Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs November 16, 2016
from the Criminal Court for Cumberland County No. 12-0320
David A. Patterson, Judge.
Petitioner, Donnie Davenport, appeals from the Cumberland
County Criminal Court's denial of his petition for
post-conviction relief from his jury trial conviction of
promotion of the manufacture of methamphetamine, for which he
is serving a twelve-year, Range III sentence. He contends
that the post-conviction court erred in denying his claim,
which is premised upon ineffective assistance of counsel
allegations. We affirm the judgment of the post-conviction
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Jeffrey A. Vires, Crossville, Tennessee, for the appellant,
Herbert H. Slatery III, Attorney General and Reporter; Lacy
Wilber, Senior Counsel; Bryant C. Dunaway, District Attorney
General; Amanda Worley, Assistant District Attorney General,
for the appellee, State of Tennessee.
H. Montgomery, Jr., J., delivered the opinion of the court,
in which D. Kelly Thomas, Jr., and Timothy L. Easter, JJ.,
H. MONTGOMERY, JR., JUDGE
Petitioner raised three allegations of ineffective assistance
of counsel that are pertinent to this appeal: (1) failure to
meet with the Petitioner to formulate a defense before the
trial, (2) failure to file a motion to suppress evidence, and
(3) failure to advise the Petitioner that he could be
impeached with his prior convictions if he testified at the
trial. In the conviction proceedings, trial counsel did not
file a motion for a new trial or a notice of appeal. The
Petitioner eventually filed a petition for post-conviction
relief and a motion for a delayed appeal. The trial court
granted the motion for a delayed appeal and stayed the
post-conviction action until the delayed appeal was resolved.
This court denied relief on the merits of the
Petitioner's delayed appeal of the conviction. State
v. Donnie Dewayne Davenport, No.
E2014-02545-CCA-R3-CD, 2015 WL 5925118, at *1, 3 (Tenn. Crim.
App. Oct. 12, 2015).
post-conviction hearing, the Petitioner testified that trial
counsel visited him once at the jail before the trial and
that the meeting lasted about fifteen minutes. He said he met
with counsel once outside the courtroom for about ten to
fifteen minutes. The Petitioner stated that these were his
only pretrial meetings with counsel. The Petitioner said
counsel told him that he "had better take this charge,
better do this and that." The Petitioner said,
"Mostly he just threatened me with what they had offered
me, told me I had better take it." The Petitioner said
the offer was for six years as a Range II offender, and he
acknowledged that he knew he could receive a greater sentence
if he were convicted at a trial. The Petitioner said he told
counsel that he would not accept the plea offer because he
was not guilty.
to filing a motion to suppress, the Petitioner testified that
he asked trial counsel "a bunch of stuff" that the
Petitioner could not remember. He said counsel acted as if he
could not or would not file a suppression motion.
Petitioner testified that although he brought things to trial
counsel's attention during the trial, counsel did not
mention them in the proceedings. The Petitioner said he asked
counsel if the State had tested a bottle that was recovered.
The Petitioner said that the State's theory was that he
had used the bottle to manufacture methamphetamine but that
he had actually used it to hold gasoline, which he used to
burn debris. The Petitioner said counsel did not take any
action on his inquiry about having it tested. He said he had
wanted counsel to ask the jury if they had the same items at
their homes, such as turkey basters and ice packs, which the
State alleged were components the Petitioner used to
manufacture methamphetamine. The Petitioner complained that
counsel just sat and looked at a piece of paper and did not
speak up during the trial. He acknowledged, though, that
counsel had cross-examined a law enforcement officer about
whether some of the items the police recovered were commonly
used to make methamphetamine.
shown a petition for trial counsel's attorney's fees,
the Petitioner stated that he had spoken with counsel for two
or three minutes at the courthouse and that the only time
counsel spent any length of time with him was in their one
meeting at the jail. When asked about a statement in his pro
se and his amended petitions that said counsel did not talk
to the Petitioner until the day of the trial, however, the
Petitioner testified that counsel had not talked to him until
the day of the trial, notwithstanding his previous testimony
about the jail meeting and brief courthouse discussions. He
later said that counsel had not talked to him "like he
should have . . . about the trial" and instead had
talked about the plea offer.
Petitioner testified that he did not own the property where
he encountered police officers. He said he had lived in a
tent in the woods after being released from incarceration and
that after a year, he bought a camper and moved to the
property in question. He said a person, whom he did not
identify, had given him permission to stay there in exchange
for cleaning the property after a trailer fire. He said he
cleaned the property ...