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Gauldin v. State

Court of Criminal Appeals of Tennessee, Jackson

November 7, 2016


          Assigned on Briefs at Knoxville July 26, 2016

         Appeal from the Circuit Court for Dyer County No. II-CR-167 R. Lee Moore, Jr., Judge

          Danny H. Goodman, Jr., Tiptonville, Tennessee, for the Petitioner, Brian Gauldin.

          Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; C. Phillip Bivens, District Attorney General; and Lance E. Webb, Assistant District Attorney General, for the Appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Robert H. Montgomery, Jr., J., joined.



         On December 21 and 22, 2010, the Petitioner sold drugs to a confidential informant. State v. Brian Gauldin, No. W2013-02226-CCA-R3-CD, slip op. at 2 (Tenn. Crim. App. Aug. 22, 2014), perm. app. denied (Tenn. Dec. 18, 2014). Each controlled drug sale occurred within 1000 feet of Scott Street Park, a registered city park in Dyer County, Tennessee. The substances purchased during the transactions were tested and found to be .55 grams of cocaine and .39 grams of cocaine. Brian Gauldin, slip op. at 1-2. The Petitioner was subsequently indicted by the Dyer County Grand Jury for two counts of the sale of less than .5 grams of cocaine in a drug free zone (counts one and four), one count of the sale of a schedule III controlled substance in a drug free zone (count two), and one count of the sale of .5 grams or more of cocaine in a drug free zone (count three). On May 30, 2012, a jury was unable to reach a verdict, and the trial court declared a mistrial. On July 2, 2013, the State chose to nolle prosequi counts one and two of the indictment. On July 3, 2013, a jury convicted the Petitioner as charged of the sale of .5 grams or more of cocaine in a drug free zone (count three) and the sale of cocaine under .5 grams in a drug free zone (count four). As a Range III, Persistent Offender, the Petitioner received an effective sentence of twenty years' incarceration. Id., slip op. at 1. This court affirmed the Petitioner's convictions on direct appeal.

         On August 13, 2015, the Petitioner filed a petition for post-conviction relief, alleging multiple grounds of relief based on ineffective assistance of counsel. The Petitioner was appointed counsel who filed an amended petition on the Petitioner's behalf.

         At the November 9, 2015 post-conviction hearing, the Petitioner testified that trial counsel represented him at his first trial, which resulted in a hung jury, his second trial and sentencing, and on direct appeal. The Petitioner stated that trial counsel did not thoroughly investigate the "issue dealing with Scott Street Park. [Trial counsel] allowed the State to show a picture of swing sets, barbecue grills, [and] a picture that was ten years ago [sic]." The Petitioner had lived "right across the street from the area" and claimed that it had been "an empty lot for about ten years." He believed that trial counsel should have obtained current photos of the area and presented them to the jury. The Petitioner said that he attempted to talk with trial counsel about the issue, but he could not recall trial counsel's response. Had there been current photos of the park presented at his trial, the Petitioner believed that he would have received "a little leniency."

         The Petitioner also believed that trial counsel should have investigated the difference between the amount of the drugs listed in the Tennessee Bureau of Investigation (TBI) reports in his first and second trial. The Petitioner did not understand why the listed weight of the drugs changed between his trials. The Petitioner believed the reports showed him to have "more drugs than what [he] was convicted of[.]" Four laboratory reports were admitted into evidence at the hearing. The first set of reports, both issued on February 15, 2011, listed drug amounts of 0.4 grams and 0.5 grams. The first set of reports was used during the Petitioner's first trial. The second set of reports, issued January 12, 2012 and March 28, 2012, listed drug amounts of 0.39 grams and 0.55 grams, respectively. The second set of reports was used in the Petitioner's second trial. Each set of reports analyzed the same drugs recovered from the offense. Asked if a witness from the TBI explained the difference in the reports at his trial, the Petitioner replied, "Nah, they didn't explain no difference . . . I would have known 55 grams is something you can't conceal in your hand." He attempted to explain his concern to trial counsel, but said that trial counsel did not understand him. The Petitioner believed an expert witness should have testified on his behalf to rebut the alleged disparity in the reports.

         In regard to sentencing, the Petitioner agreed that he had five prior convictions including three aggravated robberies, possession of contraband in a penal institution, and sale of .5 grams of cocaine. However, he believed that his three prior aggravated robbery convictions would be counted as one conviction because they were all committed on the same day, October 30, 1995. The Petitioner denied discussing his sentence range with trial counsel. Had he known that he would be sentenced as a Range III, Persistent Offender, the Petitioner would have pleaded guilty rather than proceed to trial.

         The Petitioner could not recall the entire composition of the jury panel at his trial. He remembered "seeing maybe two [African American jurors] that lived in the Scott Street Park area where they would understand what [he was] saying about this being used as a park." He was concerned because the African American jurors did not "make it up into the jury box, " but trial counsel told him that "he could talk to a whiter jury better or he could manipulate them a little better."

         On cross-examination, the Petitioner could not recall exhibits of photos taken of the park which were entered into evidence at his trial or a witness confirming that the photos were taken in May of 2012 and accurately depicted how the park looked at that time. The Petitioner also recalled the testimony of a TBI agent who testified during his second trial and explained the difference in the reports. He agreed that she said during the process of testing some of the drugs can be "used up, " which explains why, upon retesting, a sample weight can be reduced from .4 grams to .39 grams. She further stated that between the Petitioner's first and second trials, the TBI changed its reporting policy to require the number in the hundredths column after the decimal to be shown in their reports. The Petitioner also denied receiving a November 1, 2011 letter from his prior counsel advising him of his sentence range for each offense if he went to trial. The letter was hand delivered and specifically noted that, upon conviction for count three, the Petitioner would be classified as a Range III, Persistent Offender with a sentence range of twenty to thirty years, with the first twenty years to be served day for day.

         Trial counsel, a veteran criminal defense attorney who had been licensed to practice for over forty years, testified that he began to represent the Petitioner after the Petitioner's prior counsel filed "a motion for - to declare whether or not [the Petitioner] was a Range II or Range III Offender." Prior counsel filed a motion to withdraw following his interaction with the Petitioner at this hearing, and trial counsel was appointed. Trial counsel did not recall the outcome of the hearing, but requested permission from the court to investigate the sentence classification issue further. Counsel familiarized himself with the Petitioner's case, including his indictment, his prior convictions, the 24-hour rule, and the exceptions to it. Because the Petitioner's prior aggravated robbery offenses included the element of violence, counsel determined that they would be exceptions to the 24-hour rule and count as separate offenses. Regardless, counsel presented his arguments to the contrary to the trial court as well, which were subsequently denied. Counsel said he told the Petitioner he would be sentenced as a Range III, Persistent Offender before his first trial and again before the second trial. ...

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