             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT KNOXVILLE
                               Assigned on Briefs September 28, 2005

                MARCUS E. THOMPSON v. STATE OF TENNESSEE

                    Direct Appeal from the Criminal Court for Sullivan County
                             No. C48,784    Phyllis H. Miller, Judge



                        No. E2004-03028-CCA-R3-PC - Filed January 4, 2006


The petitioner, Marcus E. Thompson, appeals the denial of his petition for post-conviction relief,
arguing that the post-conviction court erred in finding he received effective assistance of trial and
appellate counsel. Following our review, we affirm the denial of the petition.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JERRY L.
SMITH , JJ., joined.

Larry R. Dillow, Kingsport, Tennessee, for the appellant, Marcus E. Thompson.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
H. Greeley Wells, Jr., District Attorney General; and Robert H. Montgomery, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.

                                                    OPINION

                                                     FACTS

                                               Procedural History

       On September 8, 1998, the Sullivan County Grand Jury issued a five-count presentment
charging the petitioner with criminal conspiracy to sell or deliver more than 300 grams of cocaine
(count one); possession of more than 300 grams of cocaine for resale (count two);1 sale of over .5




         1
          The full wording of count two of the presentment charged that the petitioner “did unlawfully, feloniously and
knowingly possess three hundred (300) grams or more of a substance containing Cocaine, a Schedule II Controlled
Substance, with the intent to sell or deliver the said controlled substance.”
grams of cocaine (count three);2 possession of drug paraphernalia (count four); and possession of
over one-half ounce of marijuana for resale (count five). The facts of this matter, as laid out in the
petitioner’s direct appeal, are as follows:

                 Trial commenced on May 21, 2001. The State called Larry Robbins as its
         first witness. Robbins testified that in April 1998, he worked for the Johnson City
         Police Bureau and was assigned to work as an agent for the 1st Judicial District Drug
         Task Force (1st DTF). Robbins explained that "[t]he First District is made up of our
         (4) four counties, Washington, Carter, Unicoi and Johnson, and each department is
         encouraged to send an employee from their department to the Drug Task Force to
         work as one entity to work the drugs in that four county area." Robbins related that
         often the cases crossed the county lines into another jurisdiction and thereupon the
         1st DTF would contact the drug task force from the other jurisdiction and the two
         forces would work together.

                 The 1st DTF arranged a controlled buy of one ounce of crack cocaine from
         Sanford Whetsel, also known as Turk Whetsel, on April 29, 1998. Upon his arrest
         and in exchange for a possible "recommendation from the D.A.," Whetsel agreed to
         arrange for his supplier, Melisa Long, to bring him more crack cocaine. At that time,
         Long resided in Kingsport, outside the jurisdiction of the 1st DTF. Accordingly,
         Whetsel arranged for Long to bring two ounces of crack cocaine to a McDonald's
         Restaurant in Gray, a locale in Washington County, which was within the jurisdiction
         of the 1st DTF. The agreed purchase price was $1,600 or $1,800 an ounce. Robbins
         further noted that "[s]omeone who's buying an ounce at a time is someone that's
         going to be reselling it."

                 Later on April 29, 1998, Long brought the crack cocaine to the prearranged
         location and she was arrested. Robbins talked with Long about cooperating with the
         1st DTF to "help herself out and hopefully get a recommendation towards the D.A.
         about her involvement." Long revealed that her supplier, the [petitioner], was located
         in Sullivan County, within the jurisdiction of the 2nd Judicial District Drug Task
         Force (2nd DTF). Robbins contacted Brian Bishop, the Director of the 2nd DTF and
         asked for cooperation in apprehending Long's supplier. Director Bishop agreed to
         help.

                 Later that evening, Long, acting per her agreement with the 1st DTF, made
         a telephone call to a certain number to arrange a drug transaction with the
         [petitioner]. Robbins saw the number that Long dialed, but he was unable to
         overhear the conversation. Thereafter, agents with the 1st DTF drove Long to


         2
         The full wording of count three of the presentment charged that the petitioner “did unlawfully, feloniously and
knowingly sell or deliver point five (.5) grams or more of a substance containing Cocaine, a Schedule II Controlled
Substance.”

                                                          -2-
Sullivan County. Prior to the arranged buy, Long's person and possessions were
searched and no contraband was found. The rest of the arranged buy was conducted
through members of the 2nd DTF.

       Robbins related that Long was charged with a crime in the Washington
County Criminal Court and that those charges were still pending at the time of trial.
Robbins opined that Long hoped her case would be dismissed in return for her
cooperation with the authorities.

        Melisa Long testified that she was arrested by Robbins on April 29, 1998, at
a McDonald's Restaurant in Gray. Robbins asked Long to tell him where she
obtained the crack cocaine. Long revealed that the [petitioner] was her supplier.
After agreeing to help the 1st DTF apprehend the [petitioner], Long called the
[petitioner] from a pay phone outside the McDonald's Restaurant. Long told the
[petitioner] that "I needed more of what I had before," indicating that she needed two
more ounces of crack cocaine. Long asserted that the price of the crack cocaine was
over $1,000 an ounce, but that she already knew the price before she called. The
[petitioner] directed Long to go to the house of his cousin, Jenice Thompson, to
obtain the drugs. Specifically, Long testified that "[the [petitioner]] told me to go.
I mean, he told me to go there. I been there before. And he told me to go."

         Long further stated that within thirty days prior to April 29, 1998, she had
been to Thompson's residence to obtain cocaine at the [petitioner’s] direction. The
[petitioner] objected to this testimony, but the objection was overruled. Long asserted
that on the previous occasion, she went to Thompson's apartment in the Amber Court
Apartments on Moreland Drive. Thompson's boyfriend, Daryl Williams, also known
as Daryl Lathen, was also at the apartment. Long did not give Thompson or
Williams any money; however, she obtained cocaine from one of them. Long could
not specifically recall whether Thompson or Williams gave her the cocaine. Long
did not have to ask for the cocaine because "[t]hey knew what I was coming for."

        In the early morning hours of April 30, 1998, Director Bishop with the 2nd
DTF drove Long to Thompson's apartment. While Director Bishop waited in the
vehicle, Long went inside Thompson's apartment. Once again, both Thompson and
Williams were in the apartment. "They" gave Long the crack cocaine. Long
explained that she did not remember which person gave her the crack cocaine, but did
recall that it was either Thompson or Williams. Long also stated that she did not
have to tell Thompson or Williams why she was there. Long apologized for being
late and placed the crack cocaine in her purse. She did not give Thompson or
Williams any money at that time. Long then left the apartment and got into the car
with Director Bishop to whom she relinquished possession of the crack cocaine.




                                         -3-
        Later in the afternoon of April 30, 1998, Long called the [petitioner] and
arranged to meet him in the parking lot of a Revco drugstore on Stone Drive in order
to pay him for the crack cocaine. Long was to pay the [petitioner] $3,600 which she
obtained from DTF agents.

        Soon after the telephone call, the [petitioner] arrived at the Revco parking lot.
Long sat in the front passenger seat of the [petitioner’s] vehicle. Long told the
[petitioner] that she had the money and the [petitioner] instructed Long to put the
money in the glove compartment of his vehicle. Long removed the money from her
purse and placed $3,300 in the [petitioner’s] glove compartment. Long explained
that she kept $300 of the money because

        I guess it was my--for making like going down there and making a
        run or whatever, I guess that's what I was supposed to get paid out of
        it.

        ....

        I think we, maybe it was supposed to have been maybe a hundred an
        ounce or something like that, so it come up to be three ounces, so
        three hundred dollars ($300.00).

        After Long placed the money in the glove compartment, she and the
[petitioner] talked for a short time. Shortly thereafter, they were approached by the
authorities and were arrested.

        Long testified that she had known the [petitioner] for approximately ten years
and they had attended high school together. Long admitted that she had been the
[petitioner’s] girlfriend in high school, but after Long became pregnant, the
[petitioner] ended the relationship. Approximately ten years after the end of their
relationship, Long encountered the [petitioner] in a club and renewed their
acquaintance. Soon thereafter, Long contacted the [petitioner] about purchasing
crack cocaine for her sister who was an addict. She explained that "I'm not ready to
go out in the street and buy no drugs." Long asserted that she did not use drugs at the
time of the offenses.

       Long testified that she had never been charged with a crime in Sullivan
County but still had charges in Washington County which had been pending for
approximately three years. Nevertheless, Long hoped to have the charges dismissed.
Long admitted that she never took drugs directly from the [petitioner’s] hands, "but
he would tell me where to get it."




                                          -4-
         Regarding the ounce of crack cocaine she sold to Whetsel, Long related that
initially she did not have to pay for those drugs. Instead, the drugs were "fronted" to
Long because she already had a buyer for the crack cocaine. After receiving the
money from the buyer, Long was to return with the money and pay for the cocaine.
Long explained that even though she had obtained crack cocaine from Thompson and
Williams on previous occasions, "they're not going to front anything to me if he [the
[petitioner] didn't tell them to."

        Long stated that in the thirty days prior to April 29, 1998, she had obtained
drugs through the [petitioner] on three occasions. She opined that "the first one, I
probably was at the bridge. The second two maybe had been at the house [of
Thompson]. That was three years ago. I don't really remember that far back." Long
related that the bridge was at "John B. Dennis and Moreland Drive." She stated that
Thompson's apartment was also on Moreland Drive. Furthermore, Long testified that
prior to obtaining drugs from underneath the bridge, she spoke with the [petitioner].
The [petitioner] instructed Long to go to that particular location to obtain the crack
cocaine.

       Brian Bishop, the director of the 2nd DTF, testified that at approximately
midnight on April 29, 1998, he was contacted by the 1st DTF and was advised "that
a pick up of cocaine had been arranged." Subsequently, agents with the 1st DTF
brought Long to Sullivan County to meet with Director Bishop. Director Bishop
searched Long's person and belongings prior [to] their departure for Thompson's
apartment. Long had no contraband or money on her person or in her purse. Director
Bishop then drove Long to Thompson's apartment on Moreland Drive at
approximately 1:00 a.m. on April 30, 1998. Director Bishop waited in the vehicle
while Long went into the apartment. Long returned to the vehicle with what
appeared to be two ounces of crack cocaine. Director Bishop testified that such an
amount of crack cocaine was far too large for personal use.

         Director Bishop next had contact with Long on the afternoon of April 30,
1998. Long had arranged to meet the [petitioner] in the Revco parking lot to pay for
the drugs. Long was wired with a body transmitter and the agents monitored the
transaction with a receiver. Long was given $3,600 prior to meeting with the
[petitioner] to pay for the crack cocaine. When the agents heard a pre-arranged
signal, they moved in and took the [petitioner] into custody. During a search of the
vehicle, the agents discovered the money in the glove compartment of the
[petitioner’s] vehicle.

       Based upon these events, the authorities obtained a search warrant for
Thompson's apartment. Director Bishop and officers with the 1st DTF, the Kingsport
Police Department, and the Sullivan County Police Department were involved in the
execution of the search warrant on April 30, 1998, at 9:00 p.m.


                                         -5-
         Director Bishop stated that Thompson had a two-bedroom apartment. One of
the bedrooms appeared to be a child's room. On the top shelf of the closet in the
child's room, officers discovered a cardboard box containing a plastic shopping bag.
Inside the shopping bag were several large bags of white powder, two smaller bags
of white powder, and two bags of a green leafy substance believed to be marijuana.
Director Bishop opined that the white powder was cocaine and he estimated that the
bags contained half a kilogram, or 500 grams, of cocaine. On the top shelf of the
second bedroom, the officers discovered a small bag containing several plastic
sandwich bag "corners" of white powder substance, also believed to be cocaine,
which was packaged for resale. The officers also discovered a set of digital scales
which Director Bishop explained could be used in the weighing of controlled
substances. Additionally, officers discovered more plastic sandwich bags of the type
used to package cocaine for resale.

        Director Bishop stated that no money was found in Thompson's apartment.
Moreover, there were no expensive-looking items in the apartment. Director Bishop
concluded that the marijuana discovered was packaged as if for resale and had a
street value of $225 or $250. Director Bishop also explained that crack cocaine was
typically smoked, but the officers found no device in the apartment for the smoking
of crack cocaine. Furthermore, Director Bishop stated that powder cocaine could
either be snorted or injected, but no implements for either type of use were
discovered in Thompson's apartment. Director Bishop admitted that although various
items were checked for fingerprints, "there were no prints developed that were
identified [as the petitioner’s]." However, there were also no fingerprints which were
"identified" as belonging to Thompson or Williams even though they both resided
in the apartment.

         Agent Denise Buckner with the Tennessee Bureau of Investigation (TBI)
crime laboratory in Knoxville testified that she analyzed a portion of the substances
obtained by the police during these events. Both the State and the [petitioner]
stipulated that Agent Buckner was an expert in drug chemistry. Agent Buckner
testified that she analyzed two bags of a substance and determined that it was 53.11
grams of cocaine base, which is also known as crack cocaine.

        Next, the State and the [petitioner] stipulated that Agent David Holloway, a
forensic chemist with the TBI crime laboratory, was an expert in forensic chemistry.
Agent Holloway testified that he analyzed a total of 467.8 grams, or 1.03 pounds, of
powder cocaine which was obtained from Thompson's apartment. Agent Holloway
also asserted that the green leafy substance weighed 32.46 grams and tested positive
for marijuana.

       Robbins was recalled to the stand and he testified that Long dialed the same
telephone number to obtain the drugs as she had dialed to arrange payment for the


                                         -6-
         drugs. Soon after the second telephone call, the [petitioner] arrived at the Revco
         parking lot.

State v. Marcus Thompson, No. E2001-02521-CCA-R3-CD, 2003 WL 21999376, at **1-5 (Tenn.
Crim. App. Aug. 22, 2003), perm. to appeal denied (Tenn. Jan. 5, 2004) (footnote omitted).

        The trial court, finding no evidence to support count five, granted a judgment of acquittal for
that count. Id. at *6. The jury acquitted the petitioner on count four and found him guilty of the
following: “conspiracy to sell and deliver at least twenty six grams but less than three hundred
grams of cocaine” (count one); “possession of at least twenty-six grams but less than three hundred
grams of cocaine with intent to sell and deliver” (count two); and “sale and delivery of five-tenths
gram or more of cocaine” (count three). Based upon these guilty verdicts, the trial court sentenced
the petitioner as a Range II, multiple offender to twenty years for each offense. Counts two and three
were run concurrently with each other but consecutively to count one for a total effective sentence
of forty years.3 The petitioner, with newly appointed appellate counsel, appealed his convictions,
raising numerous issues. On August 22, 2003, this court affirmed both the petitioner’s convictions
and sentences on direct appeal, remanding only for a reduction in the amount of fines. See id. at*21.

        Thereafter, the petitioner filed a pro se petition for post-conviction relief on February 2,
2004, alleging that both trial and appellate counsel denied him effective assistance of counsel. On
February 25, 2004, post-conviction counsel was appointed, and an amended petition was filed on
April 1, 2004.4 In his original and amended petitions, the petitioner asserted, among numerous other
claims, that trial and appellate counsel were ineffective because they both failed to challenge his
presentment for being duplicitous and his jury verdicts for not being unanimous. He further alleged
both counsel were ineffective because they failed to attack the jury instructions as an unconstitutional
amendment to the presentment.




         3
          There is confusion about how the petitioner’s sentences were structured. In his brief, the petitioner claims
counts one and two are concurrent with each other and count three is consecutive to count one. In its order denying post-
conviction relief, the post-conviction court stated the same thing. Even in the petitioner’s direct appeal, this court stated
that count two was to be served concurrently with count one. Thompson, 2003 W L 21999376, at *6. We take this
opportunity to set the record straight. The judgments and the sentencing hearing transcript both clearly state that counts
two and three are concurrent with each other, but both are consecutive to count one.

         4
            This is not the only amended petition that was filed. Indeed, the petitioner has proven himself to be a prolific
writer, filing, pro se, the following: amended petition on March 11, 2004; amended petition on March 19, 2004; motion
to supplement petition on M ay 13, 2004; amended supplemental petition on June 9, 2004; and “Motion to Alert Court
Counsel has been Notified of the Following” on June 28, 2004. In addition, post-conviction counsel filed a supplement
to amended petition on May 25, 2004; and an amended petition for relief from sentence on August 6, 2004.

                                                            -7-
                                            Post-Conviction Hearing

         At the October 15, 2004, evidentiary hearing, the petitioner testified that although he thought
count three5 was duplicitous, he never discussed this belief with either trial or appellate counsel. He
said he believed he was being convicted “of the two offenses within the single count” and asked trial
counsel if he “could be convicted of both but [he] did not know that the correct term for . . . what
was going on was duplicitous.” He acknowledged that trial counsel had filed a motion to dismiss
count three, not for being duplicitous, and the first time the issue was raised was in his post-
conviction petition. The jury instructions for count three charged that the jury could find the
petitioner guilty of the “sale or delivery” or “both the sale and delivery” of cocaine. The petitioner
testified that he never agreed to his presentment being amended but acknowledged he made no
objection to the trial court’s instructions. The petitioner relies solely on State v. Angela E. Isabell,
No. M2002-00584-CCA-R3-CD, 2003 WL 21486982 (Tenn. Crim. App. June 27, 2003), which was
decided after he was convicted and sentenced in July 2001, to support his argument that count three
was duplicitous and his jury verdict was not unanimous.

         The petitioner’s appellate counsel testified that he had been in practice for thirteen years and
handled approximately seventy-five appeals. Counsel said he met with the petitioner prior to writing
the brief to discuss what issues should be presented on appeal. The petitioner requested to see the
appellate brief before it was filed so that his “jail house lawyer” could review it. Counsel described
his filing as “a pretty extensive brief . . . [with] some forty-some odd pages” and said the petitioner
had the opportunity to review the brief and made no objection to it being filed. As for the
petitioner’s argument that count three was duplicitous and the verdict was not unanimous, counsel
testified that he had already filed the petitioner’s brief when the Isabell decision was released6 and
that he was not aware of any other cases before Isabell that explained that the sale and delivery of
drugs were separate crimes. He also testified that he had reviewed the jury instructions but did not
think there was a unanimity problem with the verdict because the trial court instructed the jury they
could find the petitioner guilty of “sale and delivery.” On cross-examination, counsel acknowledged
that he did not raise the question about duplicity on the petitioner’s direct appeal.

         The petitioner’s trial counsel testified that he had been practicing law for thirty-five years and
that his practice was almost exclusively criminal law. He explained that he represented the petitioner
on drug charges both in state and federal court. Asked about the jury instructions and unanimity of
the jury verdict, he testified that he never discussed with the petitioner “what we would now call the
Isabell issue” and that he did not think at the time of the trial there was any question about the
unanimity of the verdict. On cross-examination, he acknowledged that, although he realized now


         5
          W e note that although he raised numerous issues in his post-conviction petitions, which were thoroughly
addressed during his post-conviction hearing, on appeal the petitioner asks only that his conviction as to count three be
reversed and dismissed due to ineffective assistance of counsel. As such, we limit our recounting of the post-conviction
hearing to testimony concerning count three alone.

         6
         W e note that appellate counsel filed the brief on August 5, 2002, and the Isabell decision was released on June
27, 2003. The petitioner’s opinion was released less than two months later on August 22, 2003.

                                                          -8-
there was authority that count three of the presentment was duplicitous, at the time of trial the
duplicity issue was not “obviously apparent to those . . . who practiced criminal law.” Trial counsel
testified that he felt like he did everything he could to protect the petitioner’s best interest.

        The post-conviction court issued a lengthy and detailed order addressing the issues presented
by the petitioner. In denying relief, the court found that the petitioner had not proven that trial or
appellate counsel was defective:

                 The [c]ourt finds that the [p]etitioner has failed to prove by clear and
        convincing evidence that he received ineffective assistance of counsel . . . at either
        the trial or appellate level.

                He was represented at trial by [trial counsel], an attorney with many years of
        experience representing defendants in criminal cases, many of them capital cases.
        The [c]ourt finds that considering the [p]etitioner has pled guilty in federal court to
        a charge based on the same allegations contained in Case No. S41,514 and had
        signed an “agreed factual basis” admitted his guilt, [trial counsel] represented the
        [petitioner] at trial in an exemplary manner.

               The [p]etitioner presented no credible evidence that the result would have
        been different in Case No. S41,514 if [trial counsel] had done anything differently.

                The [c]ourt finds that [appellate counsel] presented the issues on appeal in a
        clear and thorough manner as evidenced by his appellate brief and the appellate
        court’s decision. Again, the [p]etition[er] did not present any evidence that the result
        would have been any different if [appellate counsel] had presented his case
        differently.

It is from this order that the petitioner appeals, arguing the post-conviction court erred in finding trial
and appellate counsel had not been ineffective as to count three of his presentment. In the
alternative, he asks that, under Tennessee Rule of Criminal Procedure 52(b), we find the duplicitous
presentment in count three to constitute plain error and, accordingly, reverse and dismiss the count.

                                              ANALYSIS

                                        I. Standard of Review

        The post-conviction petitioner bears the burden of proving his allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2003). When an evidentiary hearing is
held in the post-conviction setting, as occurred in this case, the findings of fact made by the court
are conclusive on appeal unless the evidence preponderates against them. See State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999); Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996). Where
appellate review involves purely factual issues, the appellate court should not reweigh or reevaluate


                                                   -9-
the evidence. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, review of a trial
court's application of the law to the facts of the case is de novo, with no presumption of correctness.
See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issues of deficient performance of counsel
and possible prejudice to the defense are mixed questions of law and fact and, thus, subject to de
novo review by the appellate court with a presumption of correctness given only to the post-
conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns,
6 S.W.3d at 461.

                              II. Ineffective Assistance of Counsel

         In order to determine the competence of counsel, Tennessee courts have applied standards
developed in federal case law. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997)
(noting that the same standard for determining ineffective assistance of counsel that is applied in
federal cases also applies in Tennessee). The United States Supreme Court articulated the standard
in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which is
widely accepted as the appropriate standard for all claims of a convicted petitioner that counsel's
assistance was defective. The standard is firmly grounded in the belief that counsel plays a role that
is "critical to the ability of the adversarial system to produce just results." Id. at 685, 104 S. Ct. at
2063. The Strickland standard is a two-prong test:

               First, the defendant must show that counsel's performance was deficient. This
        requires showing that counsel made errors so serious that counsel was not
        functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.
        Second, the defendant must show that the deficient performance prejudiced the
        defense. This requires showing that counsel's errors were so serious as to deprive the
        defendant of a fair trial, a trial whose result is reliable.

Id. at 687, 104 S. Ct. at 2064. The Strickland Court further explained the meaning of "deficient
performance" in the first prong of the test in the following way:

        In any case presenting an ineffectiveness claim, the performance inquiry must be
        whether counsel's assistance was reasonable considering all the circumstances. . . .
        No particular set of detailed rules for counsel's conduct can satisfactorily take account
        of the variety of circumstances faced by defense counsel or the range of legitimate
        decisions regarding how best to represent a criminal defendant.

Id. at 688-89, 104 S. Ct. at 2065. The petitioner must establish "that counsel's representation fell
below an objective standard of reasonableness under prevailing professional norms." House v. State,
44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

        As for the prejudice prong of the test, the Strickland Court stated: "The defendant 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


                                                  -10-
undermine confidence in the outcome." 466 U.S. at 694, 104 S. Ct. at 2068; see also Overton v.
State, 874 S.W.2d 6, 11 (Tenn. 1994) (concluding that petitioner failed to establish that "there is a
reasonable probability that, but for counsel's errors, the outcome of the proceedings would have been
different").

        Courts need not approach the Strickland test in a specific order or even "address both
components of the inquiry if the defendant makes an insufficient showing on one." 466 U.S. at 697,
104 S. Ct. at 2069; see also Goad, 938 S.W.2d at 370 (stating that "failure to prove either deficiency
or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim").

        We note that when post-conviction proceedings have included a full evidentiary hearing, as
was true in this case, the trial judge’s findings of facts and conclusions of law are given the effect
and weight of a jury verdict, and this court is “bound by the trial judge’s findings of fact unless we
conclude that the evidence contained in the record preponderates against the judgment entered in the
cause.” Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). The reviewing court must
indulge a strong presumption that the conduct of counsel falls within the range of reasonable
professional assistance, see Strickland, 466 U.S. at 690, 104 S. Ct. at 2066, and may not
second-guess the tactical and strategic choices made by trial counsel unless those choices were
uninformed because of inadequate preparation. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).
The fact that a strategy or tactic failed or hurt the defense does not alone support the claim of
ineffective assistance of counsel. See Thompson v. State, 958 S.W.2d 156, 165 (Tenn. Crim. App.
1997). Finally, a person charged with a criminal offense is not entitled to perfect representation. See
Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). As explained in Burns, 6 S.W.3d
at 462, “[c]onduct that is unreasonable under the facts of one case may be perfectly reasonable under
the facts of another.”

         On appeal, the petitioner contends that trial and appellate counsel were ineffective because
they failed to raise the issue of duplicity in count three of the presentment, charging him with “sale
or delivery” of cocaine, and failed to attacked the jury instructions, which he argues were an
unconstitutional amendment allowing “the jury the right to pick and choose offenses from the
presentment.”

        The petitioner relies solely on the Isabell holding to support his argument that count three of
the presentment was duplicitous and the verdict was not unanimous. In Isabell, the defendant was
charged with “sale or delivery” of a controlled substance and argued the jury verdict finding her
guilty of “sale or delivery” of a controlled substance was not unanimous. In reversing the
convictions, this court explained:

               The sentencing commission comments following Tennessee Code Annotated
       section 39-17-417 explain that "[t]he commission wished to make it clear that each
       of these acts [, i.e. the manufacture of a controlled substance, the delivery of a
       controlled substance, and the sale of a controlled substance,] was a separate offense."
       See Tenn. Code Ann. § 39-17-417(a)(1)-(3). Generally, it is impermissible to charge


                                                 -11-
       two distinct offenses in a single count indictment. See State v. Jefferson, 529 S.W.2d
       674, 678 (Tenn. 1975). In other words, "all crimes arising from the same incident
       that are not lesser included offenses of another crime charged in the indictment must
       be charged in separate counts." State v. Gilliam, 901 S.W.2d 385, 389 (Tenn. Crim.
       App. 1995). Accordingly, if the indictments underlying the offenses had charged the
       offenses in separate alternative counts; e.g., count one the sale of crack cocaine,
       count two the delivery of crack cocaine; the indictment would not be faulty. We
       agree with the appellant that the indictments impermissibly charged two separate
       offenses within a single count.

                Moreover, in Tennessee a criminal accused enjoys a constitutional right to a
       jury trial when she faces confinement or a fine of more than fifty dollars. See State
       v. Lemacks, 996 S.W.2d 166, 169 (Tenn. 1999). "This constitutional right
       necessarily includes the right to a unanimous jury verdict before a conviction of a
       criminal offense may be imposed." Id. at 169-70. Notably,

               [q]uestions regarding jury unanimity generally arise in cases where
               the prosecution presents evidence to the jury that tends to show more
               than one criminal offense, but the underlying indictment is not
               specific as to the offense for which the accused is being tried.

       Id. at 170. Importantly, the right to unanimity protects against the possibility of a
       "patchwork" verdict. See State v. Forbes, 918 S.W.2d 431, 446 (Tenn. Crim. App.
       1995). In other words, the appellant is entitled to be convicted of the sale of a
       controlled substance or the delivery of a controlled substance; she cannot be
       convicted of the sale or delivery of a controlled substance based upon the same set
       of facts under a single count of an indictment.

Isabell, 2003 WL 21486982, at *3 (emphasis in original).

        Unlike in Isabell, the issue here is not whether count three of the presentment was duplicitous
or the count three verdict was not unanimous, but whether trial and appellate counsel’s failure to
address the duplicity and unanimity issues fall “below an objective standard of reasonableness under
prevailing professional norms.” House, 44 S.W.3d at 515. We conclude that it does not.

      The Isabell opinion was released more than two years after the petitioner’s trial. On direct
examination, trial counsel testified about the duplicity issue thusly:

       Q.      Let me ask you, [the petitioner] also raises an issue with regard to the
               presentment and the way the counts are phrased in each of the three, it uses
               both sell or deliver. With regard -- you’ve had a chance obviously to see the
               jury instructions, remember those.



                                                 -12-
       A.      Right.

       Q.      Did you feel that as it was instructed in this case there was a question as to
               whether or not, and as you understood the law to be at the time of the trial,
               that there was any question about unanimity of the verdict of the jury at that
               time?

       A.      No, I don’t, though I would say I’m confident that I never discussed with [the
               petitioner] what we would now call the Isabell issue and I suppose if you, if
               you go back and research the law you certainly can come up to ultimately
               what the Court of Appeals came up to. You know, it’s probably a good
               decision but, you know, if I should have forseen it then I should have forseen
               it. I didn’t and I’m confident I never discussed that with [the petitioner]. I
               recall the [c]ourt discussing the jury instructions and that she was going to do
               it in the way that she did it.

On cross-examination, he further clarified his understanding of the duplicity issue:

       Q.      [Trial counsel], I think we all know now at least Count Three is duplicitous.

       A.      If it was today, you know, I think we’d certa[inly] be raising that issue or
               perhaps the State wouldn’t even be indicting like that today.

       Q.      Correct. And at that time this issue was not really that well known among the
               trial lawyers here in East Tennessee.

       A.      I think that’s a correct statement. We all, the word duplicitous certainly isn’t
               a new term and we all understand that but, you know, at that time it
               certa[inly] didn’t seem to be something that was, that was obviously apparent
               to those of us who practiced criminal law and some smart lawyer came up
               with the idea and he was representing a fellow by the name of Isabell.

       Q.      And generally it was pretty well known that an indictment for receiving or
               concealing would be duplicitous, right?

       A.      Right, have to be separate counts.

       Q.      But as far as the drug area that wasn’t all that until . . . the Isabell case.

       A.      The indictments in the First District, for instance, were drawn just exactly in
               the same way as they are over here.

Similarly, post-conviction counsel testified about these issues as follows:


                                                  -13-
Q.   . . . And also Count Three, knowingly s[ell] or deliver. And what [the
     petitioner] I think is alleging through counsel is, is that that was duplicitous.
     Now, first of all I guess the question that I want to ask is, is that the Isabell
     case that he referred to was decided in 2003, so at the time you prepared your
     brief had that case been decided?

A.   No.

Q.   And as far as you knew in your role and having done appellate cases, were
     you aware of any decisions that had been filed dealing with the fact that the
     sale and the phrase delivery or the word delivery were actually separate
     crimes as decided in the Isabell case?

A.   No.

Q.   The other question that I want to ask you then in the -- is the question of, the
     question of unanimity of the jury in this particular case when they found [the
     petitioner] guilty in [count three]. You had an opportunity to see the
     transcript and see the jury instructions, correct?

A.   Yes, I would normally.

Q.   I mean the jury instructions would have been read. I mean you would have
     had –

A.   Correct.

Q.   -- the transcript and they would have been read in the transcript.

A.   It’s in the record.

Q.   And then you would have also had the record of what the jury found.

A.   Correct.

Q.   And the Judge, in her instruction, told the jury to find either a sale or a
     delivery or a sale and delivery. Is that your recollection of her instructions to
     them[?]

A.   Yes. Yes, I just reviewed the –

Q.   You reviewed them just a moment ago.



                                       -14-
       A.      Yeah, yeah, but I wouldn’t have recalled, but yes.

       Q.      And in each of those cases, and again I think you specifically have a
               recollection of this, that the jury found both a sale and delivery.

       A.      That’s my recollection.

       Q.      And again, is there anything in your mind that would suggest because the jury
               found sale and delivery, that there was any question as to the unanimity of the
               jury in the particular case?

       A.      To me I wouldn’t have thought of that at the time and wouldn’t have
               addressed it, you know, and the court may say I’m wrong, but I wouldn’t have
               and I guess for years we didn’t, so.

       Q.      But there’s nothing in your mind that causes you to think that the jury might
               have been looking at a sale or they might have been looking at a delivery
               because the phrase “and” was included in both the sale and the delivery, their
               final finding.

       A.      I don’t think so.

As this uncontradicted testimony at the post-conviction hearing shows, prior to Isabell, duplicity and
verdict unanimity with drug offenses indicted in this way were considerations which were not “well-
known” by trial attorneys in East Tennessee. Further, the wording of count three was identical to
that of similar charges apparently habitually brought in the district. The petitioner has made no
showing that these were not true. Accordingly, we conclude that the petitioner has failed to show
that trial and appellate counsel’s representation fell below any objective standard of reasonableness.

        On appeal, the petitioner argues that “both trial and appellate counsel’s failure to raise the
issue [that the presentment allowed the jury to elect offenses and the jury charge lessened the State’s
burden and/or alternatively amended the presentment after jeopardy attached without the petitioner’s
consent] amounted to ineffective assistance of counsel.” No references are made to the record
showing that this claim was argued to the post-conviction court, nor are any authorities cited for his
proposition that the wording of jury instructions can amount to amending a presentment.
Accordingly, this claim is waived. Tenn. R. App. P. 27(a)(7).

        The petitioner urges us, under Tennessee Rule of Criminal Procedure 52(b), to find that the
duplicitous presentment constitutes “plain error.” It is true that where necessary to do substantial
justice, an appellate court may take notice of a “plain error” not raised at trial if it affected a
substantial right of the defendant. Tenn. R. Crim. P. 52(b). This is not, however, the petitioner’s
direct appeal. This court has previously explained that “the plain error doctrine has no application
in post-conviction relief proceedings.” Corwyn E. Winfield v. State, No. W2003-00889-CCA-R3-


                                                 -15-
PC, 2003 WL 22922272, at *5 (Tenn. Crim. App. Dec. 10, 2003), perm. to appeal denied (Tenn.
May 10, 2004); see also State v. West, 19 S.W.3d 753, 756-57 (Tenn. 2000). We conclude,
therefore, that the petitioner is not entitled to plain error review of the possible duplicitous nature
of count three of his presentment.

                                          CONCLUSION

       Based upon the foregoing authorities and reasoning, we affirm the post-conviction court’s
dismissal of the petition.

                                                        ___________________________________
                                                        ALAN E. GLENN, JUDGE




                                                 -16-
