         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     April 13, 2004 Session

           CHARLES ORLANDO FIELDS v. STATE OF TENNESSEE

                    Direct Appeal from the Circuit Court for Obion County
                            No. 3-03  William B. Acree, Jr., Judge



                     No. W2003-02051-CCA-R3-PC - Filed June 23, 2004


The petitioner, Charles Orlando Fields, was found guilty by a jury in the Obion County Circuit Court
of one count of selling .5 grams or more of a substance containing cocaine within one thousand feet
of a school zone. The petitioner was sentenced to thirty-three years incarceration in the Tennessee
Department of Correction. Subsequently, the petitioner filed a petition for post-conviction relief,
alleging that he received the ineffective assistance of trial counsel. After an evidentiary hearing, the
post-conviction court found that the petitioner’s claims were waived and that regardless of waiver,
the petitioner failed to prove prejudice. The petitioner appeals. Upon our review of the record and
the parties’ briefs, we affirm the judgment of the post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which DAVID G. HAYES and JAMES
CURWOOD WITT , JR., JJ., joined.

John W. Palmer and Jason L. Hudson, Dyersburg, Tennessee, for the appellant, Charles Orlando
Fields.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney
General; and Thomas A. Thomas, District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

                                      I. Factual Background

        The petitioner was indicted by an Obion County Grand Jury on one count of selling .5 grams
or more of a substance containing cocaine within one thousand feet of a school zone and one count
of delivering .5 grams or more of a substance containing cocaine within one thousand feet of a
school zone. Counsel was appointed (hereinafter “appointed counsel”), and a trial was held on the
charges on April 19, 2000. The jury was unable to reach a verdict, resulting in a mistrial.
         Subsequently, the petitioner retained counsel (hereinafter “retained counsel”), and a second
trial was held on August 14, 2000. At trial, the State presented the testimony of two women who
bought crack cocaine from the petitioner. The first witness, Amanda Bell, testified that she had been
working as an undercover agent when she assisted the confidential informant, Kim Hamlin, in
purchasing crack cocaine from the petitioner. Bell asserted that the petitioner was an African-
American male, but she did not discover his name during the purchase. However, Bell stated that
at the time of the purchase the petitioner had a gold tooth. Bell acknowledged that she did not know
if the petitioner currently had a gold tooth, but she maintained that a removable gold tooth could be
inexpensively and easily purchased from a nearby beauty supply store.

        Hamlin, a known drug user, testified that while she worked as a confidential informant with
the Twenty-seventh District Drug Task Force, she and Bell purchased crack cocaine from the
petitioner. Hamlin alleged that she did not see the petitioner with a gold tooth. Regardless, Hamlin
positively identified the petitioner as the person who sold the drugs to her and Bell.

       The petitioner and his mother testified that the petitioner never had a gold tooth.
Additionally, the petitioner specifically denied selling drugs to Bell and Hamlin.

         At the conclusion of the second trial, the petitioner was found guilty of both counts of the
indictment. However, the trial court merged the delivery conviction into the sale conviction. Prior
to the sentencing hearing, retained counsel moved to withdraw from representing the petitioner,
citing that the petitioner had filed a grievance against him. The trial court granted retained counsel’s
motion to withdraw and substituted appointed counsel.

        After the sentencing hearing, the trial court sentenced the petitioner, as a Range II multiple
offender, to thirty-three years incarceration. Following sentencing, the petitioner filed a motion for
new trial. In the motion, the petitioner raised several issues for review, including the ineffectiveness
of retained counsel. At the hearing on the motion for new trial, the petitioner testified concerning
the specific instances of ineffectiveness. The trial court determined that the petitioner had failed to
prove prejudice and denied the motion. The petitioner appealed to this court, neglecting to raise the
issue of the ineffectiveness of retained counsel. On appeal, this court affirmed both the petitioner’s
convictions and sentences. See State v. Charles Orlando Fields, No. W2001-00124-CCA-R3-CD,
2002 WL 1558575, at *1 (Tenn. Crim. App. at Jackson, Jan. 2, 2002).

        Subsequently, the petitioner filed a petition for post-conviction relief, again alleging that he
received the ineffective assistance of retained counsel. At the post-conviction hearing, retained
counsel stated that he represented the petitioner at the second trial. Retained counsel was licensed
to practice law in 1972, spent ten years practicing in Texas, and also practiced in Kentucky. The
remainder of his practice was in Tennessee. Retained counsel asserted that he practiced criminal law
“from the beginning.”

       Retained counsel stated that he met with the petitioner two or three times prior to trial. He
maintained that his file regarding the petitioner’s case did not reflect the extent of the work he


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performed in the case because he “was taught in the Texas Criminal Defense Lawyers Association”
that he should “not write everything down because it could be subpoenaed.” Counsel asserted that
he and the petitioner discussed that the charges alleged that the offense occurred within one thousand
feet of a school zone. He also discussed with the petitioner all plea offers and sentencing concerns.

        Retained counsel stated that he interviewed witnesses prior to trial, but he did not interview
the witnesses suggested by the petitioner. He explained that the petitioner did not provide him with
the contact information for the suggested witnesses, and the petitioner had not paid him enough
money to hire an investigator. Retained counsel stated that he did not petition the court for
additional funds for an investigator because, from his experience practicing in Texas, such motions
were always denied. Retained counsel acknowledged that he could not name the witnesses he
interviewed, but he alleged that he was able to find any necessary information from the “grapevine.”

         Retained counsel maintained that he spoke with appointed counsel regarding the petitioner’s
first trial. Appointed counsel told retained counsel that there was little discovery to be had in the
petitioner’s case. Accordingly, retained counsel never pursued discovery from the State.

         When asked if he ever researched the events of the petitioner’s first trial, retained counsel
stated, “I read it, some. Not a transcript, but I just read the records, you know, the arrest warrants
and just things like that.” Retained counsel admitted that because he did not review the petitioner’s
first trial, he was unaware that the petitioner, the petitioner’s mother, and three other witnesses,
namely Derrell Snow, Reverend Albert E. McCadney, and Stacy McEwen, had testified at the first
trial that the petitioner never had a gold tooth. Retained counsel alleged that the petitioner could not
afford to have the first hearing transcribed.

       Retained counsel alleged that he could not specifically recall jury selection in the petitioner’s
case. However, he admitted that he may have excluded African-Americans from the jury because
“[o]ther people are hard on us, but black people are harder on black people than anybody else in the
world.”

        Retained counsel stated that Hamlin did not testify at the first trial, but she did testify at the
second. Additionally, Bell testified at both trials. Retained counsel opined that, as a witness, “one
[of the women] was super.” Retained counsel also opined that all of the State’s witnesses were
“strong.”

        Retained counsel stated that he did not recall at trial referring to the photographs included
in the lineup as “mug shots.” He further stated that he “never thought about” such a comment
implying that the petitioner had a criminal history.

        Finally, retained counsel explained that, following the petitioner’s trial, he “disassociated”
himself from the petitioner. Retained counsel did so because the petitioner filed a “complaint with
the grievance committee in Nashville.”



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         Appointed counsel testified at the post-conviction hearing that he represented the petitioner
at his first trial, and again at the sentencing hearing and motion for new trial following the second
trial. However, a contract public defender represented the petitioner on appeal. Appointed counsel
acknowledged that he raised the issue of the ineffective assistance of retained counsel in the
petitioner’s motion for new trial, but the issue was not pursued on appeal. Appointed counsel
explained that he raised the issue of the ineffective assistance of retained counsel “to accomplish
some judicial economy.”

        Appointed counsel stated that Bell testified at the petitioner’s first trial, while both Bell and
Hamlin testified at the second trial. Bell testified that she bought crack cocaine from the petitioner
and that he had a gold tooth. At the first trial, appointed counsel called the petitioner; the petitioner’s
mother; the petitioner’s pastor, Reverend McCadney; the petitioner’s boss, Stacy McEwen; and
Derrell Snow to testify that the petitioner never had a gold tooth. Appointed counsel stated that at
both trials, the State, through Bell, demonstrated how easily a fake gold tooth could be obtained.
Additionally, McEwen testified that the petitioner was working for him on the day of the drug
purchase, but McEwen could not affirmatively state the time frame that the petitioner worked that
day. Appointed counsel recalled that McEwen had an extensive criminal history.

        The petitioner testified at the post-conviction hearing that he completed the tenth grade and
had the ability to read and write. He explained that Rose Cannon referred him to retained counsel.
The petitioner claimed that prior to trial he and retained counsel met twice in person and had one
telephone discussion. The petitioner gave retained counsel the names of McEwen, Reverend
McCadney, and Snow. The petitioner explained that he told retained counsel that Reverend
McCadney’s church was in Union City and would be easily located. Additionally, he informed
retained counsel that “you can ask anybody where [Snow] lives.” However, the petitioner admitted
that he did not know how to locate McEwen. The petitioner alleged that the discussion of witnesses
was the only conversation he had with retained counsel in reference to his case.

       The petitioner stated that he did not meet with appointed counsel prior to sentencing and
complained that no one explained sentencing to him. Additionally, the petitioner maintained that
he never spoke with appellate counsel.

           The petitioner contended that the indictment charging him with selling crack cocaine in a
school zone was inadequate. He explained, “I didn’t know it was the school zone. All it say is a
thousand feet of some school, and T.C.A. No. 39-17-417(a)[(3)] is the actual charge of sale of Count
I . . . . So, I don’t feel that I was put in notice of the school zone.” The petitioner remarked that “you
cannot see the school from the house. I didn’t know it was a school there.” Accordingly, the
petitioner felt that retained counsel was ineffective for failing to challenge the sufficiency of the
indictment.

       After the post-conviction hearing, the post-conviction court issued a written order, detailing
the court’s conclusions of law and findings of fact. The post-conviction court stated that retained


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counsel “may have been deficient” in his representation of the petitioner, but the petitioner failed to
prove that he suffered any prejudice by the representation. Additionally, the post-conviction court
remarked:

                       There is one additional reason why the petition should be
               dismissed. The issue of ineffective assistance of counsel was raised
               by the petitioner in his motion for new trial. As previously stated,
               petitioner’s [retained] counsel withdrew after the trial and the public
               defender’s office [through appointed counsel] thereafter represented
               the petitioner. In his motion for new trial, the petitioner asserted that
               there were matters that were not done by [the petitioner’s] counsel
               that resulted in ineffective assistance of counsel.

                      The order denying the motion for judgment of acquittal and
               motion for new trial provided [that the petitioner had failed to prove
               prejudice].

                       The issue of ineffective assistance of counsel has previously
               been litigated. Although that issue was not raised on direct appeal, it
               could have been.

       On appeal, the petitioner challenges the post-conviction court’s ruling.

                                             II. Analysis

         To be successful in his claim for post-conviction relief, the petitioner must prove all factual
allegations contained in his post-conviction petition by clear and convincing evidence. See Tenn.
Code Ann. § 40-30-110(f) (2003). “‘Clear and convincing evidence means evidence in which there
is no serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999) (quoting Hodges v. S.C.
Toof & Co., 833 S.W.2d 896, 901 n.2 (Tenn. 1992)). Issues regarding the credibility of witnesses,
the weight and value to be accorded their testimony, and the factual questions raised by the evidence
adduced at trial are to be resolved by the post-conviction court as the trier of fact. See Henley v.
State, 960 S.W.2d 572, 579 (Tenn. 1997). Therefore, we afford the post-conviction court’s findings
of fact the weight of a jury verdict, with such findings being conclusive on appeal absent a showing
that the evidence in the record preponderates against those findings. Id. at 578.

        It is without question that issues that have been previously determined cannot support a basis
for post-conviction relief. See Tenn. Code Ann. § 40-30-106(f) (2003); Harris v. State, 947 S.W.2d
156, 174 (Tenn. Crim. App. 1996). “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



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evidence, regardless of whether the petitioner actually introduced any evidence.” Tenn. Code Ann.
§ 40-30-106(h).

         In the instant case, the petitioner raised and litigated the claim of the ineffective assistance
of retained trial counsel in his motion for new trial. In doing so, the petitioner proceeded at his peril.
See Mohammed F. Ali v. State, No. E2001-00183-CCA-R3-PC, 2003 WL 1877242, at *22 (Tenn.
Crim. App. at Knoxville, Apr. 11, 2003), perm. to appeal denied, (Tenn. 2003). Accordingly, this
issue has been previously determined and may not be addressed in the petitioner’s post-conviction
proceeding. Moreover, we note that in his post-conviction petition the petitioner raised factual bases
for his claim of ineffective assistance of retained counsel that he did not initially raise in his motion
for new trial. However, ineffective assistance of counsel generally constitutes a single ground for
relief. See Thompson v. State, 958 S.W.2d 156, 161 (Tenn. Crim. App. 1997). Accordingly, the
petitioner may not seek to relitigate the previously determined issue simply by providing additional
factual allegations. See Cone v. State, 927 S.W.2d 579, 582 (Tenn. Crim. App. 1995). Therefore,
the post-conviction court properly denied the petitioner’s claims of the ineffective assistance of
retained trial counsel on this basis.

         We note that while the petitioner’s claims regarding his retained trial counsel have previously
been determined, any claims regarding the ineffective assistance of appointed counsel who assisted
during the motion for new trial stage or the appellate counsel who drafted the petitioner’s direct
appeal have not been so previously determined. However, this issue was not addressed in the
petition for post-conviction relief. An issue raised for the first time on appeal is considered waived.
See State v. Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim. App. 1996). Moreover, the petitioner
failed to support his claim in his appellate brief with any citation to authority, which also constitutes
a ground for waiver. See Tenn. Ct. Crim. App. R. 10(b); Tenn. R. App. P. 27(a)(7). Regrettably,
we may not address this issue for the first time on appeal.

                                           III. Conclusion

        Based upon the foregoing, we affirm the judgment of the post-conviction court.




                                                         ___________________________________
                                                         NORMA McGEE OGLE, JUDGE




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