Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs August 16, 2016
from the Criminal Court for Knox County No. 104823 Steven W.
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.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Liddell Kirk, Knoxville, Tennessee, for the appellant,
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.
McGee Ogle, J., delivered the opinion of the court, in which
James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ.,
MCGEE OGLE, JUDGE
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).
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.
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 ...