         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs November 16, 2004

         FRANKIE DONALD RELEFORD v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Sullivan County
                            No. C47, 717   R. Jerry Beck, Judge



                     No. E2004-00695-CCA-R3-PC - Filed March 28, 2005



The Appellant, Frankie Donald Releford, appeals the judgment of the Sullivan County Criminal
Court denying his petition for post-conviction relief. On appeal, Releford argues that he was denied
the effective assistance of counsel at trial and that the post-conviction court erred in allowing trial
counsel to remain in the courtroom during the post-conviction proceeding. After review of the
record, we affirm the denial of post-conviction relief.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which DAVID H. WELLES and NORMA
MCGEE OGLE, JJ., joined.

Gene Scott, Jr., Johnson City, Tennessee, Attorney for the Appellant, Frankie Donald Releford.

Paul G. Summers, Attorney General and Reporter; Michalle Chapman McIntire, Assistant Attorney
General; and Joseph E. Perrin, Assistant District Attorney General, for the Appellee, State of
Tennessee.

                                             OPINION

                                       Factual Background

        In May of 2000, officers with the Kingsport Police Department obtained a search warrant for
the residence of the Appellant and his wife, Carol Mae Releford. The search produced illicit drugs,
guns, stolen property, and drug paraphernalia. The Appellant and his wife were jointly indicted on
various counts of drug possession, possession of drug paraphernalia, and theft of property.
Additionally, the Appellant was individually indicted for possession of a firearm by a convicted
felon. In November of 2001, the Appellant pled guilty to possession of more than 0.5 grams of
cocaine for resale, possession of dihydrocodeinone, possession of marijuana, possession of drug
paraphernalia, theft of property under $500, and possession of a firearm by a convicted felon. As
a result of these convictions, he received an effective eight-year sentence. On direct appeal, a panel
of this court affirmed the Appellant’s sentences. State v. Frankie Donald Releford, No. E2002-
00110-CCA-R3-CD (Tenn. Crim. App. at Knoxville, Feb. 3, 2003).

       On April 2, 2003, the Appellant filed a petition for post-conviction relief, alleging that he
received ineffective assistance of counsel. An evidentiary hearing was conducted on February 26,
2004. Thereafter, the post-conviction court denied relief by written order on March 29, 2004. This
timely appeal followed.

                                              Analysis

I. Ineffective Assistance of Counsel

       The Appellant argues that he received ineffective assistance of counsel during the pre-trial
proceedings. Specifically, he asserts that trial counsel (1) failed to pursue an evidentiary hearing on
a motion to suppress evidence; (2) pressured him into accepting guilty pleas to the crimes; and (3)
neglected to properly communicate with him.

        In order to succeed on a post-conviction claim, the Appellant bears the burden of showing,
by clear and convincing evidence, the allegations set forth in the petition. Tenn. Code Ann. § 40-30-
110(f) (2003). To support a Sixth Amendment claim of ineffective assistance of counsel, the
Appellant must establish that counsel’s performance fell below the range of competence of attorneys
demanded in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under Strickland
v. Washington, the Appellant must establish (1) deficient representation and (2) prejudice resulting
from the deficiency. 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). With a guilty plea, to satisfy
the “prejudice” prong, the Appellant “must show that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill
v. Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 369 (1985).

        The issues of deficient performance by counsel and possible prejudice to the defense are
mixed questions of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). “A trial court’s
findings of fact underlying a claim of ineffective assistance of counsel are reviewed on appeal under
a de novo standard, accompanied with a presumption that those findings are correct unless the
preponderance of evidence is otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing
Tenn. R. App. P. 13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). However, conclusions
of law are reviewed under a purely de novo standard with no presumption of correctness. Fields, 40
S.W.3d at 458.




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         a. Motion to Suppress

        The Appellant argues that trial counsel performed deficiently by failing to pursue an
evidentiary hearing on a motion to suppress evidence.1 Thus, with regard to this allegation, the
Appellant was required to show by clear and convincing evidence (1) that a motion to suppress
would have been granted and (2) that there was a reasonable probability that the proceedings would
have concluded differently if counsel had performed as suggested. The Appellant has failed to
establish either of these factors. Indeed, the post-conviction court’s finding suggests that a motion
to suppress would not have prevailed.2 Clearly, counsel cannot be considered ineffective for failing
to make or pursue a motion that would have been meritless.

        Moreover, this issue is waived as a result of the Appellant’s guilty pleas to the crimes. A plea
of guilty which is entered voluntarily, knowingly, and intelligently, waives all prior non-
jurisdictional, procedural, and constitutional defects in the proceedings. State v. McKissack, 917
S.W.2d 714, 716 (Tenn. Crim. App. 1995). The post-conviction court concluded that the
Appellant’s guilty pleas were voluntarily entered, and the record supports this conclusion. The
record demonstrates that at the guilty plea hearing, the Appellant expressly acknowledged that by
pleading guilty, he was waiving any right to challenge the legality of the evidence seized.
Accordingly, the constitutionality of the seized evidence was waived by the Appellant’s pleas of
guilty.

         b. Guilty Pleas

         The Appellant also argues that his guilty pleas were coerced and, thus, involuntary because
the State’s plea offer was conditioned upon both the Appellant and his wife accepting the “package”
plea agreement. As such, the Appellant asserts that he was “pressured to accept a guilty plea”
because trial counsel informed him that his wife would receive a lengthy sentence if she proceeded
to trial. Contingent or “package deal” plea offers have been approved as an acceptable plea
bargaining method in this State. See Jason Blake Bryant v. State, No. E2002-00907-CCA-R3-PC
(Tenn. Crim. App. at Knoxville, Mar. 11, 2004), perm. to appeal denied, (Tenn. 2004); Parham v.
State, 885 S.W.2d 375, 382 (Tenn. Crim. App. 1994); State v. Street, 768 S.W.2d 703, 711 (Tenn.
Crim. App. 1988). Indeed, this court has held:



         1
          The record reflects that trial counsel did file a motion to suppress and, in preparation of the motion, interviewed
witnesses and thoroughly researched the legal issues. Counsel was prepared to argue the motion at the scheduled hearing;
however, the Appellant pled guilty prior to the hearing.

         2
             The post-conviction court’s findings recite:

                   The police apparently took the position that the facts supporting the Affidavit for a search
         warrant came into the knowledge of the police because the police searched the petitioners’ trash can
         at curb side without a search warrant. As a general statement of law, such a search at curb side out of
         the curtilage would not offend Fourth Amendment principles.

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         The following principles are inherent within this State’s acceptance of contingent
         plea agreements. There is no constitutional right of an accused to plea bargain, and
         there is no duty of the State to engage in plea negotiations. 22 C.J.S. Criminal Law
         § 366 (1989) (citing Weatherford v. Bursey, 429 U.S. 545, 561, 97 S. Ct. 837, 846
         (1976); United States v. Pleasant, 730 F.2d 657, 665, (11th Cir.), cert. denied, 469
         U.S. 869, 105 S. Ct. 216 (1984)). The State, as well as the persons accused, is
         entitled to have its rights protected and, when several persons are charged jointly with
         a single crime, the State is entitled to have the fact of guilt determined and
         punishment assessed in a single trial, unless to do so would unfairly prejudice the
         rights of the defendants. Joseph Lance Risner v. State, No.
         E2002-01112-CCA-R3-PC (Tenn. Crim. App. at Knoxville, June 30, 2003), perm.
         to appeal denied, (Tenn. 2003). Woodruff v. State, 51 S.W.2d 843, 845 (Tenn.
         1932).

       In finding that the Appellant’s pleas of guilty were not coerced, the post-conviction court
concluded:

         The Court does recognize that such joint offers can place different pressures on joint
         defendants, but the Court, upon hearing proof in the case, is of the opinion that the
         pleas by both defendants were knowingly and voluntarily entered without any
         unusual or dramatic pressures.

The proof presented at the hearing does not preponderate against this finding. Accordingly, this
issue is without merit.

         c. Communication

        The Appellant further contends that trial counsel “failed to properly communicate with him.”
He argues that trial counsel was never in his office and neglected to return the Appellant’s phone
calls. Trial counsel, however, testified that he met with the Appellant on twelve different occasions.
The Appellant fails to suggest how additional communications or visits to the jail would have
benefitted his cause or produced a different result. Proof of deficient representation by omission
requires more than a bare allegation of a lost potential benefit. This issue is without merit.

II. Application of Tennessee Rule of Evidence 615

       The Appellant next argues that the post-conviction court erred by not excluding trial counsel
from the courtroom during the evidentiary hearing.3 The rule of sequestration, Tenn. R. Evid. 615,


         3
           Post-conviction proceedings analyze issues implicating federal or state constitutional rights only. Tenn. Code
Ann. § 40-30-103 (2003). Although the Appellant’s argument concerning violation of the rule of sequestration does not
involve a constitutional right, we nonetheless review this claim to determine whether failure to recognize this right
frustrated the Appellant’s presentation of a guaranteed constitutional right.

                                                          -4-
provides that “at the request of a party the court shall order witnesses, including rebuttal witnesses,
excluded at trial or other adjudicatory hearing.” The rule, however, does not provide for the
exclusion of “a person whose presence is shown by a party to be essential to the presentation of the
party’s cause.” Tenn. R. Evid. 615. “The party seeking to avoid sequestration bears the burden of
proving that a Rule 615 exemption applies.” El Paso Pitts v. State, No. W2001-01563-CCA-R3-PC
(Tenn. Crim. App. at Jackson, Apr. 17, 2002) (citing United States v. Ortiz, 10 F. Supp. 2d 1058,
1060 (N.D. Iowa 1998)). On appeal, the standard of review is abuse of discretion. State v. Harris,
839 S.W.2d 54, 68 (Tenn. 1992).

       Prior to the presentation of any proof, the Appellant invoked the rule of sequestration at the
hearing. The post-conviction court denied the Appellant’s request to exclude trial counsel from the
courtroom stating that “I would point out traditionally they’ve remained in the courtroom so they can
more properly explain their actions . . . .”

         This court has held that, under “the special circumstances . . . in a post-conviction proceeding
in which a petitioner claims that his trial attorney was ineffective, it is entirely reasonable to
conclude that the trial attorney’s presence would be essential for the presentation of the state’s case.”
State v. Jermome Brown, No. 03C01-9107-CR-00201 (Tenn. Crim. App. at Knoxville, Oct. 6, 1992).
During the evidentiary hearing, the attorney needs to hear the testimony offered against him so that
he can respond to the charges. Id. We conclude that the post-conviction court did not abuse its
discretion by allowing trial counsel to remain in the courtroom. This issue is without merit.

                                           CONCLUSION

       Based upon the foregoing, we conclude that the post-conviction court properly denied the
Appellant’s petition for post-conviction relief. Accordingly, the judgment of the Sullivan County
Criminal Court is affirmed.



                                                        ___________________________________
                                                        DAVID G. HAYES, JUDGE




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