Court of Criminal Appeals of Tennessee, Nashville
RODNEY RAYMOND BREWER, JR.
STATE OF TENNESSEE
Assigned on Briefs May 7, 2019 at Jackson
from the Circuit Court for Bedford County No. 18378PC Forest
A. Durard, Jr., Judge.
Petitioner, Rodney Raymond Brewer, Jr., appeals from the
denial of his petition for post-conviction relief. The
Petitioner pled guilty to Class B felony possession of a
schedule II controlled substance with the intent to sell in
exchange for an agreed-upon Range I sentence of eleven years.
On appeal, the Petitioner alleges that he received
ineffective assistance due to trial counsel's (1) failure
to effectively investigate and argue the motion to suppress;
(2) failure to investigate the Petitioner's range
classification; (3) failure to properly advise him regarding
the law of constructive possession; (4) failure to argue for
enforcement of the original nine-year plea offer; and (5)
failure to file an appeal. After a thorough review of the
record, we affirm the judgment of the post-conviction court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
T. Carter, Tullahoma, Tennessee, for the appellant, Rodney
Raymond Brewer, Jr.
Herbert H. Slatery III, Attorney General and Reporter; Brent
C. Cherry, Senior Assistant Attorney General; Robert J.
Carter, District Attorney General; and Michael D. Randles,
Assistant District Attorney General, for the appellee, State
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which Thomas T. Woodall and James Curwood Witt, Jr., JJ.,
KELLY THOMAS, JR., JUDGE.
January 13, 2016 search that led to the discovery of drugs
and drug paraphernalia, the Bedford County Grand Jury
returned a four-count indictment against the Petitioner,
charging him with alternative counts of possession of a
schedule II controlled substance, to wit: 2.42 grams of
cocaine, with the intent to sell or deliver, both Class B
felonies, and with one count each of simple possession of a
schedule VI controlled substance, to wit: marijuana, and
unlawful possession of drug paraphernalia, both Class A
misdemeanors. Prior to trial, the State had filed a notice to
seek enhanced punishment which, facially, placed the
Petitioner as a Range II, multiple offender. Also prior to
trial, trial counsel filed a motion to suppress the search
that led to discovery of the drugs and drug paraphernalia,
but the motion was denied after a hearing because the trial
court determined that the Petitioner lacked standing to
challenge the search.
March 13, 2017, after trial had begun and voir dire had been
completed, the Petitioner entered a guilty plea to one count
of Class B felony possession of a schedule II controlled
substance with the intent to sell, see Tennessee
Code Annotated section 39-17-417, with an agreed-upon Range I
sentence of eleven years. At the guilty plea submission
hearing, the prosecutor's opening statement was
incorporated into the record by reference as providing a
factual basis in support of the Petitioner's plea.
prosecutor stated that on the evening of January 13, 2016,
agents of the Drug Task Force "were investigating
illegal drug activity" at a house on East Depot Street
in Shelbyville. The agents had "set up surveillance on
the house," and "[t]hey observed some activity
which indicated that drug activity was afoot." According
to the prosecutor, the agents "decided to go up to the
back door as they had been observing people doing, [and]
knock on the back door." Paula Freeman opened the back
door, and the agents "went inside." Once in the
kitchen, the agents "had a very brief conversation with
Ms. Freeman, and one of the agents decided to step into the
adjoining room, which was the living room, wherein he
discovered the [Petitioner]." The prosecutor continued,
"[T]he [Petitioner] had just stood up from a chair that
was in there, and beside the chair was an end
table." According to the prosecutor, the agents
"noticed various evidence, drugs and drug paraphernalia,
sitting on that end table beside where the [Petitioner] had
been seated." When the agents examined the table more
closely, they found a small amount of marijuana, "some
smoked marijuana blunts," and some drug paraphernalia,
including digital scales, "a bong," and rolling
papers. The Petitioner's cell phone was also discovered
amongst the items on the table.
being given Miranda warnings, the Petitioner
admitted that "virtually every item on the table
belonged to him except for the crack
cocaine." However, the Petitioner told the agents
that "he had sources of supply for crack cocaine"
in both Murfreesboro and Nashville and that "he would be
willing to work with the drug task force in catching these
individuals." The prosecutor also described that the
crack cocaine was in a "bunch of little plastic
bags" inside of a larger plastic bag, indicating that it
was packaged for resale, and that the total amount was
"fairly large . . . with a pretty hefty street value of
probably anywhere from about $250 to $500 worth." In
addition, the Petitioner was found to have $136 cash on his
guilty plea submission hearing, the Petitioner acknowledged
that the statements made by the prosecutor during his opening
statement were "accurate statements" of the facts
in support of his plea. The trial court then explained the
elements of the offense to which the Petitioner was pleading
That you knowingly possessed, whether it was actual
possession or constructive possession and whether that
possession was sol[e] or whether that possession was joint,
that is with one or more other persons, a substance
containing cocaine base. And that that substance is
classified as a schedule II controlled substance and that at
some point those drugs were possessed with the intent to
later sell them.
trial court reiterated that "possession [could] be
either actual or constructive" and provided examples:
[A]ctual possession is, it's in your pocket. Constructive
possession, . . . you get pulled over for speeding, they want
to see your registration and your insurance, you don't
have those in your pocket but they're in the glove box.
Not on your person but all you've got to do is reach over
there, open the glove box and pull those out and give them to
Petitioner affirmed that he understood the concept and the
charges against him.
the Petitioner indicated that he understood the respective
ranges of punishment for those crimes. When asked if he had
any questions about what the possible punishments were, the
Petitioner replied, "I didn't understand the
enhancement factor to[o] much as far as . . . . Like, I was
told that my previous felonies could have an enhancement
factor." When the Petitioner was asked specifically
about his two prior qualifying felonies, the following
exchange took place:
Q. I understand that you have two prior felonies; is that
A. Yeah. One from like twenty years ago and one from like --
Q. That still counts.
A. -- fifteen.
Q. And what [were] they?
A. One was --
[TRIAL COUNSEL]: Burglary, I believe.
THE [PETITIONER]: Parts of the crime were burglary.
THE COURT: All right. Which would have been a D-felony in
Tennessee; is that correct, General?
[ASSISTANT DISTRICT ATTORNEY GENERAL]: Yes.
[TRIAL COUNSEL]: The other one was an Attempted Possession of
THE [PETITIONER]:  Possession of a Schedule II.
[TRIAL COUNSEL]: Which was a C-felony.
trial court explained range classification to the Petitioner
and stated that "it sound[ed] like" the
Petitioner's two prior felonies "would have
translated into C and D felonies in this state," which
would have enhanced him from Range I to Range II status.
Moreover, the trial court informed the Petitioner that if he
were convicted at trial and found to be a Range II, multiple
offender, he would have been exposed to a sentencing range
between twelve to twenty years at thirty-five percent. The
trial court also told the Petitioner that if he had
"other misdemeanors or other things," then his
sentence could be enhanced in the range. The Petitioner
affirmed that he understood, and he had no other questions in
the Petitioner was informed that by pleading guilty, he was
waiving his right to a jury trial and to appeal the
jury's decision. The Petitioner was also apprised that if
he chose to proceed to a jury trial, he could confront the
witnesses against him, and that he was entitled to testify on
his own behalf, but that no negative inference could be drawn
by the jury if he decided not to testify. The trial court
further told the Petitioner that he was waiving his
"right to appeal any sentencing issues" because
this was an agreed-upon eleven-year sentence and thus there
was "nothing to appeal from[.]" The Petitioner
affirmed that he understood and was executing a knowing
waiver of these rights.
Petitioner then confirmed that no one had threatened him into
pleading guilty, that no one had promised anything to induce
him to enter a plea other than what had been discussed in
court, and that he was pleading guilty of his own free will.
In addition, the Petitioner affirmed that he was accepting a
Range I sentence because he feared the possibility of a Range
II sentence if he proceeded to trial and was convicted.
asked about trial counsel's performance during the trial
process, the Petitioner said that "[a]t some
points," he had encountered problems speaking with trial
counsel. The Petitioner explained, "You seen [sic] me
explode in the courtroom," and the trial court responded
that it had indeed witnessed the Petitioner "get mad a
few times." The Petitioner expressed his concern that at
times, he had questions but had been "shewed off."
The trial court inquired if the Petitioner had any questions
now or wanted something explained further to him, and the
Petitioner replied in the negative.
Petitioner and the trial court then engaged in further
discussion about the concept of standing, the issue at the
motion to suppress hearing. The trial court explained to the
Petitioner as follows:
Standing is the ability for one, to contest a search, you
have to have that. For instance, if you're riding in my
car and I get pulled over and there is a bunch of drugs in
there, you don't have any right to complain about
what's in my car because you have no expectation of
privacy in my car. In other words, it's my car, it's
private to me, but it's not private to you. And so the
first thing that we'd have to establish when suppressing
contraband or whatever it may be is whether the person has a
right to complain about it to begin with.
Petitioner stated that the trial court's explanation
"clear[ed] that up for [him]," and he did not have
any further questions. The trial court then accepted the
Petitioner's pro se petition for post-conviction relief
was filed on October 23, 2017. Counsel was appointed, but no
amended petition was filed. At the outset of the
post-conviction hearing, post-conviction counsel set forth
the issues as follows: (1) trial counsel failed to
effectively investigate and argue the motion to suppress
heard on February 23, 2017; (2) trial counsel failed to
investigate whether the Petitioner "was actually a Range
II offender" and "that he was in all likelihood a
Range I offender"; (3) trial counsel failed to advise
the Petitioner "on the law regarding constructive versus
actual possession of schedule drugs"; (4) trial counsel
failed to argue for enforcement of the original nine-year
plea offer; and (5) trial counsel failed to file an appeal