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McMurry v. State

Court of Criminal Appeals of Tennessee, Knoxville

December 12, 2016

HEATHER MCMURRY
v.
STATE OF TENNESSEE

          Assigned on Briefs August 16, 2016

         Appeal from the Criminal Court for Knox County No. 104823 Steven W. Sword, Judge

         The Petitioner, Heather McMurry, appeals the post-conviction court's denial of her petition for post-conviction relief from her convictions of numerous drug offenses within 1, 000 feet of a school zone and resulting effective twelve-year sentence with a mandatory eight years to be served in confinement. On appeal, the Petitioner contends that she received the ineffective assistance of trial counsel. Based upon the record and the parties' briefs, we affirm the judgment of the post-conviction court.

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

          J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Heather McMurry.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Charme P. Allen, District Attorney General; and Philip H. Morton, Assistant District Attorney General, for the appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE

         I. Factual Background

         According to this court's opinion from the Petitioner's direct appeal of her convictions,

[i]n July 2010, a confidential informant working for the Knoxville Police Department made three controlled drug buys of crack cocaine from the defendant at her Knoxville apartment. The defendant was arrested and her apartment searched, which resulted in the discovery of a small amount of crack cocaine and some drug paraphernalia. The Knox County Grand Jury subsequently returned a nine-count indictment charging the defendant with three counts each of the sale and delivery of less than .5 grams of cocaine within 1000 feet of a school zone, [two counts of] possession of less than .5 grams of cocaine with the intent to sell and deliver within 1000 feet of a school zone, and [one count of] possession of drug paraphernalia. The defendant pled guilty to the drug paraphernalia charge and proceeded to trial on the remaining counts of the indictment.

State v. Heather McMurray, No. E2012-02637-CCA-R3-CD, 2013 WL 6623747, at *1 (Tenn. Crim. App. at Knoxville, Dec. 16, 2013). In November 2011, the jury convicted the Petitioner of the remaining eight counts, all Class B felonies. After a sentencing hearing, the trial court sentenced her as Range I, standard offender to twelve years for each felony and eleven months, twenty-nine days for possession of drug paraphernalia, a Class A misdemeanor. The court merged each conviction of delivering cocaine into its corresponding conviction of selling cocaine and merged the two convictions of possessing cocaine. The court ordered that the Petitioner serve the sentences concurrently for a total effective sentence of twelve years with a mandatory eight years to be served in confinement due to the fact that the offenses were committed in a school zone. See Tenn. Code Ann. § 39-17-432(d).

         Subsequently, the Petitioner filed a petition for post-conviction relief, claiming that she received the ineffective assistance of trial counsel. The post-conviction court appointed counsel, and counsel filed an amended petition, alleging that the Petitioner received the ineffective assistance of counsel because trial counsel failed to communicate a ten-year plea offer to her, failed to obtain discovery in time for adequate trial preparation, and failed to challenge the admissibility of her inculpatory statement to police.

         At the evidentiary hearing, the Petitioner testified that trial counsel represented her in general sessions and criminal court. While the Petitioner was in jail, counsel played for her an audio recording of the drug transactions and a video recording of her statement to police. The Petitioner said that she was "extremely intoxicated" from her use of crack cocaine, marijuana, and ...


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