         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                      April 5, 2005 Session

              KENNETH STRICKLAND v. STATE OF TENNESSEE

                     Appeal from the Circuit Court for Rutherford County
                              No. F-55198    J. S. Daniel, Judge



                      No. M2004-02295-CCA-R3-PC - Filed May 31, 2005


The Defendant, Kenneth Strickland, was convicted by a jury of possession of .5 grams or more of
cocaine with the intent to sell or deliver, and sentenced to twelve years in the Department of
Correction. The judgment against the Defendant was affirmed on direct appeal. See State v.
Kenneth Strickland, No. M2002-00543-CCA-R3-CD, 2003 WL 21997739 (Tenn. Crim. App.,
Nashville, Aug. 22, 2003). The Defendant subsequently filed for post-conviction relief claiming that
he had been denied the effective assistance of counsel at trial. After an evidentiary hearing the trial
court denied relief and this appeal followed. We affirm the judgment of the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR., and
J. C. MCLIN , JJ., joined.

Allen D. Hale, Murfreesboro, Tennessee, for the appellant, Kenneth Strickland.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; and
William C. Whitesell, Jr., District Attorney General, for the appellee, State of Tennessee.

                                             OPINION


       We repeat here the summary of facts underlying the Defendant’s conviction set forth in our
opinion addressing the Defendant’s direct appeal.

       Kenneth Cooper, a confidential informant, and Detective Nick Watson, of the La
       Vergne Police Department, set up a “reverse sting” in which the appellant would
       purchase a kilo of cocaine from Detective Watson for a purchase price of $23,500.
       After several conversations regarding the transaction, the three men agreed to meet
       at a BP gasoline station on February 17, 2000. From this location, the three men
       immediately proceeded to the Food Lion grocery store on Murfreesboro Road.
       Detective Watson had previously arranged for a surveillance team to be waiting at
       the Food Lion.

               Upon their arrival at the grocery store, Detective Watson contacted Lieutenant
       Al Watson, who was to act as his “supplier.” Lieutenant Watson brought Detective
       Watson a bag containing a small, clear, plastic sample bag of cocaine and a “kilo” of
       cocaine. In reality, the “kilo” was sugar which had been hardened and packaged to
       resemble cocaine. The appellant felt of the “kilo” twice and inspected the sample
       package. Then the appellant confessed that he did not have the money to purchase
       the “kilo,” and he returned the bag containing the sample and the “kilo” to Lieutenant
       Watson. The appellant pled with Detective Watson to allow him until the next day
       to attempt to obtain the funds to purchase the kilo and asked Cooper to accompany
       him while he attempted to obtain the money. Whereupon, Cooper and the appellant
       traveled around Nashville, ultimately collecting approximately $10,000. The
       appellant inquired about purchasing one half of a kilo of cocaine, but Detective
       Watson was reluctant to make such a sale.

               The next day, February 18, 2000, after agreeing to sell the appellant one half
       of a kilo of cocaine, Detective Watson again met the appellant at Food Lion. Upon
       his arrival, the appellant sat in the detective’s undercover vehicle and the two men
       discussed the impending transaction and future drug deals. The appellant then
       showed Detective Watson a large amount of money in his billfold, but he did not give
       the money to Detective Watson. After seeing the money, Detective Watson obtained
       the one half of a “kilo” and the sample package from Lieutenant Watson and handed
       the bag containing the drugs to the appellant. Detective Watson then relayed the
       “take down phrase” and the appellant was arrested. Detective David Loftis of the La
       Vergne Police Department was part of the “take down” team and he saw the
       appellant in possession of the bag containing the cocaine at the time of the arrest.
       Subsequent to the arrest, the police searched the appellant and discovered the bag
       containing the cocaine, $9,073 in cash, a diamond cluster ring, other jewelry, and
       cellular telephones.

               The contents of the bag were examined by Agent Glen J. Glenn of the
       Tennessee Bureau of Investigation crime laboratory. Agent Glenn confirmed that the
       “kilo” did not test positive for controlled substances, but revealed that the sample bag
       contained 2.9 grams of cocaine.

State v. Kenneth Strickland, No. M2002-00543-CCA-R3-CD, 2003 WL 21997739, at *1-2 (Tenn.
Crim. App., Nashville, Aug. 22, 2003).

       At his post-conviction hearing, the Defendant testified that he hired his trial lawyer
(“Counsel”) about a week prior to his preliminary hearing. They discussed the Defendant’s case
during their initial meeting. The Defendant then met Counsel at the courthouse prior to the


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scheduled hearing. The Defendant testified that Counsel told him that he should waive his
preliminary hearing. They did not discuss what the hearing entailed or its ramifications. The
Defendant maintained that he did not waive his hearing, rather Counsel did. The Defendant testified
that he never went into the courtroom to waive the hearing. The Defendant stated that, in spite of
his previous convictions, he had never before had a preliminary hearing.

        The Defendant explained that, after he was indicted, he met with Counsel “in his office a
couple of times.” Each meeting lasted for a couple of hours and involved preparing for trial. They
also spoke on the phone a number of times. The Defendant was concerned that one of the police
officers had claimed that the amount of money he seized from the Defendant was less than it actually
was. The Defendant wanted Counsel to pursue this discrepancy in the State’s proof. The Defendant
stated that he made Counsel aware of this fact prior to the preliminary hearing.

        Prior to trial, the State offered the Defendant a plea bargain involving a sentence of six years.
Counsel and the Defendant discussed the offer, and the Defendant testified that Counsel “said [he]
couldn’t take the six years because [he] was on parole, and [he] would have to flatten it then and
begin a new sentence.” The Defendant stated that Counsel also told him that he “probably could beat
[his] case at trial [and that Counsel] felt that . . . a jury wouldn’t convict [him].” The Defendant
rejected the plea offer because Counsel told him he “would probably be better going to trial.”

        On cross-examination, counsel for the State showed the Defendant a document titled
“Waivers.” This document, which was made an exhibit to the hearing, contains waivers of both the
right to counsel and the right to a preliminary hearing. The Defendant acknowledged that his
signature appeared below the waiver of the right to counsel. Counsel’s signature appeared below
the waiver of the right to a preliminary hearing.

       On redirect, the Defendant explained that he never waived his right to counsel and that he
continued to be represented by counsel throughout the proceedings. He also stated that he never
intended to waive his preliminary hearing. Rather, Counsel “made the decision about the
preliminary hearing.”

       Counsel testified that he met with the Defendant eight to ten times prior to the preliminary
hearing. Counsel maintained that both he and the Defendant were prepared for the preliminary
hearing. Counsel stated that he explained to the Defendant his right to a preliminary hearing and the
purposes of the hearing. He advised the Defendant to waive the hearing. Counsel reviewed the
Waivers document and explained that he had gone over this document with the Defendant and he
and the Defendant simply made mistakes in where they placed their signatures.

         Counsel acknowledged that one of the lawyers with whom he shared office space and, at one
point, a secretary, represented one of the Defendant’s two codefendants. The Defendant was aware
of this. Counsel learned that one of the Defendant’s codefendants planned on testifying against him
at the Defendant’s preliminary hearing. Counsel testified he made a tactical decision that the
Defendant would be better off by waiving his preliminary hearing so that the adverse testimony


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would not be preserved for the record. Counsel stated that he discussed this strategy with the
Defendant and the Defendant, upon his advice, agreed to waive his preliminary hearing. Counsel
maintained at the post-conviction hearing that the decision was “the most appropriate thing for [the
Defendant].”

        Counsel testified that he met with the Defendant numerous times after the Defendant was
indicted; he visited the crime scene; obtained discovery from the State; and interviewed the State’s
witnesses. The Defendant told him about the discrepancy in how much money had been seized from
him, but Counsel determined that he did not want the Defendant

        to have any association as far as the jury with any money at all. [His] job [as
        counsel] was to keep that money away from [the Defendant]. [They] discussed all
        of this . . . and it was just a tactic [he] used. [He] did not want [the Defendant]
        associated with the money, period.

The Defendant did not object to this strategy. Counsel developed two theories of defense:
entrapment and attacking the State’s proof about whether the Defendant had ever actually possessed
the drugs. As the case developed, Counsel had to abandon the entrapment defense, but pursued his
attack on the State’s proof. According to Counsel, “it got down to a factual issue . . . [of] who are
you going to believe.”

        Prior to trial, the State made a plea bargain offer of six years as a Range I offender. Counsel
explained the offer to the Defendant, together with all of its ramifications, but left the decision to the
Defendant. The Defendant decided that he wanted to go to trial, stating that if he took the offer, his
parole would be revoked. Counsel did not tell the Defendant that the jury would not convict him.
Counsel did tell the Defendant that, if he was convicted at trial, he would be sentenced as a Range
II offender.

        Counsel admitted that he did not request a jury instruction on the lesser-included offense of
solicitation. He stated that, had he the trial to do over, he would request the instruction.

        After hearing the above proof, the trial court denied relief. The trial court’s order provides
as follows:

        1. Petitioner’s Counsel was not ineffective in waiving Petitioner’s right to a
        Preliminary Hearing in this matter. The Court finds the trial attorney was not
        ineffective in either discussing the right of a Preliminary Hearing, the impact of a
        Preliminary Hearing, or in counsel waiving said hearing, because Petitioner has had
        significant prior involvement in the criminal judicial process. Further, this Court
        finds that Petitioner probably intended to waive his Preliminary Hearing, although
        his signature appears on the wrong part of the Waiver Form.
        2. Petitioner’s trial counsel was not ineffective in pre-trial preparation, failing to
        communicate with the client, or in failing to request a jury charge of solicitation to


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        commit a crime by Petitioner. The Court finds that Trial Preparation was adequate,
        as was the attorney’s communication with Petitioner. Further, the Court finds that
        trial counsel’s failure to request the Jury instruction of solicitation, which under the
        facts of this case may have been an appropriate charge, does not support a finding of
        ineffective assistance of counsel.
        3. The Court finds that trial counsel represented Petitioner while working in the
        same office as Counsel for a co-defendant who eventually was severed from the case.
        The Court finds that there was inappropriate commingling of information. This is
        troubling to the Court, however, in the scheme of things on this Petition it is not a
        basis to set aside the conviction.

In this direct appeal, the Defendant alleges that the trial court should have granted relief on the basis
of Counsel’s waiver of the Defendant’s preliminary hearing, his failure to request an instruction on
the lesser-included offense of solicitation, and on the “cumulative effect” of Counsel’s errors.

STANDARD OF REVIEW
        To sustain a petition for post-conviction relief, a defendant must prove his or her factual
allegations by clear and convincing evidence at an evidentiary hearing. See Tenn. Code Ann. § 40-
30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon review, this Court will not re-
weigh or re-evaluate the evidence below; all questions concerning the credibility of witnesses, the
weight and value to be given their testimony, and the factual issues raised by the evidence are to be
resolved by the trial judge, not the appellate courts. See Momon, 18 S.W.3d at 156; Henley v. State,
960 S.W.2d 572, 578-79 (Tenn. 1997). The trial judge’s findings of fact on a petition for post-
conviction relief are afforded the weight of a jury verdict and are conclusive on appeal unless the
evidence preponderates against those findings. See Momon, 18 S.W.3d at 156; Henley, 960 S.W.2d
at 578.

         Both the Sixth Amendment to the United States Constitution and Article I, Section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).
Both the United States Supreme Court and the Tennessee Supreme Court have recognized that the
right to such representation includes the right to “reasonably effective” assistance, that is, within the
range of competence demanded of attorneys in criminal cases. See Strickland v. Washington, 466
U.S. 668, 687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523 S.W.2d at 936.

        A lawyer’s assistance to his or her client is ineffective if the lawyer’s conduct “so
undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.” Strickland, 466 U.S. at 686. This overall standard is comprised of
two components: deficient performance by the defendant’s lawyer, and actual prejudice to the
defense caused by the deficient performance. See id. at 687; Burns, 6 S.W.3d at 461. The defendant
bears the burden of establishing both of these components by clear and convincing evidence. See
Tenn. Code Ann. § 40-30-110(f); Burns, 6 S.W.3d at 461. The defendant’s failure to prove either



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deficiency or prejudice is a sufficient basis upon which to deny relief on an ineffective assistance of
counsel claim. See Burns, 6 S.W.3d at 461; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

       In evaluating a lawyer’s performance, the reviewing court uses an objective standard of
“reasonableness.” See Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The reviewing court
must be highly deferential to counsel’s choices “and should indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.” Burns, 6
S.W.3d at 462; see also Strickland, 466 U.S. at 689. The court should not use the benefit of
hindsight to second-guess trial strategy or to criticize counsel’s tactics, see Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and counsel’s alleged errors should be judged in light of all the facts and
circumstances as of the time they were made, see Strickland, 466 U.S. at 690; Hicks v. State, 983
S.W.2d 240, 246 (Tenn. Crim. App. 1998).

        A trial court’s determination of an ineffective assistance of counsel claim presents a mixed
question of law and fact on appeal. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). This
Court reviews the trial court’s findings of fact with regard to the effectiveness of counsel under a de
novo standard, accompanied with a presumption that those findings are correct unless the
preponderance of the evidence is otherwise. See id. “However, a trial court’s conclusions of law--
such as whether counsel’s performance was deficient or whether that deficiency was prejudicial--are
reviewed under a purely de novo standard, with no presumption of correctness given to the trial
court’s conclusions.” Id.

ANALYSIS
         With respect to the waiver of his preliminary hearing, the Defendant argues that “the primary
benefit to a defendant [of a preliminary hearing] is to subject the State’s proof to cross examination,”
and that Counsel “in making the decision for [the Defendant] and waiving the preliminary hearing
in this case, with the facts present at the time, was not reasonable.” However, the Defendant points
to no actual prejudice which he suffered as a result of his failure to have a preliminary hearing. The
Defendant states that, had Counsel conducted the preliminary hearing, he would have discovered that
the State had at least one witness whose testimony was that the Defendant possessed the drugs prior
to his arrest. Then, the Defendant argues, Counsel could have sought “rebuttal evidence.” However,
the Defendant has made no showing of what, if any, rebuttal evidence he might have garnered had
the preliminary hearing been conducted. That is, the Defendant has failed to demonstrate that his
lawyer’s strategy cost the Defendant some advantage or benefit at trial that might have had an effect
on the jury’s verdict. Having demonstrated no prejudice from this alleged instance of deficient
performance, the Defendant is not entitled to post-conviction relief on this basis.

       In connection with this argument, the Defendant also complains about Counsel’s continued
representation of him after learning that a lawyer with whom Counsel shared office space was
representing a codefendant. Again, however, the Defendant has failed to demonstrate that he was
prejudiced in any way by this fact and has therefore failed to establish that he is entitled to post-
conviction relief on this basis.



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        We turn now to the Defendant’s allegations concerning Counsel’s failure to request a jury
instruction on the lesser-included offense of solicitation. Our criminal code defines the offense of
solicitation as follows:

        Whoever, by means of oral, written or electronic communication, directly or through
        another, intentionally commands, requests or hires another to commit a criminal
        offense, or attempts to command, request or hire another to commit a criminal
        offense, with the intent that the criminal offense be committed, is guilty of the
        offense of solicitation.

Tenn. Code Ann. § 39-12-102(a). Our supreme court has determined that solicitation to commit the
offense charged is a lesser-included offense of the offense charged. See State v. Burns, 6 S.W.3d
453, 467 (Tenn. 1999). The Defendant was charged with possession of .5 grams or more of cocaine
with the intent to deliver or sell. See Kenneth Strickland, 2003 WL 21997739, at *1. The Defendant
argues that his actions in requesting the undercover police officer to sell him cocaine constituted the
crime of solicitation and therefore entitled him to an instruction on same as a lesser-included offense
of the crime with which he was charged.

        The Defendant misapprehends the nature of solicitation as a lesser-included offense as
opposed to solicitation as a separate and complete offense in and of itself. When the Defendant
asked to purchase cocaine from the undercover police officer, the Defendant committed the crime
of solicitation because he was soliciting the undercover officer to commit the offense of selling
cocaine. Because the crime of solicitation is complete when one solicits another to commit a crime,
regardless of whether the solicitee actually commits the crime solicited, the Defendant could have
been charged with solicitation in addition to the crime with which he was actually charged.
However, the Defendant’s conduct in requesting to purchase cocaine was not solicitation of the
crime with which he was charged: his own possession of cocaine. The concept of soliciting one’s
own possession of drugs is a non sequitur. One cannot solicit another to commit a crime that
requires, by definition, one’s own criminal conduct. That is, one cannot solicit another to commit
one’s own possession of drugs. Accordingly, under the facts of this case, solicitation was not a
lesser-included offense of the offense with which the Defendant was charged. Counsel was therefore
not deficient in failing to request a jury instruction on this “offense” and the Defendant is not entitled
to post-conviction relief on this basis.

        Finally, the Defendant asserts that he is entitled to post-conviction relief on the basis of the
“cumulative effect of Trial Counsel’s errors.” We disagree. The Defendant has not demonstrated
by the requisite degree of proof that Counsel’s performance caused him any prejudice or calls into
question the reliability of the jury’s verdict. Counsel made adequate investigation into the State’s
case against the Defendant, made a tactical decision concerning the Defendant’s preliminary hearing,
pursued two theories of defense to the extent possible under the facts of the case, and did not err in
not requesting an instruction on solicitation as a lesser-included offense. The Defendant is not
entitled to post-conviction relief on the basis that he received ineffective assistance of counsel at
trial.


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Accordingly, we affirm the judgment of the trial court.



                                              ___________________________________
                                              DAVID H. WELLES, JUDGE




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