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Perry v. State

Court of Criminal Appeals of Tennessee, Jackson

January 15, 2015

FRAZIER PERRY
v.
STATE OF TENNESSEE

Assigned on Briefs December 2, 2014

Appeal from the Circuit Court for Dyer County No. 11-CR-462 Russell Lee Moore, Jr., Judge

Milly Worley, Dyersburg, Tennessee, for the appellant, Frazier Perry.

Herbert H. Slatery, III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Roger A. Page, JJ., joined.

OPINION

D. KELLY THOMAS, JR., JUDGE

FACTUAL BACKGROUND

The Petitioner was indicted in December 2011, on two counts of selling 0.5 grams or more of cocaine within 1, 000 feet of a school. See Tenn. Code Ann. §§ 39-17-417, -432. The State filed a written notice of its intent to have the Petitioner sentenced as a habitual drug offender. See Tenn. Code Ann. § 39-17-417(l). As explained at the plea submission hearing, the Petitioner, if sentenced as a habitual drug offender, faced Range III sentences of between twenty and thirty years which would be served at 100 percent because both offenses occurred within 1, 000 feet of a school. See Tenn. Code Ann. §§ 39-17-417(l)(3), -432(c).

Shortly before the scheduled trial date, the Petitioner accepted a plea agreement from the State. The Petitioner agreed to plead guilty to both counts in exchange for concurrent sentences of twelve years. The State also agreed not to pursue the drug-free school zone violations; therefore, the Petitioner's sentence would be served at thirty-five percent rather than 100 percent. The factual basis for the plea agreement was that in July 2011, the Dyersburg Police Department conducted two "controlled buys" using the same confidential informant. On each occasion, the informant gave the Petitioner fifty dollars in exchange for more than 0.5 grams of cocaine. The exchanges were recorded and videotaped.

At the plea submission hearing, the Petitioner stated under oath that the factual basis provided by the State was correct. The trial court reviewed the details of the plea agreement with the Petitioner, and the Petitioner stated that he understood the agreement and was voluntarily pleading guilty to the charges. The Petitioner also stated that trial counsel had done everything he had asked him to do and answered "all the questions" he had about the charges and the plea agreement. The Petitioner stated that he was satisfied with trial counsel's representation of him.

The judgments against the Petitioner were entered on July 9, 2012. On May 23, 2013, the Petitioner filed a pro se petition for post-conviction relief. Counsel was appointed, and an amended petition was filed. The petitions contended that the Petitioner's guilty pleas were not knowingly and voluntarily entered due to the ineffective assistance of trial counsel. The petitions alleged that trial counsel had failed to advise the Petitioner of the elements of the offenses and possible sentences, failed to properly investigate the case and interview potential witnesses, failed to investigate the confidential informant used by the police, and failed to review the video surveillance of the drug buys.

Trial counsel testified that he met with the Petitioner on a number of occasions to discuss the case and that he also met with the Petitioner's wife "on numerous occasions." Trial counsel further testified that he reviewed with the Petitioner the charges and the possible sentences. Trial counsel also reviewed the video surveillance of the drug buys with the Petitioner and his wife. Trial counsel recalled the Petitioner's wife viewed the videos and "that she identified [the Petitioner] and . . . [told trial counsel] how clear it was to her." Trial counsel further testified that he could not recall any "problem with the continuity of the video." Trial counsel testified that he also reviewed with the Petitioner the police reports, information regarding the confidential informant used in the controlled buys, and maps showing that each exchange occurred within 1, 000 feet of a school.

Trial counsel testified that the State's initial plea offer was for concurrent twelve-year sentences on both counts to be served at 100 percent, which the Petitioner rejected. According to trial counsel, when the State filed its notice to have the Petitioner sentenced as a habitual drug offender, he spoke with the Petitioner and explained the possible sentence ranges and that they would have to be served at 100 percent. Trial counsel testified that the Petitioner said that he could not "risk twenty years at [100] percent." According to trial counsel, he then negotiated directly with the District Attorney, circumventing the assistant district attorney assigned to the case, to secure the plea agreement that the Petitioner ultimately accepted. Trial counsel recalled that the Petitioner "was quite happy" with the plea agreement he secured.

The Petitioner testified that he met with trial counsel a total of five times, often shortly before court proceedings, and that trial counsel frequently "would tell [the Petitioner] that he was coming down [to the jail], but would never show up." The Petitioner claimed that trial counsel repeatedly told him "to go to trial because there was nothing that [he] had to worry about" and that the police often used confidential informants "to try to set people up." The Petitioner testified that he was adamant that he wanted to take his case to trial. The Petitioner claimed that trial counsel agreed with him until they met "a couple of days" before the trial was scheduled to start, and trial counsel showed the Petitioner information "regarding the additional sentencing or the enhanced sentencing." The Petitioner testified that trial counsel then ...


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