         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     April 8, 2008 Session

                STATE OF TENNESSEE v. CAREY HAYNES, JR.

                    Direct Appeal from the Circuit Court for Dyer County
                             No. C04-418     Lee Moore, Judge



                  No. W2007-00886-CCA-R3-PC - Filed September 9, 2009


The petitioner, Carey Haynes, Jr., was convicted of a Class B and a Class C felony involving the sale
of cocaine and received an effective eighteen-year sentence. The only issue raised on direct appeal
was ineffective assistance of counsel, which was deemed waived because it was not included in the
motion for new trial. The petitioner has now filed seeking post-conviction relief, and the post-
conviction court has granted the petitioner a delayed appeal and ruled that his claim of ineffective
assistance of counsel was previously determined. As to the delayed appeal, we address whether the
evidence was sufficient to support the petitioner’s convictions and whether the petitioner’s sentence
was proper. We further address whether the post-conviction court properly denied relief. After
careful review, we affirm the judgments from the lower courts.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
J.C. MCLIN , JJ., joined.

Martin E. Dunn, Dyersburg, Tennessee, for the appellant, Carey Haynes, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; and
C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

                                            OPINION

        The petitioner was convicted after selling cocaine to an undercover police officer on two
occasions. A confidential informant provided information to the Dyersburg Police Department’s
narcotics unit that the petitioner was a known drug dealer with cocaine in his possession. The
informant phoned the petitioner and arranged a meeting time and location to purchase cocaine. The
informant requested an “eight ball” of cocaine, which was one-eighth of an ounce. The police
installed audio and video equipment in the petitioner’s car, and an undercover police officer and the
informant proceeded to the agreed upon location.
        The petitioner met the undercover officer and the informant at the agreed upon location. The
petitioner arrived on a bicycle and approached the passenger window of the automobile, where the
undercover officer was seated. The undercover officer rolled down the window, and the petitioner
tossed in a small bag containing cocaine. The officer handed the petitioner $100, and the petitioner
rode away. These events occurred on April 7, 2004.

        The undercover officer and the informant contacted the petitioner again and purchased
additional cocaine from him on May 13, 2004. This sale was made at the petitioner’s residence. It
was raining on the day of the offense. When the petitioner came outside his residence, the
undercover officer got into the back seat of the car and the petitioner got into the front passenger seat
of the car. The informant drove the three men away from the petitioner’s residence and toward the
Dyersburg shopping mall. They discussed the cocaine during the drive, and the petitioner produced
a small bag of white powder. The petitioner gave the bag to the informant who, in turn, handed it
to the undercover officer. The officer paid the petitioner and placed the drugs into his top left
pocket. A video recording was also made of this transaction, and both videos were shown to the jury
during the trial.

        An agent with the Tennessee Bureau of Investigation crime lab testified that she tested both
bags of cocaine and determined that the first bag contained 1.9 grams of cocaine and the second bag
contained 0.4 grams of cocaine.

         The petitioner testified on his own behalf at trial. He said that on the day of the first offense,
the informant pulled up next to him while he was on his bicycle. He said that the informant asked
him if he still took drugs, and the petitioner replied that he did not. With regard to the second
offense, the petitioner testified that the informant asked him for some marijuana and he said that he
did not have any marijuana in his possession. The petitioner said he was on his way to “rehab” and
testified that he told the informant that he was “done” with drugs. He said that he did not have an
opportunity to get in the car with the officer and the informant.

         The petitioner was convicted of one count of selling cocaine in an amount greater than .5
grams (a Class B felony) and one count of selling cocaine in an amount less than .5 grams (a Class
C felony). He was sentenced to twelve years on the Class B felony and six years on the Class C
felony. In his direct appeal, the petitioner raised the sole issue of ineffective assistance of trial
counsel, and this court determined that the issue was waived because the petitioner did not raise the
issue in his motion for new trial. The petitioner then filed a petition for post-conviction relief. The
trial court denied relief upon the ineffective assistance issue but granted a delayed appeal with regard
to the issues of sufficiency and sentencing, which were raised in the motion for new trial but not on
direct appeal. The petitioner then filed a notice of delayed appeal with this court on April 24, 2007.

                                                Analysis

       On appeal, the petitioner has raised three issues for our review. First, he contends that the
evidence is insufficient to support his conviction. Second, he argues that the trial court improperly
applied consecutive sentencing. Finally, he contends that the post-conviction erred in denying post-
conviction relief.

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I. Sufficiency of the Evidence

         First, the petitioner argues that the evidence was insufficient to support his convictions.
Specifically, he argues that the information admitted at trial was hearsay and, therefore, was not
sufficient to support his convictions. A guilty verdict by the jury, approved by the trial court,
accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the
prosecution’s theory. A verdict of guilt removes the presumption of innocence and replaces it with
a presumption of guilt, and the defendant has the burden of illustrating why the evidence is
insufficient to support the jury’s verdict. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). When
a defendant challenges the sufficiency of the evidence, the standard for review by an appellate court
is whether “after considering the evidence in a light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State
v. Smith, 24 S.W.3d 274, 278 (Tenn. 2000)(quoting State v. Buggs, 995 S.W.2d 102, 105 (Tenn.
1999)); see also Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781 (1979).

        Here, the undercover officer testified that he and the confidential informant arranged to
purchase cocaine from the petitioner on April 7, 2004. After they arrived at the agreed upon
location, the petitioner rode up to the informant’s vehicle on his bicycle and passed a bag of cocaine
to the officer. The officer then gave $100 to the petitioner. At trial, the officer identified the
petitioner as the person who sold him the cocaine. An agent with the T.B.I. crime lab testified that
the substance the officer received on that date contained 1.9 grams of cocaine.

        The officer also testified that on May 13, 2004, the petitioner again sold him cocaine. He
said that the petitioner asked the officer and the informant to meet him at his residence and, after
they arrived, the defendant got into their car. The officer testified that the petitioner gave them a
small bag of white powder, which was later determined to contain 0.4 grams of cocaine. Both sales
of cocaine were recorded on hidden video and audio equipment contained in the vehicle driven by
the informant.

        Our review reflects that the evidence presented at trial was sufficient to support the
petitioner’s convictions of selling cocaine. The petitioner is not entitled to any relief on this issue.

II. Consecutive Sentencing

         Next, the petitioner argues that he was sentenced improperly when the trial court ordered his
sentences to run consecutively to his previous convictions. When there is a challenge to the length,
range, or manner of service of a sentence, this court must conduct a de novo review of the record
with a presumption that the determinations made by the trial court are correct. T.C.A. § 40-35-
401(d) (2003). This presumption is “conditioned upon the affirmative showing in the record that
the trial court considered the sentencing principles and all relevant facts and circumstances.” State
v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). “The burden of showing that the sentence is improper
is upon the appellant.” Id. In the event the record fails to demonstrate the required consideration
by the trial court, review of the sentence is purely de novo. Id. In conducting a de novo review, this
court must consider:


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        1) The evidence, if any, received at the trial and sentencing hearing;
        2) The presentence report;
        3) The principles of sentencing and arguments as to sentencing alternatives;
        4) The nature and characteristics of the criminal conduct involved;
        5) Evidence and information offered by the parties on enhancement and mitigating
           factors in §§ 40-35-113 and 40-35-114; and
        6) Any statement the [petitioner] wishes to make in the [petitioner’s] own behalf
           about sentencing.

T.C.A. § 40-35-210 (2003); see also Ashby, 823 S.W.2d at 168.

        Consecutive sentences may be ordered if the court finds by a preponderance of the evidence
that:

        1) The [petitioner] is a professional criminal who has knowingly devoted the
           [petitioner’s] life to criminal acts as a major source of livelihood;

        2) The [petitioner] is an offender whose record of criminal activity is extensive;

        3) The [petitioner] is a dangerous mentally abnormal person so declared by a
           competent psychiatrist who concludes as a result of an investigation prior to
           sentencing that the [petitioner’s] criminal conduct has been characterized by a
           pattern of repetitive or compulsive behavior with heedless indifference to
           consequences;

        4) The [petitioner] is a dangerous offender whose behavior indicates little or no
           regard for human life, and no hesitation about committing a crime in which the
           risk to human life is high;

        5) The [petitioner] is convicted of two (2) or more statutory offenses involving
           sexual abuse of a minor with consideration of the aggravating circumstances
           arising from the relationship between the [petitioner] and victim or victims, the
           time span of [petitioner’s] undetected sexual activity, the nature and scope of the
           sexual acts and the extent of the residual, physical and mental damage to the
           victim or victims;

        6) The [petitioner] is sentenced for an offense committed while on probation; or

        7) The [petitioner] is sentenced for criminal contempt.

T.C.A. § 40-35-115(b) (2003). The length of the sentence must be “justly deserved in relation to the
seriousness of the offense,” T.C.A. § 40-35-102(1) (2003), and “no greater than that deserved” under
the circumstances. T.C.A. § 40-35-103(2) (2003); see also State v. Lane, 3 S.W.3d 456, 460 (Tenn.
1999). Additionally, whether sentences are to be served concurrently or consecutively is a matter

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addressed to the sound discretion of the trial court. State v. Hastings, 25 S.W.3d 178, 181 (Tenn.
Crim. App. 1999).

        Our review reflects that the trial court was within its discretion when it ordered the
petitioner’s sentences to run consecutively. The petitioner’s probation officer testified during the
sentencing hearing that the petitioner was under his probation supervision until December 21, 2012.
The petitioner acknowledged that he had a history of felony drug convictions. His record included
convictions for possession of cocaine and marijuana with intent to deliver, as well as two convictions
for sale of cocaine. The petitioner was on probation at the time of the new law violations. He had
been released from boot camp less than a month prior to the first drug transaction with the
undercover officer.

        The trial court stated on the record that it considered the evidence presented at the sentencing
hearing, the petitioner’s testimony, the presentence report, and the proof at trial. The trial court also
specifically mentioned that the petitioner was released from boot camp on March 9, 2004, and
committed these offenses shortly thereafter on April 7 and May 13, 2004, respectively. The court
clearly stated that the petitioner was selling drugs when he was not in custody. The trial court
properly ordered the sentences to be run consecutively, and the petitioner is not entitled to any relief
on this issue.

III. Ineffective Assistance of Counsel

        Finally, the petitioner raises the issue of whether the post-conviction court erred in denying
post-conviction relief based upon the ineffective assistance of counsel. As previously noted, the
post-conviction court denied relief upon this issue because it found that it had been previously
determined on direct appeal. Again, it is noted that the petitioner raised the issue of ineffective
assistance of counsel on direct appeal, and a panel of this court concluded that the issue was waived
based upon the failure to include the issue in the motion for new trial. See State v. Carey B. Haynes,
Jr., No. W2005-01184-CCA-R3-CD (Tenn. Crim. App., at Jackson, Apr. 3, 2006).

         Initially, we are constrained to address concerns raised by a procedural aspect which is
highlighted in this case involving a situation where a petitioner requests a delayed appeal and raises
post-conviction issues in the same petition. It is clear that, generally, a delayed appeal may be
granted, pursuant to Tennessee Code Annotated section 40-30-113 and Tennessee Supreme Court
Rule 28 section 9, by the filing of a post-conviction action. However, this court has reached
differing results on the correct procedure which a post-conviction court should employ with regard
to the handling of the post-conviction issues raised if a delayed appeal is granted. In Gibson v. State,
7 S.W.3d 47, 50 (Tenn. Crim. App. 1998), procedural guidelines were established which provided
that when a delayed appeal was granted, the post-conviction court should dismiss without prejudice
the remaining post-conviction allegation while the delayed appeal action was pending. The premise
of this holding was that, unless the post-conviction proceedings were dismissed, the petitioner would
be precluded from raising any resulting ineffective assistance of counsel issues which arose from the
handling of the delayed appeal.


                                                  -5-
        However, we are cognizant that in 2002, our supreme court amended Rule 28 of the
Tennessee Rules of the Supreme Court, which governs delayed appeals. See Tenn. R. Sup. Ct. 28,
§ 9(D); State v. Billy Jackson Coffelt, No. M2005-01723-CCA-DAC-CD (Tenn. Crim. App., at
Nashville, Aug. 8, 2006). Section 9 of the rule specifically provides that post-conviction proceedings
are to be stayed until the final disposition of a delayed appeal when a delayed appeal is granted
pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure. Tenn. R. Sup. Ct. 28, §
9(D)(1)(b)(i), §9(D)(2)(b)(i). Further, the rule specifically provides that when a petitioner appeals
a post-conviction court’s denial of a delayed appeal pursuant to Rule 3 of the Tennessee Rules of
Appellate Procedure, this court shall “resolve this issue along with any other issues raised in the
post-conviction appeal;” should this court “grant a delayed appeal, the post-conviction appeal shall
not be stayed.” Tenn. R. Sup. Ct. 28, § 9(D)(2)(a).

        However, despite Rule 28’s specific provisions regarding the above situations, the rule is
silent with regard to whether the post-conviction proceedings should be stayed, dismissed, or decided
when a trial court grants a Rule 3 delayed appeal. Multiple panels of this court have concluded that
the absence of the stay provision “apparently contemplates that the collateral-attack issues will be
adjudicated along with the question of the propriety of a delayed appeal.” State v. Ben Thomas
Dowlen, No. M2003-00508-CCA-R3-CD (Tenn. Crim. App., at Nashville, July 20, 2004); see also
State v. Jarvis Antonio Clemmons, Nos. M2007-02793-CCA-R3-CD, M2007-02791-CCA-R3-PC
(Tenn. Crim. App., at Nashville, Dec. 4, 2008); Harvey Webster v. State, No. M20060-00886-CCA-
R3-PC (Tenn. Crim. App., at Nashville, June 27, 2007); State v. Billy Jackson Coffelt, No. M2005-
01723-CCA-DAC-CD. In these cases, panels of this court saw fit to address the merits of a
petitioner’s appeal of a denial of post-conviction relief when a post-conviction court had denied post-
conviction relief but granted a Rule 3 delayed appeal. Id. In Dowlen, the court concluded that our
supreme court had sanctioned the procedure. State v. Ben Thomas Dowlen, No. M2003-00508-CCA-
R3-CD.

        Nonetheless, despite this precedent for allowing both a post-conviction court, as well as this
court, to address post-conviction issues, we must note the possible resulting unfairness to a
petitioner, who could be precluded from challenging the effectiveness of his appellate counsel if the
post-conviction petition is ruled upon prior to the delayed appeal. We find the reasoning in Gibson
quite persuasive with regard to the employment of a different procedure. The court in Gibson
provided the following well-reasoned rationale for staying post-conviction proceedings until the
conclusion of the delayed appeal:

       A petitioner for post-conviction relief, complaining of the original conviction and
       sentence, may not be maintained while a direct appeal of the same conviction and
       sentence is being prosecuted. Because a post-conviction petition may not be filed
       until the final judgment of the highest court has been entered, see Tenn. Code Ann.
       § 40-30-202, the . . . petition for post-conviction relief was filed prematurely and
       should have been dismissed accordingly. Moreover, if . . . the ultimate holding [on
       delayed appeal] is favorable to the appellant, this court’s time has been wasted on an
       appellate [post-conviction] issue which is rendered moot.


                                                 -6-
       . . . . [Moreover, w]e are cognizant of the statutory provision which contemplates the
       filing of only one petition for post-conviction relief from a single judgment. Tenn.
       Code Ann. § 40-30-202(c). This statute provides that if a petition has been resolved
       on its merits, a subsequent petition must be summarily dismissed. Tenn. Code Ann.
       §§ 40-30-202(c); 40-30-206(b).

Gibson, 7 S.W.3d at 50 (some citations omitted).

        Under the facts of the instant case, it appears that the initial appellate counsel rendered
deficient performance to the point of arguably preempting any review of trial or appellate counsel’s
effectiveness. All defendants are guaranteed effective assistance of counsel at trial and on first tier
review. In our view, the preferable procedure is for the post-conviction court to stay any findings
as to ineffective assistance of counsel claims and allow them to proceed only after the results of the
delayed appeal are known.

         We are nonetheless bound by the Rules of our supreme court and guided by prior decisions
of this court. As such, we conclude that the post-conviction court in this case did have jurisdiction
to rule upon the merits of the petitioner’s post-conviction issue and that, accordingly, we have
jurisdiction to review the merits of that decision. Review of the record reveals that the post-
conviction court correctly determined that the issue was previously determined by this court’s ruling
on direct appeal that the issue was waived. Issues which have been previously determined may not
be raised through a post-conviction challenge. T.C.A. § 40-30-106(h) (2006). Thus, the post-
conviction court’s ruling was correct, and the petitioner is not entitled to relief.

                                          CONCLUSION

       Based on the foregoing and the record as a whole, we affirm the judgment from the post-
conviction court




                                                   ___________________________________
                                                   JOHN EVERETT WILLIAMS, JUDGE




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