        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned On Briefs January 18, 2012

          LARRY EUGENE SCALES, JR. v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Davidson County
                       No. 2007-B-1570 Cheryl Blackburn, Judge



                    No. M2011-00129-CCA-R3-PC - Filed April 18, 2012


Petitioner, Larry Eugene Scales, Jr., was convicted by a jury of the sale of less than .5 grams
of cocaine within 1,000 feet of a school zone and sentenced to twelve years at 100%.
Petitioner filed a motion for new trial but subsequently waived his right to appeal. Petitioner
then sought post-conviction relief, in part on the basis of ineffective assistance of counsel at
trial. After a hearing, the post-conviction court denied relief on the basis that Petitioner
failed to show by clear and convincing evidence that he received ineffective assistance of
counsel. Petitioner appeals from the denial of post-conviction relief, arguing that he received
ineffective assistance of counsel because counsel failed to: (1) get an independent
measurement to determine whether the drug sale took place within 1,000 feet of a school
zone; (2) request a jury instruction on the lesser included offense of casual exchange; (3)
raise, preserve, or present any issues on direct appeal. After a review of the record, we
determine that Petitioner failed to present clear and convincing evidence that he is entitled
to post-conviction relief. Specifically, Petitioner failed to introduce proof at the post-
conviction hearing that the sale of cocaine occurred outside the school zone. Petitioner
entered a knowing and voluntary waiver of his right to appeal in accordance with Tennessee
Rule of Criminal Procedure 37(d)(2) and therefore cannot show prejudice from a lack of an
objection by counsel to a denial of a jury instruction on casual exchange. Accordingly, we
affirm the judgment of the post-conviction court.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT, J R.,
and C AMILLE R. M CM ULLEN, JJ., joined.

Judith Lojek, Nashville, Tennessee, for the appellant, Larry Eugene Scales, Jr.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                                    OPINION

                                              Factual Background

       Petitioner’s conviction stemmed from a controlled drug buy conducted by the
Metropolitan Nashville Police Department on December 1, 2006, for which Petitioner was
indicted for the sale of less than .5 grams of cocaine within 1,000 feet of a school. At trial,
Officer Corey Sanderson explained that he was working undercover in the Crime
Suppression Unit in an area near Glenn Middle School in North Nashville. Around 8:30
p.m., Officer Sanderson saw Robert Rucker, the co-defendant, jumping up and down and
waving his arms on Hancock Street. Officer Sanderson approached Mr. Rucker and asked
to buy twenty dollars worth of crack cocaine. Mr. Rucker offered to take Officer Sanderson
to see his “cousin,” Petitioner.

        Officer Sanderson gave Mr. Rucker a ride to Petitioner’s location in front of 817
North Second Street. Officer Sanderson pulled the car to the side of the street so Officer
Sanderson could talk to Petitioner through the passenger-side window. Mr. Rucker identified
Petitioner as “my friend, Craig.” Officer Sanderson handed a twenty dollar bill to Mr.
Rucker, who stepped out of the car and handed the money to Petitioner. Petitioner produced
a plastic bag containing crack cocaine from the waistband of his pants and handed it to Mr.
Rucker. When Mr. Rucker got back into the car he handed the drugs to the officer. Officer
Sanderson commented “that’s a good deal,” signaling the other officers involved in the
operation to move in for the arrests. The money given by Officer Sanderson to Mr. Rucker
and eventually Petitioner was recovered from the street where Petitioner was standing.

      David Kline of the Metro Planning Department testified at trial and introduced a map
showing 815 North Second Street1 and its proximity to Glenn Middle School.

         Petitioner did not testify at trial.

      At the conclusion of the trial, trial counsel orally requested a jury instruction on casual
exchange. The trial court denied the request. Trial counsel did not make any written requests


         1
          The controlled buy took place at 817 North Second Street. The map introduced at trial measured the distance
from 815 North Second Street. There is no explanation for the discrepancy. Counsel for Petitioner did not object to the
testimony about the distance or the discrepancy in the address.

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for jury instructions. The jury found Petitioner guilty of selling less than .5 grams of cocaine
within 1,000 feet of a school.

       At the sentencing hearing, Petitioner testified. During his testimony he admitted that
he sold drugs to the undercover officer outside his home at 817 North Second Street.
Petitioner was sentenced as a Range II, Multiple Offender to the minimum sentence of
twelve years at 100%.

       Shortly after trial, trial counsel withdrew from representation to take a job with
TennCare. A new attorney was appointed to represent Petitioner. A motion for new trial was
filed. Petitioner then filed a waiver of appeal at the beginning of the hearing on the motion
for new trial.

        Petitioner subsequently filed a pro se petition for post-conviction relief. In the
petition, Petitioner sought relief on the basis of ineffective assistance of counsel and the
failure of the trial court to properly charge the jury with the lesser included offense of casual
exchange. An amended petition was filed after counsel was appointed, adding several new
grounds for relief with respect to ineffective assistance of counsel.

        The post-conviction court held a hearing on the petition. At the hearing, trial counsel
testified. She recalled that shortly after Petitioner’s trial, she filed a motion to withdraw
because she left the private practice of law to take a job with TennCare. Trial counsel did
not recall a lot of details about the trial, had not reviewed the case, and informed the court
that she had not practiced law since the end of 2007. In fact, trial counsel could not recall
what motions she filed. Trial counsel remembered requesting funds to hire an investigator
to look into the distance from the transaction to the school, but those funds were denied. She
was able to remember that she did not file a written request for jury instructions.

       Appellate counsel also testified at the hearing. According to appellate counsel, a
motion for new trial was filed after a brief discussion of the possible issues to pursue on
appeal. An amended motion was filed after a review of the trial transcript. At the date for
the hearing on the motion for new trial, Petitioner expressed his desire to abandon the appeal.
Appellate counsel recalled that Petitioner admitted that he committed the offense at the
sentencing hearing. At that time, the State recommended the minimum sentence of twelve
years at 100%. Appellate counsel felt that it made sense to waive the appeal after Petitioner
admitted his guilt at the sentencing hearing and received the minimum sentence. Appellate
counsel advised Petitioner that if he were successful on appeal, he could potentially receive
a longer sentence.




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       At the conclusion of the post-conviction hearing, the post-conviction court determined
that Petitioner failed to show by clear and convincing evidence that he suffered any prejudice
from the alleged deficiencies of counsel. Further, the post-conviction court determined that
the admission of guilt at the sentencing hearing was akin to a guilty plea and determined that
Petitioner made the waiver with an awareness of the consequences. The post-conviction
court denied the petition. Petitioner has filed a timely notice of appeal.

                                          Analysis

                            Post-Conviction Standard of Review

       The post-conviction court’s findings of fact are conclusive on appeal unless the
evidence preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).
During our review of the issues raised, we will afford those findings of fact the weight of a
jury verdict, and this Court is bound by the post-conviction court’s findings unless the
evidence in the record preponderates against those findings. See Henley v. State, 960 S.W.2d
572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). This
Court may not reweigh or re-evaluate the evidence, nor substitute its inferences for those
drawn by the post-conviction court. See State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn.
2001). However, the post-conviction court’s conclusions of law are reviewed under a purely
de novo standard with no presumption of correctness. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001).

                             Ineffective Assistance of Counsel

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, the petitioner bears the burden of showing that (a) the services rendered by trial
counsel were deficient and (b) that the deficient performance was prejudicial. See Powers
v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient
performance, the petitioner must show that the services rendered or the advice given was
below “the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975). In order to demonstrate prejudice, the petitioner must
show that there is a reasonable probability that, but for counsel’s deficient performance, the
result of the proceeding would have been different. See Strickland v. Washington, 466 U.S.
668, 694 (1984). “Because a petitioner must establish both prongs of the test to prevail on
a claim of ineffective assistance of counsel, failure to prove either deficient performance or
resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley, 960
S.W.2d at 580.




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       As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record
preponderates against the court’s findings. See id. at 578. However, our supreme court has
“determined that issues of deficient performance by counsel and possible prejudice to the
defense are mixed questions of law and fact . . . ; thus, [appellate] review of [these issues]
is de novo” with no presumption of correctness. Burns, 6 S.W.3d at 461.

        Furthermore, on claims of ineffective assistance of counsel, the petitioner is not
entitled to the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. 1994).
This Court may not second-guess a reasonably based trial strategy, and we cannot grant relief
based on a sound, but unsuccessful, tactical decision made during the course of the
proceedings. See id. However, such deference to the tactical decisions of counsel applies
only if counsel makes those decisions after adequate preparation for the case. See Cooper
v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

         On appeal, Petitioner complains that the post-conviction court improperly denied his
petition for post-conviction relief. Specifically, Petitioner argues that he received ineffective
assistance of counsel because counsel: (1) failed to secure an independent measurement at
trial to determine whether the sale of cocaine occurred within 1,000 feet of a school zone;
(2) failed to object when the trial court did not instruct the jury on casual exchange; and (3)
failed to advise Petitioner of the implications of the waiver of appeal.

       The post-conviction court determined that Petitioner knowingly waived his right to
appeal his conviction after speaking with trial counsel and admitted his guilt at the sentencing
hearing. The post-conviction court determined that Petitioner failed to adduce clear and
convincing evidence that he received ineffective assistance of counsel.

        The record supports the conclusions of the post-conviction court. Petitioner argues
that trial counsel should have called a witness to testify about the distance of the drug sale
to the school zone. The only proof at the post-conviction hearing with regard to this issue
came from trial counsel and appellate counsel. Petitioner did not testify and did not present
any proof that the sale of cocaine occurred outside of a school zone. “When a
[post-conviction] 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). Generally, presenting such witnesses in the post-conviction hearing is the only
way a petitioner can establish that “the failure to discover or interview a witness inured to
his prejudice . . . or . . . the failure to have a known witness present or call the witness to the
stand resulted in the denial of critical evidence which inured to the prejudice of the
petitioner.” Id. Accordingly, even a petitioner who establishes that trial counsel deficiently

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performed by failing to investigate or call witnesses is entitled to no relief “unless he can
produce a material witness who (a) could have been found by a reasonable investigation and
(b) would have testified favorably in support of his defense if called.” Id. at 757-58.
Additionally, this issue could have been presented on direct appeal. Petitioner chose to
waive his direct appeal. Any issue that could be raised on direct appeal is waived, absent
some proof that Petitioner’s waiver was improperly executed. See T.C.A. § 40-30-106(g);
Tenn. R. Crim. P. 37(d)(2).

        Next, Petitioner complains that trial counsel was ineffective for failing to object when
the trial court did not instruct the jury on casual exchange. Again, this issue could have been
presented on direct appeal. Because Petitioner waived his right to a direct appeal, the
propriety of the trial court’s denial of counsel’s oral motion for a casual exchange instruction
was never determined. The only conceivable prejudice from a failure of counsel to further
object to the denial of a special jury instruction would be that the lack of an objection
constituted a waiver of the issue on appeal. Since Petitioner waived his direct appeal he has
failed to show what would have happened in a direct appeal concerning counsel’s failure to
object to the denial of a casual exchange instruction. He has therefore failed to establish
prejudice with regard to this allegation.

        Lastly, Petitioner argues that trial counsel was ineffective for failing to advise
Petitioner of the implications of the waiver of appeal. The post-conviction court reviewed
the waiver and the testimony from the post-conviction hearing. The post-conviction court
accredited the testimony of trial counsel that the waiver was knowingly and intelligently
made. The record before this Court includes both the signed, written waiver and the
transcript from the hearing during which Petitioner waived his right to appeal. Petitioner did
not present any evidence at the post-conviction hearing to the contrary. The evidence does
not preponderate against the judgment of the post-conviction court. Petitioner is not entitled
to relief.

                                          Conclusion

       For the foregoing reasons, the judgment of the post-conviction court is affirmed.

                                            ___________________________________
                                            JERRY L. SMITH, JUDGE




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