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Brandon v. State

Court of Criminal Appeals of Tennessee, Nashville

August 25, 2017


          Assigned on Briefs July 19, 2017

         Appeal from the Circuit Court for Bedford County No. 17776 Forest A. Durard, Jr., Judge

         Petitioner, Anthony T. Brandon, appeals the denial of his petition for post-conviction relief from his convictions for possession with intent to sell .5 grams or more of cocaine and simple possession of marijuana. Petitioner argues that he received ineffective assistance of counsel. Upon our review of the record and the briefs of the parties, we determine that Petitioner has waived his claim for failing to present an adequate argument in his appellate brief. Waiver notwithstanding, we also determine that Petitioner failed to prove his claim by clear and convincing evidence. Therefore, we affirm the judgment of the post-conviction court.

          Roger Clay Parker, Shelbyville, Tennessee, for the appellant, Anthony T. Brandon.

          Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel; Robert J. Carter, District Attorney General; and Mike Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

          Timothy L. Easter, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and John Everett Williams, JJ., joined.



         Factual and Procedural Background

         In July of 2013, officers with the Shelbyville Police Department responded to a hotel for a noise complaint. Petitioner opened the door, and the officers told him he needed to leave. As Petitioner was gathering his things in the room, he invited the officers inside. One officer saw a clear plastic bag containing a white powdery substance on the bathroom floor. Petitioner ultimately admitted owning the bag. Petitioner also produced two Crown Royal bags from his pockets, one containing over $1400 in cash and the other containing two marijuana blunts. Petitioner denied consent to search the room, stating that it was not his room. After Petitioner was arrested and taken outside, a drug-detection dog "alerted" on a Crown Royal bag on the nightstand. The bag contained both powder cocaine and cocaine base, also known as crack cocaine, as well as over $7000 in cash. In total, the officers discovered over 6 grams of powder cocaine and 17 grams of crack cocaine. See State v. Anthony T. Brandon, No. M2015-00654-CCA-R3-CD, 2016 WL 1600279, at *1-2 (Tenn. Crim. App. Apr. 19, 2016), no perm. app. filed.

         During the investigation, officers determined that the room was rented in the name of Shana Bryan. A woman named Amy Merlow was also staying in the room with Petitioner. When she returned to the scene during Petitioner's arrest, Ms. Merlow smelled of alcohol, and a crack pipe was discovered in her vehicle; however, Ms. Merlow was not charged with possession of drug paraphernalia or possession of any of the cocaine inside the hotel room. Jason Bryan, Shana Bryan's husband, testified for Petitioner that he had seen Ms. Merlow at a store with "several thousand dollars" cash and that he had never seen her with that much money before. The parties stipulated that Rick Overcast, a bondsman, would have testified that Ms. Merlow paid Petitioner's $1200 bond in cash. Id. at *2-3.

         Petitioner was convicted by a Bedford Country jury of possession with intent to sell .5 grams or more of cocaine, possession with intent to deliver .5 grams or more of cocaine, possession with intent to sell .5 grams or more of cocaine base, possession with intent to deliver .5 grams or more of cocaine base, and simple possession of marijuana. Id. at *3. The trial court merged the two delivery charges into the respective sale charges and imposed a total effective sentence of twenty-four years. Id. On direct appeal, this Court held that the cocaine offenses should have been merged into a single conviction, finding that the legislature did not intend to create separate units of prosecution for powder and crack cocaine. Id. at *7. Accordingly, this Court modified Petitioner's total effective sentence to twelve years, eleven months and twenty-nine days. Id. at *8. This Court affirmed the judgments in all other respects. Amended judgments were filed by the trial court on July 25, 2016.

         On June 1, 2016, Petitioner filed a timely petition for post-conviction relief. Petitioner alleged that he received ineffective assistance of counsel in that trial counsel failed to adequately prepare for trial, failed to file a motion to suppress, failed to interview and present the testimony of certain witnesses, failed to raise a Batson[1] claim with respect to the selected jury, and failed to object to the prosecutor's closing argument.[2] On October 26, 2016, appointed counsel filed a motion to amend the petition, which the post-conviction court treated as an amended petition. An evidentiary hearing was held on November 2, 2016.

         At the hearing, trial counsel testified that he had worked for the Public Defender's Office for the 17th Judicial District for approximately fifteen years. Trial counsel was appointed to represent Petitioner in both general sessions court and circuit court. Trial counsel was assisted by other attorneys from the Public Defender's Office. Trial counsel testified that he usually meets with clients at each court date in both general sessions court and circuit court and also meets with them several times in advance of trial. Trial counsel testified that Petitioner was out on bond, and trial counsel had difficulty getting in touch with him to schedule meetings.

         Petitioner provided trial counsel a list of potential witnesses he wanted interviewed, including Amy Merlow, Shana and Jason Bryan, and Ricky Overcast. An investigator spoke to the suggested witnesses, but trial counsel could not recall if anyone spoke to the hotel clerk. Trial counsel determined that the best defense would be to assert that the drugs did not belong to Petitioner. However, trial counsel believed that Ms. Merlow's and Ms. Bryan's testimony would hurt Petitioner's case because they placed him as the sole occupant of the hotel room at the time the drugs were found. Trial counsel used testimony regarding Ms. Merlow's possessing drug paraphernalia and large amounts of cash to argue to the jury that the drugs belonged to her. Trial counsel was not aware whether Ms. Merlow was related to Shelbyville Police Lieutenant Charles Merlow, but he did not believe that any relation had been used to get her out of trouble in the past because she had an extensive criminal record.

         Trial counsel testified that he considered filing a motion to suppress the drugs "but there were numerous problems with that." Specifically, Petitioner had disclaimed his expectation of privacy when he told the officers that he could not consent to the search because the room was not his. Additionally, some of the drugs were in plain view after Petitioner invited the officers into the room. Trial counsel ...

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