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Brewer v. State

Court of Criminal Appeals of Tennessee, Nashville

October 23, 2019


          Assigned on Briefs May 7, 2019 at Jackson

          Appeal from the Circuit Court for Bedford County No. 18378PC Forest A. Durard, Jr., Judge.

         The 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.

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

          Robert 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 of Tennessee.

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


          D. KELLY THOMAS, JR., JUDGE.


         After a 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.[1] 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.

         On 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.

         The 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."[2] 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]."[3] 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."[4] 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.

         After being given Miranda warnings, the Petitioner admitted that "virtually every item on the table belonged to him except for the crack cocaine."[5] 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 person.[6]

         At the 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 guilty:

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.

         The 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 the officer[.]

         The Petitioner affirmed that he understood the concept and the charges against him.

         Additionally, 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 right?
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?
[TRIAL COUNSEL]: The other one was an Attempted Possession of Schedule II.
THE [PETITIONER]: [] Possession of a Schedule II.
[TRIAL COUNSEL]: Which was a C-felony.

         The 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 that regard.

         Moreover, 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.

         The 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.

         When 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.

         The 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.

         The 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 plea.

         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 after ...

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