Daryl Turner v. State of Tennessee ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
DECEMBER 1997 SESSION
March 4, 1998
Cecil W. Crowson
DARYL TURNER a/k/a ) Appellate Court Clerk
“JUICY” TURNER ) NO. 01-C-01-9608-CR-00374
)
Appellant, ) SUMNER COUNTY
)
v. ) Hon. Jane Wheatcraft
)
STATE OF TENNESSEE ) (Post Conviction)
)
Appellee )
)
For the Appellant For the Appellee
Cheryl J. Skidmore John Knox Walkup
629 East Main Street Attorney General & Reporter
Hendersonville, TN. 37075
Clinton J. Morgan
Assistant Attorney General
2nd Floor Cordell Hull Building
425 Fifth Avenue North
Nashville, TN. 37243-0493
Lawrence Ray Whitley
District Attorney General
Dee David Gay
Assistant District Attorney General
113 W. Main Street
Gallatin, TN. 37066-2803
OPINION FILED:____________________
AFFIRMED PURSUANT TO RULE 20
WILLIAM M. BARKER, JUDGE
OPINION
The appellant, Daryl Turner, appeals the Sumner County Criminal Court’s
dismissal of his petition for post-conviction relief. In 1993, appellant was convicted of
selling a Schedule II controlled substance, to wit: cocaine, and was sentenced to
twelve (12) years as a Range III persistent offender. His conviction and sentence
were affirmed by this Court on direct appeal. See State v. Darrel Tucker1, No. 01-C-
01-9310-CR00347 (Tenn. Crim. App. at Nashville, Oct. 6, 1994), per. app. denied
(Tenn. 1995). The appellant, thereafter, filed a pro se petition for post-conviction relief
alleging ineffective assistance of counsel, malicious prosecution, and invalid
“reasonable doubt” jury instructions. 2 Following an evidentiary hearing, the trial court
dismissed appellant’s petition upon finding no ground to warrant post-conviction relief.
We affirm the judgment of the trial court pursuant to Rule 20 of the Tennessee
Court of Criminal Appeals.
On appeal, the appellant contends that the trial court erred in denying his
petition for post-conviction relief. He limits his argument to the claim of ineffective
assistance of counsel.
This issue is without merit.
To prevail on his claim, the appellant must show by clear and convincing
evidence3 that the advice or services provided by his counsel fell below the range of
competence demanded of attorneys in criminal cases. See Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975). Furthermore, he must demonstrate “prejudice” by
proving that, but for counsel’s incompetence, the result of the trial proceeding would
1
On direct appeal, a panel of this Court acknowledged that the appellant was indicted and
prosecuted under the name “Darrel Turner.” However, without explanation, the case style reflected the
nam e “Darre l Tuck er.” In this ap peal, the ap pellant has appare ntly change d the spe lling of his nam e to
“Daryl.”
2
Following the appointment of legal counsel, appellant filed a notice requesting alternative relief
through a W rit of Error Cor am N obis . The appellant, however, did not file an amended post-conviction
petition.
3
Appellant filed his petition under the Post Conviction Procedure Act of 1995. Section 40-30-210
(f) of that A ct require s petitioners to prove th eir allegations of fact by cle ar and c onvincing evidenc e. See
Tenn. Code A nn. § 40-30-210 (f) (Supp. 1996).
2
have been different. See Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694,
104 S.Ct. 2052, 2064, 2067-68, 80 L.Ed. 2d 674 (1984); Best v. State, 708 S.W.2d
421, 422 (Tenn. Crim. App. 1985).
The trial court found that the appellant’s counsel provided effective
representation at trial, including a thorough explanation of the range of punishment
that the appellant could receive upon conviction. That finding is conclusive on appeal
unless the evidence preponderates against the trial court’s judgment. See State v.
Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983).
We find no evidence to disturb the finding of the trial court. The record reflects
that appellant’s counsel conducted a thorough investigation of the case, including a
review of the appellant’s crime captured on videotape and an investigation of the
confidential informant involved in appellant’s arrest. Counsel also met with the
appellant on several occasions, before and during trial, to discuss the strength of the
State’s evidence and to explain the possible sentencing range if convicted by a jury.
Against counsel’s advice, the appellant rejected two plea offers and chose to proceed
with a trial by jury.
After appellant’s conviction, his counsel continued to represent him at the
sentencing hearing. Although denied by appellant, the evidence shows that counsel
informed him of the possible sentence he faced in light of the State’s “Notice of Intent”
to seek enhanced punishment at Range III. At that time, the appellant made no
complaints about the competency and effectiveness of his counsel. To the contrary,
he wrote a letter to counsel after trial to commend her “outstanding support and
assistance” and to express that her “professional assistance has been over and
beyond the call of duties.”
We find that the appellant has failed to carry his burden of showing ineffective
assistance of counsel. The judgment of the trial court is affirmed pursuant to Rule 20
of the Tennessee Court of Criminal Appeals.
3
___________________________
WILLIAM M. BARKER, JUDGE
CONCUR:
__________________________
JOE B. JONES, Presiding Judge
__________________________
PAUL G. SUMMERS, JUDGE
4