            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON             FILED
                              MARCH 1997 SESSION
                                                               July 16, 1997

                                                           Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk
CHARLES "ACE" BARBEE,           *          C.C.A. # 02C01-9610-CC-00372
                                *
                 Appellant,     *          DYER COUNTY
VS.                             *
                                *          Hon. Joe G. Riley, Judge
STATE OF TENNESSEE,             *
                                *          (Post-Conviction)
                 Appellee.      *
                                *




For Appellant:                             For Appellee:

William K. Randolph                        Charles W. Burson
120 North Mill Street                      Attorney General & Reporter
Suite 303
P.O. Box 611                               Deborah A. Tullis
Dyersburg, TN 38025-0611                   Assistant Attorney General
                                           Criminal Justice Division
                                           450 James Robertson Parkway
                                           Nashville, TN 37243-0493

                                           James E. Lanier
                                           Assistant District Attorney General
                                           P.O. Drawer E
                                           Dyersburg, TN 38024




OPINION FILED:




AFFIRMED




GARY R. WADE, JUDGE
                                        OPINION

              The petitioner, Charles "Ace" Barbee, appeals from the trial court’s

dismissal of his petition for post-conviction relief. The single issue presented for our

review is whether the trial court erred by finding that counsel was not ineffective for

(1) failing to file a motion to seek a severance of four separate counts of selling

cocaine and (2) failing to fully advise the petitioner of the potential punishment in the

event of a guilty verdict.



              We affirm the judgment of the trial court.



              On January 13, 1994, the petitioner was found guilty of four counts of

selling cocaine. The trial court imposed a six-year sentence on each of the four

counts. Because three of the sentences were ordered consecutive, the effective

sentence is eighteen years. This court affirmed the conviction on direct appeal.

State v. Charles "Ace" Barbee, No. 02C01-9409-CC-00191 (Tenn. Crim. App., at

Jackson, Apr. 26, 1995), appeal denied (Tenn., Sept. 11, 1995). The petitioner filed

this, his first petition for post-conviction relief, on May 7, 1996. After the

appointment of counsel and an evidentiary hearing, the trial court denied relief.



              The trial court found as fact that defense counsel made a sound

strategy decision not to request a severance of the charges. It further held that the

four drug sales made to the same undercover agent and under similar

circumstances over a five-week period constituted separate offenses committed

under a common scheme or plan. The trial court thus found that a severance would

not have been warranted and, in consequence, that the petitioner was not

prejudiced by defense counsel's failure to request separate trials. The trial court

also found that the petitioner, who had received a written plea offer for concurrent,


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Range I four-and-one-half-year sentences on each of the four charges, had been

adequately informed by his counsel of the risks of the trial and the potential for

consecutive sentences as a Range III offender.



              The defendant, who insisted that he was innocent of the charges,

testified that he never sold the undercover agent cocaine. He claimed that he had

merely accommodated the agent by driving him to various locations to purchase the

cocaine from others.



              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 advise given was 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. Recently, 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).



              Moreover, in claims of ineffective counsel, the petitioner is not entitled

to the benefit of hindsight, may not second-guess a reasonably based trial strategy,

and cannot criticize a sound, but unsuccessful, tactical decision made during the

course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.


                                           3
1994); See State v. Martin, 627 S.W.2d 139, 142-43 (Tenn. Crim. App. 1981).

Such deference to tactical decisions of counsel applies only if the choices are made

after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528

(Tenn. Crim. App. 1992).



              The findings of fact made by a trial court at an evidentiary hearing for

post-conviction relief have the weight of a jury verdict and will not be disturbed on

appeal unless the evidence preponderates against those findings. Clenny v. State,

576 S.W.2d 12, 14 (Tenn. Crim. App. 1978). The burden is on the petitioner to

show that the evidence preponderates against those findings. Id.



                                            I

              The petitioner first contends that his defense counsel was ineffective

for failing to request a severance of his four drug charges. Because a severance

was not warranted under the facts of this case, we cannot fault counsel for failing to

seek one. By the terms of Tenn. R. Crim. P. 14(b)(1), a defendant has a right to

have the offenses severed "unless the offenses are part of a common scheme or

plan and the evidence of one would be admissible upon the trial of the others."

While severance is ordinarily a matter which rests within the sound discretion of the

trial court, that general rule is not necessarily applicable in relation to the severance

of offenses. State v. Peacock, 638 S.W.2d 837 (Tenn. Crim. App. 1982).



              To qualify as "part of a common scheme or plan" within the governing

rule, the offenses must be so similar in modus operandi and occur within such

relatively close character, time, and location to each other that there can be little

doubt that the offenses were committed by the same person. The offenses must

appear to constitute part of a common scheme or plan. Webster v. State, 425


                                            4
S.W.2d 799, 811 (Tenn. Crim. App. 1967). In our view, these offenses qualify. In

State v. Steve Mosley, No. 01C01-9211-CC-00345 (Tenn. Crim. App., at Nashville,

Sept. 9, 1993), this court held that a severance was not warranted when the five

indicted drug offenses occurred within a six-week period, and all of the offenses

"involved the same controlled substance, the same defendant, the same informants,

and the same witnesses." Slip op. at 9. See also State v. Roger D. Pulley, No.

01C01-9501-CC-00013, slip op. at 5 (Tenn. Crim. App., at Nashville, Sept. 20,

1995) (severance inappropriate where the five drug offenses "occurred within eight

weeks of one another and involved virtually the same sequence of events, the same

confidential informant, and the same established procedure.")     Here, the same

police agent arranged and completed four drug buys with the petitioner. The

transactions occurred in the same area, and the same substance was involved in

each purchase. Small amounts of cocaine were sold each time.



             Secondly, the circumstances must fall within the exception to the

general rule prohibiting evidence of other crimes in that they are "so related to each

other that proof of one tends to establish the others." 20 Am. Jur. Evidence, § 314

(1939); Collard v. State, 526 S.W.2d 112, 114 (Tenn. 1975).

             Rule 404 of the Tennessee Rules of Evidence is pertinent:

             (b) Other Crimes, Wrongs, or Acts.--Evidence of other
             crimes, wrongs, or acts is not admissible to prove the
             character of a person in order to show action in
             conformity with the character trait. It may, however, be
             admissible for other purposes. The conditions which
             must be satisfied before allowing such evidence are:




                                          5
                      (1) The court upon request must hold a hearing
              outside the jury's presence;
                      (2) The court must determine that a material issue
              exists other than conduct conforming with the character
              trait and must upon request state on the record the
              material issue, the ruling, and the reasons for admitting
              the evidence; and
                      (3) The court must exclude the evidence if its
              probative value is outweighed by the danger of unfair
              prejudice.


              The general rule prohibiting evidence of other crimes has several

exceptions. If tied to a relevant issue, proof of a common scheme or plan may be

one of those. See State v. Hallock, 875 S.W.2d 285, 289-90 (Tenn. Crim. App.

1993). The procedure outlined in the rule requires a jury-out hearing, a finding that

the "other act" addresses a relevant issue such as a common scheme or plan, and a

balancing of probative value against unfair prejudicial effect. Factors in weighing the

probative value include the prosecution's need for the evidence, the likelihood the

defendant committed the other crimes, and the degree of its relevance. The

similarity of the acts makes the probative value particularly significant. Often, a

common scheme or plan is used to prove identity. Neil P. Cohen, et al., Tennessee

Law of Evidence, § 404.11 (2d ed. 1990). The distinctive design in the commission

of a series of crimes may serve as a basis for either admitting evidence of other

crimes or having consolidated trials.



              The defendant's version of events was that he never sold cocaine to

the undercover agent and merely drove the agent to various locations to purchase

the cocaine from others. Thus, proof of the intentional commission of the other

crimes would be admissible under Tenn. R. Evid. 404(b) to rebut the defendant's

claim that he was a mere observer. In State v. Wayne Hymes Richards, No. 03C01-

9503-CR-00102, slip op. at 6 (Tenn. Crim. App., at Knoxville, July 8, 1996), our

court held severance was not warranted on two separate charges of delivery of




                                           6
marijuana, where the proof of the "defendant's participation in each offense was

probative of both his identity and his guilty knowledge as to the other offense."



              At the post-conviction evidentiary hearing, defense counsel testified

that he could not remember many of the details of the petitioner's case. He did

recall that he reviewed the petitioner's file before the hearing. Based on his memory

and the information in the file, he testified that he had past experience before the

same trial court representing defendants facing multiple charges for selling drugs to

a single undercover police agent. It was trial counsel's experience that the court

would not sever charges when "the same officer, same agent, basically the same

facts but different dates" were involved. Based on this experience, he made the

judgment to not seek a severance in the petitioner's case. This record does not

demonstrate why a motion to sever would have been successful. The petitioner was

not, therefore, prejudiced by the failure to seek a severance.



              Moreover, counsel also acknowledged that there was a notice of

impeaching convictions in the file. Although the petitioner would have qualified as a

Range III offender, the state had failed to file any notice of enhanced range. A

delay in the proceedings may have given the state the opportunity to rectify this

apparent oversight. Thus, counsel's decision not to ask for a severance could have

been based on strategy. The facts establish that the state could have sought

enhanced punishment of the defendant as a Range III offender; that the defendant

was already eligible for consecutive sentences might also suggest that the chances

of concurrent sentencing were better in a consolidated trial. Either objective may

have qualified as a reasonable trial strategy for not seeking the severance.




                                           II



                                           7
              Next, the petitioner claims that defense counsel failed to inform him of

the possible maximum prison sentence he faced if he were found guilty. The

petitioner testified at the evidentiary hearing that defense counsel failed to explain

that there was a potential that all four sentences could be ordered consecutive to

each other. He testified that the state offered him a sentence of four and one half

years for each drug charge to be run concurrently with each other. The petitioner

claimed that because the maximum sentence for his range was six years, it was his

understanding that he was only risking another one and a half years by demanding

a trial; had he known that there was a potential maximum of twenty-four years'

incarceration, he would have never gone to trial and would have taken the plea

agreement.



              Defense counsel testified that while he could not remember many

details of the petitioner's case, it was his practice to always explain the terms of the

plea agreement, including consecutive sentences, to a client; he felt sure he had

done so in the petitioner's case. The petitioner rejected the offer. The petitioner

had a lengthy criminal history which included a 1977 misdemeanor conviction for

possession of marijuana, a 1981 drug conviction, three 1984 convictions for

diazepam and marijuana, two 1989 convictions for attempting to sell cocaine, and

two 1989 convictions for selling cocaine. The trial court accredited the testimony of

defense counsel and ruled that the petitioner, because of his familiarity with the

criminal justice system, clearly understood the meaning of consecutive sentences.



              Whether defense counsel fully explained the plea agreement to the

petitioner is a question of fact. Here the trial court found that defense counsel



adequately explained the consequences. The evidence does not preponderate


                                            8
against the finding of the trial court.



              Accordingly, the judgment is affirmed.




                                          Gary R. Wade, Judge

CONCUR:




Joe B. Jones, Presiding Judge




Curwood Witt, Judge




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