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Davenport v. State

Court of Criminal Appeals of Tennessee, Knoxville

March 6, 2017


          Assigned on Briefs November 16, 2016

         Appeal from the Criminal Court for Cumberland County No. 12-0320 David A. Patterson, Judge.

         The 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 court.

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

          Jeffrey A. Vires, Crossville, Tennessee, for the appellant, Donnie Davenport.

          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.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Timothy L. Easter, JJ., joined.



         The 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).

         At the 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.

         Relative 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.

         The 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.

         When 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.

         The 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 ...

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