Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs August 12, 2014
Appeal from the Criminal Court for Bedford County No. 17565 Lee Russell, Judge
James Ronald Tucker, Jr. (on appeal); and Forest A. Durard, Jr. (at hearing), Shelbyville, Tennessee, for the appellant, James Oscar Mason.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Robert Carter, District Attorney General; and Richard A. Cawley, Assistant District Attorney General, for the appellee, State of Tennessee.
James Curwood Witt, Jr., J., delivered the opinion of the Court, in which Norma McGee Ogle and D. Kelly Thomas, Jr., JJ., joined.
James Curwood Witt, Jr., Judge
On March 29, 2012, a Bedford County Circuit Court jury acquitted the petitioner of one count of the sale of a Schedule II controlled substance but convicted the petitioner of one count of the delivery of the same. The post-conviction court summarized the facts of the case as follows:
At trial it was proved that the 17th [Judicial] Drug Task Force provided a CI with $100.00. The CI contacted a David Bell about obtaining crack cocaine. Bell contacted [the petitioner] and his sister, who then drove up to Bell's residence in a white Impala registered to and driven by the [petitioner]. Crack cocaine was obtained from the passenger in the vehicle, the [petitioner's] sister. Subsequently the CI emerged from Bell's house with a plastic baggie containing the cocaine that had been obtained from the [petitioner and his sister]. After the white Impala was stopped, Shirley Mason confessed to Agent Shane George of the 17th Judicial Drug Task Force that she and her brother sold $100.00 worth of cocaine to Bell on the occasion when the [petitioner and his sister] were videoed at the Bell residence and that on the same occasion they sold $30.00 worth of crack cocaine to an Alonzo [sic] Snipes. [The petitioner] made no statement.
At the petitioner's sentencing hearing, the State put on proof, and, according to the post-conviction court's memorandum opinion, the petitioner "commenced what purported to be an allocution but which in fact was a denunciation of [trial counsel]." After receiving advice on his options, the petitioner stated that he wished to proceed directly to post-conviction relief as opposed to a direct appeal. The trial court permitted the petitioner's trial counsel to withdraw, and the court appointed new counsel to represent the petitioner. The petitioner's sentencing hearing was postponed until June 15, 2012, at which time the trial court sentenced the petitioner as a multiple offender to 10 years' incarceration. At the July 20, 2012 hearing on the petitioner's motion for new trial, the petitioner "was examined in open court, waived his appeal, and signed a Waiver of Appeal form."
Because the petitioner had filed a complaint with the Board of Professional Responsibility against his new attorney, the trial court permitted that attorney to withdraw from the case and appointed counsel to represent the petitioner in his pursuit of post-conviction relief. At an October 4, 2012 hearing, post-conviction counsel informed the court that the petitioner "was expressing dissatisfaction with [his] services, " but upon questioning at the hearing, the petitioner "insisted that he was fully satisfied with post-conviction counsel's representation of him." Although represented by post-conviction counsel, the petitioner filed a pro se petition for post-conviction relief on November 26, 2012, and the post-conviction court entered a preliminary order on December 20 appointing post-conviction counsel as the petitioner's post-conviction counsel. The petitioner filed an amended petition for post-conviction relief in February 2013 and a second amended post-conviction petition on March 28, 2013, alleging numerous instances of ineffective assistance of counsel.
At the evidentiary hearing, Alfonzo Snipes testified that he had lived in Bedford County for approximately 25 years and that he knew both the petitioner and the petitioner's sister, Shirley Mason. Mr. Snipes invoked his Fifth Amendment privilege against self-incrimination in response to questioning about whether he witnessed a drug transaction involving the petitioner and Ms. Mason on May 4, 2011. Mr. Snipes did state that, on May 4, 2011, he resided at 1782 Unionville Deason Road, but he could not recall whether he had been charged with any drug-related crime arising out of the events of May 4, 2011, and he denied that the petitioner sold anything to him on that date.
The petitioner testified that, after his case was sent to the grand jury following a preliminary hearing in general sessions court, he hired trial counsel to represent him in early December 2011. Between the time the petitioner hired trial counsel and the petitioner's trial on March 29, 2012, the petitioner met with trial counsel during approximately four court appearances and once at trial counsel's office on the afternoon before the trial. Through his testimony, the petitioner introduced into evidence records of telephone calls placed from his cellular telephone, which showed the petitioner had placed 34 calls to trial counsel between December 1, 2011 and March 19, 2012. The petitioner denied ever receiving a telephone call from trial counsel.
The petitioner stated that trial counsel did inquire whether the petitioner wanted him to subpoena any witnesses. The petitioner gave trial counsel the names of Mr. Snipes, Ms. Mason, and Mr. Greene, the petitioner's counsel at the general sessions court level, but none of these witnesses testified on the petitioner's behalf at trial. The petitioner informed trial counsel that, had Ms. Mason testified at trial, she would have stated that "the drug sale that they claiming that happened didn't ever even happen." The petitioner also testified that he expressed to trial counsel his wish that his case be consolidated with Ms. Mason's so "the truth would have been brought out that I knew nothing about no drugs or had, I got no money from the drugs, there was not even a drug sale."
The petitioner testified that trial counsel never provided him with a copy of his discovery materials, despite his repeated requests, and that he had never seen discovery materials until they were provided to him by post-conviction counsel. The petitioner stated that he decided to take his case to trial because he was unaware of the evidence against him and that, had he been provided with the discovery materials, he "probably could have made a very good, intelligent decision" about his course of action. The petitioner testified that trial counsel never discussed trial strategy or plea negotiations with him. The petitioner admitted that he had rejected a plea offer that ...