Court of Criminal Appeals of Tennessee, Nashville
CHRISTOPHER M. MIMMS
STATE OF TENNESSEE
Assigned on Briefs May 13, 2015
Appeal from the Circuit Court for Montgomery County No. 40901172 Michael R. Jones, Judge
James Kevin Cartwright, Clarksville, Tennessee, for the appellant, Christopher M. Mimms.
Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant Attorney General; John W. Carney, District Attorney General; and Helen Young, Assistant District Attorney General, for the appellee, State of Tennessee.
James Curwood Witt, Jr., J., delivered the opinion of the court, in which Robert L. Holloway, Jr., and Robert H. Montgomery, Jr., JJ., joined.
JAMES CURWOOD WITT, JR., JUDGE
A Montgomery County Circuit Court jury convicted the petitioner, who had originally been charged with eight drug-related offenses, of two counts of the sale of .5 grams or more of cocaine, one of which occurred within a drug-free school zone. The State dismissed one of the counts prior to trial, and the jury failed to return verdicts on the remaining counts. See State v. Christopher M. Mimms, No. M2011-02712-CCA-R3-CD, slip op. at 2 (Tenn. Crim. App., Nashville, Feb. 8, 2013), perm. app. denied (Tenn. June 12, 2013). The evidence adduced at the petitioner's trial, with respect to the conviction offenses (counts one and five of the indictment), established that the petitioner engaged in two controlled cocaine transactions with a confidential informant and that one of those transactions occurred in the parking lot of a convenience store that was less than 1, 000 feet from Norman Smith Elementary School. See id., slip op. at 3, 5, 6. On direct appeal, the petitioner challenged the sufficiency of the evidence supporting the jury's finding that the second offense occurred in a drug-free school zone, the instructions provided to the jury, and the introduction of certain testimony. See id., slip op. at 1. We deemed the evidence sufficient to support both of the petitioner's convictions and concluded that the petitioner had waived his challenges to the jury instructions "by failing to include a complete copy of the transcript of the jury instructions and verdict forms, and by failing to make a contemporaneous objection at trial." Id., slip op. at 10. We also concluded that the petitioner had waived his evidentiary challenge by failing to lodge a contemporaneous objection. See id., slip op. at 11-12.
On September 20, 2013, the petitioner filed a petition for post-conviction relief, alleging that he had been deprived of the effective assistance of counsel at trial and on appeal.
At the July 17, 2014 evidentiary hearing, the petitioner testified that on the Friday before his trial began, his trial counsel contacted him to advise him that a plea offer had been made by the State. He said that he went to trial counsel's office to sign the agreement, which provided for a 10-year sentence to be served on probation, but that, at some point, "the deal went off." He explained, "I don't know what happened, but . . . [counsel] told me the deal was offered, and I told her I wanted that deal, and before I know it she told me they are going to set a trial date Monday." The petitioner claimed that counsel told him that the plea offer had been rescinded because "the informer was going to testify Monday." He said that he was unaware of any other offers from the State. The petitioner acknowledged his signature on a form indicating that he had rejected the State's 10-year offer, but he maintained that he did not intend to reject the offer and that he signed the form without reading it.
When asked by the State during cross-examination whether he recalled being in court when the prosecutor stated in front of him "that the State had offered eight years probated, that [the petitioner] had turned it down, " the petitioner replied, "I don't get no recall on that." The petitioner also could not recall that the State announced that the reason for the lenient plea offer was that the confidential informant was absent from the state. The petitioner also did not recall the prosecutor's statement that the offer would be withdrawn. When asked what he thought counsel should have done differently, the petitioner responded, "She could have held it back against me." The petitioner denied that he had rebuffed the State's offer and had "fussed at [trial counsel] for calling, because [he was] trying to have breakfast with [his] lady." Instead, the petitioner insisted that he wanted to accept the plea offer.
Trial counsel testified that she was appointed to represent the petitioner in October 2010 and that the two met "[u]pwards of 20" times before his March 2011 trial. She recalled that the State offered a sentence of eight years with one year to serve in exchange for the petitioner's plea of guilty and that she recommended that the petitioner accept the agreement. She said that the petitioner rejected that offer, and the State next made an offer that involved a fully-suspended sentence of 10 years. The petitioner rejected that offer as well, which caused her great concern. She said that she had the petitioner sign documents memorializing his rejection of the offers and that she had her legal secretary witness the petitioner's signature on each occasion. She said that she had the petitioner sign the documents because she "anticipated having a post[-]conviction proceeding if we went to trial." She said that the petitioner was not cooperative with her during the time that she represented him.
At the conclusion of the hearing, the post-conviction court took the case under advisement. The court denied relief via written order, concluding that the petitioner had failed to establish his claims by clear and convincing evidence. The court specifically accredited trial counsel's testimony that she informed the petitioner of the terms of the plea offer from the State and, relying on its own memory of the trial proceedings, noted that trial counsel "very carefully advised the [petitioner] of the possible consequences of a trial jury versus the offers from the [S]tate" and that "[t]he [p]etitioner 'rolled the dice' that the confidential informant either would not appear or would be helpful to him." The court concluded that its instructions to the jury regarding the lesser included offense of casual exchange were proper and that the failure to include that charge on the verdict form for one count was harmless because "the jury found the defendant guilty beyond a reasonable doubt of sale of cocaine." Additionally, the court observed that the absence of a casual exchange option in the verdict form would have been beyond counsel's control because it was the "court's custom not to provide counsel at trial with a copy of the verdict form. The first time either would know about the verdict form would be when it is read to the jury."
In this timely appeal, the petitioner reiterates his claims that counsel performed deficiently by failing to preserve for appeal his claim that the trial court erred with regard to the jury instructions on casual exchange as a lesser included offense of the sale of cocaine and by failing to ensure that the direct appeal record was adequate for review of that claim. He claims that the trial court's failure to adequately convey to the jury that casual exchange was a lesser included offense for each count charging the sale of cocaine, coupled with the inconsistent wording of the written jury instructions, made it unclear that casual exchange was actually a lesser included offense of each count charging the sale of cocaine. He argues that the trial court's error was compounded on count five of the indictment because the verdict form for that count did not include casual exchange among the conviction choices available to the jury. The State argues that the petitioner is not entitled to relief because he failed to establish that it was reasonably probable that the result of the direct appeal would have been different had counsel appropriately preserved the jury instruction issue for review.
We view the petitioner's claim with a few well-settled principles in mind. Post-conviction relief is available only "when the conviction or sentence is void or voidable because of the abridgement of any right guaranteed by the Constitution of Tennessee or the Constitution of the United States." T.C.A. § 40-30-103 (2006). A post-conviction petitioner bears the burden of proving his or her factual allegations by clear and convincing evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to the post-conviction court's findings of fact the weight of a jury verdict, and these findings are conclusive on appeal unless the evidence preponderates against them. Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 ...