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Frazier v. State

Court of Criminal Appeals of Tennessee, Knoxville

August 14, 2017

CLEVELAND FRAZIER
v.
STATE OF TENNESSEE

          Assigned on Briefs July 25, 2017

         Appeal from the Criminal Court for Knox County No. 106577 Bob R. McGee, Judge

         The Petitioner, Cleveland Frazier, appeals the Knox County Criminal Court's denial of his petition for post-conviction relief from his 2015 guilty pleas to possession of less than 0.5 gram of cocaine in a school zone and possession of a firearm during the commission of a dangerous felony and his effective eleven-year sentence. The Petitioner contends that he received the ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

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

          Leslie M. Jeffress, Knoxville, Tennessee, for the appellant, Cleveland Frazier.

          Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel; Charme P. Allen, District Attorney General; and Hector Sanchez, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Alan E. GLENN and J. Ross Dyer, JJ., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE.

         This case arises from the Petitioner's April 20, 2015 guilty pleas pursuant to a negotiated agreement. The Petitioner's agreed-upon sentence was consecutive terms of eight years for the possession of cocaine in a school zone conviction and three years for the possession of a firearm during the commission of a dangerous felony conviction. T he guilty plea transcript is not included in the record on appeal.

         At the post-conviction hearing, the Petitioner testified that he pleaded guilty with an agreed sentence of eleven years at 100% service. He stated that the sentence consisted of eight years for a drug charge and three years for a firearms charge. He asked the post-conviction court to vacate his guilty pleas and allow him to have a jury trial. He stated that he understood he would be subject to the original charges "[d]rug-free zone, trespassing and in possession of firearm, " and that if he were convicted, he faced a sentence of fifteen to twenty-five years at 100% service. He said that counsel represented him for about six months, that he had three previous attorneys, and that he met with counsel three times, one of which was just before he entered his guilty pleas. The Petitioner stated that counsel did not ask him about the facts of the case. The Petitioner said he asked counsel whether he could be convicted, and counsel responded that if he took the case to trial, he would lose because a police officer's word alone was sufficient for a conviction. The Petitioner said that counsel told him about the plea offer and that the Petitioner wanted to talk to his family before accepting it.

         Relative to the facts of the case, the Petitioner testified that he was at his girlfriend's house, that he and his sister were walking together to play basketball, that he saw a group of his friends and approached them, and that the police pulled up. The Petitioner said that he walked away from the group because he "knew that [he] was . . . trespassing." The Petitioner stated that a police officer exited his police cruiser because he knew that the Petitioner was trespassing, that the officer patted down the Petitioner but did not find anything, that the officer learned the Petitioner was trespassing, and that the officer arrested the Petitioner. T he Petitioner said that the officer told another officer to "go search and see if he [could] find some guns" and that the officer found drugs and a gun.

         The Petitioner testified that to his knowledge, counsel did not investigate the case. H e said that counsel did not review discovery or police video recordings with him. The Petitioner stated that counsel attempted to play a recording on his computer when he visited the Petitioner the day before the Petitioner entered the guilty pleas but that the computer did not function. The Petitioner denied that counsel told him about potential fingerprint evidence and noted that one of his previous attorneys mentioned no fingerprints were found on the gun or the "drug bag." The Petitioner said that he told counsel what his previous attorney had said and that counsel did not investigate or obtain the Tennessee Bureau of Investigation (TBI) report relative to fingerprints. The Petitioner said that counsel did not talk with his sister, who witnessed the relevant events and could have testified on the Petitioner's behalf.

         The Petitioner testified that counsel told him the plea offer was for eleven years at 100% service but that when the Petitioner went to the Tennessee Department of Correction (TDOC), "it was going to drop down . . . 15 percent" because he was not a violent offender. The Petitioner said he decided to plead guilty because counsel told him he would lose at trial. He stated that his decision was affected by the sentence reduction counsel described. The Petitioner remembered counsel's reviewing the guilty plea form with him and the Petitioner's stating on the form that he thought counsel provided effective assistance. He said that he had changed his mind because although he was supposed to receive "85 percent good time" when he got to the TDOC, he could not receive good time credit because of the drug-free school zone enhancement. He noted that he was age eighteen when he was arrested and age twenty when he pleaded guilty.

         The Petitioner testified that counsel explained the plea offer and his rights to him and that the Petitioner did not ask any questions. The Petitioner said that he knew he was giving up his trial rights. He stated that he first met with an investigator at the time of his guilty pleas. The Petitioner said that he declined an initial plea offer of thirteen years at 100% service because he did not want to accept any sentence requiring 100% service. He denied that the drugs and the gun belonged to him. He denied that counsel ever discussed filing a motion to suppress and said that it would have been important to test "the grounds of the drugs and the gun[.]" He said that he ...


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