Court of Criminal Appeals of Tennessee, Nashville
TINA M. DIXON
STATE OF TENNESSEE
Assigned on Briefs August 12, 2014
Direct Appeal from the Circuit Court for Humphreys County No. 12583 J.S. "Steve" Daniel, Judge
Andrew E. Mills, Dickson, Tennessee, for the appellant, Tina M. Dixon.
Robert E. Cooper, Jr., Attorney General & Reporter; Meredith DeVault, Senior Counsel; Dan Mitchum Alsobrooks, District Attorney General; and Craig Monsue, Assistant District Attorney General, for the appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.
NORMA MCGEE OGLE, JUDGE
I. Factual Background
The following facts are from this court's opinion in petitioner's direct appeal: Humphreys County Sheriff's Deputy Wesley Hagler went to the petitioner's residence to serve an attachment order that was issued by the juvenile court. He knocked on the front door, and a man gave him permission to enter. Once inside, he smelled the strong odor of marijuana. Deputy Hagler asked the man for the petitioner's whereabouts, and he was directed to the kitchen. Deputy Hagler entered the kitchen and saw the petitioner sitting at a table. After the petitioner identified herself, the deputy explained that he was there to serve an attachment order and take her to jail. Deputy Hagler took the petitioner to the porch and then asked about the smell of marijuana. The petitioner denied that marijuana was in or had been smoked in the residence. Detective Tony Ahne came to the porch and asked for permission to search the residence, which the petitioner refused. The officers and the petitioner waited for a patrol car to arrive to transport her to the jail. During the wait, the petitioner indicated that she wanted to speak with Sheriff Chris Davis. Sheriff Davis came to the scene and obtained the petitioner's permission to search the residence. While the officers searched, the petitioner led them to a back bedroom and revealed that drugs were in the nightstand. Therein, officers found a baggie containing powder cocaine, a baggie containing crack cocaine, a baggie containing marijuana, two empty plastic baggies, and some digital scales. The petitioner was arrested, and the case proceeded to trial. The petitioner was convicted of possession of not less than one-half ounce nor more than ten pounds of marijuana with intent to sell or deliver within 1000 feet of a school zone and possession of 0.5 grams or more of cocaine with intent to sell or deliver within 1000 feet of a school zone. The trial court imposed a total effective sentence of twenty years. State v. Tina M. Dixon, No. M2010-02382-CCA-R3-CD, 2012 Tenn. Crim. App. LEXIS 423, at *1, 13-15 (Nashville, June 21, 2012).
Following the petitioner's convictions, she filed a timely notice of appeal, raising the following issues:
(1) the trial court erred when it denied her motion to suppress because the attachment order upon which she was arrested was unlawfully issued; (2) the trial court erred when it denied her motion to set aside her verdict because she was not properly charged with the crimes for which she was convicted; (3) she was denied due process of law because the presiding trial judge had previously prosecuted her for burglary and felony theft charges; (4) she was denied due process of law because the Assistant District Attorney General who prosecuted her case had previously been her public defender when she was convicted of burglary and felony theft charges; and (5) the trial court erred when it enhanced her sentence.
Id. at *1-2. Upon review, this court affirmed the petitioner's convictions and sentences.
Thereafter, the petitioner filed a petition for post-conviction relief alleging that her trial counsel were ineffective. She asserted that counsel failed to properly address the issue of recusal of the trial judge and the prosecutor because of their prior relationship with the petitioner. The petitioner asserted that the trial judge, George Sexton, had been an assistant district attorney general in 1991 and had prosecuted her for burglary and theft and that the assistant district attorney general, Lisa Donegan, had been the petitioner's defense counsel in the 1991 cases. The petitioner further asserted that counsel failed to pursue a ruling on a "Motion for Additional Findings of Fact" that was filed after the denial of the petitioner's motion to suppress. Finally, the petitioner complained that trial counsel failed to disclose or discuss a plea offer made by the State.
At the post-conviction hearing, Edie Stainforth, the Chief Deputy Clerk of the Humphreys County Circuit Court, introduced certified judgments showing that the petitioner was convicted of burglary and theft in 1991; the convictions were the result of guilty pleas. Additionally, Stainforth introduced the 2010 judgments of conviction from which the petitioner seeks relief. Stainforth confirmed that Judge Sexton was the assistant district attorney general who prosecuted the petitioner in the 1991 cases and that General Donegan, who represented her in the 1991 cases, was the prosecutor in the 2010 case.
The petitioner's lead trial counsel testified that he was retained to represent the petitioner in 2010. Prior to trial, lead counsel filed a motion to suppress the evidence, alleging that the petitioner was arrested based upon a contempt order that did not have an "oath supporting the attachment." During the suppression hearing, the prosecutor sought to impeach the petitioner by asking whether she was convicted in 1991 of burglary and theft. The trial judge denied the suppression motion and issued a memorandum opinion supporting his ruling. Lead counsel thought the memorandum failed to address all of the issues raised in the petitioner's motion to suppress; accordingly, he filed a motion for additional findings of fact, particularly as it related to the validity of the writ of attachment. Lead counsel did not recall the trial judge's ruling on the motion.
Lead counsel said that prior to trial, the prosecutor conveyed a plea offer to him; however, lead counsel did not recall conveying the offer to the petitioner. Lead counsel did not recall advising the petitioner about the risks and benefits of a trial or of accepting a plea offer. He explained that he "was over confident" that the motion to suppress would be successful.
Lead counsel acknowledged that he knew Judge Sexton was the prosecutor in the 1991 cases and that General Donegan had represented the petitioner. Lead counsel stated that after trial and before the sentencing hearing, he filed a motion challenging the perceived conflict. Lead counsel said that his law partner, with ...