            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                      Assigned on Briefs at Knoxville, August 21, 2013

        CANTRELL LASHONE WINTERS1 v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Davidson County
                         No. 2008-B-1674     Steve Dozier, Judge


                 No. M2012-02380-CCA-R3-PC - Filed September 11, 2013


Petitioner, Cantrell Lashone Winters, stands convicted of possession of 50 grams or more of
hydromorphone in a school zone with intent to sell, a Class A felony, and Class E felony
evading arrest. See State v. Cantrell Lashone Winters, M2009-01164-CCA-R3-CD, 2011
WL 1085101, at *1 (Tenn. Crim. App. March 24, 2011), no perm. app. filed. The trial court
sentenced him to an effective sentence of thirty-four years in the Tennessee Department of
Correction. Petitioner filed for post-conviction relief, alleging that he had received
ineffective assistance of counsel. The post-conviction court denied relief, and petitioner now
appeals. Following our review, we affirm the judgment of the post-conviction court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON, P.J., and
A LAN E. G LENN, J., joined.

Chelsea Nicholson and Matthew P. Stephens, Nashville, Tennessee, for the appellant,
Cantrell Lashone Winters.

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.




        1
           In much of the record, petitioner’s name is spelled “Cantrelle.” However, in his pro se petition
for post-conviction relief, he spelled his name “Cantrell;” therefore, for purposes of this opinion, we will use
petitioner’s spelling of his name.
                                          OPINION

                                            I. Facts

       In this court’s opinion disposing of petitioner’s direct appeal, the facts presented at
trial were summarized as follows:

               On September 7, 2006, Metropolitan Nashville Police Department
       (“Metro”) Flex Unit patrol officer Shane Fairbanks was patrolling an area in
       East Nashville when he observed [petitioner] driving a Toyota Camry toward
       the intersection of Greenwood Avenue and Scott Avenue. According to
       Officer Fairbanks, [petitioner] was not wearing his seatbelt. Officer Fairbanks
       stopped the Camry and obtained identification from [petitioner] and his
       passenger, Ollis Welch, Jr. Officer Fairbanks testified that as he spoke with
       [petitioner], he smelled marijuana and that, as a result, he asked [petitioner] if
       the men had any marijuana in the car. When the men responded that they did
       not, Officer Fairbanks “opened the driver’s door and told [petitioner] to step
       out.” At that point, [petitioner] told Officer Fairbanks to “hold on.”
       [Petitioner] then “grabbed the door, pulled it back shut. At the same time, he
       put the car in gear and sped away.” According to Officer Fairbanks,
       [petitioner] “blasted right through” a nearby four-way stop sign. Officer
       Fairbanks conceded that there were no other persons or cars in the area when
       [petitioner] fled in the Camry.

               Officer Fairbanks lost sight of the Camry as he got into his patrol car
       to follow, but he caught the car a short distance later. At that point, the Camry
       slowed to a stop, and both men got out of the car and laid on the ground.
       Searches of both men and the vehicle failed to yield any contraband. Officers
       did discover $10,220 on [petitioner]’s person, $5,000 of which [petitioner] had
       stuffed “in between the fleshy part of his buttocks.” Mr. Welch had $5,114 in
       his possession. Other officers who searched along the route traveled by the
       Camry discovered “a sandwich bag” containing “several small yellow pills”
       in a tomato patch.

              Other evidence established that the route taken by the Camry passed
       within 1,000 feet of both Bailey Middle School and Rosebank Elementary
       School. Tennessee Bureau of Investigation testing established that the
       sandwich bag contained 1,413 hydromorphone tablets manufactured by Abbott
       Laboratories and that the weight of the hydromorphone was 127.1 grams.



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              Metro Lieutenant William Mackall testified as an expert in illegal
       narcotics trafficking that the packaging of the hydromorp[h]one tablets in this
       case into smaller, bagged quantities of 50 to 100 pills indicated that they were
       intended for sale to intermediate level drug sellers rather than street level drug
       consumers. Lieutenant Mackall explained that a street level user typically
       purchased less than four pills. He also explained that the average street price
       for a hydromorphone tablet at the time of the offenses was $15.

               Ollis Welch, Jr., testified on behalf of [petitioner] that on September 7,
       2006, he and [petitioner] were driving to Mr. Welch’s mother’s house when
       they were stopped by Officer Fairbanks. He said that [petitioner], who had
       warned Mr. Welch that he might “have to take off” from the officer, sped away
       after Officer Fairbanks asked him to step out of the car. Mr. Welch said that
       as they drove away, he noticed for the first time a plastic bag containing a large
       number of pills. He said that he “grabbed” the bag and threw it out the
       window. Mr. Welch, who acknowledged that he knew [petitioner] to be a drug
       dealer, denied placing the pills in the car and disclaimed any ownership in the
       contraband.

Cantrell Lashone Winters, 2011 WL 1085101, at *1-2.

       The jury convicted the petitioner of possession of fifty grams or more of
hydromorphone in a school zone with intent to sell and Class D felony evading arrest. Id.
at *1. The petitioner appealed his convictions, arguing inter alia, that the evidence was
insufficient to support his convictions. Id. at *5-6. This court modified the evading arrest
conviction to a Class E felony but otherwise affirmed the judgments of the trial court. Id. at
*6, 8.

       Petitioner filed a pro se petition for post-conviction relief, alleging that both his trial
counsel and appellate counsel provided ineffective assistance.2 The trial court appointed
counsel and held a hearing on the petition. At the hearing, petitioner’s co-defendant, Ollis
Welch, testified that he “had no knowledge of speaking with” trial counsel prior to
petitioner’s trial. He further testified that “to the best of [his] knowledge,” the drugs
involved in this case were not petitioner’s. He pleaded the Fifth Amendment when asked
whether the drugs were his and whether he put the drugs in the vehicle.




       2
          Petitioner has not addressed appellate counsel’s performance in this appeal. Therefore, any
argument that appellate counsel’s performance was ineffective is waived. See. Tenn. Ct. Crim. App. R.
10(b).

                                                 -3-
       Petitioner testified that he asked trial counsel to have Mr. Welch testify at his trial
before he knew how Mr. Welch testified at his own sentencing hearing. He said that he
believed he did not have a choice about whether Mr. Welch testified after he had been
subpoenaed. He testified that the State did not present any direct evidence that the drugs had
actually been in the vehicle. On cross-examination, petitioner recalled that trial counsel told
him that it was not a good idea to have Mr. Welch testify.

        Trial counsel testified that he had been licensed to practice law since 1976 and that
he had exclusively practiced criminal defense law for the twelve years prior to the post-
conviction hearing. Trial counsel said that prior to trial, petitioner had been very insistent
that Mr. Welch testify at his trial despite the fact that Mr. Welch’s testimony during his own
sentencing hearing was not favorable to petitioner. Trial counsel testified that his trial notes
indicated that he spoke with Mr. Welch prior to jury selection. He recalled that he asked the
trial court to allow petitioner’s stepfather to meet with petitioner. The purpose of that
meeting was to allow petitioner’s stepfather to attempt to dissuade petitioner from calling Mr.
Welch to testify. Trial counsel testified that petitioner remained adamant about presenting
Mr. Welch’s testimony.

       Following the hearing, the post-conviction court filed a written order denying the
petition for post-conviction relief. In the order, the post-conviction court ruled that
petitioner’s ineffective assistance of counsel issue was waived as it had been previously
determined in the motion for new trial proceedings.

                                          II. Analysis

         Petitioner argues that trial counsel was ineffective for failing to interview Welch prior
to trial and for presenting Welch as a defense witness. The State responds that trial counsel
“made an informed strategic choice to present the testimony.” Neither party has addressed
the post-conviction court’s actual order denying relief based on its finding that the issue had
been previously determined.

      Tennessee Code Annotated section 40-30-106(f)-(h) provides that a trial court should
dismiss a petition for post-conviction relief without a hearing if the allegations have been
waived or previously determined. The statute further states:

       A ground for relief is previously determined if a court of competent
       jurisdiction has ruled on the merits after a full and fair hearing. A full and fair
       hearing has occurred where the petitioner is afforded the opportunity to call
       witnesses and otherwise present evidence, regardless of whether the petitioner
       actually introduced any evidence.


                                               -4-
Tenn. Code Ann. § 40-30-106(h).

        The post-conviction court properly ruled that the petitioner’s allegations regarding his
trial counsel’s performance had been previously determined. The post-conviction court
concluded that petitioner had argued in his motion for new trial that trial counsel had
provided ineffective assistance. Trial counsel testified at the motion for new trial, and that
testimony was admitted as an exhibit to the post-conviction hearing. The trial court denied
the motion for new trial, and the record reflects that it determined that trial counsel was not
ineffective. Appellate counsel did not address the ineffectiveness of counsel in petitioner’s
direct appeal.

        This court wrote in the direct appeal opinion that “[d]espite raising the issue in his
motion for new trial and calling trial counsel as a witness at the hearing on the motion for a
new trial, the defendant specifically ‘does not challenge the effectiveness of his appointed
counsel’ on appeal.” See Cantrell Lashone Winters, 2011 WL 1085101, at *3. Unfortunately
for petitioner, appellate counsel’s failure to raise the issue in the direct appeal did not have
the effect of preserving the issue for post-conviction proceedings. “A ground for relief is
waived if the petitioner personally or through an attorney failed to present it for
determination in any proceeding before a court of competent jurisdiction in which the ground
could have been presented[.]” Tenn. Code Ann. § 40-30-106(g). As noted, petitioner does
not address appellate counsel’s performance in this appeal. We conclude that the
ineffectiveness of petitioner’s trial counsel is a matter previously determined after a full and
fair hearing in a court of competent jurisdiction, and the post-conviction court properly
denied relief on that basis. See Tenn. Code Ann. § 40-30-106(h).

                                       CONCLUSION

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


                                                    _________________________________
                                                    ROGER A. PAGE, JUDGE




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