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Posted by: Tanja Trezise on Apr 18, 2012

Court: TN Court of Criminal Appeals

Attorneys 1:

Judith Lojek, Nashville, Tennessee, for the appellant, Larry Eugene Scales, Jr.

Attorneys 2:

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): SMITH

Petitioner, Larry Eugene Scales, Jr., was convicted by a jury of the sale of less than .5 grams of cocaine within 1,000 feet of a school zone and sentenced to twelve years at 100%. Petitioner filed a motion for new trial but subsequently waived his right to appeal. Petitioner then sought post-conviction relief, in part on the basis of ineffective assistance of counsel at trial. After a hearing, the post-conviction court denied relief on the basis that Petitioner failed to show by clear and convincing evidence that he received ineffective assistance of counsel. Petitioner appeals from the denial of post-conviction relief, arguing that he received ineffective assistance of counsel because counsel failed to: (1) get an independent measurement to determine whether the drug sale took place within 1,000 feet of a school zone; (2) request a jury instruction on the lesser included offense of casual exchange; (3) raise, preserve, or present any issues on direct appeal. After a review of the record, we determine that Petitioner failed to present clear and convincing evidence that he is entitled to post-conviction relief. Specifically, Petitioner failed to introduce proof at the postconviction hearing that the sale of cocaine occurred outside the school zone. Petitioner entered a knowing and voluntary waiver of his right to appeal in accordance with Tennessee Rule of Criminal Procedure 37(d)(2) and therefore cannot show prejudice from a lack of an objection by counsel to a denial of a jury instruction on casual exchange. Accordingly, we affirm the judgment of the post-conviction court.