                                                                                           02/26/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs December 17, 2019

          CHARLES TRAVIS MAPLES v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Knox County
                      No. 110183     Steven W. Sword, Judge


                             No. E2019-00475-CCA-R3-PC


The petitioner, Charles Travis Maples, appeals the denial of his petition for post-
conviction relief, which petition challenged his 2013 Knox County Criminal Court jury
convictions of three counts of the sale of cocaine in a drug-free school zone. In this
appeal, the petitioner claims, as he did below, that he is entitled to post-conviction relief
because he was deprived of the effective assistance of counsel at trial. Discerning no
error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and ALAN E. GLENN, JJ., joined.

John C. Barnes, Knoxville, Tennessee, for the appellant, Charles Travis Maples.

Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Philip Morton,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

               Originally charged with four counts each of the sale or delivery of 0.5
grams or more of cocaine in a drug-free school zone and one count each of the possession
of marijuana, the possession of drug paraphernalia, and evading arrest, the petitioner was
convicted by a Knox County Criminal Court jury of two counts each of the sale or
delivery of 0.5 grams or more of cocaine in a drug-free school zone and one count each
of the sale or delivery of less than 0.5 grams of cocaine in a drug-free school zone. See
State v. Charles Travis Maples, No. E2016-00589-CCA-R3-CD, slip op. at 1-2 (Tenn.
Crim. App., Knoxville, Dec. 5, 2016). “The trial court merged the convictions of the
delivery of cocaine into the corresponding charges of the sale of cocaine” and imposed a
total effective sentence of 25 years’ incarceration, 15 years of which the court ordered to
be served at 100 percent. Id., slip op. at 3. This court affirmed the convictions and the
accompanying 25-year sentence on appeal, see generally id., and the supreme court
denied the petitioner’s application for permission to appeal.

                       The evidence adduced at trial established that at the
                behest of Officer [Michael] Geddings, [Frances Charlene
                Brady] arranged to purchase cocaine from the petitioner on
                three separate occasions.       On each occasion, Officer
                Geddings searched Ms. Brady, provided her with recording
                equipment and money with which to make the purchases, and
                then drove her to an apartment in the Tillery Ridge
                Apartments on Merchants Drive. During the October 24,
                2012 transaction, Ms. Brady purchased 0.62 grams of crack
                cocaine from the defendant in exchange for $100. An audio
                recording of this transaction was played for the jury. During
                the November 1, 2012 transaction, Ms. Brady purchased 0.47
                grams of crack cocaine from the defendant in exchange for
                $100. A video recording of this transaction was played for
                the jury. During the November 5, 2012 transaction, Ms.
                Brady purchased 0.78 grams of crack cocaine in exchange for
                $100. A video recording of this transaction was played for
                the jury.

Id., slip op. at 4.

               The petitioner timely filed a pro se petition for post-conviction relief,
alleging, among other things, that he was deprived of the effective assistance of counsel.
The post-conviction court initially appointed counsel to represent the petitioner, but the
petitioner retained counsel in June 2018. In his amended petition for post-conviction
relief, the petitioner alleged that his counsel performed deficiently by misinforming the
petitioner about the admissibility of his prior convictions should he choose to testify at
trial, by conceding the petitioner’s guilt of the lesser included offense of simple
possession or casual exchange, by failing to object to the admission of prior bad act
evidence, by failing to request a mistrial based upon the admission of prior bad act
evidence, by failing to request a curative or limiting instruction regarding the prior bad
act evidence, by waiving certain potential appellate issues by omitting them from his
motion for new trial, and by failing to raise certain issues on appeal.

             At the January 17, 2019 evidentiary hearing, trial counsel testified that he
was retained to represent the petitioner. He said that he obtained discovery materials
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from the State and that he reviewed the materials with the then-incarcerated petitioner.
He could not recall how many times he had visited the petitioner but insisted that he had
done so because “I always do.” Counsel said that he was sure that he had discussed a
trial strategy with the petitioner, again because it was his practice to do so in every case.
He explained that it would have been his strategy to attempt to “knock down” the charged
offenses to simple possession or casual exchange. Although he had no specific
recollection of sharing this strategy with the petitioner, he said, “I’m sure I did. That’s
what I usually do.” He said that he could not recall the petitioner’s reaction but that he
“assum[ed] it was favorable” because he could not remember having argued with the
petitioner despite having “represented him for years.”

               Trial counsel said that, in keeping with his strategy, he cross-examined the
witness who testified about the distance from the location of the offenses to the school
and questioned the credibility of the informant. He acknowledged that he “probably did”
mention to the jury the theory that the petitioner had done nothing more than casually
exchange drugs with the informant “because I wanted to give them the alternative, as
opposed to zone and for resale, this could be a case that could be casual exchange or
simple possession.” Counsel admitted that he conceded the petitioner’s guilt of simple
possession or casual exchange during closing argument, saying that he wanted the jury to
view the petitioner “as someone who has a problem, . . . and that makes him an addict,
not a dealer.”

               Counsel could not recall which of the petitioner’s prior convictions had
been listed in the State’s notice of impeachment and could not recall the outcome of the
hearing on his motion to exclude those convictions. He said that he would not be
surprised to learn that the trial court had ruled that only one of the two convictions was
admissible, but he could not recall whether he had discussed the ruling with the
petitioner. Counsel also had no specific recollection of having discussed with the
petitioner his right to testify at trial but said that it was his practice to discuss the issue
with all of his clients and to address the prospect of impeachment with prior convictions
during that discussion. Trial counsel said that he had “worked with [the petitioner] on
different cases over the years” and that the two “had a way of . . . getting along with each
other and talking. Never had a problem communicating.”

              During cross-examination by the State, trial counsel said that he had been
practicing law for 23 years and that the bulk of his practice was devoted to criminal
defense work. He estimated that he had participated in more than 60 jury trials, including
some where the death penalty was a potential punishment. Counsel agreed that video
surveillance evidence showed at least one hand-to-hand exchange between the petitioner
and the informant. He characterized the evidence of the petitioner’s identity as the
perpetrator as “fairly strong” and admitted that making identity an issue “would have
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been very difficult.” Instead, he focused on trying to establish that the petitioner had not
actually sold the drugs to the informant and that the exchange did not actually take place
within a drug-free school zone. He said that he attempted, via cross-examination, to
discredit the mapping witness for the State. He acknowledged that he also attempted to
depict the petitioner as a drug addict and to characterize the transaction between the
petitioner and the informant as an exchange of drugs by two drug addicts. Counsel said
that he felt comfortable, given his long relationship with the petitioner, in pursuing that
strategy.

                Trial counsel testified that he had concerns about the petitioner’s testifying
at trial, saying, “I didn’t think he would come across very well to the jury.” He said that
keeping the petitioner “focused on what we were talking about . . . would have been a
problem.” He added, “I thought that the . . . [S]tate could probably tear him apart,
basically.” Counsel said that although he could not recall the specific discussion he had
with the petitioner, he was certain that he had advised the petitioner not to take the stand.
Counsel said that any such discussion would have included a discussion of the trial
court’s ruling on the admissibility of his prior convictions and acknowledged that, even
though the court had determined that the petitioner’s prior drug conviction would not be
admissible, that ruling presupposed that the petitioner did not open the door to its
admission.

               The petitioner testified that trial counsel visited him “no more than three
times” after being retained to represent the petitioner. He said that, during those
meetings, counsel was “always making sure he got it right on what happened, what
occurred that night, where the buys took place and stuff like that.” The petitioner said
that counsel did not show him any of the audio or video recordings that were played
during the trial. He insisted that, although counsel “said he had pictures and stuff,” the
petitioner “never had that in my discovery.” He maintained that he and counsel did not
discuss potential witnesses or defense strategies. The petitioner said that, because this
was his first time going to trial, he trusted that trial counsel “knew what he was doing.”
He claimed that counsel did not discuss lesser included offenses with him and
specifically did not tell the petitioner that he intended to admit the petitioner’s guilt of
simple possession or casual exchange as part of his strategy at trial.

              The petitioner admitted that he and counsel discussed his taking the stand at
trial. He testified that counsel “told me don’t -- don’t testify, ‘cause, you know, they
could bring my -- my criminal history up, and he was telling me that ain’t a good idea.”
He claimed that counsel went so far as to say that the State “could bring up my juvenile
history” and “everything that -- that I ever been charged with, like drug related.” He said
that he was concerned that the State “could use everything.” The petitioner admitted that
he understood that he could have testified if he wanted to do so. He said that when,
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during the Momon colloquy, counsel told him that the State could bring up “anything” he
had done in the past, he understood that to mean “my juvenile history on back,” including
those cases that had been dismissed.

               The petitioner testified that, on the day that the trial began, trial counsel
visited him “in the bullpen” to tell him that the trial was to begin that day. According to
the petitioner, he “didn’t feel comfortable going in there with [trial counsel], and my
mama was telling me she was going to hire another attorney. So, I was trying to fire him,
but he was saying if your new attorney ain’t here today, then the trial got to go on.” He
insisted that he “fire[d]” trial counsel “to his face” but admitted that he did not bring that
to the attention of the court. He claimed that trial counsel went on with the trial despite
the petitioner’s telling him that he no longer wanted counsel to represent him. The
petitioner reiterated that he “didn’t feel comfortable with” trial counsel’s representation
because they “never really had a[n] understanding . . . with a strategy or anything.”

               During cross-examination, the petitioner insisted that he did not recall the
trial court’s ruling in open court that only his prior conviction of criminal impersonation
could be used to impeach him, saying, “I was in and out. I wasn’t really just -- really just
focusing. I wasn’t really thinking like -- I wasn’t in my right state of mind, sir.” The
petitioner acknowledged that he had made the decision not to testify “[w]ay before” the
trial “in one of the meetings that we had.” He claimed, however, that, after the informant
said “some things that I wanted to respond to,” counsel told him, “‘Don’t get up -- just
don’t get up there.’” He conceded that he elected not to testify because he trusted
counsel’s advice on the issue but said, “I made the final decision.”

              The petitioner acknowledged that he was present at the preliminary hearing
and that, as a result, he was aware of the charges against him as well as the basic facts
supporting those charges. He said that counsel went over that information with him but
“never broke it down.”

              During redirect-examination, the petitioner said that he was under the
impression that the State would be permitted to inquire into his entire criminal history
and that that impression affected his decision not to testify at trial. The petitioner said
that he dropped out of high school in the ninth grade and could only read and write “a
little bit.” He acknowledged during recross-examination, however, that he was very
familiar with the criminal justice system.

              At the conclusion of the hearing, the trial court took the petition under
advisement. In a written order denying post-conviction relief, the post-conviction court
specifically accredited trial counsel’s testimony and determined that the petitioner’s
testimony was not credible.
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                 With regard to the petitioner’s claim that trial counsel failed to adequately
apprise him of which of his prior convictions could be used to impeach him should he
testify at trial, the post-conviction court concluded that although trial counsel’s statement
on that issue during the Momon colloquy “was not well-worded and came across as an
incorrect statement of law,” in the context of the hearing as a whole, “the statement was
not as misleading as it would appear.” The court observed that the record clearly
established “that both the court and [trial counsel] previously discussed the admissibility
of the [p]etitioner’s prior convictions” and that the court had “clearly ruled that the State
would not be able to ask the [p]etitioner about his prior drug related conviction.” The
post-conviction court also noted that the petitioner had conceded “that he had decided not
to testify ‘way before trial.’” The court found that counsel had cautioned the petitioner
against testifying due to counsel’s belief that the petitioner would not fare well on the
stand. The court concluded that, “in the context of the total record,” trial counsel’s
statement during the Momon colloquy “did not amount to deficient performance.” The
post-conviction court also ruled that the petitioner had failed to establish prejudice
flowing from the misstatement “because he had decided not to testify before the trial even
began.” The court found that, contrary to the petitioner’s assertion “that this was a ‘he-
said, she-said’ case, the drug sales were actually recorded and monitored by the police”
and that the petitioner did not suggest “what he would have said during the trial, had he
testified, that would likely have made a difference.”

               With regard to the petitioner’s claim that structural error resulted from
counsel’s conceding the petitioner’s guilt without the petitioner’s permission, the post-
conviction court accredited trial counsel’s testimony that, although he could not recall
their specific conversations on the issue, trial counsel was certain that “he would have
discussed the strategy[,] which was to attack the school-zone claim and try to get the
charges reduced to the lesser offense of casual exchange/simple possession.” The court
also found that the record supported counsel’s assertion. The court found that, because

              the videos of the drug deals were the most significant
              evidence in this case[,] and [trial counsel] testified that he
              discussed this strategy with the [p]etitioner, it follows that the
              [p]etitioner was fully aware prior to trial that the defense
              strategy would not be to contest that the videos captured drug
              transactions, but that they were not within a school zone and
              were simply casual exchanges [between] two drug addicts.

The court concluded that “[t]he entire trial transcript supports this strategy” and that the
petitioner “never voiced any objections until the post-conviction hearing.”

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               As to the petitioner’s claim that counsel pursued the strategy without the
petitioner’s permission, the post-conviction court found that conceding guilt to a Class A
misdemeanor lesser included offense when the petitioner was charged with a Class A
felony that required 100 percent service was far different than conceding guilt on a
charged offense when an accused has “vociferously and affirmatively claimed innocence
throughout the proceedings.” The court also found that the petitioner’s testimony that
counsel did not discuss this strategy with him was not credible. The court concluded that
trial counsel “formulated a rational defense strategy based upon the strong proof against
the [p]etitioner.” Based upon these findings, the court determined that no structural
constitutional error occurred.

               In this timely appeal, the petitioner reiterates his claim of ineffective
assistance of counsel, claiming that counsel performed deficiently by failing to
adequately apprise him of the admissibility of his prior convictions should he elect to
testify and by admitting that the petitioner “was a drug dealer.” He insists that these
errors resulted in prejudice to his case and that, as a result, he is entitled to post-
conviction relief. The State asserts that trial counsel did not perform deficiently and that,
even assuming that counsel did perform deficiently, counsel’s errors did not contribute to
the petitioner’s conviction when viewed in light of the overwhelming evidence of the
petitioner’s guilt.

              We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. A post-
conviction petitioner bears the burden of proving his or her factual allegations by clear
and convincing evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to
the post-conviction court’s findings of fact the weight of a jury verdict, and these findings
are conclusive on appeal unless the evidence preponderates against them. Henley v.
State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn.
Crim. App. 1997). By contrast, the post-conviction court’s conclusions of law receive no
deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453
(Tenn. 2001).

               Before a petitioner will be granted post-conviction relief based upon a
claim of ineffective assistance of counsel, the record must affirmatively establish, via
facts clearly and convincingly established by the petitioner, that “the advice given, or the
services rendered by the attorney, are [not] within the range of competence demanded of
attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and
that counsel’s deficient performance “actually had an adverse effect on the defense,”
Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, the petitioner “must
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show that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694. Should the
petitioner fail to establish either deficient performance or prejudice, he is not entitled to
relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
. . . that course should be followed.” Strickland, 466 U.S. at 697.

               When considering a claim of ineffective assistance of counsel, a reviewing
court “begins with the strong presumption that counsel provided adequate assistance and
used reasonable professional judgment to make all significant decisions,” Kendrick v.
State, 454 S.W.3d 450, 458 (Tenn. 2015) (citing Strickland, 466 U.S. at 689), and “[t]he
petitioner bears the burden of overcoming this presumption,” id. (citations omitted). We
will not grant the petitioner the benefit of hindsight, second-guess a reasonably based trial
strategy, or provide relief on the basis of a sound, but unsuccessful, tactical decision
made during the course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn.
Crim. App. 1994). Such deference to the tactical decisions of counsel, however, applies
only if the choices are made after adequate preparation for the case. Cooper v. State, 847
S.W.2d 521, 528 (Tenn. Crim. App. 1992).

              In our view, the record supports the denial of post-conviction relief.

                First, trial counsel’s accredited testimony established that he and the
petitioner had discussed the petitioner’s testifying prior to trial and that he had
recommended that the petitioner not testify, noting his belief that the State “could
probably tear him apart, basically.” The petitioner confirmed that he and counsel had
discussed the issue and that he had decided not to testify prior to trial. Additionally, as
the post-conviction court observed, the petitioner offered no testimony at the evidentiary
hearing that called into question the evidence of the petitioner’s guilt. In consequence,
even if trial counsel had performed deficiently in this regard, the record does not establish
that the petitioner was prejudiced by that performance.

               Second, trial counsel’s accredited testimony established that, although he
could not recall the specifics of their discussions, he discussed with the petitioner his
strategy of trying to establish to the jury that the petitioner had engaged in, at most, a
simple possession or casual exchange of cocaine with the informant. The record
establishes that, despite the petitioner’s cherry picking of quotes from the trial transcript,
the overall thrust of the defense was that the petitioner was not, in fact, a drug dealer but
was instead a user of drugs who occasionally exchanged drugs with other users as a
means of supporting his own drug habit. Given that the three controlled buys were
monitored in real time by the police and captured via recordings that were later played to
                                             -8-
the jury, counsel’s trial strategy was a reasonable one. This is not a situation, as
suggested by the petitioner, where counsel disregarded the wishes of the petitioner and
admitted the petitioner’s guilt of the charged offenses. Instead, counsel pursued a
reasonable trial strategy in the face of significant evidence of the petitioner’s guilt that
was designed to greatly reduce the petitioner’s exposure. Under these circumstances, we
cannot say that trial counsel performed deficiently. Moreover, no evidence suggests that
the petitioner was prejudiced by this trial strategy. In light of the proof supporting the
petitioner’s convictions, counsel’s decision to concede the petitioner’s guilt of simple
possession or casual exchange likely had no effect on the outcome of the trial.

              Accordingly, we affirm the judgment of the post-conviction court.


                                                   _________________________________
                                                  JAMES CURWOOD WITT, JR., JUDGE




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