        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                       Assigned on Briefs November 12, 2015

         DESMOND SHELTON SPANN v. STATE OF TENNESSEE

            Direct Appeal from the Criminal Court for Davidson County
                    No. 2008-D-3274    Monte Watkins, Judge



             No. M2015-00103-CCA-R3-PC – Filed September 16, 2016



The Petitioner, Desmond Shelton Spann, filed a petition in the Davidson County Criminal
Court seeking post-conviction relief from his convictions of possession of 300 grams or
more of cocaine with the intent to deliver within 1,000 feet of a school and conspiracy to
possess 300 grams or more of cocaine with the intent to deliver within 1,000 feet of a
school. The Petitioner alleged that his counsel was ineffective at trial and on appeal. The
post-conviction court denied the petition, and the Petitioner appeals. Upon review, we
affirm the judgment of the post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and ROBERT L. HOLLOWAY, JR., JJ., joined.

Manuel B. Russ (on appeal) and Jamie Machamer (at trial), Nashville, Tennessee, for the
Appellant, Desmond Shelton Spann.

Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
Glenn Funk, District Attorney General; and Roger Moore, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                       OPINION

                                I. Factual Background

       The Petitioner was indicted with his co-defendants, Marvin Christopher Long and
Dontillus Williams, for possession of 300 grams or more of cocaine with the intent to
deliver within 1,000 feet of a school and for conspiracy to possess 300 grams or more of
cocaine with the intent to deliver within 1,000 feet of a school, both Class A felonies.
State v. Marvin Christopher Long, No. M2010-01491-CCA-R3-CD, 2012 WL 3611741,
at *1 (Tenn. Crim. App. at Nashville, Aug. 22, 2012). After being tried jointly by a jury
in the Davidson County Criminal Court, all three were convicted as charged. Id.

      On direct appeal, this court summarized the proof adduced at trial as follows:

                     On August 11, 2008, Agent [Corey] Currie observed a
             blue Kia SUV traveling westbound on I-40. He noticed that
             the driver appeared “stiff or rigid,” the license plate was
             partially covered by a tag frame, and the vehicle had a broken
             taillight. Agent Currie followed the vehicle and observed a
             black plastic tag frame that partially obscured the license
             plate. He then stopped the vehicle. He approached the
             vehicle and asked the driver for his driver‟s license, and
             Defendant Long produced a driver‟s license falsely
             identifying him as Jerry Springfield. Agent Currie asked him
             to exit the vehicle and showed him the license plate.
             Defendant Long stated that he was traveling to Nashville
             from Jackson and that the vehicle belonged to his uncle.
             Agent Currie testified that he smelled an odor of marijuana
             when he approached the vehicle. He asked Defendant Long
             about it, and Defendant Long did not respond.

                    Defendant Williams was seated in the front passenger
             seat. When asked to provide identification, he also provided
             false identification to Agent Currie. Defendant Williams
             stated that they were going shopping in Nashville. The rear
             passenger, [the Petitioner], provided his identification to
             Agent Currie. Agent Currie radioed his partner, Agent
             Daugherty, who arrived to assist him. Agent Currie decided
             to search the vehicle. He first patted down the defendants.
             While Agent Currie was patting down Defendant Long,
             Agent Daugherty observed Defendant[] Williams and [the
             Petitioner] make a hand to hand exchange. Agent Currie
             found approximately $4,000 in cash in [the Petitioner‟s]
             shoes.     He testified that he had previously confused
             Defendant[] Williams and [the Petitioner] at the suppression
             hearing. Inside the vehicle, Agent Currie found a “leftover
             marijuana cigarette” and a digital scale with white residue on
             it.

                                          -2-
        Agent Currie then contacted other agents and decided
to release the vehicle but maintain surveillance of the vehicle.
Agent [Justin] Fox established surveillance of the defendants‟
vehicle at mile marker 192 on I-40 eastbound. He followed
the vehicle to Swett‟s Restaurant, where the defendants pulled
around to the back of the building and parked away from the
customer parking lot at 4:35 p.m. Defendants Williams and
Long went inside the restaurant and “immediately came back
out.” Then all three defendants went inside the restaurant and
came outside “a short time later.” Defendants Williams and
Long went back inside the restaurant, and [the Petitioner]
stayed in the vehicle. At that time, a green Dodge Charger
parked beside the defendants‟ vehicle. The driver of the
Dodge Charger, a black male, got inside the defendants‟
vehicle with [the Petitioner]. Defendants Williams and Long
then came out of the restaurant and got inside the vehicle with
[the Petitioner] and the driver of the Dodge Charger.
“[S]econds” later, the black male got back into the Dodge
Charger and drove away. At 4:56 p.m., the defendants drove
around to the front of the building and went inside the
restaurant. They returned to the vehicle with “to-go” boxes
and left with [the Petitioner] driving, Defendant Williams
seated in the front passenger seat, and Defendant Long seated
in the backseat.

       After the defendants left the restaurant, the[y] drove
across the street to a gas station. After leaving the gas station,
the defendants drove westbound on I-40. Agent Fox directed
patrol officer Taylor Schmitz to stop the vehicle for a traffic
violation based on the broken taillight and obstructed license
plate. After Officer Schmitz stopped the vehicle, Agent Fox
spoke to [the Petitioner]. [The Petitioner] stated that the
vehicle belonged to Defendant Long‟s uncle and that they had
taken Defendant Long‟s aunt shopping and to dinner. Agent
Fox then spoke to Defendant Long, who also stated that he
had borrowed the vehicle from his uncle and that they had
taken his aunt to eat at Swett[‟]s Restaurant. Agent Fox
searched both Defendant Long and [the Petitioner] and found
no contraband or large amounts of cash. Agent Fox then
spoke to Defendant Williams, who stated that they had driven
[the Petitioner‟s] aunt to Nashville. After initially refusing
consent to search the vehicle, Defendant Long gave Agent
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             Fox consent to search the vehicle. Defendant Long signed the
             written consent form using the name “Jerry T. Springfield,”
             which was the name on the driver‟s license he produced.

                    When Agent Fox approached the vehicle, he smelled
             “a strong odor of marijuana coming from the vehicle.” From
             the back floorboard, he recovered digital scales with white
             residue that tested positive for cocaine. He also recovered a
             pack of rolling papers. All three defendants were then
             handcuffed and placed into custody. Agent Fox asked
             Defendant Williams, who was sitting on the ground, to stand
             up, and Defendant Williams would not move his legs apart.
             Agent Fox patted down Defendant Williams and found two
             bags containing 334 grams, or approximately 12 ounces, of
             cocaine.

                     David Kline, of the Metro Mapping and Planning
             Department, testified that the parking lot behind Swett[‟]s
             Restaurant is 135 feet from McKissack Park and 595 feet
             from Pearl Cohn Comprehensive High School. He also
             testified that on the date of the stop, the location on I-40 at
             which Officer Schmitz stopped the defendants‟ vehicle was
             775 feet from Gower Elementary School and 214 feet from
             Brookmeade Elementary School. Steve Keel, Director of
             School Security for Metro-Nashville Public Schools, testified
             that all three of these schools were in session on August 11,
             2008.

                    The defendants did not testify at trial or present any
             other evidence.

Id. at *3-5. The Petitioner was sentenced as a multiple offender to concurrent sentences
of twenty-five years for each conviction. Id. at *1.

       Subsequently, the Petitioner filed a pro se petition for post-conviction relief,
alleging that counsel, who represented him at trial and on appeal, was ineffective. The
post-conviction court appointed an attorney, who filed an amended petition for post-
conviction relief.

       Because the Petitioner‟s counsel was deceased, the Petitioner was the sole witness
at the post-conviction hearing. The Petitioner testified that counsel did not object to
Agent Fox‟s testimony “about where the drugs were acquired from” and did not
                                          -4-
adequately cross-examine Agent Fox about the lack of proof regarding the Petitioner‟s
involvement in purchasing or possessing the drugs. The Petitioner said that the drugs
were found on a co-defendant, not on him. The Petitioner also complained that counsel
did not object to Agent Fox‟s testimony about the purchase and the conspiracy,
contending that the State had no proof the Petitioner had anything to do with acquiring
the drugs. The Petitioner contended that counsel allowed Agent Fox “to say what he felt
happened and let it be at that.”

       The Petitioner said that he was not able to talk with counsel about the jury
instructions or the verdict forms prior to trial. The Petitioner said that counsel never
objected to the jury instructions given by the trial court. After trial, counsel told the
Petitioner “that the fact that they did not have the substance of cocaine on the verdict
form, or the weight, that he was going to appeal, because they had to have the weight and
the type of drug on the verdict form for the jury to deliberate.” The Petitioner said that
counsel raised the issue on appeal but failed to include the jury instructions or the verdict
forms in the appellate record. As a result, on direct appeal this court stated that the issue
regarding the jury instructions was waived. Regarding the verdict forms, the Petitioner
“thought it was important for the fact that I was charged with possession of cocaine over
three hundred grams; and, that alone allowed them to charge me with a [C]lass A felony,”
noting that the offense would have been a Class B felony if the amount had been less.

       On cross-examination, the Petitioner acknowledged that he and his two co-
defendants were tried together and that each had a different attorney. The Petitioner
agreed that the weight of the cocaine was not disputed at trial and that none of the
defendants attempted to prove the substance was not cocaine. The Petitioner conceded
that the police smelled marijuana during the traffic stop and that he was never charged
with a marijuana-related offense. The Petitioner acknowledged that the charges were
related to possession of over 300 grams of cocaine and that the substance tested by the
TBI was cocaine.

        Copies of the jury instructions and the verdict forms were admitted as exhibits.

       The post-conviction court found that the Petitioner‟s testimony was not credible.
The post-conviction court further found that the Petitioner had failed to establish that he
was prejudiced by counsel‟s allegedly deficient conduct. Therefore, the post-conviction
court denied the petitions.1

        On appeal, the Petitioner challenges this ruling.

1
 Although the trial court failed to make findings of fact and conclusions of law with regard to each of the
grounds alleged in the petition, we conclude that the record is sufficient for this court to review. See State
v. Swanson, 680 S.W.2d 487, 489 (Tenn. Crim. App. 1984).
                                                    -5-
                                       II. Analysis

        To be successful in a claim for post-conviction relief, a petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. ' 40-30-110(f). “„Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.‟” State v. Holder, 15 S.W.3d 905, 911 (Tenn.
Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.
1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded
their testimony, and the factual questions raised by the evidence adduced at trial are to be
resolved by the post-conviction court as the trier of fact. See Henley v. State, 960
S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court‟s findings of fact are
entitled to substantial deference on appeal unless the evidence preponderates against
those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

       A claim of ineffective assistance of counsel is a mixed question of law and fact.
See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction
court‟s findings of fact de novo with a presumption that those findings are correct. See
Fields, 40 S.W.3d at 458. However, we will review the post-conviction court‟s
conclusions of law purely de novo. Id.

        When a petitioner seeks post-conviction relief on the basis of ineffective
assistance of counsel, “the petitioner bears the burden of proving both that counsel‟s
performance was deficient and that the deficiency prejudiced the defense.” Goad v.
State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). To establish deficient performance, the petitioner must show that counsel‟s
performance was below “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the
petitioner 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 undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. Moreover,

                      [b]ecause 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 [petitioner]
              makes an insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697). The same test is used to
determine the effectiveness of counsel and appellate counsel. See Carpenter v. State, 126
                                            -6-
S.W.3d 879, 886 (Tenn. 2004).

      Our supreme court has set forth the following “non-exhaustive list” of factors
which “is useful in determining whether an attorney on direct appeal performed
reasonably competently in a case in which counsel has failed to raise an issue”:

              1) Were the omitted issues “significant and obvious”?
              2) Was there arguably contrary authority on the omitted
              issues?
              3) Were the omitted issues clearly stronger than those
              presented?
              4) Were the omitted issues objected to at trial?
              5) Were the trial court‟s rulings subject to deference on
              appeal?
              6) Did appellate counsel testify in a collateral proceeding as
              to his appeal strategy and, if so, were the justifications
              reasonable?
              7) What was appellate counsel‟s level of experience and
              expertise?
              8) Did the petitioner and appellate counsel meet and go over
              possible issues?
              9) Is there evidence that counsel reviewed all the facts?
              10) Were the omitted issues dealt with in other assignments
              of error?
              11) Was the decision to omit an issue an unreasonable one
              which only an incompetent attorney would adopt?

Id. at 888.

        On appeal, the sole issue raised by the Petitioner is that counsel was ineffective for
“failing to object to inadequate jury instructions and failing to include those instructions
in the Petitioner‟s direct appeal.” The Petitioner contends that counsel was aware of the
error in the jury instructions and the verdict forms “during trial” but failed to object. The
Petitioner further contends that counsel failed to include the jury instructions and verdict
forms in the record on direct appeal. The Petitioner argues that counsel should have
requested instructions on lesser-included offenses and asked that the verdict forms be
amended to specify the weight and type of drug to which the charges related. Regarding
the Petitioner‟s claim that counsel was aware of the trial court‟s error but failed to object,
we note that the post-conviction court discredited the Petitioner‟s testimony about trial
counsel‟s awareness of the errors in the jury instructions and verdict forms. “It is well
established that appellate courts do not reassess credibility determinations.” Dellinger v.
State, 279 S.W.3d 282, 292 (Tenn. 2009).
                                             -7-
      Regardless, on direct appeal the Petitioner argued

             that the trial court erred by: 1) failing to instruct the jury as to
             the lesser-included offenses of possession of cocaine with
             intent to sell or deliver outside of a school zone or facilitation
             of such offense; and 2) failing to indicate the schedule and
             weight of the controlled substance on the jury verdict form.

Long, No. M2010-01491-CCA-R3-CD, 2012 WL 3611741, at *7. This court examined
the issue for plain error and found none. Id. at *7-8. Specifically, this court stated that
the evidence adduced at trial was uncontroverted that the offense occurred within a
school zone, that the jury instruction regarding the weight of the controlled substance
“was proper and did not mislead the jury as to the applicable law,” that the “only
schedule of controlled substance for which [the Petitioner] was charged is cocaine,” and
that it was undisputed “that the amount of cocaine involved was more than 300 grams.”
Id. at *8-9.

       The Petitioner acknowledged at the post-conviction hearing that the weight of the
cocaine was not disputed at trial, that the defendants never tried to establish that the
substance was anything other than cocaine, that he was never charged with a marijuana-
related offense, and that the only offenses with which he was charged related to
possession of over three hundred grams of cocaine. We agree with the post-conviction
court that even if counsel were deficient, the Petitioner did not suffer any prejudice.

                                     III. Conclusion

      Based upon the foregoing, we affirm the judgment of the post-conviction court.


                                                   _________________________________
                                                   NORMA MCGEE OGLE, JUDGE




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