Daryl Turner v. State of Tennessee

• Court: Court of Criminal Appeals of Tennessee
• Decided: March 4, 1998
• Docket: 01C01-9608-CR-00374
• Status: Published

Opinion

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

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 proving that, but for counsel’s incompetence, the result of the trial proceeding would

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