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Dunn v. State

Court of Criminal Appeals of Tennessee, Nashville

August 1, 2019

TIMOTHY DUNN, SR.
v.
STATE OF TENNESSEE

          Session: June 18, 2019

          Appeal from the Circuit Court for Robertson County No. 74CC2-2014-CR-144 William R. Goodman III, Judge

         The Petitioner, Timothy Dunn, Sr., appeals from the Robertson County Circuit Court's denial of his petition for post-conviction relief. The Petitioner contends that his trial counsel was ineffective in failing to explain to the Petitioner the possible sentence he could receive if convicted at trial. Discerning no error, we affirm the judgment of the post-conviction court.

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

          Jonathan B. Miley, Springfield, Tennessee, for the appellant, Timothy Dunn, Sr.

          Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant Attorney General; John Wesley Carney Jr., District Attorney General; and Jason Christian White, Assistant District Attorney General, for the appellee, State of Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which John Everett Williams, P.J., and Robert L. Holloway, Jr., J., joined.

          OPINION

          D. KELLY THOMAS, JR., JUDGE

         FACTUAL BACKGROUND

         The Petitioner was convicted by a jury of sale of cocaine within 1000 feet of a school and delivery of cocaine within 1000 feet of a school. State v. Timothy Dunn, No. M2016-00469-CCA-R3-CD, 2017 WL 652215, at *1 (Tenn. Crim. App. Feb. 17, 2017), perm. app. denied (Tenn. May 18, 2017). The trial court merged the convictions and imposed a sentence of seventeen years. Id. This court affirmed the Petitioner's conviction and sentence on direct appeal. Id. On May 18, 2017, our supreme court declined to review this court's decision.

         The Petitioner's conviction arose out of a controlled buy of cocaine performed by a confidential informant. Dunn, 2017 WL 652215, at *1. The confidential informant called a co-defendant asking to purchase a gram of cocaine for fifty dollars. Id. The co-defendant instructed the confidential informant on where to meet for the exchange. Id. Once the confidential informant arrived at the location, the Petitioner drove up in a van. Id. The Petitioner gave the confidential informant .76 grams of cocaine. Id. at *1-2. The confidential informant gave the Petitioner sixty dollars. Id. at *1. The Petitioner went back to his van and then returned with the confidential informant's change. Id. This exchange was recorded on a video camera hidden in the confidential informant's car and observed by several police officers. Id. at *2.

         The Petitioner filed a timely pro se petition for post-conviction relief. Counsel was appointed to represent the Petitioner in this matter and an amended petition for post-conviction relief was filed. As pertinent to our review, the amended petition alleged that trial counsel was ineffective in failing to inform the Petitioner of his "sentencing exposure if [a] plea offer was rejected and trial occurred."[1]

         The Petitioner testified that the State initially offered to dismiss the cocaine charges against him if he testified against his co-defendant and did not "catch another theft charge." That offer was withdrawn after the Petitioner pled guilty to domestic assault. The State then offered the Petitioner an eight-year sentence without the school zone enhancement and with a release eligibility of thirty percent.

         The Petitioner admitted that he was aware that he was charged with a Class A felony with a school zone enhancement. The Petitioner also admitted that he and trial counsel had reviewed the evidence against him. However, the Petitioner claimed that trial counsel told him that he "could probably beat the case" because he "didn't see [any] drugs" on the video recording. The Petitioner also claimed that trial counsel never informed him that he could receive a sentence of between fifteen and twenty-five years to be served at 100% if he was convicted at trial. The ...


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