                                                                                        04/19/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                       Assigned on Briefs November 14, 2017

                JAMIE N. GRIMES V. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                     No. 2008-C-3179 Monte Watkins, Judge
                     ___________________________________

                           No. M2017-00319-CCA-R3-PC
                       ___________________________________

The Petitioner, Jamie N. Grimes, appeals the Davidson County Criminal Court’s denial
of his petition for post-conviction relief from his conviction of selling twenty-six grams
or more of cocaine within one thousand feet of a school and resulting twenty-five-year
sentence. On appeal, he contends that he received the ineffective assistance of counsel
and that the State violated the mandatory joinder rule. Based upon the record and the
parties’ briefs, we affirm the judgment of the post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ALAN E. GLENN, JJ., joined.

Carrie A. Lowery, Nashville, Tennessee, for the appellant, Jamie N. Grimes.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Roger D. Moore,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                I. Factual Background

       On September 26, 2008, the Davidson County Grand Jury filed a three-count
indictment, charging the Petitioner as follows: count one, selling twenty-six grams or
more of cocaine within one thousand feet of a school on November 10, 2006; count two,
selling or delivering twenty-six grams or more of cocaine within one thousand feet of a
school on November 17, 2006; and count three, selling or delivering twenty-six grams or
more of cocaine on November 30, 2006. The State proceeded to trial only on count one.
       At the February 2011 trial, a detective testified that he set up an undercover drug-
buy and that the Petitioner sold cocaine to a confidential informant in the Petitioner’s
truck on November 10, 2006. State v. Jamie N. Grimes, No. M2012-00530-CCA-R3-
CD, 2013 WL 576130, at *1-2 (Tenn. Crim. App. at Nashville, Oct. 22, 2013), perm. app.
denied, (Tenn. Feb. 24, 2014). The State played an audio recording of the drug-buy for
the jury, and the jury convicted the Petitioner of selling twenty-six grams or more of
cocaine within one thousand feet of an elementary school, a Class A felony. Id. at *2.
After a sentencing hearing, the trial court sentenced him as a Range II, multiple offender
to twenty-five years in confinement. Id. at *1.

       On direct appeal of his conviction to this court, the Petitioner raised numerous
issues, including that the State was required to join the offense in this case with an
offense in another case for which he was previously tried and convicted because they
were part of the same criminal episode. Id. at *2. The Petitioner also alleged that he was
denied his right to a speedy trial and that he was prejudiced by the delay because he “‘lost
the opportunity to locate two witnesses necessary for his defense and gather evidence in
support of his defense.’” Id. at *5.

      This court concluded that the joinder issue was “without merit,” explaining as
follows:

               Prior to his trial for this offense, the Defendant was convicted of
       possession of 300 grams or more of cocaine with intent to sell for an
       offense that occurred on December 8, 2006. State v. Bobby Lee Robinson
       and Jamie Nathaniel Grimes, No. M2009-02450-CCA-R3-CD, 2011 WL
       6747480 (Tenn. Crim. App. Dec. 22, 2011), perm. app. denied, (Tenn. May
       17, 2012). On that day, the same confidential informant used in this case
       arranged to purchase cocaine from the Defendant and two co-defendants.
       Id. at *1-2. However, unlike this case, the officers arrested the Defendant
       and his co-defendants before the sale could take place. Id. at *2-3. The
       officers recovered approximately 160 grams of crack cocaine from the
       Defendant’s truck. Id. at *3. The Defendant also consented to a search of
       his home where police discovered “a little over 300 grams” of cocaine. Id.
       at *3-4.

              ....

               [Tennessee Rule of Criminal Procedure] 8(a) requires mandatory
       joinder of offenses that are “based on the same conduct or arise from the
       same criminal episode.” “Same conduct” offenses involve “a single act that
       results in a number of interrelated offenses.” State v. Johnson, 342 S.W.3d
                                           -2-
       468, 473 (Tenn. 2011). “Same criminal episode” or “single criminal
       episode” offenses “normally are generated by separate physical actions.”
       Id. at 474 (quoting 2 ABA Standards for Criminal Justice § 13-1.2 cmt., at
       13.10). However, the acts “must occur simultaneously or in close sequence
       and must occur in the same place or in closely situated places.” Id. A gap
       in time between the acts “may be sufficient to interrupt the temporal
       proximity required for a single criminal episode to exist.” Id. at 475.

              ....

              The charges against the Defendant arose from two separate acts;
       therefore, the offenses must have been part of the same criminal episode in
       order for Rule 8(a) to apply. While the same confidential informant was
       used in both cases, the offenses occurred almost a month apart and at
       different locations. Additionally, the offense at issue in this case was a
       completed sale of cocaine whereas the Defendant was stopped on
       December 8, 2006, before the sale could be completed. The cocaine at
       issue in the December 8, 2006 offense was discovered as a result of the
       search of the Defendant’s truck and the consensual search of his home.
       There is no evidence that proof of one offense is inextricably connected
       with or forms a substantial portion of the proof of the other.

              As such, we do not believe that the two offenses which occurred
       almost a month apart and at different locations were part of the same
       criminal episode even though the same confidential informant was used in
       both cases. See State v. Steve Edward Houston, No. 01C01-9711-CC-
       00510, 1998 WL 749414, at *2-4 (Tenn. Crim. App. Oct. 28, 1998)
       (concluding that separate drug sales using the same undercover informant
       did not require mandatory joinder but could constitute evidence of a
       common scheme or plan for purposes of permissive joinder); State v.
       Dunning, 762 S.W.2d 142, 143-44 (Tenn. Crim. App. 1988) (concluding
       that the “separate acts of selling cocaine to different officers from two
       distinct law enforcement investigations on different days is not a single
       action but a series of independently motivated occurrences”). Accordingly,
       we conclude that this issue is without merit.

Id. at *4.

       Regarding the speedy trial claim, this court stated that while the Petitioner titled
the issue as a “speedy trial” violation, he appeared to be arguing that his right to due
process was violated by the delay between the commission of the offense and the filing of
                                           -3-
the indictment. Id. at *4-5. Thus, this court addressed the issue as one of preindictment
delay, not speedy trial, and concluded that while there was a delay of almost two years
between the offense and the filing of the indictment, the Petitioner failed to show that the
State caused the delay to gain a tactical advantage or that he was actually prejudiced by
the delay. Id. This court affirmed the Petitioner’s conviction and sentence. Id. at *9.

       The Petitioner retained new counsel, and new counsel filed an application for
permission to appeal pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure.
After our supreme court denied the Petitioner’s application, counsel filed a petition for
post-conviction relief, arguing that the Petitioner received the ineffective assistance of
counsel because trial counsel failed to communicate with the Petitioner adequately
regarding trial strategy, plea offers, and sentencing under the Drug-Free School Zone Act
and because trial counsel failed to argue the joinder and speedy trial issues competently
on direct appeal. The Petitioner also argued that the State violated the mandatory joinder
rule, which interfered with trial counsel’s ability to negotiate and defend the Petitioner
and violated the Petitioner’s rights to due process and a speedy trial.

       At the post-conviction evidentiary hearing, trial counsel testified for the Petitioner
that he represented the Petitioner at trial, filed the notice of appeal, and filed the appellate
brief in the direct appeal of the Petitioner’s conviction. Trial counsel withdrew, and
another attorney “argued the appeal” to this court. Prior to the trial in this case, trial
counsel also represented the Petitioner for the charge of possessing three hundred grams
of cocaine with intent to sell on December 8, 2006. Trial counsel said he filed a motion
to join that offense with the three offenses charged in this case because he “felt like . . .
[the assistant district attorney general] was stacking, kind of holding back a few cards to
play should he need them.” Trial counsel made that argument to the trial court but was
unsuccessful. Trial counsel also raised the joinder issue in the Petitioner’s motion for
new trial. He described his research of the issue as “extensive” and said he collaborated
with the Petitioner, “who had extensively briefed the issue as well.”

       Trial counsel testified that he understood the difference between Fifth Amendment
preindictment delay and Sixth Amendment right to a speedy trial. Post-conviction
counsel asked why trial counsel argued preindictment delay but not speedy trial on direct
appeal, and trial counsel answered, “I wouldn’t be able to explain it.” Post-conviction
counsel also asked if trial counsel remembered anything about the two witnesses who
could not be located, and trial counsel said no.

        On cross-examination, trial counsel testified that he became licensed to practice
law in 1992 or 1993 and acknowledged that a “significant amount” of his practice
involved criminal law. The Petitioner’s family retained him to represent the Petitioner
for a “rent-a-car charge,” and he and the Petitioner formed an attorney-client relationship.
                                             -4-
The Petitioner’s family then retained him to represent the Petitioner in the case for the
charge of possessing three hundred grams of cocaine with intent to sell on December 8,
2006. Trial counsel filed a “bond motion” in that case. At the hearing on the motion,
trial counsel learned about the charges in the instant case. He said that he was “hot as
fish grease” at the assistant district attorney general for “stacking” the charges and that
the Petitioner’s family retained him to represent the Petitioner in this case.

       Trial counsel acknowledged that he and the Petitioner did not have any trouble
communicating and that the Petitioner cooperated with him. However, counsel was “sick
a whole lot” and “out of the office and back and forth in the hospital.” He stated, “And
seems like I recall explaining that to [the Petitioner’s mother]. And, at some point, my
conversations were almost entirely with [her], which I can understand relaying some of
the information, [the Petitioner] may not have gotten it.” The State asked if trial counsel
remembered anything about the two witnesses who could not be located, and he
answered, “No. I would’ve guessed that one of them may have been the confidential
informant, but I’m not sure.” He acknowledged that the trial court sentenced the
Petitioner to the minimum punishment in the range, twenty-five years, for the offense.

        In a written order, the post-conviction court denied the petition for post-conviction
relief. The court accredited trial counsel’s testimony that he met with the Petitioner and
that he raised issues in the motion for new trial and on direct appeal that he thought were
“necessary and appropriate in light of the issues raised prior to and during trial.” The
post-conviction court noted that trial counsel filed “numerous motions” in this case and
concluded that the Petitioner failed to show trial counsel was deficient or that he was
prejudiced by any deficiency.1

                                          II. Analysis

       On appeal, the Petitioner contends that he received the ineffective assistance of
counsel because trial counsel failed to address the speedy trial issue and failed to argue
the preindictment delay issue competently on direct appeal of his conviction. He also
contends that he received the ineffective assistance of counsel because trial counsel failed
to communicate with him regarding trial and appellate strategy, plea offers, and the
severe consequences of a conviction under the Drug-Free School Zone Act. Finally, he
       1
          We note that there are errors in the post-conviction court’s order. First, the post-
conviction court stated in the order that “trial counsel testified that he met with the defendant on
numerous occasions and advised him of the evidence against him. Further, defendant was
advised of [the] likelihood of conviction and the range of punishment.” Our review of the
transcript of the post-conviction evidentiary hearing, though, shows that counsel gave no such
testimony. The post-conviction court also stated in the order that it did not find the Petitioner’s
testimony to be credible. However, the Petitioner did not testify at the evidentiary hearing.
                                               -5-
contends that he is entitled to post-conviction relief because the State failed to follow the
mandatory joinder rule. The State argues that the Petitioner is not entitled to relief. We
agree with the State.

                           A. Ineffective Assistance of Counsel

        To be successful in a claim for post-conviction relief, a petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn.
Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.
1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded
their testimony, and the factual questions raised by the evidence adduced at trial are to be
resolved by the post-conviction court as the trier of fact. See Henley v. State, 960
S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court’s findings of fact are
entitled to substantial deference on appeal unless the evidence preponderates against
those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

       A claim of ineffective assistance of counsel is a mixed question of law and fact.
See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction
court’s findings of fact de novo with a presumption that those findings are correct. See
Fields, 40 S.W.3d at 458. However, we will review the post-conviction court’s
conclusions of law purely de novo. Id.

        When a petitioner seeks post-conviction relief on the basis of ineffective
assistance of counsel, “the petitioner bears the burden of proving both that counsel’s
performance was deficient and that the deficiency prejudiced the defense.” Goad v.
State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). To establish deficient performance, the petitioner must show that counsel’s
performance was below “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the
petitioner must 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.” Strickland, 466 U.S. at 694. Generally,

              [b]ecause a petitioner must establish both prongs of the test, a
              failure to prove either deficiency or prejudice provides a
              sufficient basis to deny relief on the ineffective assistance
              claim. Indeed, a court need not address the components in
                                            -6-
              any particular order or even address both if the [petitioner]
              makes an insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).

       Initially, we note that the fact section of the Petitioner’s brief fails to comply with
Rule 27(a)(6), Tennessee Rules of Appellate Procedure, which requires that an
appellant’s brief contain “[a] statement of facts, setting forth the facts relevant to the
issues presented for review with appropriate references to the record.” The statement of
facts in the Petitioner’s brief does not contain any evidence presented at the post-
conviction evidentiary hearing.

        As to the Petitioner’s claim that trial counsel was ineffective for failing to argue
the speedy trial issue on direct appeal, the right to a speedy trial, which is guaranteed by
the Sixth Amendment to the United States Constitution and by article I, section 9 of the
Tennessee Constitution, “attaches at the time of arrest or indictment, whichever comes
first, and continues until the date of the trial.” State v. Vickers, 985 S.W.2d 1, 5 (Tenn.
Crim. App. 1997). To determine whether a defendant’s constitutional right to a speedy
trial has been violated, this court must conduct the balancing test set forth in Barker v.
Wingo, 407 U.S. 514 (1972). See State v. Wood, 924 S.W.2d 342, 346 (Tenn. 1996);
State v. Baker, 614 S.W.2d 352, 353 (Tenn. 1981). Under the Barker analysis, the
following four factors must be considered: (1) the length of the delay; (2) the reasons for
the delay; (3) the accused’s assertion of the right to a speedy trial; and (4) the prejudice
resulting from the delay. 407 U.S. at 530. The most important consideration is the
prejudice factor. State v. Simmons, 54 S.W.3d 755, 760 (Tenn. 2001).

       Here, the Petitioner was indicted in September 2008 and tried in February 2011, a
delay of more than two years. A delay of one year or longer will usually trigger an
inquiry into a speedy trial violation. State v. Vickers, 985 S.W.2d 1, 5 (Tenn. Crim. App.
1997). However, our review of the trial record shows that the Petitioner did not allege a
Sixth Amendment speedy trial violation in the trial court. Instead, he filed a motion
again arguing Fifth Amendment preindictment delay. During a pretrial hearing on the
motion, trial counsel argued that the delay between the November 2006 offenses and the
September 2008 indictment was unreasonable, and the assistant district attorney
explained that the reason for the delay was that another prosecutor was supposed to
present the November drug-buys to the grand jury but failed to do so. Trial counsel never
argued that the delay between the September 2008 indictment and the February 2011 trial
was unreasonable, and therefore, the State never offered a reason for that delay.
Moreover, the Petitioner did not provide any reason for the delay at the post-conviction
evidentiary hearing. Most importantly, the Petitioner failed to present any proof at the
hearing to show he was prejudiced by the delay. Although he claims he was prejudiced
                                            -7-
by his inability to locate two witnesses, he has offered no explanation as to how the
witnesses would have helped his case and did not present the witnesses at the evidentiary
hearing. Generally, “[w]hen a petitioner contends that trial counsel failed to discover,
interview, or present witnesses in support of his defense, these witnesses should be
presented by the petitioner at the evidentiary hearing.” Black v. State, 794 S.W.2d 752,
757 (Tenn. Crim. App. 1990). We may not speculate on what benefit these witnesses
might have offered to the Petitioner’s case. Id. Applying the Barker balancing test, the
Petitioner has failed to show that he received the ineffective assistance of counsel for
counsel’s failure to raise a speedy trial violation on direct appeal of his conviction.

        The Petitioner also contends that trial counsel was ineffective for failing to argue
the preindictment delay issue competently on direct appeal because “a competently
argued due process issue would have been cause for reversal of his judgment.”
Generally, to establish a due process violation stemming from a preindictment delay, an
accused must prove the following prerequisites, also known as the Marion-Dykes test:
(1) there was a delay; (2) the accused sustained actual prejudice as a direct and proximate
result of the delay; and (3) the State caused the delay in order to gain a tactical advantage
over the accused or to harass the accused. State v. Utley, 956 S.W.2d 489, 495 (Tenn.
1997) (citing United States v. Marion, 404 U.S. 307, 324-25 (1971), and State v. Gray,
917 S.W.2d 668, 671 (Tenn. 1996)); see also State v. Carico, 968 S.W.2d 280, 284-85
(Tenn. 1998).

        On direct appeal of the Petitioner’s conviction to this court, this court found that
the Petitioner was not entitled to relief because he failed to show that the State caused the
delay to gain a tactical advantage or that he was prejudiced by the delay. Jamie N.
Grimes, No. M2012-00530-CCA-R3-CD, 2013 WL 576130, at *5. The Petitioner also
failed to present any proof of prejudice at the post-conviction evidentiary hearing.
Therefore, even if trial counsel was deficient for failing to argue the issue competently on
direct appeal, the Petitioner has failed to show he was prejudiced by the deficiency.

       Finally, the Petitioner contends that he received the ineffective assistance of
counsel because trial counsel failed to communicate with him regarding trial and
appellate strategy, plea offers, and the severe consequences of a conviction under the
Drug-Free School Zone Act. Trial counsel testified at the evidentiary hearing that he
represented the Petitioner in previous cases, that they established a working relationship,
and that the Petitioner’s family hired him in this case. He said that he and the Petitioner
did not have any trouble communicating, that the Petitioner cooperated with him, and that
they “collaborated” on their research of the joinder issue. The Petitioner, who called trial
counsel to testify at the hearing, did not question counsel about counsel’s trial or
appellate strategy, any plea offers, or counsel’s communications with the Petitioner about
potential punishments under the Drug-Free School Zone Act. The post-conviction court
                                            -8-
accredited trial counsel’s testimony and found that he communicated with the Petitioner.
Nothing preponderates against the finding of the post-conviction court. Thus, the
Petitioner is not entitled to relief on this issue.

                                 B. Mandatory Joinder

        The Appellant maintains that the State violated the mandatory joinder rule and
claims that the State’s doing so interfered with trial counsel’s ability to negotiate and
defend him. He argues that the State was required to join the three charges indicted in
this case, two of which the State later dismissed, with the charge of possessing 300 grams
or more of cocaine on December 8, 2006, because they were part of “a single, escalating
criminal episode, orchestrated and calculated by the same law enforcement officers,
which occurred within a span of three weeks.” However, as noted by the State in its
brief, this court previously determined that the offenses committed on November 10 and
December 8, 2006, were not part of the same criminal episode. Tenn. Code Ann. § 40-
30-106(h). Accordingly, the Petitioner also is not entitled to relief on this issue.

                                    III. Conclusion

      Based upon the record and the parties’ briefs, we affirm the judgment of the post-
conviction court.

                                                _________________________________
                                                NORMA MCGEE OGLE, JUDGE




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