         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs October 5, 2004

                   RONNIE WEDDLE v. STATE OF TENNESSEE

                    Appeal from the Circuit Court for Madison County
              Nos. C-03-203, C-03-244 and C-03-245    Donald H. Allen, Judge



                   No. W2003-03041-CCA-R3-PC - Filed January 21, 2005


The petitioner, Ronnie Weddle, appeals the dismissal by the Madison County Circuit Court of his
petitions for post-conviction relief. On appeal, the petitioner argues that he was denied the effective
assistance of counsel in connection with a previously negotiated plea agreement that disposed of two
narcotics-related offenses. Upon review of the record, we affirm the denial of post-conviction relief.

              Tenn. R. App. P. 3; Judgments of the Circuit Court are Affirmed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
DAVID G. HAYES, JJ., joined.

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); and Brigitte Tubbs-Jones, Jackson,
Tennessee (at trial and of counsel on appeal), for the Appellant, Ronnie Weddle.

Paul G. Summers, Attorney General & Reporter; Michael Markham, Assistant Attorney General;
James G. Woodall, District Attorney General; and Al Earls and Angela R. Scott, Assistant District
Attorneys General, for the Appellee, State of Tennessee.

                                              OPINION

                The petitioner stands convicted of two counts of possession of .5 grams or more of
cocaine with intent to sell or deliver, Tenn. Code Ann. § 39-17-417(a)(4), (c)(1) (2003), and he is
serving an effective sentence of 16 years. Pursuant to negotiations with the state, on February 11,
2003, the petitioner entered a best-interests plea to one charge and a guilty plea to the second charge.
The plea agreement provided for minimum, Range I eight-year sentences, and because the petitioner
was on bond when he committed the second offense, consecutive sentencing was mandatory. See
id. § 40-20-111(b) (2003).

              The facts underlying the petitioner’s plea appear in the transcript of his plea
submission, which is before us. On March 1, 2002, as the result of a traffic stop, 2.1 grams of
cocaine were confiscated from the petitioner. The cocaine was packaged in three separate plastic
baggies. At the plea submission, the petitioner admitted possessing the cocaine, but he insisted that
he did not intend to deliver or sell it. When the petitioner continued to protest his innocence of the
charged offense, the trial court declined to accept his plea and declared a recess so the parties could
further discuss the matter.

               Following the recess, the parties announced a new plea agreement whereby the
petitioner would enter a best-interests plea to the charge before the court and would plead guilty to
a second pending drug charge, a resisting arrest charge, and a tampering with evidence charge. The
agreement embraced an effective sentence of 16 years. The facts underlying the new set of charges
were that on August 15, 2002, law enforcement officers executed a search warrant for the petitioner’s
residence. When the officers entered the residence, the petitioner resisted arrest and unsuccessfully
attempted to swallow a plastic bag containing crack cocaine. The officers recovered the bag, later
determined to contain 14.7 grams of crack cocaine. A further search of the residence and an outside
shed uncovered an additional 24 grams of crack cocaine and $2,848 in cash. The petitioner gave a
statement to the police admitting ownership of the cocaine.

                The trial court initially was reluctant to approve the plea agreement. The state then
explained to the trial court that in exchange for pleading to the charges, the defendant was receiving
sentencing consideration in terms of a minimum, eight-year sentence for each drug charge, as a
Range I offender, although the petitioner’s prior criminal history would otherwise qualify him for
Range II or Range III sentencing. By statute, the petitioner’s sentences – whatever the range – had
to be served consecutively. Armed with this explanation and the petitioner’s sworn responses, the
trial court accepted the plea agreement.

                Approximately four months after the plea submission, the petitioner filed a series of
three petitions for post-conviction relief that were consolidated for hearing on November 25, 2003.
The petitions, essentially identical, alleged ineffective assistance of counsel in connection with the
petitioner’s pleas on the drug-related offenses. The evidence at the post-conviction hearing consisted
of the testimony of the petitioner and petitioner’s trial counsel. The petitioner began by describing
his conversations with counsel prior to entry of his plea.

                       Well, he was – you know, my understanding was, you know,
               he was going to get my time ran [sic] concurrent, you know, when I
               met him in his office. And, you know, when he was talking to Ms.
               Scott, you know, he’s going to tell me to say “yes” to everything. I
               told him, “That’s – that’s too much time here, you know.” I would
               rather – I, you know, because he wanted me to get – stop – drop the
               Motion for Discovery. He kept telling me that the Feds were going
               to come in and take over. I would rather for the Feds to have came
               [sic] over and took over because, you know, to me this is just as much
               time as the Fed time here.




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The petitioner insisted that he did not have sufficient time to think about his pleas and that his
attorney pressured him to enter the pleas. Also, the petitioner repeatedly asserted that his attorney
told him to say “yes,” to whatever question was posed.

               In response to questioning by post-conviction counsel, the petitioner clarified that
although he and the attorney had discussed concurrent sentencing, the petitioner understood that the
plea agreement which he signed provided for consecutive eight-year sentences. The petitioner’s
explanation for signing the agreement was to “keep from the Feds coming in.”

               Additionally, the petitioner complained that the attorney was “supposed to have been
suppressing” all the evidence but that the attorney “dropped” the suppression motion “to keep from
the Feds coming in.” The petitioner testified that his attorney “didn’t do his job at all.”

                 On cross-examination, the state attacked the petitioner’s assertion that he did what
his attorney instructed him to do by answering “yes” to everything. The plea submission plainly
showed otherwise. The petitioner also contradicted his earlier testimony and tried to claim that even
if the court told him that his sentences could not be served concurrently, he was “in fear,” did not
understand what the court said, and actually believed that the court was “going to put both together.”
As the cross-examination progressed, the petitioner’s responses became increasingly evasive,
argumentative, and nonresponsive. Even when the court asked if the petitioner was claiming that
no one, including the court, had advised him that his effective sentence would be 16 years, the
petitioner merely replied that he did not “know it was going to be sixteen” and that he “was thinking
it was going to be just eight years run concurrent.”

               The petitioner called his former counsel, J. Colin Morris, as a witness and had him
identify a suppression motion that he filed in connection with one of the petitioner’s cases. Mr.
Morris opined that the motion had merit. Although a search warrant was involved in the petitioner’s
second case, Mr. Morris did not file a suppression motion owing to his belief that the warrant was
supported by probable cause.

                On cross-examination, Mr. Morris explained that shortly after he filed the suppression
motion, the state moved to revoke the petitioner’s bond because of his subsequent arrest. After the
second arrest, Mr. Morris entered into plea negotiations with the state. Part of the plea negotiations
involved holding the respective motions in abeyance so the attorneys could discuss a final resolution
of the petitioner’s cases. Mr. Morris testified that he “practically begged” the state for concurrent
sentencing, but because consecutive sentencing was mandatory, the state finally offered a minimum,
eight-year sentence as a Range I offender. Mr. Morris communicated the state’s offer to the
petitioner; he recommended the offer to the petitioner as the “best deal” that could be obtained and
explained that the offer required the petitioner to abandon his suppression motion.

              Mr. Morris affirmed that he was familiar with the facts in the cases. He had filed
discovery motions in both cases and had reviewed the state’s files. The suppression motion was
never withdrawn. It was pending at the time the petitioner entered his plea, which then rendered the


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motion moot. Part of the reason that Mr. Morris believed the plea was in the petitioner’s best interest
involved the petitioner’s prior criminal record that would have made him eligible for a minimum
effective Range II sentence of 24 years. By pleading, the petitioner was sentenced as a Range I
offender.

               According to Mr. Morris, the second arrest of the petitioner while he was on bond
“proved to be insurmountable” as far as securing concurrent sentencing. Moreover, the second case
would have been much harder to defend because the petitioner had made inculpatory statements
about possessing the cocaine with intent to sell or deliver. Mr. Morris readily admitted that the
petitioner was not “happy” about the 16-year offer, but Mr. Morris was certain that the petitioner
agreed to the offer as presented.

                 At the conclusion of the testimony, the court took a recess to review the transcript of
the petitioner’s February 11, 2003 plea submission. The court heard arguments from the parties,
after which it denied the petition for post-conviction relief. The court issued thorough and
comprehensive findings, which have greatly facilitated our appellate review. Among the court’s
findings, it specifically noted (1) the transcript of the plea submission refuted the petitioner’s
testimony that he simply answered “yes” and followed his attorney’s instructions when he entered
his pleas; (2) the petitioner understood what he was doing and, in fact, declined at the submission
hearing to plead guilty to the first narcotics charge, at which point the court rejected the plea; (3)
following a recess, a different negotiated plea was reached whereby the petitioner would enter a best-
interests plea to the first charge and a guilty plea to the second narcotics charge, which had not yet
been set for trial; (4) Mr. Morris was a credible witness, and the court files corroborated Mr. Morris’
testimony that he filed discovery motions and was fully aware of the facts in both cases; (5) contrary
to the petitioner’s testimony, his attorney did file a suppression motion and was prepared to litigate
the motion until the bond revocation issue arose; (6) the petitioner’s counsel negotiated a very
favorable “package deal” and did not render ineffective representation; and (7) the petitioner failed
to carry his burden to obtain post-conviction relief.

              Aggrieved by the denial of post-conviction relief, the petitioner has appealed. Our
review convinces us that the post-conviction court’s ruling should be affirmed.

                The law is settled that the post-conviction petitioner bears the burden of establishing,
at the evidentiary hearing, his allegations by clear and convincing evidence. Tenn. Code. Ann. §
40-30-110(f) (2003). Evidence is clear and convincing when there is no serious or substantial doubt
about the correctness of the conclusions drawn from the evidence. Hodges v. S.C. Toof & Co., 833
S.W.2d 896, 901 n.3 (Tenn. 1992). An appellate court is bound by the trial court’s findings of fact
unless we conclude that the evidence in the record preponderates against those findings. Black v.
State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).

               When a post-conviction petitioner seeks relief on the basis of ineffective assistance
of counsel, he must establish that the services rendered or the advice given was below “the range of
competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.


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1975). Also, he must show that the deficiencies “actually had an adverse effect on the defense.”
Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 2067 (1984). Should the petitioner
fail to establish either factor, he is not entitled to relief. See id. at 697, 104 S. Ct. at 2069.

                In sum, a defendant is not entitled to perfect representation, only constitutionally
adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other
words, “in considering claims of ineffective assistance of counsel, ‘we address not what is prudent
or appropriate, but only what is constitutionally compelled.’” Burger v. Kemp, 483 U.S. 776, 794,
107 S. Ct. 3114, 3126 (1987) (quoting United States v. Cronic, 466 U.S. 648, 655 n.38, 104 S. Ct.
2039, 2050 n.38 (1984)).

                Measured by these standards, it is readily apparent that the petitioner failed to carry
his burden, and the evidence in the record certainly does not preponderate against the post-conviction
court’s findings. Before us, the petitioner argues that his attorney’s failure to file a suppression
motion deprived him of a “significant bargaining [chip] which might well have resulted in a different
plea offer having been made.” The state, however, made the most generous plea offer possible under
the circumstances. It agreed to a minimum, Range I sentence for each narcotics offense. Neither the
state nor the court had the discretion or authority to permit the sentences to be served concurrently.
Consecutive service was mandatory. See Tenn. Code Ann. § 40-20-111(b) (2003). The petitioner
has failed to demonstrate deficient representation, much less any resulting prejudice.

                 We have considered the possibility that the petitioner may be arguing that a
suppression motion could have been successfully pursued, thereby resulting in the dismissal of
charges and leading to either a reduced sentence or no sentence. Although a defense counsel’s
failure to litigate a Fourth Amendment claim may be alleged and pursued as ineffective, the
petitioner has the burden to prove that his Fourth Amendment claim is meritorious. Kimmelman v.
Morrison, 477 U.S. 365, 106 S. Ct. 2574 (1986); see Carpenter v. State, 126 S.W.3d 879, 887-88
(Tenn. 2004) (“Obviously, if an issue has no merit or is weak, then appellate counsel’s performance
will not be deficient if counsel fails to raise it. Likewise, unless the omitted issue has some merit,
the petitioner suffers no prejudice from appellate counsel’s failure to raise the issue on appeal. When
an omitted issue is without merit, the petitioner cannot prevail on an ineffective assistance of counsel
claim.”). The opinion of Mr. Morris, elicited by the petitioner, that the suppression motion filed in
the first case “had merit” is hardly adequate to demonstrate counsel’s ineffectiveness in failing to
litigate the motion.

                 In summary, the petitioner offers nothing new on appeal to persuade us to disturb the
trial court’s ruling. The trial court’s credibility determinations and factual deductions are clearly
reasonable and foreclose the need for any prolonged discussion of the issues.

               Consequently, for the foregoing reasons, we affirm the denial of post-conviction relief
and the dismissal of the petitions.




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      ___________________________________
      JAMES CURWOOD WITT, JR., JUDGE




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