        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                October 25, 2011 Session

            STATE OF TENNESSEE v. JAKE L. MONROE, ALIAS

                   Appeal from the Criminal Court for Knox County
                         No. 87861     Bob R. McGee, Judge


                 No. E2011-00315-CCA-R3-CD - Filed June 22, 2012


The Defendant, Jake L. Monroe, alias, appeals as of right from a jury conviction for
possession with intent to sell and deliver a controlled substance within a drug-free school
zone, a class B felony. The Defendant contends that he received ineffective assistance of
counsel at trial. Following our review, we affirm the judgment of the trial court but remand
the case for correction of the judgment.

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

D. K ELLY T HOMAS, JR., J., delivered the opinion of the court, in which N ORMA M CG EE
O GLE, J., joined. J ERRY L. S MITH, J., not participating.

Mitchell T. Harper, Knoxville, Tennessee (at trial); and Richard Gaines, Knoxville,
Tennessee (on appeal); for the appellant, Jake L. Monroe, alias.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and Leon Franks, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                               FACTUAL BACKGROUND

        On October 3, 2007, the Defendant was indicted for possession with intent to sell a
controlled substance and possession with intent to deliver a controlled substance within 1,000
feet of a school. After several continuances and a change of assistant district attorneys, the
Defendant’s trial was held on August 25, 2009.
        At trial, both the principal and the school resource officer from the Defendant’s high
school testified regarding the charges against the Defendant, who was a high school student
at the time of the offense.1 The principal explained that the Defendant was found to be in
possession of a pill, which was a violation of school policy. He conducted a search of the
Defendant’s person, and the search yielded additional pills: three in a napkin, nine in the
Defendant’s right shoe, and thirty in his left shoe. The principal asked the Defendant to write
a statement explaining why the pills were in his possession. In the statement, the Defendant
admitted that he purchased the pills and intended to sell them for a profit. The school
resource officer, Chris McNew, also testified, and his testimony essentially corroborated that
of the principal. The Defendant testified at trial. He explained that he made the inculpatory
statement about selling drugs at school because he just “told them what they wanted to hear.”
The Defendant testified that he had taken 18-24 of the pills in his possession while waiting
to speak with the principal and was “throwing up and passing out by the time he got to the
jail.” However, Officer McNew testified on rebuttal about the Defendant’s physical and
mental state during transport to jail, explaining that the Defendant seemed “completely okay
except for being scared.”

       The jury convicted the Defendant of the charged offenses. On November 4, 2009,
through newly retained counsel, the Defendant filed two motions for new trial, alleging that
the State presented insufficient evidence to sustain his conviction and that the verdict was
against the weight of the evidence.

       A sentencing hearing was held on November 5, 2009, and the court merged the
delivery charge into the sale charge and sentenced the Defendant to eight years in
confinement.2 On February 16, 2010, the Defendant filed a Motion For New Trial Date,
requesting a forty-five day extension of the date set for hearing the motion for new trial. The
unopposed motion was granted, and a hearing on the motion for new trial was set for March
15, 2010. The Defendant then filed a motion to supplement his motion for new trial on
March 9, 2010, alleging that he “received ineffective assistance of counsel at pretrial and trial
levels of his case.” That same day, the Defendant also filed another motion for a
continuance, this time requesting a sixty-day extension and explaining that his expert witness
was unavailable until mid-to-late April. On September 1, 2010, the Defendant filed an
additional amended motion for new trial, which specifically stated the grounds on which the

1
 The trial testimony summarized here is gleaned from the trial court’s order denying the Defendant’s motion
for new trial because the trial transcript was not included in the record. Also, the principal is not referred
to by name because the principal is not referred to by name in the trial court’s order.
2
 The judgment incorrectly reflects that the Defendant has a 30% release eligibility. However, the Defendant
actually has a release eligibility of 100% because he was convicted under the Drug Free School Zone Act.
The judgment correctly reflects that the Defendant was convicted under the Drug Free School Zone Act.

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Defendant alleged trial counsel was ineffective. The motion also requested that the court
“facilitate the interview by the psychologist with [the Defendant] to determine whether there
is crucial testimony that could be relevant and affect the issues before the court.” The court
granted the motion and ordered a full-contact visit between the Defendant and the
psychologist, Dr. James Murray.

                                    I. New Trial Hearing

        The hearing on the motion for new trial was held on January 4, 2011. The
Defendant’s trial counsel testified that he had been practicing law approximately eleven years
and that he had previously worked as an assistant district attorney until going into private
practice in 2005. Trial counsel testified that he was retained by the Defendant’s mother, who
attended most of his meetings with the Defendant in the early stages. Trial counsel also
testified that when he was hired, the case was in felony sessions court, and “the school zone
portion of the case was not in play.” Trial counsel testified that he waived the preliminary
hearing in exchange for an earlier, open-file discovery, explaining that it was a common
practice in Knox County. Trial counsel explained that early in negotiations, the State offered
the Defendant a plea agreement for 10 years and said that he could apply for probation. Trial
counsel testified that the Defendant rejected this offer and consented to allow the case to
proceed to the grand jury.

       Trial counsel admitted that he continuously told the Defendant and his family that he
was working on a plea agreement with the State and that he continued to work towards an
agreement with the State until the day of trial. Trial counsel explained that because the
Defendant did not have any prior convictions and was charged with a non-violent crime, he
believed that they could eventually reach a more favorable agreement with the State. Trial
counsel testified that he explained the charges against the Defendant, including the effect of
the Drug Free School Zone Act, to both him and his family. Trial counsel also testified that
he relayed to the Defendant the amount of time he faced if convicted of the offenses as
charged.

        Trial counsel admitted that his ultimate trial strategy, to argue that the statement was
coerced and the Defendant was solely guilty of misdemeanor possession, was contradictory
to the handwritten statement the Defendant had given at school. Counsel explained that he
did not try to suppress the inculpatory statement because he could not conceive a legal theory
to keep the statement out. However, trial counsel did testify that he conducted legal research
to identify other viable defenses, albeit unsuccessfully.

        The Defendant’s mother, Tama Monroe, also testified at the hearing. The essence of
her testimony was that trial counsel continuously told her and the Defendant that he would

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not have to serve jail time, so the family was shocked when the Defendant was taken to jail.
Ms. Monroe also testified that both she and the Defendant were unaware that the trial would
actually proceed on the scheduled trial date because trial counsel assured them that the case
was “going to get worked out.” She explained that as the scheduled trial date approached,
trial counsel was “still saying that he’s going to file for diversion and that [the Defendant]
should get a year’s probation and then [get] it expunged.” Ms. Monroe testified that she was
at every meeting that trial counsel had with the Defendant, and trial counsel never mentioned
that the Defendant was charged with a violation of the Drug Free School Zone Act. She
explained that trial counsel “acted like he was as dumb as me when it c[a]me to the drug free
school zone[,]” and he never prepared the Defendant for his testimony at trial. Ms. Monroe
testified that she and the Defendant first learned of the possible eight-year sentence on the
morning of trial, and when the Defendant asked trial counsel if the sentence was eligible for
probation, he responded, “We’re going to have to go to trial.”

        The Defendant’s father, Jerry Monroe, testified that he went to see trial counsel
around 4:30 p.m. or 5:30 p.m. the day before trial, and trial counsel assured him that
everything was taken care of and his son would not receive jail time. Mr. Monroe testified
that when he left trial counsel’s office, he was under the impression that the only remaining
issue to work out was the length of the Defendant’s probation. Mr. Monroe testified that he
was in shock when the trial commenced the following day, and he was never aware that the
Defendant was facing an 8 to 12 year sentence with mandatory imprisonment.

        At the close of proof, the trial court explained that it was taking the matter under
advisement and would issue an order, including its findings of fact and conclusions of law,
after reviewing the trial notes.

                                  II. Trial Court’s Order

        The trial court issued a detailed order denying the Defendant’s motion for new trial
on January 20, 2011. First, the court summarized the evidence presented at trial. Then, the
trial court addressed each of the Defendant’s bases for alleging that trial counsel was
ineffective. The trial court stated that “the cases came out of the grand jury charging the
more serious school zone violations[; trial counsel] testified that he did meet with defendant
and explained the penalty, including the 100 % sentencing provision.” The trial court
explained that during its observations of the jury and overall trial, it noticed that the
Defendant lost his credibility with the jury when his testimony regarding his physical state
upon arrival at the jail was impeached by the transporting officer. In support of its denial,
the trial court issued the following findings of fact:




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        [T]rial counsel found out all there was to find out about [the Defendant’s]
        case, that he conferred with the [D]efendant promptly and as frequently as
        needed, that he correctly assessed the admissibility of the evidence, that he
        conducted legal research, that he earnestly attempted to settle the case by
        offering to plead guilty to a lesser offense, that he had a theory of defense, and
        that he got his theory of defense, along with argument to support it, to the jury.
        . . . Further, the [D]efendant has offered no evidence that but for counsel’s
        ineffectiveness, the result in this case would have been different.

In sum, the court concluded, as a matter of law, that the Defendant did not receive ineffective
assistance of counsel and that its acceptance of the jury verdict was not error.


                                                ANALYSIS

        The Defendant contends that his trial counsel’s “near-complete lack of pretrial and
trial preparation” falls below the range of competence demanded of attorneys in criminal
cases, and it is the cumulative effect of many factors that indicate that counsel was not
adequately prepared.3 The Defendant cites a litany of factors that form the basis of his
ineffective assistance of counsel claim, but the essence of the claim is that “trial counsel
prepared his case purely for the purposes of trying to ‘work the case out.’” 4 The State
responds that the trial court correctly found that the Defendant’s trial counsel was not
ineffective and that the Defendant failed to prove that trial counsel’s deficient performance
resulted in prejudice.

       Although a defendant may raise an ineffective assistance of counsel claim on direct
appeal, this court has repeatedly noted that “the practice . . . is ‘fraught with peril’ since it ‘is
[typically] impossible to demonstrate prejudice as required’ . . . ” at this stage of the
proceedings. State v. Blackmon, 78 S.W.3d 322, 328 (Tenn. Crim. App. 2001) (citations


3
 The Defendant’s brief simply lists multiple actions or omissions by trial counsel, in bullet format, in support
of his claim that trial counsel was ineffective. However, these facts are only set out in the statement of facts
and are not listed with supporting authority or placed in the argument section of the brief, making appellate
review difficult. See Stacey Dewayne Ramsey v. State, No. W2006-01827-CCA-R3-PC, 2008 WL 4117963,
at *5 (Tenn. Crim. App. Sept. 3, 2008).
4
 The trial court characterizes the factual bases for the Defendant’s argument that trial counsel was deficient
as follows: (1) trial counsel’s decision to waive the Defendant’s preliminary hearing in return for open-file
discovery at the Sessions Court level; (2) trial counsel’s failure to file pretrial motions, namely a motion to
suppress the Defendant’s inculpatory statement to school officials; (3) and general complaints that trial
counsel did not warn the Defendant or his family of the “great jeopardy” the Defendant was facing.

                                                      -5-
omitted). Nevertheless, there is no prohibition against litigation of ineffective assistance of
counsel claims on direct appeal, as opposed to collateral proceedings. E.g., State v. Burns,
6 S.W.3d 453, 461-63 (Tenn. 1999) (granting relief in direct appeal on ineffective assistance
of counsel claim); see State v. James Paris Johnson, No. E2008-02555-CCA-R3-CD, 2010
WL 3565761, at *17 (Tenn. Crim. App. 2010).

        The same standard applies to claims of ineffective assistance of counsel raised on
direct appeal and post-conviction proceedings. See Burns, 6 S.W.3d at 461 n.5 (emphasis
added). In a post-conviction proceeding, the burden is on the petitioner to prove the
underlying facts of counsel’s alleged error by clear and convincing evidence. Tenn. Code
Ann. § 40-30-110(f); Dellinger v. State, 279 S.W.3d 282, 293 (Tenn. 2009). Once a
defendant/petitioner establishes the fact of counsel’s alleged error, the trial court must
determine whether the errors resulted in the ineffective assistance of counsel. Dellinger, 279
S.W.3d at 293; see Strickland v. Washington, 466 U.S. 668, 687 (1984).

        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, 456-57 (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.

       Under the Sixth Amendment to the United States Constitution, when a claim of
ineffective assistance of counsel is made, the burden is on the defendant to show (1) that
counsel’s performance was deficient and (2) that the deficiency was prejudicial. Strickland,
466 U.S. at 687; see also Lockart v. Fretwell, 506 U.S. 364, 368-372 (1993). In other words,
a showing that counsel’s performance was deficient is not enough; rather, the defendant must
also show that but for counsel’s deficient performance, “the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694. 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).

        A defendant will only prevail on a claim of ineffective assistance of counsel after
satisfying both prongs of the Strickland test. See Henley v. State, 960 S.W.2d 572, 580
(Tenn. 1997). The performance prong requires a defendant raising a claim of ineffectiveness
to show that the counsel’s representation fell below an objective standard of reasonableness
or was “outside the wide range of professionally competent assistance.” Strickland, 466 U.S.
at 690. The prejudice prong requires a defendant to demonstrate that “there is a reasonable
probability that, but for counsel’s professional errors, the result of the proceeding would have
been different.” Id. at 694. “A reasonable probability means a probability sufficient to

                                              -6-
undermine confidence in the outcome.” Id. Failure to satisfy either prong results in the denial
of relief. Id. at 697.

        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. Id. 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). 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. “Thus, the fact that a particular strategy or tactic failed or even hurt the defense
does not, alone, support a claim of ineffective assistance.” Cooper v. State, 847 S.W.2d 521,
528 (Tenn. Crim. App. 1992). Deference is made to trial strategy or tactical choices if they
are informed ones based upon adequate preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn.
1982); see also DeCoster, 487 F.2d at 1201.

        The Defendant essentially argues that the cumulative effect of all counsel’s errors
resulted in prejudice, referring this court back to the twenty-nine bulleted factual statements
recited in the facts section of his brief. However, the trial court found as a matter of law that
counsel was not deficient, and without a finding of deficiency, a prejudice analysis is not
warranted. We conclude from our review of the record that the evidence does not
preponderate against the trial court’s findings. The trial court accredited trial counsel’s
testimony, concluding that trial counsel found “all there was to find out about the
Defendant’s case, that he conferred with the Defendant promptly and as frequently as needed,
that he correctly assessed the admissibility of the evidence, that he conducted legal research,
that he earnestly attempted to settle the case by offering to plead guilty to a lesser offense,
that he had a theory of defense, and that he got his theory of the defense, along with
argument to support it, to the jury.” In accrediting trial counsel’s testimony, the trial court
also implicitly found that trial counsel advised the Defendant of the sentencing range of the
Drug Free School Zone statute. Additionally, the trial court found that the Defendant offered
no evidence that he was prejudiced by trial counsel’s alleged ineffectiveness. When a
defendant fails to establish prejudice, the ineffective assistance claim necessarily fails. See
Strickland, 466 U.S. at 697.

        The only specific argument in the record that even alludes to prejudice is the assertion
that trial counsel failed to file a motion to suppress. Trial counsel admitted under oath that
if he had filed a motion to suppress, and it had been granted, the outcome of the case would
have been different. However, the court stated in its findings that trial counsel correctly

                                               -7-
determined that the Defendant’s inculpatory statement would not have been suppressed.
Thus, the Defendant’s argument that trial counsel’s failure to file a motion to suppress does
not rise to the level of prejudice because the standard requires a defendant to illustrate that
“there is a reasonable probability that, but for counsel’s professional errors, the result of the
proceeding would have been different.” Id. at 694. (emphasis added). “A reasonable
probability means a probability sufficient to undermine confidence in the outcome.” Id.
Because the court agreed with trial counsel, finding as a matter of law that there was no
viable legal argument to support suppression, the Defendant has not shown that counsel’s
failure to file the motion resulted in prejudice.

        Regarding the remaining list of bulleted facts the Defendant cites in the facts section
of his brief supporting his claim, because the Defendant failed to explain how trial counsel’s
acts or omissions were deficient, or resulted in prejudice, they also fail.5 See id.; see also
Stacey Dewayne Ramsey v. State, No. W2006-01827-CCA-R3-PC, 2008 WL 4117963, at
*5 (Tenn. Crim. App. Sept. 3, 2008) (explaining the “shotgun approach” to brief writing and
that the petitioner’s brief was an unsuccessful example of this approach; finding that the
Defendant’s brief raised a multitude of claims of ineffective assistance, in bullet form,
without citation to the record or supporting authority, or any argument as to why the action
or inaction of counsel was deficient, or how the alleged deficiency prejudiced the petitioner;
and explaining that because of the nature of the petitioner’s brief, it was not necessary to set
out each of the petitioner’s numerous allegations in detail). Accordingly, we conclude that
the Defendant was not denied the effective assistance of counsel and that he is not entitled
to relief on this issue.

        Following our review of the record, we note that the judgment incorrectly reflects that
the Defendant is eligible for release after serving thirty percent of his sentence. However,
as the judgment reflects, the Defendant was convicted pursuant to the Drug Free School Zone
Act, which requires 100 percent service. The record clearly reflects that the Defendant must
serve the entire eight-year sentence before being eligible for release. Accordingly, we
remand the case to the trial court for entry of the corrected judgment reflecting the release
eligibility as imposed by the trial court at the sentencing hearing.


                                         CONCLUSION

        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed. The case is remanded to the trial court for entry of the corrected judgment,


5
 The Defendant also uses the same “list of bulleted facts” approach in his Post-Hearing Memorandum In
Support Of Motion For New Trial.

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as provided in this opinion.




                                     ________________________________
                                     D. KELLY THOMAS, JR., JUDGE




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