Court of Criminal Appeals of Tennessee, Nashville
ANTHONY T. BRANDON
STATE OF TENNESSEE
Assigned on Briefs July 19, 2017
from the Circuit Court for Bedford County No. 17776 Forest A.
Durard, Jr., Judge
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.
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,
TIMOTHY L. EASTER, JUDGE
and Procedural Background
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.
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.
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.
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 claim with respect to the selected jury,
and failed to object to the prosecutor's closing
argument. 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.
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
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
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