statute. Additionally, the trial court found that the Defendant offered

no evidence that he was prejudiced by trial counsel’s alleged ineffectiveness. When a

defendant fails to establish prejudice, the ineffective assistance claim necessarily fails. See

Strickland, 466 U.S. at 697.

The only specific argument in the record that even alludes to prejudice is the assertion

that trial counsel failed to file a motion to suppress. Trial counsel admitted under oath that

if he had filed a motion to suppress, and it had been granted, the outcome of the case would

have been different. However, the court stated in its findings that trial counsel correctly

-7-
determined that the Defendant’s inculpatory statement would not have been suppressed.

Thus, the Defendant’s argument that trial counsel’s failure to file a motion to suppress does

not rise to the level of prejudice because the standard requires a defendant to illustrate that

“there is a reasonable probability that, but for counsel’s professional errors, the result of the

proceeding would have been different.” Id. at 694. (emphasis added). “A reasonable

probability means a probability sufficient to undermine confidence in the outcome.” Id.

Because the court agreed with trial counsel, finding as a matter of law that there was no

viable legal argument to support suppression, the Defendant has not shown that counsel’s

failure to file the motion resulted in prejudice.

Regarding the remaining list of bulleted facts the Defendant cites in the facts section

of his brief supporting his claim, because the Defendant failed to explain how trial counsel’s

acts or omissions were deficient, or resulted in prejudice, they also fail. See id.; see also

5

Stacey Dewayne Ramsey v. State, No. W2006-01827-CCA-R3-PC, 2008 WL 4117963, at

*5 (Tenn. Crim. App. Sept. 3, 2008) (explaining the “shotgun approach” to brief writing and

that the petitioner’s brief was an unsuccessful example of this approach; finding that the

Defendant’s brief raised a multitude of claims of ineffective assistance, in bullet form,

without citation to the record or supporting authority, or any argument as to why the action

or inaction of counsel was deficient, or how the alleged deficiency prejudiced the petitioner;

and explaining that because of the nature of the petitioner’s brief, it was not necessary to set

out each of the petitioner’s numerous allegations in detail). Accordingly, we conclude that

the Defendant was not denied the effective assistance of counsel and that he is not entitled

to relief on this issue.

Following our review of the record, we note that the judgment incorrectly reflects that

the Defendant is eligible for release after serving thirty percent of his sentence. However,

asthe judgment reflects, the Defendant was convicted pursuant to the Drug Free School Zone

Act, which requires 100 percent service. The record clearly reflects that the Defendant must

serve the entire eight-year sentence before being eligible for release. Accordingly, we

remand the case to the trial court for entry of the corrected judgment reflecting the release

eligibility as imposed by the trial court at the sentencing hearing.

CONCLUSION

In consideration of the foregoing and the record as a whole, the judgment of the trial

court is affirmed. The case is remanded to the trial court for entry of the corrected judgment,

The Defendant also uses the same “list of bulleted facts” approach in his Post-Hearing Memorandum In 5

Support Of Motion For New Trial.

-8-
as provided in this opinion.

________________________________

D. KELLY THOMAS, JR., JUDGE

-9-