                                                                                           09/25/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs September 13, 2017

       DOMINIQUE DANTWAN SIMONS v. STATE OF TENNESSEE

               Appeal from the Circuit Court for Montgomery County
                No. 40800701       William R. Goodman, III, Judge
                     ___________________________________

                           No. M2017-00165-CCA-R3-PC
                       ___________________________________


Dominique Dantwan Simons (“the Petitioner”) appeals from the denial of his petition for
post-conviction relief arguing that trial counsel rendered ineffective assistance in advising
him concerning his guilty plea and therefore the plea was not knowing and voluntary.
Discerning no error, the judgment of the post-conviction court is affirmed.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS and ROBERT H. MONTGOMERY, JR., JJ., joined.

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Dominique Dantwan
Simons.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
John Wesley Carney, Jr., District Attorney General; and Robert J. Nash, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                   Procedural History

                                   Guilty Plea Hearing

       On March 22, 2010, the same day that his case was scheduled for trial, the
Petitioner pled guilty to Class B felony unlawful possession of one-half gram or more of
a Schedule II controlled substance with intent to sell and was sentenced to eight years as
a Range I, standard offender with probation after the service of one year in confinement.
He received 364 days pre-trial jail credit, making him immediately eligible for release on
probation on this sentence. However, he was required to serve a general sessions
sentence before he would be released. The State presented the following factual basis for
the plea:

       On April fourth of 2008[,] U.S. Marshalls[,] along with the local drug task
       force[,] were hunting a fugitive, Charles Berrios. They set up surveillance
       at 2328 Riley Court, apartment two here in Clarksville. U.S. Marshalls
       noticed two black males enter that apartment; they descended on the
       apartment, knocked and announced their presence and their authority; the
       door was open; inside the residence was a Chauncy Darden, Samuel Bracy,
       Charles Berrios and the [Petitioner]. During a protective sweep[,] U.S.
       Marshalls observe[d] what appear[ed] to be narcotics manufacturing; there
       [wa]s [a] white powdery substance on the kitchen counter and sink, two
       digital scales, a Pyrex dish on the stove, paper towel filters and baking
       soda. There were little baggies of crack cocaine in the living room along
       with some marijuana. The [Petitioner] had . . . an outstanding warrant,
       either parole violation or something of that sort when they ran his name. []
       Mr. Berrios was taken into custody. Pursuant to a consent search 245.7
       grams of cocaine were located in the residence divided up equally into four
       separate bags. Those are the facts and circumstances.

         The trial court advised the Petitioner of his rights, including his right to a trial by
jury, right to confront the State’s witnesses or to subpoena witnesses, and right to remain
silent or to testify. The trial court explained the presumption of innocence, the burden of
proof the State was required to carry to convict the Petitioner of the offense, and that the
offense was a Class B felony with a range of punishment of eight to twelve years. The
trial court also explained that no one could force the Petitioner to plead guilty and that
there was no right to appeal from a guilty plea. The Petitioner acknowledged that he
understood his rights and that he was waiving his right to a jury trial. The Petitioner also
agreed that he wanted the court to accept his guilty plea and acknowledged that on April
4, 2008, he “knowingly possessed five tenths [] gram or more of cocaine with intent to
sell it[.]” The trial court then sentenced the Petitioner pursuant to the terms of the plea
agreement and dismissed the remaining counts.

                                Post-Conviction Proceedings

        The Petitioner filed a timely petition for post-conviction relief on March 17, 2011,
claiming that he was denied the effective assistance of counsel because trial counsel
failed to file a motion to reduce bond, failed to file a motion to suppress evidence, and
failed to file a motion to dismiss. The Petitioner was incarcerated in Davidson County
when he filed the petition but was later transferred to a federal penitentiary in Kentucky
                                             -2-
and could not be transported to Tennessee for a post-conviction hearing.1 The Petitioner
filed a pro se amended petition on September 5, 2012, in which he repeated the same
claims of ineffective assistance of counsel raised in the original petition.

        On May 23, 2013, the Petitioner filed a pro se “motion to vacate plea and dismiss
conviction” on the grounds that he had not had a hearing on his post-conviction petition.
The motion was summarily dismissed. The Petitioner appealed, and this court affirmed
the summary dismissal and remanded the case “for further proceedings on the
[Petitioner’s] post-conviction, if necessary.” Dominique Simons v. State, No. M2013-
01663-CCA-R3-PC, 2014 WL 1285493, at *2 (Tenn. Crim. App. Mar. 31, 2014), no
perm. app. filed.

        The Petitioner then filed a pro se Writ of Habeas Corpus Ad Testificandum, which
the trial court summarily dismissed, and the Petitioner appealed the dismissal. By order
entered August 20, 2015, this court dismissed the appeal. The order stated “the trial court
should act on the [Petitioner’s] post-conviction petition in accordance with the procedure
set forth by the statute and rule.” Dominique D. Simons v. State, No. M2015-00137-
CCA-R3-HC (Tenn. Crim. App. Aug. 20, 2015) (order dismissing appeal).

       By the time this court dismissed the appeal of the denial of the Writ of Habeas
Corpus Ad Testificandum, the trial judge had retired, and the Petitioner’s post-conviction
case was assigned to a new judge. As allowed by Tennessee Code Annotated section 40-
30-110(a), the Petitioner was deposed on March 23, 2016. Post-conviction counsel then
filed an Amended Petition on March 31, 2016, claiming “that due to lack of contact and a
sparse information flow between [trial counsel] and [the Petitioner,] the guilty plea made
[by the Petitioner] was not fully knowing and voluntary because [the] Petitioner did not
completely understand his legal options and the ramifications of his plea.”

       The post-conviction hearing took place on December 16, 2016. The Petitioner’s
deposition and the transcript of the guilty plea colloquy were entered as exhibits. Trial
counsel was the only witness who testified at the hearing.




        1
         The judgment of the United States District Court for the Middle District of Tennessee was an
attachment to the Petitioner’s letter asking that this eight-year sentence be served concurrently with his
federal sentence. According to the judgment, on August 8, 2012, the Petitioner pled guilty to
“Conspiracy to Distribute and Possess With Intent To Distribute Controlled Substance, including 500
grams or More of Cocaine and 280 grams or More of Cocaine Base[.]” The judgement shows “Offense
Ended” December 31, 2010. The Petitioner was sentenced to 262 months.
                                                  -3-
                                Deposition Testimony of the Petitioner

        The Petitioner claimed that his guilty plea was not voluntarily entered. He stated
that trial counsel represented him at the preliminary hearing, met with him at the jail three
or four times, and met with him additional times in court. The Petitioner complained that
trial counsel failed to discover before the preliminary hearing what one of his co-
defendants had told police. According to the Petitioner, this co-defendant “made
statements against” the Petitioner and the other two co-defendants that trial counsel did
not know about. The Petitioner stated, “So I would think that [trial counsel] . . . would
find out when the statement was made at the preliminary hearing before the preliminary
hearing, before we went in there.” He also complained that trial counsel did not give him
a narrative of what the cooperating co-defendant told the police. The Petitioner stated
that trial counsel “played me a piece of a tape that didn’t really say nothing [sic] and then
[he gave me] four pieces of paper and that’s it, and then I’m trying to build off of that.”2

       The Petitioner stated that trial counsel “hit [him] with constructive possession” but
“never told [him] the definition of constructive possession other than it’s the same thing
as actual possession[,]” which was what made the Petitioner “change [his] mind and go
on and take the eight-year sentence[.]”3 The Petitioner stated that he would never have
pleaded guilty if he had known that “constructive possession and possession [are] two
different things.” When asked on direct examination if possession was the only thing he
was charged with, the Petitioner stated, “It was possession -- schedule [II] possession,
manufacturing, schedule [IV] possession and paraphernalia; something around that.”4

       The Petitioner said that trial counsel failed “to file a series of motions” that
Petitioner wanted filed. Concerning trial counsel’s failure to file a motion to suppress,
the Petitioner stated trial counsel informed him that a defendant had standing to challenge
a search with a motion to suppress if the defendant lived at the place searched; trial
counsel never explained whether a guest had standing to challenge a search. The
Petitioner stated:


        2
            It is unclear from the record what this tape was or what the “four pieces of paper” were.
        3
           The State’s initial offer was eight years to be served in the Tennessee Department of Correction.
The State later agreed to an eight-year split confinement sentence, with Petitioner serving one year in jail
followed by seven years on probation. Because the Petitioner had served 364 days at the time he entered
his plea, he was eligible for release on this sentence.
        4
          We glean from the record that the Petitioner and three co-defendants were charged by
presentment in June 2008 with possession of 26 grams or more of cocaine with intent to sell, possession
of over one-half ounce of marijuana with intent to sell, manufacture of 26 grams or more of cocaine, and
possession of drug paraphernalia. A Range II notice for the Petitioner was filed on August 14, 2008.
                                                     -4-
      I told [trial counsel] that -- that everybody get[s] a right to suppression, you know
      what I’m saying; he’s like no, you have to live there. So he never broke down the
      stipulation to without living there. He never said that a guest . . . has rights, you
      know what I’m sayin[g], or anything, you know what I’m sayin[g], he never asked
      me no [sic] questions or . . . just broke down the case to me.

The Petitioner claimed that, if trial counsel had filed a motion to suppress and the trial
court had held a suppression hearing, he would have understood the difference between
the legal concepts of constructive and actual possession, and he and trial counsel could
have “put together a defensive argument . . . .”

       On cross-examination, the Petitioner agreed that trial counsel filed a motion to
reduce bond, his bond was reduced to $50,000, and after making bond he was released
from custody. He also agreed that he failed to appear for trial on April 27, 2009, and his
bond was revoked. The Petitioner was not apprehended until December 10, 2009. When
asked about his failure to appear for trial and why it took over six months to serve the
capias, the Petitioner stated:

      [Trial counsel] told me to come down to his office. I went down to his
      office, he was not there. So, yeah, after that I was gone in the wind.
      Somebody was in court and told me that they issued a . . . capias for
      $200,000. I ain’t got no 200 -- I barely got out the first time. So, yeah, for
      six months I -- as you say, I was in the wind.

The Petitioner wanted trial counsel to file a motion to reduce the $200,000 bond in effect
after he failed to appear for his trial. The Petitioner explained that “unless [he]
committed some violent offense on somebody that [his] bond wasn’t supposed to be
excessive like that.”

      The Petitioner agreed that co-defendant Darden, who resided in the apartment
where the search occurred, filed a motion to suppress that was denied by the trial court.
When asked if he lived in co-defendant Darden’s apartment, the Petitioner stated:

      [W]e just moved, you know what I’m sayin[g], I have no -- because I was
      supposed to be at my grandmother’s house, you know what I’m saying, but
      I don’t . . . go home, you know what I’m saying. I like . . . get a hotel room
      or go spend the night with a girl or kick it with one of my hom[]ies from
      over there, you know what I’m saying, so . . . it varies. My movement
      various [sic] from spot to spot.



                                          -5-
                                Testimony of Trial Counsel

        Trial counsel stated that he was in private practice from 2002 until February 2016
when he joined the District Attorney’s Office. After he was appointed to represent the
Petitioner, he filed a bond reduction motion, which the trial court denied. After the
Petitioner’s trial was reset because one of the State’s witnesses was deployed overseas,
trial counsel successfully moved to reduce the Petitioner’s bond, and the Petitioner was
able to obtain his release from custody. Trial counsel said the Petitioner failed to keep
any of his appointments while he was released on bond and that he was unable to contact
the Petitioner. The Petitioner then failed to appear for trial, and it took over six months
for the authorities to apprehend the Petitioner.

       Trial counsel said that, based on his billing records, he went to see the Petitioner
ten times at the jail. Trial counsel said there were three co-defendants and that the
Fugitive Task Force, while searching for one of the co-defendants, entered the residence
of another co-defendant and discovered a large amount of cocaine divided into four bags.
He stated that he did not believe the Petitioner had standing to challenge the search.

                              Post-conviction Court’s Order

      On January 11, 2017, the post-conviction court entered its order denying post-
conviction relief. Concerning the failure to file a motion to suppress and a motion to
dismiss, the post-conviction court stated:

       There were no facts to establish that the [P]etitioner lived at the residence
       or had any other property at the residence, therefore trial counsel believed
       the petitioner had no standing to support a Motion to Suppress. Of note
       was the fact that one of the residents filed a Motion to Suppress which was
       denied. Counsel also testified there were no facts or legal theory to support
       a Motion to Dismiss.

Concerning the guilty plea hearing, the post-conviction court stated:

       The [P]etitioner was placed under oath and inquiry made by the trial judge
       as to the [Pe]titioner’s understanding of his rights as relates to every aspect
       of a trial, his understanding of the minimum and maximum sentence range,
       his right to testify or not testify and right to assistance of counsel. The
       [P]etitioner answered on the record that he understood such rights and
       voluntarily waived all such rights and that the sentence ranges were fully
       understood by him.

                                            -6-
       The post-conviction court found that trial counsel “reviewed the facts and
applicable law in the case with the [P]etitioner [and] consulted with the [P]etitioner on
several occasions[,]” that “the [P]etitioner both considered and participated in the
decision to enter his plea,” and that the “[P]etitioner was not denied effective assistance
of counsel.

                                         Analysis

       The Petitioner raises a single issue on appeal:

       Trial Counsel rendered ineffective assistance of counsel because
       [Petitioner]’s guilty plea[] was not rendered knowing and voluntary, fully
       understanding the ramifications of said plea, therefore the plea given was in
       violation of the [Sixth] Amendment of the U.S. Constitution and/or Art. I §
       9 of the Tennessee Constitution.

       The Petitioner correctly argues that he was entitled to effective assistance of
counsel “at all critical stages of a criminal prosecution[.]” We will therefore address the
claims made in his pro se petition in the context of the above quoted issue.

                                    Standard of Review

        In order to prevail on a petition for post-conviction relief, a petitioner must prove
all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828,
830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and
fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Appellate courts are bound
by the post-conviction court’s factual findings unless the evidence preponderates against
such findings. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015). When reviewing
the post-conviction court’s factual findings, this court does not reweigh the evidence or
substitute its own inferences for those drawn by the post-conviction court. Id.; Fields, 40
S.W.3d at 456 (citing Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). Additionally,
“questions concerning the credibility of the witnesses, the weight and value to be given
their testimony, and the factual issues raised by the evidence are to be resolved by the
[post-conviction court].” Fields, 40 S.W.3d at 456 (citing Henley, 960 S.W.2d at 579);
see also Kendrick, 454 S.W.3d at 457. The post-conviction court’s conclusions of law
and application of the law to factual findings are reviewed de novo with no presumption
of correctness. Kendrick, 454 S.W.3d at 457.




                                            -7-
                             Ineffective Assistance of Counsel

         The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.
art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel,
a petitioner must prove: (1) that counsel’s performance was deficient; and (2) that the
deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);
see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same
standard for ineffective assistance of counsel applies in both federal and Tennessee
cases). Both factors must be proven in order for the court to grant post-conviction relief.
Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State, 938 S.W.2d 363,
370 (Tenn. 1996). Accordingly, if we determine that either factor is not satisfied, there is
no need to consider the other factor. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007)
(citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)). Additionally, review of
counsel’s performance “requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S.
at 689; see also Henley, 960 S.W.2d at 579. We will not second-guess a reasonable trial
strategy, and we will not grant relief based on a sound, yet ultimately unsuccessful,
tactical decision. Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).

        As to the first prong of the Strickland analysis, “counsel’s performance is effective
if the advice given or the services rendered are within the range of competence demanded
of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that
counsel was deficient, the petitioner must demonstrate “that counsel’s acts or omissions
were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see
also Baxter, 523 S.W.2d at 936.

        Even if counsel’s performance is deficient, the deficiency must have resulted in
prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong
of the Strickland analysis, 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. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks
omitted).




                                            -8-
                          Failure to File a Motion to Reduce Bond

        Trial counsel successfully moved to reduce the bond to an amount that the
Petitioner was able to secure. After the Petitioner was released on bond, he failed to
appear for trial and was in his own words “in the wind,” avoiding arrest. After failing to
appear for trial, his bond was raised to $200,000. The Petitioner has failed to prove that
trial counsel was deficient in failing to file a second motion to reduce his bond. Even if
trial counsel had filed a motion to reduce bond, it was unlikely, based on the Petitioner’s
previous conduct in failing to appear for trial and avoiding arrest and his testimony, that
he “barely got out the first time” on the $50,000 bond, that the motion would have been
successful. See Demorris Marcel Childress v. State, No. M2008-01658-CCA-R3-PC,
2009 WL 2447650, at *5 (Tenn. Crim. App. Aug. 11, 2009), no perm. app. filed (trial
counsel was not deficient in deciding not to file a motion to suppress because the motion
would not likely be successful). This claim is completely without merit.

                            Failure to File a Motion to Suppress

        Trial counsel testified that he did not believe the Petitioner had standing to
suppress the evidence obtained from the consensual search of a co-defendant’s residence
and that the co-defendant that resided in the residence was not successful in his motion to
suppress. “If a petitioner alleges that trial counsel rendered ineffective assistance of
counsel by failing to . . . file a motion to suppress . . . the petitioner is generally obliged
to present the witness or the other evidence at the post-conviction hearing in order to
satisfy the Strickland prejudice prong.” Demarcus Sanders v. State, No. W2012-01685-
CCA-R3-PC, 2013 WL 6021415, at *4 (Tenn. Crim. App. Nov. 8, 2013) (citing Pylant v.
State, 263 S.W.3d 854, 869 (Tenn. 2008)), perm. app. denied (Tenn. Mar. 17, 2014).
Here, the Petitioner did not present any testimony or evidence to support his allegation
that he would have been successful in suppressing the evidence obtained during the
consensual search. The Petitioner has failed to prove that trial counsel’s performance in
not filing a motion to suppress was deficient.

                            Failure to File a Motion to Dismiss

       Because the Petitioner presented no evidence at the post-conviction hearing to
show how trial counsel was deficient in failing to file a motion to dismiss and because we
cannot speculate as to the substance of this claim, the claim is waived. Brimmer v. State,
29 S.W.3d 497, 530 (Tenn. Crim. App. 1998). Additionally, the Petitioner waived this
issue because he failed to argue the issue in his brief. See Tenn. Ct. Crim. App. R. 10(b)
(“Issues which are not supported by argument, citation to authorities, or appropriate
references to the record will be treated as waived in this court.”).

                                             -9-
                            Involuntary and Unknowing Plea

        The Petitioner argues that his guilty plea was entered unknowingly and
involuntarily. When reviewing a guilty plea, this court looks to both the federal standard
as announced in the landmark case Boykin v. Alabama, 395 U.S. 238 (1969), and the state
standard as announced in State v. Mackey, 553 S.W.2d 337 (Tenn. 1977), superseded on
other grounds by Tenn. R. Crim. P. 37(b) and Tenn. R. App. P. 3(b). Don Allen Rodgers
v. State, No. W2011-00632-CCA-R3-PC, 2012 WL 1478764, at *5 (Tenn. Crim. App.
Apr. 26, 2012). Under the federal standard, there must be an affirmative showing that the
plea was “intelligent and voluntary.” Boykin, 395 U.S. at 242. Likewise, the Tennessee
Supreme Court has held that “the record of acceptance of a defendant’s plea of guilty
must affirmatively demonstrate that his decision was both voluntary and knowledgeable,
i.e. that he has been made aware of the significant consequences of such a plea . . . .”
Mackey, 553 S.W.2d at 340. “[A] plea is not ‘voluntary’ if it is the product of
‘[i]gnorance, incomprehension, coercion, terror, inducements, [or] subtle or blatant
threats . . . .’” Blankenship, 858 S.W.2d at 904 (quoting Boykin, 395 U.S. at 242-43).

       In order to determine whether a plea is intelligent and voluntary, the trial court
must “canvass[] the matter with the accused to make sure he has a full understanding of
what the plea connotes and of its consequence.” Boykin, 395 U.S. at 244. The trial court
looks to several factors before accepting a plea, including:

              [T]he relative intelligence of the defendant; degree of his familiarity
       with criminal proceedings; whether he was represented by competent
       counsel and had the opportunity to confer with counsel about the options
       available to him; the extent of advice from counsel and the court
       concerning the charges against him; and the reasons for his decision to
       plead guilty, including a desire to avoid a greater penalty that might result
       from a jury trial.

Blankenship, 858 S.W.2d at 904; see Howell v. State, 185 S.W.3d 319, 330-31 (Tenn.
2006). Once the trial court has conducted a proper plea colloquy, it discharges its duty to
assess the voluntary and intelligent nature of the plea and creates an adequate record for
any subsequent review. Boykin, 395 U.S. at 244.

       Statements made by a petitioner, his attorney, and the prosecutor during the plea
colloquy, as well as any findings made by the trial court in accepting the plea, “constitute
a formidable barrier in any subsequent collateral proceedings.” Blackledge v. Allison,
431 U.S. 63, 73-74 (1977). Statements made in open court carry a strong presumption of
truth, and to overcome such presumption, a petitioner must present more than
“conculsory allegations unsupported by specifics.” Id. at 74.
                                           - 10 -
       Failure to Explain the Difference Between Actual and Constructive Possession

        In the amended petition for post-conviction relief, the Petitioner claims “that due
to lack of contact and a sparse information flow between attorney and client that the
guilty plea made was not fully knowing and voluntary because Petitioner did not
completely understand his legal options and the ramifications of his plea.” The Petitioner
testified that he pled guilty because trial counsel did not explain constructive possession,
resulting in his plea not being knowingly entered.

       Possession “may be either actual or constructive.” State v. Shaw, 37 S.W.3d 900,
903 (Tenn. 2001). When a person “knowingly has direct physical control over a thing, at
a given time, [that person] is then in actual possession of it.” State v. Edmondson, 231
S.W.3d 925, 928 (Tenn. 2007) (quoting Black’s Law Dictionary 1163 (6th ed.1990)).
When a person knowingly has “the power and the intention at a given time to exercise
dominion and control over an object, either directly or through others[,]” that person has
constructive possession over the object. United States v. Craig, 522 F.2d 29, 32 (6th Cir.
1975) (quoting United States v. Craven, 478 F.2d 1329, 1333 (6th Cir. 1973)); see also
State v. Williams, 623 S.W.2d 121, 125 (Tenn. Crim. App. 1981).

        The proof in this case was that the Petitioner and three co-defendants were
arrested in a co-defendant’s residence, where law enforcement officers discovered 245.7
grams of cocaine divided equally into four separate bags. The Petitioner’s presence at the
scene and association with those in possession of the cocaine, alone, is not sufficient to
conclude that the Petitioner possessed the drugs. See State v. Bigsby, 40 S.W.3d 87, 90
(Tenn. Crim. App. 2000). However, in this case, the fact that the cocaine had been
divided into four separate bags and the fact that there were four individuals at the
residence was circumstantial evidence from which a jury could determine that the
Petitioner was in constructive possession of cocaine. If the Petitioner was knowingly in
possession of cocaine, he could be found guilty whether the jury found his possession to
be actual or constructive. Thus, the Petitioner has failed to prove any prejudice based on
trial counsel’s alleged failure to explain the difference between actual and constructive
possession. He is not entitled to relief on this ground.

                                   Guilty Plea Hearing

       At the guilty plea hearing, the Petitioner confirmed that he understood that he was
pleading guilty and that he decided to plead guilty on his own accord. The transcript of
the plea hearing shows that the trial court conducted a satisfactory Boykin plea colloquy,
informing the Petitioner of his rights, and the Petitioner stated that he understood he was
waiving those rights by entering a guilty plea. While trial counsel did not testify about
                                           - 11 -
the discussions that he had with the Petitioner regarding the differences between the legal
concepts of actual and constructive possession, the Petitioner testified that trial counsel
discussed actual and constructive possession with him. As noted above, a jury could
have found the Defendant guilty whether his possession of the drugs was actual or
constructive. Based on the record before us, the Petitioner failed to prove that his plea
was unknowingly and involuntarily entered. He is not entitled to relief.

                                       Conclusion

       The post-conviction court’s judgment denying post-conviction relief is affirmed.


                                           ____________________________________
                                          ROBERT L. HOLLOWAY, JR., JUDGE




                                          - 12 -
