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Graham v. Perry

Court of Criminal Appeals of Tennessee, Jackson

November 16, 2016

CHARLES GRAHAM, aka CHARLES STEVENSON
v.
GRADY PERRY, WARDEN

          Assigned on Briefs September 7, 2016

         Appeal from the Circuit Court for Hardeman County No. 2016-CR-52 Joseph H. Walker III, Judge

         The Petitioner, Charles Graham a/k/a Charles Stevenson, appeals as of right from the Hardeman County Circuit Court's summary dismissal of his petition for a writ of habeas corpus. In his petition, the Petitioner argued that his conviction for simple possession was improperly enhanced and that his conviction for tampering with evidence was invalid because the evidence was not destroyed. On appeal, the Petitioner contends that his conviction for simple possession is void because the trial court unlawfully relied on forty-year-old convictions from other states to enhance his sentence. Also, he argues that the trial court clerk's failure to include the judgment form for his simple possession charge in the record on direct appeal denied the Petitioner consideration of the merits of his direct appeal. Finally, the Petitioner argues that the cumulative effect of these two errors results in structural constitutional error, which invalidates his conviction for tampering with evidence. Following our review, we affirm the dismissal order of the habeas corpus court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Charles Graham a/k/a Charles Stevenson, Whiteville, Tennessee, Pro Se.

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

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle, and Robert W. Wedemeyer, JJ., joined.

          OPINION

          D. KELLY THOMAS, JR., JUDGE

         FACTUAL BACKGROUND

         In its opinion affirming the habeas corpus court's summary dismissal of the Petitioner's first petition, this court summarized the factual and procedural background as follows:

Following the Petitioner's involvement in a May 27, 2004 car crash, officers removed marijuana from inside the Petitioner's vehicle, showed it to him, and laid it on the trunk of the vehicle. See State v. Charles Edward Graham, No. E2005-02937-CCA-R3-CD, 2008 WL 199851, at *1-4, *11 (Tenn. Crim. App. Jan. 24, 2008), perm. app. denied (Tenn. Sept. 15, 2008). According to Officer Shane Watson of the Knoxville Police Department, the Petitioner "suddenly reached out and grabbed one of the marijuana cigarettes and attempted to crush it in his hands." Id. at *11. "The officers were eventually able to get the marijuana cigarette out of [the Petitioner's] hand, but it was broken into pieces." Id. Officer Watson stated that "they were able to recover most of the marijuana from the ground but were not able to retrieve all of the contraband." Id.
The Petitioner was indicted by the Knox County Grand Jury in November of 2004 for vehicular assault, driving under the influence, tampering with evidence, simple possession of a controlled substance, resisting arrest, and failure to provide proper evidence of financial responsibility. See Graham, 2008 WL 199851, at *4. At the conclusion of a jury trial, the Petitioner was found guilty of reckless aggravated assault as a lesser-included offense of vehicular assault, tampering with evidence, possession of marijuana, and failure to provide proof of financial responsibility. Id. The jury found the Petitioner not guilty of driving under the influence and resisting arrest. Id. The Petitioner was sentenced as a career offender to twelve years for reckless aggravated assault, fifteen years for tampering with evidence, six years for possession of marijuana, and ordered to pay a $100 fine for failure to provide proof of financial responsibility. Id. at *1. The sentences for reckless aggravated assault and tampering with evidence were ordered to run consecutively to each other but concurrently with the remaining sentences, resulting in a total effective sentence of twenty-seven years. Id.
In his direct appeal to this court, the Petitioner raised multiple issues, including a challenge to the sufficiency of the evidence supporting his tampering with evidence conviction. Id. *9. . . . This court determined that the evidence was sufficient to support the Petitioner's conviction. Id. at *11. The Petitioner's remaining issues were likewise found to be without merit, and his convictions and effective sentence were affirmed. The Tennessee Supreme Court denied the Petitioner's application for permission to appeal.
The Petitioner then filed a timely petition for post-conviction relief alleging that his convictions resulted from the ineffective assistance of counsel. Following an evidentiary hearing, the post-conviction court denied relief. This court affirmed the post-conviction court's denial of relief. See Charles Edward Graham v. State, No. E2010-02379-CCA-R3-PC, 2012 WL 344936 (Tenn. Crim. App. Feb. 3, 2012), perm. app. denied (Tenn. May 21, 2012). Subsequently, in August 2012, the Petitioner filed a petition for writ of error coram nobis, alleging as newly discovered evidence the judicial misconduct and incompetency of the judge who presided over the Petitioner's trial and post-conviction proceedings. The coram nobis court denied relief, and this court affirmed on appeal pursuant to Rule 20 of the Rules of the ...

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