                                                                                           08/14/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs July 25, 2017

              CLEVELAND FRAZIER v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Knox County
                        No. 106577 Bob R. McGee, Judge


                             No. E2016-02441-CCA-R3-PC


The Petitioner, Cleveland Frazier, appeals the Knox County Criminal Court’s denial of his
petition for post-conviction relief from his 2015 guilty pleas to possession of less than 0.5
gram of cocaine in a school zone and possession of a firearm during the commission of a
dangerous felony and his effective eleven-year sentence. The Petitioner contends that he
received the ineffective assistance of counsel. We affirm the judgment of the post-
conviction court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which ALAN E.
GLENN and J. ROSS DYER, JJ., joined.

Leslie M. Jeffress, Knoxville, Tennessee, for the appellant, Cleveland Frazier.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Charme P. Allen, District Attorney General; and Hector Sanchez, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                        OPINION

        This case arises from the Petitioner’s April 20, 2015 guilty pleas pursuant to a
negotiated agreement. The Petitioner’s agreed-upon sentence was consecutive terms of eight
years for the possession of cocaine in a school zone conviction and three years for the
possession of a firearm during the commission of a dangerous felony conviction. The guilty
plea transcript is not included in the record on appeal.

      At the post-conviction hearing, the Petitioner testified that he pleaded guilty with an
agreed sentence of eleven years at 100% service. He stated that the sentence consisted of
eight years for a drug charge and three years for a firearms charge. He asked the post-
conviction court to vacate his guilty pleas and allow him to have a jury trial. He stated that
he understood he would be subject to the original charges “[d]rug-free zone, trespassing and
in possession of firearm,” and that if he were convicted, he faced a sentence of fifteen to
twenty-five years at 100% service. He said that counsel represented him for about six
months, that he had three previous attorneys, and that he met with counsel three times, one of
which was just before he entered his guilty pleas. The Petitioner stated that counsel did not
ask him about the facts of the case. The Petitioner said he asked counsel whether he could
be convicted, and counsel responded that if he took the case to trial, he would lose because a
police officer’s word alone was sufficient for a conviction. The Petitioner said that counsel
told him about the plea offer and that the Petitioner wanted to talk to his family before
accepting it.

        Relative to the facts of the case, the Petitioner testified that he was at his girlfriend’s
house, that he and his sister were walking together to play basketball, that he saw a group of
his friends and approached them, and that the police pulled up. The Petitioner said that he
walked away from the group because he “knew that [he] was . . . trespassing.” The
Petitioner stated that a police officer exited his police cruiser because he knew that the
Petitioner was trespassing, that the officer patted down the Petitioner but did not find
anything, that the officer learned the Petitioner was trespassing, and that the officer arrested
the Petitioner. The Petitioner said that the officer told another officer to “go search and see if
he [could] find some guns” and that the officer found drugs and a gun.

       The Petitioner testified that to his knowledge, counsel did not investigate the case. He
said that counsel did not review discovery or police video recordings with him. The
Petitioner stated that counsel attempted to play a recording on his computer when he visited
the Petitioner the day before the Petitioner entered the guilty pleas but that the computer did
not function. The Petitioner denied that counsel told him about potential fingerprint
evidence and noted that one of his previous attorneys mentioned no fingerprints were found
on the gun or the “drug bag.” The Petitioner said that he told counsel what his previous
attorney had said and that counsel did not investigate or obtain the Tennessee Bureau of
Investigation (TBI) report relative to fingerprints. The Petitioner said that counsel did not
talk with his sister, who witnessed the relevant events and could have testified on the
Petitioner’s behalf.

       The Petitioner testified that counsel told him the plea offer was for eleven years at
100% service but that when the Petitioner went to the Tennessee Department of Correction
(TDOC), “it was going to drop down . . . 15 percent” because he was not a violent offender.
The Petitioner said he decided to plead guilty because counsel told him he would lose at trial.
 He stated that his decision was affected by the sentence reduction counsel described. The
Petitioner remembered counsel’s reviewing the guilty plea form with him and the

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Petitioner’s stating on the form that he thought counsel provided effective assistance. He
said that he had changed his mind because although he was supposed to receive “85 percent
good time” when he got to the TDOC, he could not receive good time credit because of the
drug-free school zone enhancement. He noted that he was age eighteen when he was
arrested and age twenty when he pleaded guilty.

        The Petitioner testified that counsel explained the plea offer and his rights to him and
that the Petitioner did not ask any questions. The Petitioner said that he knew he was giving
up his trial rights. He stated that he first met with an investigator at the time of his guilty
pleas. The Petitioner said that he declined an initial plea offer of thirteen years at 100%
service because he did not want to accept any sentence requiring 100% service. He denied
that the drugs and the gun belonged to him. He denied that counsel ever discussed filing a
motion to suppress and said that it would have been important to test “the grounds of the
drugs and the gun[.]” He said that he told counsel at their first meeting about his sister’s
presence during the arrest and that counsel did not say anything because he was focused on
the plea agreement.

        On cross-examination, the Petitioner testified that he knew he had been “trespassed
from Western Heights,” the area in which he was walking, that he was accompanied by his
sister and Couron Bennett, and that an officer found two guns and a cigarette box containing
crack cocaine “around the car” where he and other people had been. The Petitioner denied
the items belonged to him. He denied knowing a trial date was scheduled or that he pleaded
guilty the day before the trial was to begin. He denied that counsel showed him a video
recording, although he acknowledged that he saw a copy of the TBI forensic analysis report
of the drugs.

       The Petitioner testified that he recalled the plea colloquy and the trial court’s
informing him that his sentence would be served at 100%. He stated that he did not ask the
court any questions about the discrepancy relative to the release eligibility date because he
trusted what counsel had told him. The Petitioner recalled the prosecutor’s saying at the
colloquy that the sentence was at 100% service. The Petitioner said, though, that counsel
told him he would receive good time credit in the TDOC under “the guidelines” and that the
Petitioner expected to serve seven years after subtracting the time he had already served.

       The Petitioner read portions of the guilty plea transcript into the record. He stated that
the plea agreement was for “possession with intent to sell less than half a gram of cocaine
within 1,000 feet of an elementary school,” a Class B felony, and “felon[] . . . in possession
of a weapon,” a Class C felony, with a total effective sentence of eleven years at 100%
service.




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       Relative to a motion to suppress, the Petitioner testified that he did not know whether
such a motion would have succeeded but that it would have helped him, had it been filed.
The Petitioner said that he was in custody during the period in which counsel represented
him.

        Jamica Frazier, the Petitioner’s sister, testified that on the date of the offenses, she and
the Petitioner left a birthday party and walked toward a location to play basketball. She said
that the Petitioner saw a crowd of people and stopped, that he and a friend had “been having
problems,” and that the friend had called the police and told them the Petitioner was
trespassing. She said that she and the Petitioner crossed the street to talk to Ms. Frazier’s
aunt, that the police arrived and arrested the Petitioner, and that the police crossed the street
to the crowd of people and claimed they had discovered two guns and “two packs of
Newports.” Ms. Frazier denied that the Petitioner had guns, drugs, or Newport cigarettes
that day. She denied that he threw away anything as they walked.

        Ms. Frazier testified that she met with one of the Petitioner’s former attorneys, that he
showed her two video recordings, and that the recordings only depicted the Petitioner’s
arrest, not his throwing away anything. She stated that she only spoke briefly to counsel
when she came to the Petitioner’s plea hearing. She said that she did not have further contact
with counsel and that she never spoke with an investigator.

       On cross-examination, Ms. Frazier testified that she was unhappy the Petitioner was
incarcerated. When asked whether she was looking at things from the perspective of the
Petitioner’s best interest, Ms. Frazier said, “Not at all. Wrong is wrong. If he did wrong, he
did wrong . . . . [I]’ll admit [that he] was . . . trespassing.” She denied that she saw the
Petitioner commit any other crimes. Ms. Frazier stated that she met counsel twice outside of
court but that she did not remember the substance of their conversations. She agreed that she
was not counsel’s client and that he did not have a duty to discuss case strategy with her.

       Relative to the date of the offenses, Ms. Frazier testified that as she and the Petitioner
walked down the street, they passed a woman’s house, that the woman allowed people to
gather at her house, and that a crowd of people, including Mr. Bennett, was there. Ms.
Frazier said that when the police officers stopped, they were near her side of the street. She
said that she was told that two guns were recovered near where the Petitioner was stopped.
She agreed that the Petitioner smoked Newport cigarettes and that crack cocaine was
recovered inside a Newport cigarette box.

       On redirect examination, Ms. Frazier testified that counsel mentioned the amount of
time the Petitioner could serve if he were convicted at trial, although she did not remember
the details of the conversation. She said that she was “pretty sure” counsel called her, and


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she noted that her telephone number changed often. She denied going to counsel’s office or
counsel’s visiting her.

        Counsel testified that he had been practicing criminal law for thirteen years and that
he had handled drug cases before the Petitioner’s case. He said that he understood the
ramifications of a drug-free school zone violation and that he routinely informed his clients
that sentences for such violations required 100% service. Counsel stated that he represented
the Petitioner in the present case and that he began plea negotiations with the prosecutor.
Counsel agreed that a trial date was scheduled. He did not recall the prosecutor’s initial offer
of thirteen years at 100% service but recalled that they ultimately agreed on eleven years at
100% service.

         Counsel testified that he visited the Petitioner and that he explained the evidence
against the Petitioner and showed him police video recordings. Counsel said that one of the
recordings depicted the Petitioner’s ducking behind a car as the police cruiser approached
him. Counsel said that he met with the Petitioner just before the trial date and explained that
if the jury saw the recording, a “good chance” existed he would be convicted. Counsel stated
that if the Petitioner testified he never saw the recording, it was inaccurate. Counsel said that
he gave the Petitioner other discovery materials, although he did not remember their
contents.
         Counsel testified that generally, when deciding whether to file a motion to suppress,
he considered whether a police officer had made a procedural error and had violated a
defendant’s rights. He said that in the Petitioner’s case, the officers had a right to be there,
that it was a “good stop,” and that he would file a motion to suppress when it was merited.
Counsel stated that he told the Petitioner “it was 100 percent service rate he had to do day-
for-day. I told him that I didn’t know, but he could check with the TDOC to see if there was
a possibility he could get any good time credit.” Counsel said that he told the Petitioner he
would receive jail credit for the time he had already served, which was about two years, and
that, as a result, his sentence would be reduced to about nine years.

        On cross-examination, counsel testified that he recalled speaking with the Petitioner’s
previous attorney, although he did not remember how much information he gained from the
conversation. Counsel said that the Petitioner told him about Ms. Frazier, that counsel called
Ms. Frazier, and that Ms. Frazier did not see anything that day because she was not paying
attention to the Petitioner. Counsel stated that Ms. Frazier was not very helpful to the
Petitioner’s case. He said that the video recording clearly showed the Petitioner’s actions.

       The video recording, which is not included in the appellate record, was played for the
post-conviction court. Still photographs taken from the recording were shown to counsel.
Counsel stated that the recording showed the Petitioner standing at the back of a car where
the drugs and gun were later found. Counsel said that the Petitioner initially claimed he was

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in the middle of the road when the police arrived, but the recording belied his claim.
Counsel stated that if a police officer described the Petitioner’s bending over and concealing
his arms and waist behind a car trunk, those events would have occurred before the still
photographs were taken or outside of the frame of the camera. Counsel said that he was
concerned about the officer’s potential testimony, even if the recording were not consistent
with the testimony. Counsel stated that he explained to the Petitioner that the Petitioner’s
location on the recording was “a big concern” and that counsel realized the Petitioner was
lying or mistaken about his location during the encounter.

       Counsel testified that three days before the scheduled trial date, he, his investigator,
and the Petitioner reviewed the video recordings and that they discussed the defense and the
State’s plea offer. Counsel said that he told the Petitioner if he proceeded to trial, he was
“taking a gamble” and faced a fifteen- to twenty-year sentence at 100% service in addition to
the weapons charge. Counsel stated that the Petitioner agreed to accept the plea offer.
Counsel said that his investigation was complete, that he was prepared for a trial, and that the
defense strategy would have been to discredit the police officer’s assertion that the officer
saw the Petitioner drop something.

       Counsel testified that he could not see whether the Petitioner wore gloves in the video
recording. He said that he did not verify whether the police collected fingerprints from the
guns because generally, if a weapon had not been used in a crime, the weapon was secured
instead of collected as evidence and that as a result, no fingerprints would be on the weapon
other than officer’s fingerprints. Counsel stated that he did not think it was strategically
necessary because the absence of the Petitioner’s fingerprints would not have helped the
case, but the presence of the Petitioner’s fingerprints would have been harmful to the case.
When asked whether the presence of a third party’s fingerprints would have been significant,
counsel said that he did not think so, that the police did not collect fingerprints from the
guns, and that it was possible to request fingerprint testing, although counsel did not do so in
this case.

        Counsel testified that he explained the facts of the case, the alternative courses of
action, and the possible outcomes to the Petitioner. He said that he met with the Petitioner’s
family months before the trial date, that counsel requested the Petitioner’s sister attend, and
that she was the only person who did not attend. Relative to the State’s plea offer, counsel
said that he told the Petitioner that the prosecutor had offered “eight years on a B felony,
school zone. It was . . . eight years at 100 percent. There was three years mandatory
consecutive on the weapons charge, and that was at 100 percent, gave him 11 years.” He
stated that the Petitioner had already been incarcerated for one or two years and that this time
would “either be towards his parole or towards the end of his sentence.” He said that he told
the Petitioner “that he could check with TDOC, if there [were] any good time programs or . .
. credits . . . if he would qualify with these kind of charges, that it would be totally up to

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TDOC, that I had no control over it.” Counsel denied telling the Petitioner that he would
receive a fifteen percent sentence reduction. Counsel said that he was aware that in cases in
which a defendant was sentenced to more than the minimum sentence length, the minimum
sentence was served at 100%, and the remainder was served at the defendant’s respective
sentencing range. Counsel noted that good time credit was available for the portion of a
sentence that did not require 100% service.

        Counsel testified that he did not consider filing a motion to suppress because the
police officers were present on a “legitimate call,” the drugs and guns were in plain view,
and nothing could have been suppressed. Counsel stated that he saw the dispatch records in
connection with the Petitioner’s case and that they reflected that the officers responded to a
call reporting that the Petitioner was armed and “hanging out around a blue Lincoln.” The
call described the Petitioner as carrying a pistol and wearing a gray shirt, blue jeans, and
dreadlocks pulled back into a ponytail. Counsel recalled that an off-duty police officer may
have placed the call.

        On redirect examination, counsel testified that before becoming an attorney, he had
been a police captain. He said that, based upon his experience as a police officer, retrieving
fingerprint evidence from guns that had been handled by officers was useless. He stated that
he compiled his notes into a billing summary, which reflected that the Petitioner was charged
with a Class A felony and that he pleaded guilty to a Class B felony. Counsel stated that the
billing summary reflected counsel’s receiving the case paperwork, preparing a discovery
motion, meeting with an investigator, reviewing the case, performing research, and meeting
with the Petitioner. The summary reflected that the Petitioner and counsel discussed the case
and that the Petitioner denied the allegations, claiming that other people were in the area
where the drugs and guns were found. Two days later, counsel met with previous counsel
and unsuccessfully discussed a plea agreement with the prosecutor. Counsel filed a motion
to reduce bond, which was denied, met with the Petitioner’s family apart from his sister, and
met with the investigator. Counsel reviewed additional discovery and the police video
recordings. Counsel discussed the case with the Petitioner by telephone. Before the trial
date, the prosecutor made the plea offer. Counsel denied telling the Petitioner he would
receive a 15% sentence reduction. Counsel said that the Petitioner understood he would
have to serve 100% of his sentence “day for day” and was ineligible for early release.
Relative to the video recording, counsel stated that the Petitioner and an officer approached
one another, that a casual encounter occurred, and that the officer had reasonable suspicion
that a crime was being committed and could detain the Petitioner.

        On recross-examination, counsel testified that no grounds existed for a motion to
dismiss and that the case had to proceed to trial or conclude with a plea agreement. He said
that he told the Petitioner he was ready for a trial but that if the Petitioner were convicted, he
faced a minimum of fifteen years at 100% for the drug charge and three years at 100% for

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the weapons charge. Counsel stated that after he showed the Petitioner the police video
recording and explained it to him, the Petitioner said, “I think I better take the plea.”

         The post-conviction court found that counsel “thoroughly” investigated the case and
had multiple discussions with the Petitioner about his options. The court found that the proof
at the trial would have shown the Petitioner stood in the same place the guns and drugs were
found and that the State’s evidence was “very strong[.]” The court found that counsel denied
telling the Petitioner he could receive a 15% sentence reduction and that counsel told the
Petitioner he would have to serve 100% of the sentence day for day, even noting it on the
judgment form. The court found that the Petitioner’s allegation did not outweigh counsel’s
testimony and that the court “cannot make the finding he wants the Court to make, and
cannot make any finding that he was misled as to what the sentence was going to be.”
Relative to the motion to suppress, the court found that counsel had explained his reasoning
for not filing a motion and that the “tactical decision was well made.” The court noted that
proving a Fourth Amendment violation would have required the Petitioner’s establishing a
possessory interest in the items seized, which would have proven the State’s case. The court
found that absent the plea agreement, the minimum sentence the Petitioner faced after a trial
was eighteen years at 100% service and that the Petitioner had failed to prove prejudice. The
court denied the petition, and this appeal followed.

                         I.      Ineffective Assistance of Counsel

       The Petitioner contends that he received the ineffective assistance of counsel, arguing
that counsel failed to explain adequately the release eligibility to which he agreed and failed
to investigate potential fingerprint evidence. The State responds that counsel’s performance
was not deficient. We agree with the State.

        To establish a post-conviction claim of the ineffective assistance of counsel in
violation of the Sixth Amendment, a petitioner has the burden of proving that (1) counsel’s
performance was deficient and (2) the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364,
368-72 (1993). The Tennessee Supreme Court has applied the Strickland standard to an
accused’s right to counsel under article I, section 9 of the Tennessee Constitution. See State
v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

       A petitioner must satisfy both prongs of the Strickland test in order to prevail in an
ineffective assistance of counsel claim. State v. Henley, 960 S.W.2d 572, 580 (Tenn. 1997).
“[F]ailure to prove either deficiency or prejudice provides a sufficient basis to deny relief on
the ineffective assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To
establish the performance prong, a petitioner must show that “the advice given, or the
services rendered . . . , are [not] within the range of competence demanded of attorneys in

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criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S.
at 690. The post-conviction court must determine if these acts or omissions, viewed in light
of all of the circumstances, fell “outside the wide range of professionally competent
assistance.” Strickland, 466 U.S. at 690. A petitioner “is not entitled to the benefit of
hindsight, may not second-guess a reasonably based trial strategy by his counsel, and cannot
criticize a sound, but unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d 334, 347
(Tenn. Crim. App. 1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn. 2008). This
deference, however, only applies “if the choices are informed . . . based upon adequate
preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). One of
counsel’s duties in preparing for a trial is “to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary. In any ineffectiveness
case, a particular decision not to investigate must be directly assessed for reasonableness in
all the circumstances, applying a heavy measure of deference to counsel’s judgments.”
Strickland, 466 U.S. at 691. To establish the prejudice prong, a 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.” Id. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.

                             a. Release Eligibility Percentage

       The Petitioner contends that counsel incorrectly advised him that although the plea
agreement stated he would serve 100% of his service, once he arrived at the TDOC, he
would be eligible for release after serving 85% of his sentence due to “good time” credit. He
argues that but for this advice, he would not have accepted the plea agreement. The State
responds that counsel’s representation was not deficient.

        Counsel testified at the post-conviction hearing that he never told the Petitioner he
would receive good time credit. Rather, he said that he told the Petitioner the plea agreement
was for 100% service but that the Petitioner could inquire with the TDOC about any possible
sentence reduction available. Counsel wrote on the plea agreement form that the agreed
sentence was for 100% service, and the Petitioner acknowledged that the prosecutor and the
trial court stated at the guilty plea hearing that the agreed sentence was at 100% service. The
post-conviction court credited counsel’s testimony, and the record does not preponderate
against its finding that the Petitioner understood the plea agreement required 100% service
and that counsel’s representation was not deficient. The Petitioner is not entitled to relief on
this basis.

                                  b. Failure to Investigate




                                          -9-
       The Petitioner contends that counsel failed to investigate adequately the existence of
fingerprint evidence on the guns and drugs. The State responds that counsel made a tactical
decision not to pursue testing in case the results were harmful to the defense.

        In the second amended post-conviction petition, the Petitioner raised an issue relative
to counsel’s alleged failure to file a motion to suppress the guns and drugs. However, the
Petitioner raised an issue at the post-conviction hearing and contends on appeal that counsel
should have investigated the existence of fingerprint evidence. Although the fingerprint
issue was not raised in the post-conviction petition, it was discussed at some length during
counsel’s testimony, and post-conviction counsel included the issue in its argument.
However, the post-conviction court did not make specific findings on this point, and post-
conviction counsel did not request clarification. This court may not act in contravention of
the finder of fact, and the issue is waived. T.R.A.P. 36(a). In any event, counsel testified
that he made a tactical decision not to pursue fingerprint evidence because the results of
fingerprint testing could have been damaging to the Petitioner’s case. See Adkins, 911
S.W.2d at 347. We note that had counsel requested the analyses, the State could have been
entitled to the results, provided the State requested reciprocal discovery. See Tenn. R. Crim.
P. 16(b). The Petitioner is not entitled to relief on this basis.

       The judgment of the post-conviction court is affirmed.



                                       ____________________________________
                                       ROBERT H. MONTGOMERY, JR.,
                                          JUDGE




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