            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                                Assigned on Briefs August 12, 2003

                    DEDRICK PATTON v. STATE OF TENNESSEE

                       Appeal from the Circuit Court for Rutherford County
                           No. F-52458    James K. Clayton, Jr., Judge



                     No. M2003-00126-CCA-R3-PC - Filed December 23, 2003


The petitioner, Dedrick Patton, appeals from the denial of his petition for post-conviction relief. The
issues presented for review are as follows: (1) whether he was denied the effective assistance of
counsel; (2) whether he knowingly and voluntarily entered his plea of guilt; (3) whether a sufficient
factual basis was entered to support the plea; (4) whether there was a violation of the right to due
process; and (5) whether there was a racially biased grand jury. The judgment is reversed, the
conviction set aside, and the cause remanded for trial.

            Tenn. R. App. P. 3; Judgment of the Trial Court Reversed and Remanded

GARY R. WADE, P.J., delivered the opinion of the court, in which DAVID G. HAYES and JERRY L.
SMITH, JJ., joined.

Dedrick Patton, Henning, Tennessee, pro se.1

Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General;
William C. Whitesell, District Attorney General; and John W. Price, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                                   OPINION

        In 2001, the petitioner entered a plea of guilt to one count of possession with intent to sell
less than .5 grams of cocaine. See Tenn. Code Ann. § 39-17-417. Although the state asserted that
the petitioner was a Range II offender, the plea agreement provided for a Range I sentence of four
years. On April 25, 2002, the petitioner filed a petition for post-conviction relief alleging, among
other things, that he was denied the effective assistance of counsel and that the guilty plea was
neither knowingly nor voluntarily made.



        1
          After the briefing in this case was complete, this court granted appellate counsel's motion to withdraw as
counsel of record for the petitioner.
        At the evidentiary hearing, the petitioner testified that he had served approximately eight
months of his four-year sentence. He claimed that he was on "a cocaine binge" after being arrested
because he was afraid of being returned to prison for violating his parole. He contended that because
he had used cocaine every day from the time of his arrest for possession until the night before his
guilty plea, he "couldn't think." The petitioner claimed that before his guilty plea, he had informed
his attorney of his cocaine use. He remembered that he had taken a drug screen after requesting a
few more days on release before reporting to serve his sentence. He failed the test. It was his
assertion that even though he had only one prior felony conviction, his trial counsel erroneously
believed he qualified for a Range II rather than a Range I sentence and, in consequence, lost
bargaining power for more lenient treatment by the state. According to the petitioner, his counsel
informed him that a Range II sentence would have qualified him for a 12- to 20-year sentence. The
petitioner insisted that had he known that he qualified as Range I, he would not have accepted the
proposed plea agreement of four years, even at the Range I classification, and would have insisted
on a trial.

        The petitioner also alleged that his trial counsel failed to timely acquire an audiotape which
was in the possession of the state and which, according to trial counsel, recorded the drug transaction
between the petitioner and a confidential informant and led to the charge at issue. While
acknowledging that he had expressed satisfaction with his trial counsel's performance at the
submission hearing, the petitioner explained that he had changed his mind after discovering
deficiencies in the performance of his counsel. The petitioner claimed to be innocent of the crime
and contended that he simply had arranged to meet someone who had paged him and offered to sell
him some clothes in a Food Lion parking lot. The petitioner denied that he had cocaine in his
possession and contended that the $450.00 in his pocket was from a cashed paycheck.

        On cross-examination at the evidentiary hearing, the petitioner admitted that he had been
previously incarcerated for selling cocaine and acknowledged that at the time of his plea, he was
under the mistaken belief that he might have had more than one felony on his record. The petitioner
pointed out that he was confused about the number of his prior crimes because of his cocaine use.
He conceded that in 1993 and in 1994, he had been charged with two other felonies but was unaware
of the nature of their dispositions at the time of the plea in question.

        Trial counsel recalled that the petitioner had asked for "a few days" before reporting to serve
his sentence and the state had consented to the request on the condition that the petitioner pass a drug
screen. According to trial counsel, the petitioner, when informed of the state's position, commented
that he might not pass. Trial counsel stated that the petitioner had nothing to lose by taking the test
and failing. According to counsel, he had "a few days off" to gain. It was his opinion that the
petitioner "had his mental faculties about him to where he understood the plea, understood the
consequences of the plea, and [that] it was a knowing, voluntary, and intelligent decision to enter
into that plea bargain." Trial counsel stated that if he had believed the petitioner had been
"impaired," he would have brought that to the attention of the trial court: "[I]f I had thought at any
point that his judgment was clouded by any drugs that he had taken, then I would not have allowed
him to enter that plea."


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        Trial counsel acknowledged, however, that he had informed the petitioner that his prior
record qualified him to be within Range II and that the plea bargain at Range I "was eight years less
than the minimum I expected him to receive if we went to trial and lost." Trial counsel commented,
"[T]hat [was] an error on my part because even though he should have known, I should have known
as well [and] . . . should have been able to give him accurate advice as to what his exposure was."


        Trial counsel also conceded that the petitioner insisted on having the state's audiotape of the
drug transaction, even after the plea. Trial counsel acknowledged that he had no recollection of the
specific facts regarding the transaction and while claiming that it was his practice to listen to a tape-
recorded transaction as a part of his routine investigation, he had no recollection of having done so
in this instance. Trial counsel also pointed out that, in his opinion, it was impossible to lift a
fingerprint from a plastic baggie without destroying the baggie.

         Trial counsel noted that 56.4 grams of cocaine were involved in the arrest and possession of
cocaine in excess of 26 grams "carrie[d] eight to ten years." When asked on cross-examination
whether he should have "continued [his] investigation with regard to [the petitioner's prior] record,"
trial counsel candidly acknowledged, "I should have done it no matter what." He also conceded that
as of the day of the evidentiary hearing, he was unaware of whether the petitioner qualified as a
Range I or II offender. Trial counsel explained, however, that whether the petitioner was Range I
or II, he would have still recommended acceptance of the offer of four years under Range I.

         Detective Nick Watson of the LaVergne Police Department testified that at the time of the
petitioner's arrest, there was no cocaine on his person but it was found underneath the backseat of
his vehicle. According to the detective, a confidential informant had claimed that he had been given
a sample by the petitioner just before the arrest and showed it to an undercover officer who "gave
us the take down word." The detective agreed that the tape-recording contained no information
about a drug transaction and that there was no marked money involved in the offense. The extent
of the state's evidence was that the confidential informant had talked with the petitioner, had received
a sample of the cocaine, and had then showed it to the undercover officer.

        Detective Ed McKenna, the undercover officer involved in the transaction, testified that he
had arranged with the petitioner to meet him on the date of the offense and that the confidential
informant approached the petitioner's vehicle and then returned to his own vehicle with some cocaine
in possession. Detective McKenna recalled that he had arranged for the informant to purchase three
ounces of cocaine from the petitioner.

        At the conclusion of the evidentiary hearing, the post-conviction court determined that the
petitioner was not under the influence of cocaine at the time he entered his plea of guilt. While
acknowledging that trial counsel was unaware of whether the petitioner qualified as a Range I or II
offender, the court expressed satisfaction that trial counsel had most likely explained what qualified
the petitioner as a Range II offender, implying that the petitioner should have known the nature and
extent of his prior record. The court described the state's Range II allegation as "an honest mistake"


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and reasoned that trial counsel would have recommended the plea agreement whether petitioner
qualified as a Range I or a Range II offender. The court concluded that because the NCIC report
included two prior felony charges, even though there was no disposition shown, trial counsel was
not obliged to have determined whether those two charges had resulted in felony convictions.

                                                      I
         Initially, the petitioner contends that his trial counsel was ineffective by failing to notify the
trial court when the pre-plea drug screen yielded a positive result. The petitioner also claims that his
trial counsel was ineffective for failing to review in advance of the plea the audiotape made by the
confidential informant. His final allegation is that his trial counsel failed to accurately determine his
prior number of felony convictions so as to properly advise of the possible range of sentence.

         In a post-conviction proceeding, the petitioner bears the burden of proving his allegations by
clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). 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). On appeal, the findings of
fact made by the trial court are conclusive and will not be disturbed unless the evidence contained
in the record preponderates against them. Brooks v. State, 756 S.W.2d 288, 289 (Tenn. Crim. App.
1988). The burden is on the petitioner to show that the evidence preponderated against those
findings. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978). The credibility of the
witnesses and the weight and value to be afforded their testimony are questions to be resolved by the
trial court. Bates v. State, 973 S.W.2d 615 (Tenn. Crim. App. 1997). When reviewing the
application of law to those factual findings, however, our review is de novo, and the trial court's
conclusions of law are given no presumption of correctness. Fields v. State, 40 S.W.3d 450, 457-58
(Tenn. 2001); see also State v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, he must first establish that the services rendered or the advice given were below “the range
of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). Second, he must show that the deficiencies “actually had an adverse effect on the
defense.” Strickland v. Washington, 466 U.S. 668, 693 (1984). Should the petitioner fail to
establish either factor, he is not entitled to relief. Our supreme court described the standard of review
as follows:

                Because a petitioner must establish both prongs of the test, a failure to prove
        either deficiency or prejudice provides a sufficient basis to deny relief on the
        ineffective assistance claim. Indeed, a court need not address the components in any
        particular order or even address both if the defendant makes an insufficient showing
        of one component.
Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). As to guilty pleas, the petitioner must establish
a reasonable probability that, but for the errors of his counsel, he would not have entered the plea and
would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985).



                                                   -4-
        In this instance, the trial court accredited the testimony of trial counsel who determined that
the petitioner was not under the influence of drugs at the time he entered his plea of guilt. The
content of the submission hearing supports that conclusion. Although the drug screen eventually
yielded a positive result for cocaine in the petitioner's blood stream, it does not necessarily follow
that he was unable to enter a knowing and voluntary plea on that basis. Moreover, the petitioner
neither established the level of the illegal drugs in his system as detected by the test nor otherwise
offered expert testimony as to how the drug usage might have affected him and his appreciation of
the circumstances. In our view, the petitioner has failed to meet his burden of clearly and
convincingly establishing any deficiency on the part of trial counsel to present the issue at the
submission hearing or at anytime afterward by a motion to withdraw the plea. Certainly, the
evidence does not preponderate against the trial court's findings in this regard.

        Next, although the record does not establish whether trial counsel actually reviewed the
content of the audiotape before recommending acceptance of the plea agreement, that alone would
not warrant the grant of relief. A confidential informant and an undercover police detective were
involved in the transaction. Although the petitioner maintained his innocence at the evidentiary
hearing, two police detectives provided testimony that strongly suggested guilt. While the illegal
drug was apparently provided to the confidential informant, who did not testify, one police detective
was only 30 feet away when the exchange took place and took possession of the cocaine transferred
to the confidential informant. Another officer helped locate over 50 grams of cocaine in the back
seat of the petitioner's vehicle. Under those circumstances, that the content of the tape did not
include any incriminating evidence would not have been particularly helpful to the defense. In our
view, the petitioner was unable to establish by clear and convincing evidence that he would not have
entered the plea had he known trial counsel had not listened to the tape prior to recommending the
plea agreement. Again, the evidence in this regard does not preponderate against the findings of the
trial court.

        Of greater concern is trial counsel's failure to confirm the range status of the petitioner prior
to recommending the plea. While admittedly aware that the range applicable to the petitioner was
a significant factor in the petitioner's willingness to accept the Range I, four-year sentence in
exchange for the guilty plea, trial counsel failed to adequately investigate the prior criminal record
of the petitioner so as to determine whether he qualified as a Range I or a Range II offender. Counsel
conceded that it was his obligation to verify the range of the possible sentence as a means of assuring
that the petitioner was fully and accurately informed before waiving his right to trial.

        In Teague v. State, 772 S.W.2d 932, 934 (Tenn. Crim. App. 1988), the petitioner, who had
appealed his conviction and death sentence for the first degree murder of his wife, Teresa Lynn
Teague, was awaiting trial after his indictment for the murder of John Mark Edmonds. Teague's
counsel on the second charge, under the mistaken belief that a nolo contendere plea would have no
effect in the first case if Teague was granted a new trial, recommended the acceptance of a reduced
charge and a ten-year prison sentence. Based upon that advice, Teague entered the nolo contendere
plea and was found guilty of causing the death of John Mark Edmonds. Later, Teague was granted
a new sentencing hearing for the murder of Teresa Lynn Teague. See State v. Teague, 645 S.W.2d


                                                  -5-
392 (Tenn. 1983). In the second sentencing hearing, the state was properly allowed to present the
conviction in the Edmonds case as an additional aggravating circumstance. See State v. Teague, 680
S.W.2d 785 (Tenn. 1984); see also Tenn. Code Ann. § 39-2-203(I)(2). When Teague filed a petition
for post-conviction relief seeking to set aside his conviction in the Edmonds case, his trial counsel
acknowledged that his advice regarding the nolo contendere plea was "the worst I ever gave
anybody." Teague, 772 S.W.2d at 935. Although Teague was denied relief by the post-conviction
court, this court concluded that but for counsel's errors, he would have insisted upon a trial. Id. at
939. Judge Joe B. Jones, speaking for the panel, observed that "[i]t must be remembered that the
petitioner had been misinformed and was laboring under a false impression when he made the
decision to accept the plea bargain agreement and enter a plea of nolo contendere rather than go to
trial." Id. at 940.

       In Walton v. State, 966 S.W.2d 54, 55 (Tenn. Crim. App. 1997), this court ruled that
erroneous advice on parole eligibility which induced a guilty plea qualified as ineffective assistance
of counsel:

        Even if counsel's advice was erroneous but, nevertheless, the [petitioner] would have
        been wise to plead guilty, a defendant has the right to make a knowing, unwise
        decision. This court, or any court for that matter, cannot protect defendants from
        themselves when it comes decision time.

See also Donald McArthur Carver v. State, No. E2002-00297-CCA-R3-PC (Tenn. Crim. App., at
Knoxville, July 15, 2003) (setting aside a plea agreement where trial counsel had erroneously
advised the defendant that he would be allowed to serve a 10-year sentence for possession of cocaine
with intent to resell in the county jail); Richard Lebraun Thomas v. State, No. 03C01-9306-CR-
00190 (Tenn. Crim. App., at Knoxville, Mar. 29, 1994) (holding that mistaken advice by trial
counsel that the defendant faced a possible life sentence rather than a Range III, 30-year sentence for
armed robbery was a proper basis to set a plea agreement aside).

         In our view, the record established clearly and convincingly that but for trial counsel's failure
to accurately determine the range status, the petitioner would have insisted upon going to trial rather
than entering a guilty plea. Trial counsel candidly acknowledged that the length of the potential
sentence was a significant "factor in [the petitioner's] decision to accept the plea offer." The
petitioner confirmed that absent the risk of a Range II sentence, he would have asked for a trial. As
to this ground, the evidence preponderates against the conclusions of the trial court. As a Range I
offender, with a charge in excess of 26 grams, the petitioner faced a potential sentence of between
eight and twelve years. At Range II, the potential sentence was between 12 and 20 years. Even
though the state may have been generous in its offer of a lesser offense at a lesser than maximum
Range I term, the petitioner insisted that he was innocent and would have taken his chances on a trial
despite the higher potential term in prison if found guilty.

       The state's argument that trial counsel would not have changed his advice to accept the plea
had he known that the petitioner was actually Range I is not entirely relevant to the issue. Even if


                                                   -6-
there is an attractive plea offer by the state, the critical determination is whether, but for trial
counsel's error, the petitioner would have insisted on trial. Although his decision to seek a trial may
be to his ultimate detriment, the petitioner has met his burden of proof as to that claim. The
testimony of the petitioner, as corroborated by his trial counsel, is unrefuted that he would have
insisted upon trial but for the error in advice.

                                                    II
        Next, the petitioner argues that the trial court erred in determining that the petitioner entered
a knowing and voluntary plea. The rule in Hill v. Lockhart, 474 U.S. 52 (1985), applies when a
guilty plea is as the result of a deficiency in the performance of counsel. In the landmark case of
Boykin v. Alabama, 395 U.S. 238 (1969), the Supreme Court established that a voluntary and
intelligent guilty plea was essential to a valid conviction. "[T]he core requirement of Boykin is 'that
no guilty plea be accepted without an affirmative showing that it was intelligent and voluntary.'"
Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Fontaine v. United States, 526 F.
2d 514, 516 (6th Cir. 1975)). In its comprehensive evaluation of the requirements of a voluntary and
intelligent plea of guilt, our supreme made the following observation:

        [A] court charged with determining whether . . . pleas were "voluntary" and
        "intelligent" must look to various circumstantial factors, such as the relative
        intelligence of the defendant; the 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.

Id. (citing Caudill v. Jago, 747 F. 2d 1046, 1052 (6th Cir. 1984)).

       In Blankenship, our supreme court held that the trial court is obligated to fully explain the
offense charged and assure that the defendant is in control of his mental faculties and aware of the
consequences of his plea, especially the penalty to be imposed. Blankenship, 858 S.W.2d at 904.

        In this instance, the petitioner argues that the plea was not knowingly entered because of his
lack of knowledge of the applicable range. He buttresses the argument by contending that the
cocaine he had ingested the day before adversely affected his mental abilities. As indicated, there
is no evidence to corroborate the petitioner's claim that his judgment was affected by his prior use
of cocaine. Because, however, the record establishes that neither the state, the defense, nor the trial
court was aware of whether the petitioner qualified as Range I or II at the time of his plea, it cannot
be said that he was effectively assisted by counsel or that the plea was knowingly and intelligently
entered, with a full and accurate appreciation of the potential penalties.




                                                  -7-
                                                  III
        The petitioner also argues that the conviction should be set aside because the state and the
trial court had failed to recite a sufficient factual basis for the plea. The petitioner argues that
because no money was exchanged, there was no audiotape of the sale, and there was no cocaine in
the possession of the confidential informant after the sale, the state failed to meet the requirements
of State v. Mackey, 553 S.W.2d 337 (Tenn. 1997).

        This court has previously determined that lack of a factual basis for a guilty plea is not a basis
for post-conviction relief. See, e.g., Powers v. State, 942 S.W.2d 551, 555 (Tenn. Crim. App. 1996).
In Powers, this court ruled that "failure to establish a factual basis for the plea on the record may
contribute to the totality of the circumstances reflecting on an unknowing and involuntary plea." Id.
Although this court has determined that the petitioner is entitled to relief, it is our view that the
record does not support the claim that the failure to establish a sufficient factual basis for the plea
contributed in any significant way to the petitioner's decision to plead guilty. The petitioner
acknowledged during the submission hearing that he entered the plea because, in his words, "I am
guilty." Because he was fully aware of the nature of the charge and had been previously convicted
and served time in prison for the sale of cocaine, it is unlikely that the failure to recite specific facts
further contributed to his decision to plead guilty.

                                                    IV
          Next, the petitioner argues that the audiotape qualified as exculpatory evidence because it
was not in any way incriminating. He contends that under Brady v. Maryland, 373 U.S. 83 (1963),
the state had an obligation to make the audiotape available to the defense. Trial counsel
acknowledged that prior to the guilty plea, he discussed the fact that there was a tape in existence.
Although it is uncertain from the record of the evidentiary hearing, it appears that trial counsel was
unaware of the content of the tape at the time of the plea agreement. Because there were two police
officers in addition to the confidential informant that could testify to incriminating circumstances
at trial and because the offer made by the state appears to be favorable, it is understandable that trial
counsel suggested the acceptance of the plea without determining the content of the tape. It was after
the plea that the petitioner insisted on listening to the tape and ultimately determined that it was not
incriminating. In Brady, the Supreme Court established four prerequisites that must be met before
a reviewing court may find a due process violation:

        (1) The defendant must have requested the information (unless the evidence is
        obviously exculpatory, in which case the state is bound to release the information
        whether requested or not);
        (2) the state must have suppressed the information;
        (3) the information must have been favorable to the accused; and
        (4) the information must have been material.

State v. Edgin, 902 S.W.2d 387, 390 (Tenn. 1995).




                                                   -8-
       In this instance, the audiotape is not in the record. Although there are references to the
content of the tape, those references suggest that the tape recording was neither inculpatory nor
exculpatory. Merely because there was a tape recording does not mean that the recording was
favorable to the defense. Here, the record does not establish the favorability of the content of the
tape. The petitioner would not be entitled to relief on this ground.

                                                  V
        An issue listed but neither argued nor supported by authority or citations to the record is
whether the grand jury which indicted the petitioner was racially biased. Nothing in the record of
the evidentiary hearing supports the claim. The statute requires the petitioner to prove his allegations
by clear and convincing evidence. See Tenn. Code Ann. § 40-30-210(f). Furthermore, the issue has
been waived by the failure to submit argument and citations of legal authority. See Tenn. R. App.
P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b); State v. Hammons, 737 S.W.2d 549, 552 (Tenn. Crim.
App. 1987).

        In summary, because the record establishes that the petitioner would have insisted on his
right to a trial but for the failure of his counsel to accurately determine his Range I status, the plea
of guilt was neither knowingly nor voluntarily entered, the conviction must be set aside, and the
petitioner must be granted a new trial.



                                                        ___________________________________
                                                        GARY R. WADE, PRESIDING JUDGE




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