Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs November 18, 2014
Direct Appeal from the Criminal Court for Knox County No. 102716 Bob R. McGee, Judge
J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Kenneth Eugene Black.
Herbert H. Slatery, III,, Attorney General and Reporter; Sophie S. Lee, Senior Counsel; Charme Allen, District Attorney General; and Sean McDermott, Assistant District Attorney General, for the appellee, State of Tennessee.
John Everett Williams, J., delivered the opinion of the Court, in which Robert W. Wedemeyer, and Timothy L. Easter, JJ., joined.
JOHN EVERETT WILLIAMS, JUDGE
We must glean the facts underlying the petitioner's convictions from the transcript of the post-conviction hearing, as the petitioner failed to include a transcript of the guilty plea hearing. We note that his failure to include that transcript puts the petitioner at risk for waiver of all issues.
The petitioner's convictions arose after he made two separate sales of heroin to a confidential informant. The following was stated by the post-conviction court with regard to the factual basis for the petitioner's convictions:
. . . let's take the audio/visual, he says it didn't show anything. The tapes didn't show anything, meaning that they did not actually show him handing the drugs to the CI or the CI actually handing the money to him. Those tapes rarely do. But they are very strong evidence supporting the testimony of the CI as well as the police officers who observed the transaction occur, who searched the CI before the sale and made sure that he or she doesn't have any money other than what the police give her or him. And that they have no drugs on them. And then they give the CI the money. The CI goes. The audio/visual shows the CI going to the [petitioner], connects them. And then they do whatever they do. And then he or she comes back to the police and gives them the drugs and doesn't have the money anymore. That's plenty strong enough to get a conviction. I've seen it happen over and over in this courtroom. That will support a conviction. And the police had that. And [trial counsel] correctly told the [petitioner] that that's strong evidence.
The petitioner was indicted for two counts of the sale of a controlled substance, heroin, in an amount greater than fifteen grams within one thousand feet of a public child care agency and two counts of delivery of a controlled substance over fifteen grams within one thousand feet of a child care agency. Pursuant to a plea agreement, the petitioner pled guilty to two counts of selling heroin within a school zone. The charges did not require proof of a specific amount of drugs. As part of the agreement, the petitioner received concurrent Range I sentences of eight years for each offense, the minimum sentence available. The sentences were to be served with the release eligibility status based upon the fact that the crimes occurred within one thousand feet of a school zone. No direct appeal was taken by the petitioner.
Thereafter, the petitioner filed the instant timely petition for post-conviction relief alleging that he was denied his right to the effective assistance of counsel, which resulted in his guilty plea being unknowing and involuntary. Following the appointment of counsel, an amended petition was also filed, and a hearing was held on the matter before the post-conviction court.
The first witness at the hearing, the petitioner, testified that he met with trial counsel on four occasions, once at the penal farm and three times at trial counsel's office. He stated that he was able to meet at trial counsel's office because trial counsel had secured pre-trial release for the petitioner. The petitioner stated that his wife accompanied him to those meetings that took place at trial counsel's office. He confirmed that, during those meetings, he and trial counsel discussed proceeding to trial, the strengths and weaknesses in the State's case, the elements of the charged offenses, and the possibility of a plea bargain. The petitioner also testified that trial counsel wanted him to give evidence against his supplier for a better deal.
The petitioner acknowledged that he viewed audio/visual recordings of the two controlled buys at trial counsel's office. He complained that the recordings did not show an actual transaction, and, thus, the State lacked proof of the crime. Nonetheless, he did acknowledge that it was him in the recordings. The petitioner also admitted that trial counsel explained to him that he could be convicted despite what was not shown on the tape, that the State's case was strong, that FBI and DEA agents would testify, and that he could possibly get sixteen to twenty years if convicted based upon consecutive sentencing. The petitioner noted that trial counsel specifically told him that he would likely be convicted at trial.
With regard to the factors that influenced his decision to accept the plea, the petitioner noted that his wife was pregnant at the time of the petitioner's arrest. He testified that, based upon the possible sentences, he would have been around sixty years old when he was released from prison. ...