Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs Date: June 20, 2017
from the Circuit Court for Lewis County No. 2016-CR-19 Deanna
B. Johnson, Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Reversed and Remanded
L. Ricci, Columbia, Tennessee, for the appellant, Billy Dean
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
E. Glenn, J., delivered the opinion of the court, in which
Robert H. Montgomery, Jr., J., joined. Timothy L. Easter, J.,
E. GLENN, JUDGE
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).
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.
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 ...