Kenneth Cheatham v. . State ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JANUARY SESSION, 1998 March 31, 1998
Cecil W. Crowson
Appellate Court Clerk
KEN NET H CH EATH AM, ) C.C.A. NO. 01C01-9703-CC-00109
)
Appe llant, )
) WILLIAMSON COUNTY
V. )
)
) HON. CORNELIA A. CLARK, JUDGE
STATE OF TE NNE SSE E, )
)
Appellee. ) (POST-C ONVIC TION)
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN H. HENDERSON JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
LARRY D. DROLSUM LISA A. NAYLOR
Assistant Public Defender Assistant Attorney General
407-C Main Street 2nd Floor, Cordell Hull Building
P.O. Box 68 425 Fifth Avenue North
Franklin, TN 37065 Nashville, TN 37243
JOSEPH D. BAUGH, JR.
District Attorn ey Ge neral
DEREK K. SMITH
Assistant District Attorney General
Williamson Co. Courthouse, Ste. G-6
P.O. Box 937
Franklin, TN 37065
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Petitioner, Kenneth Cheatham, appeals as of right from the order of the
Williamson County Circuit Court denying his petition for post-con viction relief.
Petitioner was originally charged in a multi-count indictment with four (4) different
sales of cocaine, four (4) different charges of delivery of cocaine, and one (1) count
of conspiracy to sell or deliver cocaine. He pled guilty to th e four (4 ) coun ts of sa le
of coca ine an d the c harge s of de livery of c ocain e were dism issed . Petitioner
exercised his right to a jury trial on the charge of conspiracy to sell or deliver cocaine
and was found guilty. Subsequently, a sentencing hearing was held for the four (4)
convictions of sale of cocaine and the conviction for conspiracy. On three (3) of the
convictions of sale of cocaine, he received sentences of twelve (12) years on each
count to be served conc urren tly with each othe r. For the conviction of co nspiracy,
he also re ceived a six (6) y ear se ntenc e to be served conc urren tly. However, the
trial court sentenced him to serve a six (6) year sentence for the fourth conviction for
sale of cocaine consecutively to the other sentences, for an effective sentence of
eighteen (18) years. The Petitioner did not appeal the sentences he received for the
convictions of sale of coc aine, b ut did appeal the conviction and sentence imposed
for consp iracy. This court affirm ed. See State v. Kenny Cheatham, No. 01C01-
9506-CC-00196, William son Co unty (Tenn. Crim. App., Nashville, June 11, 19 96).
At the hearing on the petition for post-conviction relief, the sole issue was whether
or not counse l was ineffective during the sentencing hearing and that specifically, as
a result of the ineffectiveness of coun sel, co nsec utive se ntenc ing wa s wron gfully
impos ed upo n Petitione r. We affirm the ju dgme nt of the trial co urt.
-2-
Even though the issue was effective assistance of counsel regarding
sentencing and there was testimony by both the Petitioner and his trial counsel
regarding events which transpired following the conviction and prior to and during
the sentencing hearing, Petitioner devoted a section of his argum ent in this co urt to
a direct cha llenge of th e proprie ty of consecutive sente ncing . In add ition, in h is
request for relief, he asks this cou rt to modify the sentence within the range and run
the sentences concurrently rather than consecutively. This relief cannot be granted
in a post-conviction proceeding. The only relief that could be granted to the
Petitioner in this petition for post-conviction relief is a setting aside of the judgm ent.
Tenn. Code Ann. § 4 0-30-21 1(a). W e will therefore confine our review to whether
or not the trial court committed error by denying the petition for post-conviction relief
insofar as it alleges ineffective a ssistanc e of counsel regarding the sentencing
proceedings.
In determ ining w hethe r coun sel pro vided e ffective assistance at trial level
proceedings, the court m ust de cide w hethe r coun sel’s performance was within the
range of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975). To succeed on a claim that his counsel was
ineffective, a petitio ner be ars the burde n of sh owing that his counsel made errors so
serious that he was not functioning as counsel guaranteed under the Sixth
Amendment and that the deficient representation prejudiced the petitioner resulting
in a failure to produce a reliable re sult. Strickland v. Washington, 466 U.S. 668, 687,
reh’g denied, 467 U.S. 12 67 (198 4); Coop er v. State , 849 S.W.2d 744, 747 (Tenn.
1993); Butler v. Sta te, 789 S.W .2d 898 , 899 (T enn. 19 90).
-3-
When review ing trial c ouns el’s actio ns, this court s hould not us e the b enefit
of hindsight to second-guess trial strategy and criticize couns el’s tactics. Hellard v.
State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors should be judged at
the time th ey wer e ma de in light of all facts a nd circum stance s. Strickland, 466 U.S.
at 690; see Cooper, 849 S.W.2d at 746.
At the hearing for the post-conviction petition, Petitioner testified regarding his
trial counsel’s representation of him after the convictions but prior to and during his
sentencing hearin g. Petitio ner sta ted tha t followin g his trial and guilty plea hearing,
he did not have any contact whatsoever with his trial counsel. Petitioner believed
that the sente ncing hearin g wou ld be to , “[J]ust g o in and get some time and come
right back out, tha t’s all I thought it would be.” He claimed that his attorney never
discussed with him his right to present witnesses at the sentencing hearing. As of
the date of the post-conviction petition hearing, Petitioner identified four (4) peop le
who would have testified on his behalf regarding his work habits, his employment
history, and his personal habits in that he was a drug user but was not a professional
criminal. On cross-examination, Defendant admitted that he had numerous prior
convictions, including auto burglary, grand larceny, evading the police and
possession of cocain e, in addition to those c onvictions for the sale of cocain e to
which he pled guilty. Defendant stated that he began selling cocaine in April 1994,
and continued to sell until he was arrested in July 1994. Defendant was earning at
least two to three hundred ($200.00 - $300.00) per week from these cocaine sales,
and du ring at leas t part of that tim e he wa s not em ployed.
Defe ndan t’s trial counsel testified that he had ten (10) ye ars experience as a
trial attorney including six (6) years as an assistant district attorney general. Trial
-4-
counsel stated that their strategy at trial was to wait and see if the confidential
informant showed up to testify at the trial, and, if he did not, to try to get the charges
dismissed. If the co nfiden tial inform ant did appe ar to tes tify, then tria l coun sel’s
defense was only to dispu te that there was any evidence of a criminal cons piracy.
Prior to trial, counsel spoke with most of the witnesses Defendant suggested, but at
the post-conviction hearing he did not recall the content of their proposed testimony.
The day followin g the trial, trial cou nsel wro te Defendant a letter to discuss what had
happened at trial and what was coming up at the sentencing hearing. Specifically,
the letter stated as follows:
This letter is written to confirm that on De cemb er 8th an d 9th, 199 4, I
appeared on your behalf in Circu it Court for W illiamson Cou nty,
Tennessee, at the trial setting of the captioned matter which
represented a prosecution for the sale/delivery of cocaine and
conspiracy to sell/deliver cocaine. On December 7th, 1994, you
elected to enter ple as of guilty to Counts 1, 3, 5 and 7 representing four
counts of sale of coca ine, three counts of Class B felony sale of
cocaine with the penalty range of from eight to twelve years to the
Tennessee Departm ent of Corre ctions and a fine range between two
thousand and one hundred thousand dollars. Additionally, on
December 8th and 9th, 1994, I participated in a trial of Count 9 of the
presentment against you which represented a prosecution for the Class
C felony of conspiracy to sell and deliver cocaine. That trial resulted in
the jury convicting you of that offense and assessing a ten thousand
dollar fine.
Sentencing in regard to all five convictions w ill occur on Mond ay,
January 23rd, 1995 at 2:00 p.m. The she riff will transport you to court
on that day. I have enclosed copies of the pertinent statutes which the
court will be required to consider in sentencing you for your review. If
you have any particular witnesses that you desire to be subpoenaed,
please inform me of the same at your first convenience so that proper
process m ay issue in a time ly manner.
I’ve also filed a post-trial motion for judgment of acquittal which I
assume will be heard on January 23rd, 1995, also. This is the second
opportu nity to the court to dismiss the charge against you, meaning the
conspiracy charge. If you have any que stions or c omm ents concerning
your cas e, please feel free to c ontact m e.
-5-
Trial counsel further stated that he had gone o ver the item s in this letter w ith
the Defendant at some time, and he recollected speaking with Defendant regarding
the impo rtance of havin g fam ily members present at the sentencing hearing. At the
sentencing hearing, trial counsel still had not been provided with the presentence
report for the Defendant. If the report had been prepared prior to the hearing, trial
coun sel’s habit was to have a meeting with the defendant and go over the report, line
by line, to discuss its accuracy. Rather than seek a continuance to allow time to
obtain and review a presentence report, Defendant wanted to waive that right so that
he migh t receive his sentence and move on with his life. The strategy trial counsel
employed was to show the trial cour t the Defe ndant’s h onesty and th e cha nge in his
life regarding his drug habits. As the intu ition of th e cou rt is a guiding factor in the
sentencing outco me, tria l coun sel be lieved th at De fenda nt’s honesty, his remorse,
his amenability to rehabilitation and drug treatment would appear favorable in the
eyes of the trial court. Trial counsel’s impression from the Defendant was that
Defendant did not want to pursue using proof of character witnesses. Trial counsel
further explained that following the sente ncing he aring, De fendan t chose n ot to
pursue an appeal on the issue of consecutive sentencing because he “understood
how and why the court sentenced him as it did.” Rathe r, Defendant only appealed
regarding the conspiracy conviction, and waived his rights to appeal any other issue
with rega rd to sen tencing o n the sale conviction s.
In making its ruling at the post-conviction he aring, the trial court assumed that
all the statements made by Defe ndan t regar ding h is potential witnesses’ testimony
were fact. Ultimately, the trial court determined that counsel in the case sub judice
was effective and that specifically nothing that trial c ouns el did o r failed to do co uld
have affected the outcome of the sentence. In light of Defendant’s past record and
-6-
his conviction of Class B felonies , probation was no t a possib ility, therefore any
poss ible witnesses on this issue would have been futile to the court’s determination.
Also, as regarding mitigating factors, the trial court found that thos e did not apply.
On the issue of trial cou nsel’s ineffectiveness as to consecutive sentencing,
the trial court noted that none of Petitioner’s proposed witnesses w ould have
affected the imposition of con secutive sentences as the finding that Defendant was
a professional crim inal was base d upon his o wn testimon y. Furthermore, Petitioner
admitted to the trial court his history of crimina l activity, including a uto theft, the ft,
reckless driving, assau lt, possession of cocaine, and driving on a suspended license.
Either of thes e two c onditio ns, Pe titioner’s status as a pr ofess ional c rimina l or his
history of criminal activity, would have justified consecutive sentencing, and no
amount of testimony by any witnesses nor any other trial strategy employed by trial
counsel would have allowed th e trial court to re ach a d ifferent resu lt. See Tenn.
Code A nn. § 40-35-1 15(b).
In post-conviction relief proceedings, the petitioner has the burden of proving
the allega tions in his petition b eyond a prepon deranc e of the ev idence . McBee v.
State, 655 S.W .2d 191, 195 (Tenn. C rim. App. 1983). Pe titioner failed to prove
these allegations by a preponderance of the evidence, and the factual findings of the
trial court are, therefore, conc lusive on ap peal. See State v. Buford , 666 S.W.2d
473, 475 (Tenn. Crim. App. 1983). Based upon his testimony at the post-conviction
hearing, trial counsel’s choices were informed decisions. We will not second-guess
his tactical and s trategic ch oices bo th prior to an d during the sente ncing he aring.
-7-
After a thorough review of the facts , records and the briefs in this matter, we
affirm the ju dgme nt of the trial co urt.
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
JOHN H. PEAY, Judge
___________________________________
DAVID H. WELLES , Judge
-8-