        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs May 25, 2010

              TERRY LYNN RANEY v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Sullivan County
                  No. C55,800    Robert H. Montgomery, Jr., Judge




                  No. E2009-01966-CCA-R3-PC - Filed June 23, 2010


The petitioner, Terry Lynn Raney, appeals from the denial of his petition for post-conviction
relief wherein he challenged his guilty-pleaded convictions of possession with intent to sell
or deliver 26 grams or more of cocaine, keeping or maintaining a dwelling place where
controlled substances are used or sold, possession of drug paraphernalia, and possession of
marijuana on grounds that he was denied the effective assistance of counsel. Discerning no
error, we affirm the judgment of the post-conviction court. Because there is a clerical error
in the judgment form for the petitioner’s conviction of possession of cocaine, the case is
remanded to the Criminal Court for Sullivan County for the entry of a corrected judgment
form.

   Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed and Remanded

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which N ORMA M CG EE
O GLE and C AMILLE R. M CM ULLEN, JJ., joined.

Richard A. Tate, Assistant District Public Defender, for the appellant, Terry Lynn Raney.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; H. Greeley Wells, District Attorney General; and Lewis Combs, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

               On December 7, 2007, the petitioner entered pleas of guilty to possession with
intent to sell or deliver 26 grams or more of cocaine, maintaining a dwelling place where
controlled substances are used or sold, possession of drug paraphernalia, and possession of
marijuana in exchange for a total effective sentence of 15 years’ incarceration to be served
at 100 percent by operation of law. See T.C.A. § 39-17-432(d) (2006). The facts as
summarized by the State during the guilty plea hearing are as follows:

                          The State’s proof in #S53572 would have been,
            had this case gone to trial, that on March the 1st, 2007, . . .
            Kingsport Officers Jim Clark and others were nearby the address
            of 1809 1/2 Park Street, which is located in Kingsport, and
            within 1,000 feet of the Dobyns-Bennett school real property.

                           They had heard what they thought was a domestic
            assault occurring with children present. Went to the residen[ce]
            where they heard the argument coming. Met with the
            [petitioner’s] wife, Mrs. Raney, and asked if they could come
            inside. She allowed them to come inside.

                          Once they were in there they saw the [petitioner]
            moving toward a back bedroom. The officers did a protective
            sweep of the area and began talking to the individuals.

                          They obtained consent to search the property, and
            while they were in the search Mrs. Raney . . . told one of the
            officers where there was drugs, specifically cocaine.

                            . . . . [T]he officers, during their search, found . .
            . a total of 37.1 grams of a substance containing cocaine. That
            was confirmed by the TBI labs. Also found .8 grams of
            marijuana during the search. That was also confirmed by the
            TBI lab.

                           During the search they also found digital scales,
            . . . razor knives that had residue of cocaine, and evidence of
            cocaine use there in the property. Also they had found . . . a
            marijuana pipe and evidence that it’d been smoked at the
            property.

                          . . . . [The petitioner] . . . . [s]tated that he’d been
            selling cocaine basically to support his family. That he’d made
            about $1500 extra a month selling cocaine, and that the money
            was used specifically to pay bills for he and his . . . family.



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The trial court accepted the plea agreement and imposed the agreed sentence.

               On October 2, 2008, the petitioner filed a timely petition for post-conviction
relief alleging that his convictions were the result of an illegal search and seizure, that the
State used illegal evidence, that his guilty pleas were involuntarily entered, and that he was
denied the effective assistance of counsel in his plea. Following the appointment of counsel,
the petitioner filed an amended petition wherein he alleged that his counsel performed
deficiently by failing to move to suppress evidence seized during the search of his residence,
by failing to object when the State misstated the evidence during the plea colloquy, and by
failing to meet with the petitioner a sufficient number of times prior to the entry of the pleas.

               At the July 1, 2009 evidentiary hearing, the petitioner testified that after trial
counsel was appointed to represent him in July 2007, he met with trial counsel only two or
three times before entering the guilty pleas in this case. He stated that although he and
counsel discussed the elements of the offenses with which he had been charged, counsel did
not provide him with any of the discovery materials and that counsel refused to file a motion
to suppress the evidence seized during the search of his residence. The petitioner claimed
that neither he nor his wife gave officers permission to search the residence and explained
that his wife “answered the door and they just walked right on in.” He said that counsel told
him that filing a suppression motion “wouldn’t help” but offered no further explanation.

              The petitioner said that he offered to plead guilty in exchange for the 15-year
sentence as part of a “package deal” that provided his wife with a probationary sentence in
exchange for her guilty pleas. He said that trial counsel never told him whether the State
agreed to accept his offer of a package deal.

                The petitioner testified that the prosecutor misstated the evidence during the
plea colloquy, claiming that the officers had discovered digital scales when they had not, and
that his counsel made no objection to the error. The petitioner explained, “I leaned over to
[counsel] and I told him that there was no scales found in no evidence whatsoever. He was
sitting there playing with his phone and tells me to be quiet.” The petitioner said that he did
not bring the error to the attention of the trial court “[b]ecause [he] was listening to [his]
lawyer.” The petitioner admitted that despite these issues, he told the trial court that he was
satisfied with the representation he had received from trial counsel. The petitioner said that
he did not complain because he “was frustrated and just wanted to get it over with.” He
stated that he believed trial counsel “could do a little better than what he did.”

               During cross-examination, the petitioner admitted that his wife received a
sentence of probation as a part of her plea agreement and that he had bargained for her to
receive that sentence “so she could be out there with [their] children.” The petitioner also

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admitted that as part of his pretrial statement to police he conceded granting consent to search
his residence, but he claimed that the statement was inaccurate because he was under the
influence of drugs. The petitioner claimed that he could read and write at only a “4th or 5th
grade” level and that he signed the statement only because he was “fed up with” the officer
conducting the interview. The petitioner agreed that “even if the digital scales was incorrect
they did find other paraphernalia in the apartment,” including razor blades used to chop
cocaine “to snort.” The petitioner also admitted that he was, in fact, selling cocaine to
supplement his income.

               Trial counsel testified that he was appointed to represent the petitioner in July
2007 and that he met with the petitioner at the Carter County Jail on four separate occasions
and in court on two occasions prior to the entry of the petitioner’s pleas. He stated that he
reviewed all discovery materials with the petitioner. Counsel recalled that the petitioner told
him that although he did not write the pretrial statement, the statement was his, and he had
signed it. Counsel stated that the petitioner never claimed to have been under the influence
during the search of his residence or the giving of his statement. Counsel testified that the
discovery documents he received indicated that the Kingsport police officers involved in the
search would testify that the petitioner had given consent to search his residence. He testified
that he told the petitioner that it would be very difficult to succeed on a motion to suppress
given the admissions in the statement and the officers’ testimony. At that point, according
to counsel, the petitioner asked him to “try to get a package deal together to keep his wife out
of jail.”

               Counsel testified that the State agreed to the concept of a package deal and that
he communicated the offer to the petitioner. Counsel recalled that he told the petitioner that
“it was very honorable for him to work this out and keep his wife from going to jail so she
could raise the children.” Counsel stated that he told the petitioner that it was the practice
of the Sullivan County District Attorney General’s Office to revoke any plea offers upon the
filing of a motion to suppress. Counsel said that the petitioner indicated that he “wanted .
. . to go ahead and continue with the offer and get the offer together.” Counsel stated that
the petitioner never suggested that he had trouble reading or writing.

               Counsel testified that he could not recall whether the petitioner mentioned the
inaccuracy of the State’s summation of the evidence. He agreed that even without the digital
scales, other physical evidence supported the petitioner’s conviction of possession of drug
paraphernalia. Counsel stated that the petitioner gave no indication that he did not want to
plead guilty.

             Certified copies of judgment forms entered in the case of the petitioner’s wife,
Hunter Marie Raney, established that Mrs. Raney pleaded guilty to possession of .5 grams

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or more of cocaine, maintaining a dwelling where controlled substances were used or sold,
possession of drug paraphernalia, and possession of marijuana in exchange for a total
effective sentence of 8 years’ probation.

             During cross-examination, counsel admitted that although he went over the
discovery material with the petitioner, he did not provide the petitioner with a copy of the
materials. He explained, “I normally don’t do that unless they request it.”

                At the conclusion of the hearing, the post-conviction court noted that the
accredited testimony of trial counsel established that the petitioner agreed to enter his pleas
as part of a “package deal” that provided for a probationary sentence for the petitioner’s wife.
The court also noted that the petitioner’s pretrial statement and his wife’s granting the
officers permission to search their residence was “a lot to overcome for a lawyer in a
suppression hearing,” and it concluded that “there’s certainly a high likelihood that [the
petitioner] would have probably lost on a suppression motion.” In its written order denying
relief, the post-conviction court reiterated these findings and added that any erroneous
mention of digital scales would not have affected the voluntariness of the petitioner’s plea.
Finally, the court observed that the transcript of the plea submission hearing “reflects that the
plea colloquy contained all appropriate questions, and the petitioner provided the appropriate
responses.” Based on these findings, the court concluded that the petitioner had not been
denied the effective assistance of counsel.

               In this appeal, the petitioner reiterates his claim that he received ineffective
assistance from his trial counsel, alleging that counsel should have moved to suppress the
evidence seized during the search of his residence, that counsel failed to supply him with
copies of the discovery materials, and that counsel should have objected when the prosecutor
erroneously listed digital scales as part of the evidence seized from the petitioner’s
apartment. The State submits that counsel did not perform deficiently. We agree with the
State.

              The post-conviction petitioner bears the burden of proving his or her
allegations by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006). On appeal, the
appellate court accords to the post-conviction court’s findings of fact the weight of a jury
verdict, and these findings are conclusive on appeal unless the evidence preponderates
against them. Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973
S.W.2d 615, 631 (Tenn. Crim. App. 1997). By contrast, the post-conviction court’s
conclusions of law receive no deference or presumption of correctness on appeal. Fields v.
State, 40 S.W.3d 450, 453 (Tenn. 2001).

              To establish entitlement to post-conviction relief via a claim of ineffective

                                               -5-
assistance of counsel, the post-conviction petitioner must affirmatively establish first whether
“the advice given, or the services rendered by the attorney, are within the range of
competence demanded of attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975), and second that his counsel’s deficient performance “actually had an
adverse effect on the defense,” Strickland v. Washington, 466 U.S. 668, 693 (1984). In other
words, 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.” Id. at 694.

                In the context of a guilty plea, the petitioner must establish that “counsel’s
constitutionally ineffective performance affected the outcome of the plea process.” Hill v.
Lockhart, 474 U.S. 52, 59 (1985). To do so, he must show “a reasonable probability that, but
for counsel’s errors, he would not have pleaded guilty and would have insisted on going to
trial.” Id.; see Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998). In the context
of ineffective assistance of counsel that resulted in a guilty plea, the petitioner is not required
to demonstrate that he likely would have fared better at trial than he did by pleading guilty,
although evidence of this type can be persuasive that he would have insisted on his right to
a jury trial. See Hill, 474 U.S. at 59. Should the petitioner fail to establish either deficient
performance or prejudice, he is not entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d
363, 370 (Tenn. 1996). Indeed, “[i]f it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, . . . that course should be followed.” Strickland, 466
U.S. at 697.

               When reviewing a claim of ineffective assistance of counsel, we will not grant
the petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or
provide relief on the basis of a sound, but unsuccessful, tactical decision made during the
course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).
Such deference to the tactical decisions of counsel, however, applies only if the choices are
made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).

              Claims of ineffective assistance of counsel are regarded as mixed questions of
law and fact. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999). When reviewing the application of law to the post-conviction
court’s factual findings, our review is de novo, and the post-conviction court’s conclusions
of law are given no presumption of correctness. Fields, 40 S.W.3d at 457-58; see also State
v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

               In this case, the accredited testimony of the petitioner’s trial counsel
established that although counsel did not provide copies of the discovery materials to the
petitioner prior to his pleading guilty, counsel reviewed the materials with the petitioner.

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Moreover, counsel testified that the petitioner never requested copies of the materials, and
the petitioner failed to establish that his not obtaining copies caused him to plead guilty when
he otherwise would have insisted upon going to trial.

               Counsel also testified, and the petitioner confirmed, that the petitioner asked
him to procure a “package deal” plea agreement that would allow the petitioner’s wife to
plead guilty to a lesser offense in exchange for a probationary sentence. Counsel stated that
he secured the deal, and certified copies of Mrs. Raney’s judgments established that she did,
in fact, plead guilty to a lesser charge and that she received a sentence of probation.
Furthermore, even if counsel should have pointed out the State’s erroneous listing of digital
scales among the items discovered during the search of the petitioner’s apartment, the
petitioner has failed to establish that he was prejudiced by this oversight. The State listed
other items that qualified as drug paraphernalia and satisfied the elements of the offense of
possession of drug paraphernalia.

               Finally, although the petitioner complains that counsel performed deficiently
by failing to file a motion to suppress, the record establishes that any suppression motion
would have been unsuccessful given the petitioner’s pretrial admission that he had granted
the officers consent to search his residence and the officers’ corroborating testimony that
consent was given. Furthermore, counsel testified that, pursuant to the policy of the district
attorney’s office, the filing of a motion to suppress would have caused the state to revoke the
plea offer, which included Mrs. Raney’s probationary sentence. Under these circumstances,
the petitioner has failed to establish that his counsel performed deficiently by failing to file
a motion to suppress.

               Accordingly, the judgment of the post-conviction court denying post-
conviction relief is affirmed. Because the judgment form for the petitioner’s conviction of
possession of 26 grams or more of cocaine within 1,000 feet of a school lists an erroneous
release eligibility percentage, however, the case must be remanded for the entry of a
corrected judgment form. Code section 39-17-432 requires 100 percent service of the
minimum sentence for those convicted of possessing or selling drugs in a school zone. See
T.C.A. § 39-17-432(d). In this case, the record clearly establishes and the parties agree that
the petitioner received a minimum Class A sentence of 15 years’ incarceration to be served
at 100 percent. The judgment form for this offense, however, reflects a release eligibility of
30 percent. Thus, the form must be amended to reflect the correct release eligibility
percentage.

                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE



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