Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs March 21, 2017
from the Criminal Court for Knox County No. 106314 Steven
Wayne Sword, Judge
petitioner, Roderick McAlpin, appeals the denial of his
post-conviction petition, arguing the post-conviction court
erred in finding he received effective assistance of counsel
at trial. Following our review, we affirm the denial of the
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
M. Jeffress, Knoxville, Tennessee, for the appellant,
Roderick Jermaine McAlpin.
Herbert H. Slatery III, Attorney General and Reporter; Lacy
Wilber, Assistant Attorney General; Charme P. Allen, District
Attorney General; and Philip H. Morton, Assistant District
Attorney General, for the appellee, State of Tennessee.
Ross Dyer, J., delivered the opinion of the court, in which
John Everett Williams and Timothy L. Easter, JJ., joined.
ROSS DYER, JUDGE
County jury found the petitioner guilty of four felony drug
offenses and the offense of criminal trespass for acts
committed on September 11, 2012. The drug convictions
consisted of possession with intent to sell more than 0.5
grams of cocaine within 1000 feet of a public school,
possession with intent to deliver more than 0.5 grams of
cocaine within 1000 feet of a public school, possession with
intent to sell more than 0.5 grams of cocaine within 1000
feet of a child care agency, and possession with intent to
deliver more than 0.5 grams of cocaine within 1000 feet of a
child care agency. The trial court merged the four
convictions into one Class A felony conviction for possession
of more than 0.5 grams of cocaine with the intent to sell
within 1000 feet of a public school. The trial court imposed
an effective sixteen-year sentence to be served at one
hundred percent pursuant to the enhancements afforded under
the Drug-Free School Zone Act, and the petitioner
appealed. Tenn. Code Ann. § 39-17-432.
direct appeal, this Court summarized the factual and
procedural history of the petitioner's case as follows:
Officer Joel Ascencio of the Knoxville Police Department
testified that on September 11, 2012, he was patrolling the
area of the Western Heights housing project. At around 3:30
a.m., he observed [the petitioner] walking between some
buildings. Officer Ascencio approached [the petitioner] to
ask if he lived there. Officer Ascencio testified that the
area is a "high crime" area and that the housing
project maintains a "no trespass list" to keep
non-residents from being on the property. As Officer Ascencio
approached [the petitioner], he saw [the petitioner] make a
throwing motion with his hand. Officer Ascencio asked [the
petitioner] if he lived there. [The petitioner] had a strong
odor of alcohol on his breath. Officer Ascencio discovered
that [the petitioner] was on the no trespass list and had
already been "served" with notice not to trespass.
Officer Ascencio told [the petitioner] to sit on the curb in
front of his cruiser while Officer Ascencio waited for
another officer to arrive. Officer Ascencio walked over to
the area where [the petitioner] had been standing and found a
bag of crack cocaine lying in the grass. He testified that
the bag was on top of the grass and was "not embedded at
all." Officer Ascencio testified that less than ten
minutes had elapsed between the time he saw [the petitioner]
make the throwing motion and the time he found the crack
cocaine. Officer Ascencio did not see any other pedestrians
or motorists in the area at the time. [The petitioner] did
not have any drug paraphernalia on his person. Officer
Ascencio used a field test kit to weigh the crack cocaine,
which weighed 2.8 grams. Officer Ascencio testified that the
consistency and size of the individual rocks indicated to him
that they were intended to be sold or delivered.
Sergeant Joshua Shaffer was qualified by the trial court to
testify as an expert in the area of drug investigation.
Sergeant Shaffer examined the crack cocaine found by Officer
Ascencio. He determined that the crack cocaine was
"probably freshly cooked" because there was
"still quite a bit of what appears to be particles
sticking probably from the moisture." Sergeant Shaffer
testified that the bag contained one "larger chunk"
and "some smaller individual pieces that ha[d] been
broken off." Sergeant Shaffer testified that an
individual "rock, " weighing .1 to .2 grams would
be worth $20. He estimated the value of the crack cocaine
found by Officer Ascencio, once broken into individual rocks,
would be worth between $280 and $560, depending on the size
and number of individual rocks. Sergeant Shaffer opined that
based on his examination of the evidence, the crack cocaine
was intended for sale or delivery.
State v. Roderick Jermaine McAlpin, No.
E2013-02267-CCA-R3-CD, 2014 WL 4952790, at *1-2 (Tenn. Crim.
App. Oct. 2, 2014), perm. app. denied (Tenn. Jan.
16, 2015). After its review, this Court upheld the rulings of
the trial court, noting the evidence produced at trial was
sufficient to support the petitioner's convictions and
the trial ...