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Sizemore v. State

Court of Criminal Appeals of Tennessee, Nashville

September 26, 2017

BILLY DEAN SIZEMORE
v.
STATE OF TENNESSEE

          Assigned on Briefs Date: June 20, 2017

         Appeal from the Circuit Court for Lewis County No. 2016-CR-19 Deanna B. Johnson, Judge

         The Petitioner, Billy Dean Sizemore, appeals the summary dismissal of his petition for post-conviction relief. The State concedes that the post-conviction court erred in summarily dismissing the petition. Following our review, we reverse the judgment of the post-conviction court and remand for an evidentiary hearing.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and Remanded

          Cory L. Ricci, Columbia, Tennessee, for the appellant, Billy Dean Sizemore.

          Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant Attorney General; Kim R. Helper, District Attorney General; and Sean B. Duddy, Assistant District Attorney General, for the appellee, State of Tennessee.

          Alan E. Glenn, J., delivered the opinion of the court, in which Robert H. Montgomery, Jr., J., joined. Timothy L. Easter, J., not participating.

          OPINION

          ALAN E. GLENN, JUDGE

         FACTS

         The Petitioner was convicted by a Lewis County Circuit Court jury of delivery of a Schedule II controlled substance and was sentenced to fourteen years in the Tennessee Department of Correction as a persistent offender. His conviction was affirmed by this court on direct appeal, and our supreme court denied his application for permission to appeal. State v. Billy Dean Sizemore, No. M2013-01853-CCA-R3-CD, 2014 WL 5800747 (Tenn. Crim. App. Nov. 7, 2014), perm. app. denied (Tenn. Mar. 12, 2015).

          The facts giving rise to the Petitioner's conviction were recited by this court on direct appeal as follows:

Joe Ashmore, a narcotics agent with the 21st Judicial District Drug Task Force, testified that on June 2, 2009, he received a telephone call from Dale Potter, a confidential informant (CI). Potter told Agent Ashmore that he had been in contact with the [Petitioner] and that the [Petitioner] claimed to have some pills to sell. Agent Ashmore and Agent Doug Totty met with Potter and Potter's wife, and Mr. Potter placed a recorded, controlled telephone call to the [Petitioner]. The State played the recorded call for the jury. During the call, Mr. Potter told the [Petitioner] that he wanted to "get a couple of more of them" and agreed to meet the [Petitioner] at a bridge near Mr. Potter's house.
Agent Ashmore testified that the agents searched the Potters and their vehicle for money and drugs and that he equipped Mr. Potter with a transmitter and recorder. Agent Ashmore was hoping the Potters would buy three morphine pills from the [Petitioner] for $20 each and gave Mr. Potter $60. The Potters went to the location on Fite Road. Agent Ashmore stated that he saw them meet the [Petitioner], who was in a black vehicle, and that the Potters and the [Petitioner] conducted the drug transaction, which was recorded. The State played the recording for the jury. During the transaction, the [Petitioner] told Mr. Potter, "I got $500 worth yesterday and now I got two left." After the drug buy, the Potters met Agent Ashmore at a predetermined location. Agent Ashmore took possession of two pills and $20. He also searched the Potters and their vehicle again. Agent Ashmore paid Mr. Potter $100 for his participation in the drug buy.
On cross-examination, Agent Ashmore testified that in 2007, he purchased Lortab from Mr. Potter. Mr. Potter pled guilty to a crime and began working as a CI for Agent Ashmore. On June 2, 2009, the [Petitioner] sold the Potters two morphine pills and kept two pills for himself. Agent Ashmore said he could not see "hand movements and hand to hands" during the ...

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