Wells v. State

Session August 24, 2021

Appeal from the Criminal Court for Sullivan County No. C68-949 James F. Goodwin, Jr., Judge

Petitioner, Kevin Farrell Wells, appeals the denial of his post-conviction petition arguing that the post-conviction court applied the incorrect burden of proof in evaluating his claims, erroneously denied him relief on a claim of ineffective assistance of counsel, and entered its order beyond the sixty-day statutory deadline. After hearing oral arguments and following a review of the entire record, the briefs of the parties, and the applicable law, we affirm the judgment of the post-conviction court.

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

Josh Hoeppner, Kingsport, Tennessee, for the appellant, Kevin Farrell Wells.

Herbert H. Slatery III, Attorney General and Reporter; Edwin Alan Groves, Jr., Assistant Attorney General; Barry P. Staubus, District Attorney General; and Blake Watson, Assistant District Attorney General, for the appellee, State of Tennessee.

Jill Bartee Ayers, J., delivered the opinion of the court, in which Norma McGee Ogle, J., and Kristi M. Davis, Sp.J., joined.

OPINION

JILL BARTEE AYERS, JUDGE

Factual and Procedural Background

A Sullivan County Criminal Court Jury convicted Petitioner of possession of a Schedule II controlled substance with intent to sell or deliver, two counts of possession of a Schedule III controlled substance with intent to sell or deliver, and driving on a revoked license. The jury acquitted Petitioner of two counts, possession of diazepam for delivery or sale and possession of a firearm during the commission or attempted commission of a dangerous felony. He was sentenced to a total effective sentence of thirteen years as a Range III, persistent offender. This Court affirmed Petitioner's convictions on appeal and

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the Tennessee Supreme Court denied his application for permission to appeal. State v. Kevin Wells, No. E2015-00561-CCA-R3-CD, 2016 WL 4054942 (Tenn. Crim. App. at Knoxville, July 25, 2016), perm. app. denied (Tenn. Nov. 17, 2016).

Petitioner was convicted based on the following evidence as summarized by this Court on direct appeal:

Deputy Burke Murray of the Sullivan County Sheriff's Department (SCSD) testified that on January 28, 2013, he was a detective in the Narcotics Division and attended a meeting at the Sullivan County Courthouse. After the meeting, Deputy Murray and several other officers were standing outside when they saw a silver Mustang enter the parking lot and pull into a parking space. Deputy Murray saw the appellant get out of the driver's seat and Graham get out of the front passenger seat and go into the courthouse lobby. Investigator Micah Johnston told the officers that he knew the appellant's driver's license had been revoked Officer Ray Hayes "called and confirmed" that the appellant's license had been revoked, so the officers went inside the courthouse

Deputy Murray testified that he and the other officers were in "plain clothes," that he identified himself to the appellant, and that he asked for the appellant's driver's license. The appellant said he did not have a license, and Deputy Murray told him that "we saw you drive in." At that point, Graham "interjected and said that she was driving." Deputy Murray asked for her driver's license, and Graham said that it was in the car Deputy Murray asked "if we could go get it," and Graham said yes. Graham, Deputy Murray, and Investigator Johnston went outside to the Mustang while Officer Hayes remained inside with the appellant. As the officers and Graham were walking to the car, Investigator Johnston asked her if any knives or guns were in the vehicle, and she told him that two guns were in the trunk. Deputy Murray asked Graham if they could secure the guns, and she opened the trunk and told him that "the guns in the car were hers belonged to her ex-husband." While Investigator Johnston secured the weapons, Deputy Murray asked Graham about the location of her license. Graham opened the passenger door and said her license was in her purse, which Deputy Murray saw on the front seat. He said that he asked if he could get the purse, that he took the purse off the front seat, and that Graham "pointed to it." Deputy Murray said that he handed Graham her wallet and that she got out her license. Deputy Murray stated that as he had taken the purse out of the car, he had noticed "a number" of pill bottles in the purse. Deputy Murray "pointed that out" to Officer Hayes, who had come outside to the car. Deputy Murray put the purse on the hood of the car and "got on the phone" to check Graham's driver's license.

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Deputy Murray testified that Graham "made the comment that all the medications in there were hers because she saw me looking at the pill bottles in her pocketbook." Officer Hayes asked her "if the counts were right" and for consent to look at the pills. Officer Hayes then asked her "about the pill counts being off," and she said that she had had a death in the family recently and had over-consumed some of her medications. The officers arrested Graham "for the pills found in the car and the guns," and she asked them to get a telephone number for her from her cellular telephone. She gave the officers the passcode for the telephone, and Officer Hayes accessed the telephone and gave her the number. Deputy Murray said that they kept the telephone in order to search it for evidence of distributing and selling the pills.

On cross-examination, Deputy Murray acknowledged that Graham had a valid driver's license. He testified that he and two other officers interviewed the appellant after the appellant's arrest and that they did not record the interview. Defense counsel asked Deputy Murray, "Okay, and [Graham] had recently, like November 10th is when she and Mr. Wells got married[?]" The officer answered, "I don't know that date."

On redirect examination, Deputy Murray testified that during the appellant's interview, the appellant stated that he had a "drug problem," that he had used Roxycontin and Roxicet, and that he often sold Roxicet at work. Roxicet was a Schedule II controlled substance.

Investigator Micah Johnston of the Kingsport Police Department (KPD) testified that in January 2013, he worked in the KPD's Vice and Narcotics Unit. On January 28, he and other officers were outside the Sullivan County Courthouse and noticed a vehicle "pull up." The driver got out of the car, and Investigator Johnston recognized him as the appellant. Investigator Johnston knew that the appellant's driver's license had been revoked and told Deputy Murray because they were in Deputy Murray's jurisdiction. Investigator Johnston verified the status of the appellant's license, the officers went inside, and the officers approached the appellant.

Investigator Johnston testified that after they talked with the appellant, they spoke with Graham. Investigator Johnston and Deputy Murray "escorted" Graham to her car and asked if she had anything illegal in the vehicle. He explained that "we always ask if there are any narcotics, guns, anything of that nature." Graham gave the officers consent to search the car, told them that weapons were in the trunk, and opened the trunk for them. Investigator Johnston searched the trunk and found two handguns wrapped in clothing

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and ammunition in a man's boot. He found a cigarette pack containing "numerous pills" in the passenger compartment. At first, he said he found the cigarette pack in the storage compartment of the passenger door. However, he later stated that he could not remember if he found the pack in the driver's door or the passenger's door.

On cross-examination, Investigator Johnston acknowledged that when he and Deputy Murray walked Graham to her car, Graham had not committed any crime. Graham was honest with them about the guns in the trunk, and neither gun was loaded.

Officer Ray Hayes of the SCSD testified as an expert in illegal narcotics trafficking in Sullivan County that on January 28, 2013, he attended a narcotics meeting. Officers were standing outside and saw a gray Mustang pull into the parking lot. The appellant got out of the driver's seat, and Graham got out of the passenger seat. Investigator Johnston advised the other officers about the appellant's driving history and checked with his dispatcher about that history. Officer Hayes also verified the appellant's driving history with his dispatcher. After Officer Hayes confirmed that the appellant did not have a valid driver's license, the officers arrested the appellant in the courthouse. Officer Hayes watched officers take the appellant to "booking" and then went outside to assist Deputy Murray and Investigator Johnston with Graham. The Mustang's trunk was open, and Investigator Johnston was searching it. Deputy Murray and Graham were standing by the passenger side of the car, and Deputy Murray asked Officer Hayes to search Graham's purse. Officer Hayes said that they obtained Graham's consent, that he searched the purse, and that he found pills and pill bottles. Officer Hayes also found pill bottles in and near the center console, and Investigator Johnston gave Officer Hayes a cigarette pack that he had found in the pocket of the driver's door. The pack contained two white tablets of buprenorphine, also known as Suboxone.

Officer Hayes testified as follows regarding the pill bottles he found: A pill bottle in the purse was prescribed to Graham and contained two dihydrocodeinone pills. A second bottle in the purse was prescribed to Graham for promethazine but contained oxycodone. A