         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs June 15, 2004

                HARRY M. NIMMONS v. STATE OF TENNESSEE

                       Appeal from the Criminal Court for Knox County
                         No. 76886     Richard Baumgartner, Judge



                      No. E2003-02513-CCA-R3-PC - Filed July 26, 2004


The petitioner, Harry M. Nimmons, appeals the Knox County Criminal Court’s denial of his petition
for post-conviction relief from his guilty pleas to three counts of possessing with the intent to sell
less than one-half gram of cocaine and resulting effective sixteen-year sentence. He contends that
he received the ineffective assistance of counsel because he would have gone to trial if his attorneys
had explained evidentiary issues to him. We affirm the trial court.

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

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which THOMAS T. WOODALL and JOHN
EVERETT WILLIAMS, JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Harry M. Nimmons.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman McIntire, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and Marsha Mitchell, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

       This case relates to the petitioner’s arrests for possessing cocaine with the intent to sell on
November 1, 1998; January 11, 1999; and March 8, 2001. At the guilty plea hearing, the state
presented the following factual account of the crimes: On November 1, 1998, police officers
received a complaint of a person selling drugs and after being given a description of the drug dealer,
went to the area where the drugs were being sold. The police saw the petitioner, who matched the
description of the drug dealer. When they approached the petitioner, he threw thirteen rocks of
cocaine onto the ground. The officers found $370 and a pager when they searched the petitioner.
On January 11, 1999, the police were executing a search warrant at a home in which the petitioner
was located. When the police arrived, he ran toward the bathroom. He was tackled in the hallway
by the police and the petitioner threw down a plastic bag containing five to six rocks of crack
cocaine. When the police searched the petitioner, they found $197. On March 8, 2001, the petitioner
was observed standing and fidgeting next to his car in the parking lot at Townview Terrace. When
police arrived, he was sitting in the passenger seat of his car and crack cocaine was later found
underneath the car. The car was located within one thousand feet of a school.

        At the evidentiary hearing, the petitioner testified that his attorneys never discussed the
likelihood that the state could prove that he had intended to sell cocaine in each of the three cases.
Regarding his arrest on November 1, 1998, the petitioner stated that the police did not have a warrant
for his arrest. He said he never discussed with his attorneys whether the description given to the
police of the person selling drugs was sufficient for them to have probable cause to seize him. He
said that in the case in which the police arrested him at a home, they did not have a warrant to arrest
him at that time and said his attorneys did not discuss whether the police had probable cause to arrest
him at the house. He said that when he was arrested in the Townview Terrace parking lot, the police
did not discover the cocaine underneath his car until after he was already in custody on another
matter. He said his attorneys never discussed with him whether the police had the authority to look
underneath his car. He said the cocaine was found underneath, not inside, his car. He said no one
else was in the vicinity of his car when the cocaine was found underneath it. He stated he never
discussed with his attorneys the problems that the prosecution might have in proving he was the
person who possessed the cocaine. He said that if he had discussed suppression issues with his
attorneys, he would not have pled guilty. He also said he would have gone to trial if they had
discussed the problems the state might have in proving he intended to sell the cocaine.

        On cross-examination, the petitioner testified that he pled guilty because his attorneys told
him that they could not help the petitioner at trial and because he believed his attorneys were acting
in his best interests. He acknowledged that he was originally charged with a Class A and a Class B
felony and that his attorneys explained that he was getting a break with the reduced charges in the
plea offer. He acknowledged that he was on bail when each of the three offenses occurred and would
have to serve his sentences consecutively. He said he received a fair plea agreement based on the
potential sentence he could have received if he went to trial. He denied that he threw thirteen rocks
of cocaine onto the ground on November 1, 1998. He said that he met with his attorneys five to six
times and that they went over each case with him. He said that he told them he wanted to go to trial
but that he pled guilty because his attorneys said they could not do anything for him at trial. He said
he did not know if his attorneys had filed any motions to suppress evidence.

        One of the petitioner’s trial attorneys testified that he and his partner began representing the
petitioner around May of 2000. He said the petitioner’s other attorney had represented him since he
was arrested on November 1, 1998. He said that once the petitioner retained him, he worked with
his partner to resolve the criminal charges against the petitioner. He said he met with the petitioner
five to eight times in addition to their meetings at court appearances. He said he discussed
suppression issues with the petitioner as he did with every client involved in drug-related cases. He
said he told the petitioner that the likelihood of success at a suppression hearing was slim.

       The attorney testified that when the trial dates for the first two cocaine charges were close,
he knew that if a plea agreement was going to be reached, it needed to happen quickly. He said the


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prosecution told him that if they were forced to try each case individually, they would seek the
maximum sentence for each conviction. He said that the petitioner was originally charged with one
Class A felony, one Class B felony, and several other criminal charges and that he was facing more
than thirty-three years in prison if convicted. He said that he received a plea offer from the state in
which the petitioner could plead guilty to three Class C felonies and that he discussed this offer
thoroughly with the petitioner. He said that he had a good relationship with the petitioner and that
the petitioner asked him many questions about the plea offer. He said he strongly recommended that
the petitioner accept the offer. He said that in a separate case, he pursued a suppression issue for the
petitioner and the state eventually agreed to dismiss that case. He said he told the petitioner that the
ultimate decision as to whether or not to accept the offer was the petitioner’s but that he would likely
lose at trial. On cross-examination, the attorney acknowledged that he could only remember specific
conversations with the petitioner on suppression issues for the case in which the petitioner was
charged with a Class A felony. He did not remember any conversations regarding an argument that
the petitioner only possessed the cocaine for personal use.

        The trial court found that the petitioner’s attorneys adequately discussed the case with the
petitioner and that the petitioner fully understood his guilty plea. The trial court further found that
the petitioner had been fully involved in his cases. It denied the petition for post-conviction relief.

        The petitioner claims that he had no choice but to plead guilty because his attorneys never
explained suppression issues to him. He argues that if his attorneys had explained suppression issues
that he could have raised before trial, he would not have pled guilty. The state claims that the
petitioner’s attorneys were not ineffective. We agree with the state.

        Under the Sixth Amendment, when a claim of ineffective assistance of counsel is made, the
burden is on the petitioner to show (1) that counsel’s performance was deficient and (2) that the
deficiency was prejudicial in terms of rendering a reasonable probability that the result of the trial
was unreliable or the proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838,
842-44 (1993). The Strickland standard has been applied to the right to counsel under article I,
section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

       In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that
attorneys should be held to the general standard of whether the services rendered were within the
range of competence demanded of attorneys in criminal cases. Further, the court stated that the range
of competence was to be measured by the duties and criteria set forth in Beasley v. United States,
491 F.2d 687, 696 (6th Cir. 1974), and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir.
1973). Also, in reviewing counsel’s conduct, a “fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982). Thus, the fact that a particular strategy or tactic failed or even hurt the
defense does not, alone, support a claim of ineffective assistance. Deference is made to trial strategy


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or tactical choices if they are informed ones based upon adequate preparation. See Hellard, 629
S.W.2d at 9; DeCoster, 487 F.2d at 1201.

        The burden is on the petitioner to prove his grounds for relief by clear and convincing
evidence. T.C.A. § 40-30-210(f). On appeal, we are bound by the trial court’s findings of fact
unless we conclude that the evidence in the record preponderates against those findings. Fields v.
State, 40 S.W.3d 450, 456 (Tenn. 2001). Because they relate to mixed questions of law and fact, we
review the trial court’s conclusions as to whether counsel’s performance was deficient and whether
that deficiency was prejudicial under a de novo standard with no presumption of correctness. Id. at
457.

         In the present case, the petitioner is essentially asserting that we should accept his testimony
over that of his trial counsel. The trial court’s findings reveal that it resolved the issue of credibility
in favor of trial counsel. Although, as the petitioner asserts, the trial court never specifically stated
that it accredited the attorney’s testimony that he discussed suppression issues with the petitioner,
it is obvious from the record of the court’s statements at the evidentiary hearing that it was, in fact,
accrediting the attorney regarding this issue. The trial court stated that it accredited the attorney in
“this matter” and within a few sentences noted that the attorney had testified that he discussed
suppression issues with the petitioner. Also, although the attorney acknowledged that he did not
remember specific conversations with the petitioner about suppression in two of the cases, he said
that he always discussed suppression issues with his clients in drug-related cases. The petitioner
received a much lower sentence than he might have received had he gone to trial. The attorney
stated that he received a good sentence and the petitioner agreed that his sentence was fair. We
conclude, as did the trial court, that the petitioner’s attorneys discussed suppression issues with him
before he pled guilty and that his decision to plead guilty was informed. The petitioner has not
shown that his attorneys were ineffective.

        Based upon the foregoing and the record as a whole, we affirm the judgment of the trial court.



                                                         ___________________________________
                                                         JOSEPH M. TIPTON, JUDGE




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