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Mitchell v. State

Court of Criminal Appeals of Tennessee, Nashville

August 15, 2019

SEDRICK DARION MITCHELL
v.
STATE OF TENNESSEE

          Assigned on Briefs April 16, 2019

          Appeal from the Circuit Court for Bedford County No. 18123 Forest A. Durard Jr., Judge

         The Petitioner, Sedrick Darion Mitchell, appeals from the Bedford County Circuit Court's denial of his petition for post-conviction relief. The Petitioner contends that his trial counsel was ineffective for not challenging the validity of the indictment. 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

          Christopher P. Westmoreland, Shelbyville, Tennessee, for the appellant, Sedrick Darion Mitchell.

          Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior Assistant Attorney General; Robert James Carter, District Attorney General; and Michael David Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Camille R. McMullen, JJ., joined.

          OPINION

          D. KELLY THOMAS, JR., JUDGE

         The Petitioner was convicted by a jury of failure to appear and was sentenced to six years to be served at sixty percent release eligibility. State v. Sedrick Darion Mitchell, No. M2016-00559-CCA-R3-CD, 2016 WL 6541836, at *1 (Tenn. Crim. App. Nov. 4, 2016), perm. app. denied (Tenn. Feb. 16, 2017). This court affirmed the Petitioner's conviction and sentence on direct appeal. Id. On February 16, 2017, our supreme court declined to review this court's decision.

         The Petitioner filed a timely pro se petition for post-conviction relief. As pertinent to our review, the pro se petition alleged that trial counsel was ineffective for "not objecting to or challenging the constitutionality of the indictment or [its] contents."[1]Counsel was appointed to represent the Petitioner in this matter, but no amended petition for post-conviction relief was filed.

         The indictment alleged that the Petitioner failed to appear on January 27, 2015, in general sessions court on the following charges: "[sale] of schedule II drug (cocaine base) [two] counts, possession of schedule II drugs (cocaine base) for [sale], possession of schedule VI [drug] (marijuana) for [sale], . . . and possession of drug paraphernalia." Trial counsel recalled that, prior to the jury's being sworn, he and the prosecutor discovered that the second sale of cocaine charge occurred on February 6, 2015. The Petitioner was scheduled to appear at the January 27, 2015 court date for the four other charges.

         Trial counsel admitted that he did not challenge the indictment because it erroneously included an offense that occurred after the January 27, 2015 court date. Trial counsel testified that even if he had "made some kind of objection," he would have allowed the State to amend the indictment because of his "commitment to judicial economy." Trial counsel recalled that the prosecutor did not read the specific charges listed in the indictment when he read it to the jury. Trial counsel also recalled that the jury never heard about the second sale of cocaine charge during the Petitioner's trial.

         The post-conviction court denied the petition for post-conviction relief in a written order filed on May 14, 2018. The post-conviction court concluded that trial counsel was not deficient for failing to challenge the validity of the indictment. The post-conviction court found that the indictment listed the charges that the Petitioner failed to appear on. The post-conviction court accredited trial counsel's testimony that "the charges in the indictment were not read to the jury when the indictment was read" and that the second sale of cocaine charge "was not ever brought up since it happened later."

         On appeal, the Petitioner contends that he received ineffective assistance from trial counsel. The Petitioner argues that trial counsel was ineffective for not challenging the validity of the indictment. The State responds ...


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