                                                                                         08/01/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 June 18, 2019 Session

              TIMOTHY DUNN, SR. v. STATE OF TENNESSEE

               Appeal from the Circuit Court for Robertson County
            No. 74CC2-2014-CR-144      William R. Goodman III, Judge


                            No. M2018-01614-CCA-R3-PC


The Petitioner, Timothy Dunn, Sr., appeals from the Robertson County Circuit Court’s
denial of his petition for post-conviction relief. The Petitioner contends that his trial
counsel was ineffective in failing to explain to the Petitioner the possible sentence he
could receive if convicted at trial. Discerning no error, we affirm the judgment of the
post-conviction court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.

Jonathan B. Miley, Springfield, Tennessee, for the appellant, Timothy Dunn, Sr.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; John Wesley Carney Jr., District Attorney General; and Jason
Christian White, Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                             FACTUAL BACKGROUND

       The Petitioner was convicted by a jury of sale of cocaine within 1000 feet of a
school and delivery of cocaine within 1000 feet of a school. State v. Timothy Dunn, No.
M2016-00469-CCA-R3-CD, 2017 WL 652215, at *1 (Tenn. Crim. App. Feb. 17, 2017),
perm. app. denied (Tenn. May 18, 2017). The trial court merged the convictions and
imposed a sentence of seventeen years. Id. This court affirmed the Petitioner’s
conviction and sentence on direct appeal. Id. On May 18, 2017, our supreme court
declined to review this court’s decision.
       The Petitioner’s conviction arose out of a controlled buy of cocaine performed by
a confidential informant. Dunn, 2017 WL 652215, at *1. The confidential informant
called a co-defendant asking to purchase a gram of cocaine for fifty dollars. Id. The
co-defendant instructed the confidential informant on where to meet for the exchange.
Id. Once the confidential informant arrived at the location, the Petitioner drove up in a
van. Id. The Petitioner gave the confidential informant .76 grams of cocaine. Id. at
*1-2. The confidential informant gave the Petitioner sixty dollars. Id. at *1. The
Petitioner went back to his van and then returned with the confidential informant’s
change. Id. This exchange was recorded on a video camera hidden in the confidential
informant’s car and observed by several police officers. Id. at *2.

        The Petitioner filed a timely pro se petition for post-conviction relief. Counsel
was appointed to represent the Petitioner in this matter and an amended petition for
post-conviction relief was filed. As pertinent to our review, the amended petition alleged
that trial counsel was ineffective in failing to inform the Petitioner of his “sentencing
exposure if [a] plea offer was rejected and trial occurred.”1

       The Petitioner testified that the State initially offered to dismiss the cocaine
charges against him if he testified against his co-defendant and did not “catch another
theft charge.” That offer was withdrawn after the Petitioner pled guilty to domestic
assault. The State then offered the Petitioner an eight-year sentence without the school
zone enhancement and with a release eligibility of thirty percent.

        The Petitioner admitted that he was aware that he was charged with a Class A
felony with a school zone enhancement. The Petitioner also admitted that he and trial
counsel had reviewed the evidence against him. However, the Petitioner claimed that
trial counsel told him that he “could probably beat the case” because he “didn’t see [any]
drugs” on the video recording. The Petitioner also claimed that trial counsel never
informed him that he could receive a sentence of between fifteen and twenty-five years to
be served at 100% if he was convicted at trial. The Petitioner testified that he would have
accepted the State’s offer if trial counsel had informed him of his sentencing exposure at
trial.

        Trial counsel denied telling the Petitioner that he could “beat the case.” To the
contrary, trial counsel advised the Petitioner that the “facts [of the case] were terrible” for
the Petitioner and that the State’s offer “was as good as it could get.” Trial counsel
testified that it was his general practice to inform a defendant of the maximum sentence
they could receive at trial, but he could not recall if he told the Petitioner that he faced a
maximum twenty-five-year sentence. Trial counsel was certain that he informed the

1
 This opinion will focus solely on the issue raised in the Petitioner’s brief. All other issues have been
waived. See Tenn. R. App. P. 36(a).
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Petitioner that he faced a minimum sentence of fifteen years to be served at 100% if he
lost at trial. Trial counsel recalled that he used his “hands as a scale” to show how “eight
years at thirty versus nearly twice that at” 100% balanced out. Nevertheless, the
Petitioner “didn’t want the eight at thirty” offer and insisted on going to trial.

       On August 15, 2018, the post-conviction court issued a written order denying
post-conviction relief. The post-conviction court accredited trial counsel’s testimony that
“it was his practice to inform clients as to the maximum sentence which could be
imposed” and noted that there “was no evidence that this case had been handled any
differently in regard to informing the client as to possible punishment.” The
post-conviction court concluded that the Petitioner had failed to prove his factual
allegations by clear and convincing evidence.

                                       ANALYSIS

       The Petitioner contends that he received ineffective assistance from trial counsel
because trial counsel failed to inform him of the possible sentence he could receive if
convicted at trial. The Petitioner argues that he would have accepted the State’s offer of
eight years to be served at thirty percent if trial counsel had informed him that he would
be sentenced to between fifteen and twenty-five years to be served at 100% if he was
convicted at trial. The State responds that the post-conviction court did not err in denying
the petition.

       The burden in a post-conviction proceeding is on the petitioner to prove his
allegations of fact supporting his grounds for relief by clear and convincing evidence.
Tenn. Code Ann. § 40-30-110(f); see Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn.
2009). On appeal, we are bound by the post-conviction court’s findings of fact unless we
conclude that the evidence in the record preponderates against those findings. Fields v.
State, 40 S.W.3d 450, 456 (Tenn. 2001). Additionally, “questions concerning the
credibility of witnesses, the weight and value to be given their testimony, and the factual
issues raised by the evidence are to be resolved” by the post-conviction court. Id.
However, we review the post-conviction court’s application of the law to its factual
findings de novo with no presumption of correctness. Id. at 457.

       Post-conviction relief is available when a “conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103.
Criminal defendants are constitutionally guaranteed the right to effective assistance of
counsel. Dellinger, 279 S.W.3d at 293 (citing U.S. Const. amend. VI; Cuyler v. Sullivan,
446 U.S. 335, 344 (1980)). When a claim of ineffective assistance of counsel is made
under the Sixth Amendment to the United States Constitution, the burden is on the
petitioner to show (1) that counsel’s performance was deficient and (2) that the
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deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984); see
Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993).

       Deficient performance requires a showing that “counsel’s representation fell
below an objective standard of reasonableness,” despite the fact that reviewing courts
“must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 688-89. Prejudice requires
proof of “a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at 694. “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.” Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996). The Strickland standard has been applied to the right to
counsel under article I, section 9 of the Tennessee Constitution. State v. Melson, 772
S.W.2d 417, 419 n.2 (Tenn. 1989).

        We agree with the post-conviction court that the Petitioner failed to prove his
factual allegations by clear and convincing evidence. Trial counsel denied ever telling
the Petitioner that he could “beat the case.” Trial counsel advised the Petitioner that the
“facts [of the case] were terrible” for the Petitioner and that the State’s offer “was as good
as it could get.” Trial counsel testified that it was his general practice to inform a
defendant of the maximum sentence they could receive at trial. Trial counsel was certain
that he informed the Petitioner that he faced a minimum sentence of fifteen years to be
served at 100% if he lost at trial. Trial counsel recalled that he used his “hands as a
scale” to show how “eight years at thirty versus nearly twice that at” 100% balanced out.
Nevertheless, the Petitioner “didn’t want the eight at thirty” offer and insisted on going to
trial. The post-conviction court accredited trial counsel’s testimony and the evidence
does not preponderate against that decision. Accordingly, we conclude that the
post-conviction court did not err in denying post-conviction relief.

                                      CONCLUSION

       Upon consideration of the foregoing and the record as a whole, the judgment of
the post-conviction court is affirmed.



                                                   _________________________________
                                                   D. KELLY THOMAS, JR., JUDGE




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