State v. Melvin Currie ( 1998 )


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  •           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT JACKSON
    JANUARY 1998 SESSION
    FILED
    January 30, 1998
    Cecil Crowson, Jr.
    MELVIN CURRIE,                       )               Appellate C ourt Clerk
    )    NO. 02C01-9701-CC-00047
    Appellant,                     )
    )    HAYWOOD COUNTY
    VS.                                  )
    )    HON. DICK JERMAN, JR.,
    STATE OF TENNESSEE,                  )    JUDGE
    )
    Appellee.                      )    (Post-Conviction)
    FOR THE APPELLANT:                        FOR THE APPELLEE:
    TOM W. CRIDER                             JOHN KNOX WALKUP
    District Public Defender                  Attorney General and Reporter
    JOYCE DIANE STOOTS                        KENNETH W. RUCKER
    Assistant Public Defender                 Assistant Attorney General
    107 South Court Square                    Cordell Hull Building, 2nd Floor
    Trenton, TN 38382-1866                    425 Fifth Avenue North
    Nashville, TN 37243-0493
    CLAYBURN L. PEEPLES
    District Attorney General
    LARRY HARDISTER
    Assistant District Attorney General
    110 College Street, Suite 200
    Trenton, TN 38382-1841
    OPINION FILED:
    AFFIRMED
    JOE G. RILEY,
    JUDGE
    OPINION
    The petitioner, Melvin Currie, appeals the order of the Circuit Court of
    Haywood County dismissing his petition for post-conviction relief. Petitioner pled
    guilty in 1991 to the sale of cocaine and received a sentence of six (6) years with
    all time suspended except for time served. In his post-conviction petition, he alleges
    that: (1) his guilty plea was not knowing and voluntary; (2) he received an illegal
    sentence; and (3) trial counsel was ineffective. Furthermore, he contends that his
    guilty plea should be set aside because there was no factual basis to support the
    plea. We find no error; therefore, the judgment of the trial court is affirmed.
    PROCEDURAL BACKGROUND
    Two years subsequent to the entry of his guilty plea to the sale of cocaine,
    petitioner filed a pro se petition for writ of habeas corpus, which was summarily
    dismissed by the trial court without an evidentiary hearing. This Court reversed that
    decision, finding that: (1) the trial court erred in dismissing the petition without
    appointing counsel and conducting an evidentiary hearing; and (2) the petition
    should have been treated as one for post-conviction relief. Melvin Currie v. State,
    C.C.A. No. 02C01-9501-CC-00020, Haywood County (Tenn. Crim. App. filed
    September 13, 1995, at Jackson). The case was remanded to the trial court.
    Subsequently, the trial court issued an order appointing counsel, and
    petitioner filed a petition for post-conviction relief. After a hearing on the petition
    was conducted, the trial court dismissed the petition. Petitioner now brings this
    appeal.
    FACTUAL BACKGROUND
    The subject guilty plea arose from a five (5) count indictment charging
    petitioner with: (1) illegal sale of a counterfeit controlled substance in Count One;
    2
    (2) possession with the intent to sell or deliver cocaine in Count Two; (3) sale of
    cocaine in Count Three; (4) delivery of cocaine in Count Four; and (5) simple
    possession of cocaine in Count Five.1
    Petitioner agreed to enter a guilty plea to one count of the sale of cocaine in
    exchange for the dismissal of the remaining charges. During the guilty plea
    proceedings, defense counsel stated, “[s]ubject to your Honor’s approval Mr. Currie
    and the State have agreed that upon his plea of guilty to one count of sale of a
    Schedule II controlled substance, to-wit, cocaine, that he will receive a six year
    sentence suspended with time served.” (emphasis added). At no time during the
    proceedings did anyone specify that the plea was to any specific count number of
    the indictment.
    The written plea of guilty and waiver of jury trial form listed the offense as one
    (1) count of selling a Schedule II controlled substance. This document similarly did
    not enumerate the corresponding count number on the indictment.
    However, the judgment entered by the trial court indicated that petitioner was
    convicted on Count One of the indictment, even though the document named the
    offense as the sale of cocaine. The indicted charge in Count One was the sale of
    a counterfeit controlled substance, not the sale of cocaine. In other words, the
    judgment erroneously specified that petitioner was convicted on Count One of the
    indictment, when, in fact, he pled guilty to Count Three.
    Petitioner seeks post-conviction relief claiming that there is no factual basis
    for a conviction of the sale of cocaine under Count One of the indictment because
    the substance sold under Count One was not cocaine. At the hearing on the
    petition, the trial court found that petitioner knowingly and voluntarily entered a plea
    of guilty to the sale of cocaine and accepted a six (6) year sentence with all time
    suspended except for time served. The trial court determined that the entry of
    “Count One” on the judgment form was merely a clerical error in that “[t]here [was]
    no question in anybody’s mind, including Mr. Currie’s, that he pled guilty to Count
    Three.” The court then ordered that the judgment be amended to reflect the proper
    1
    This count was eventually dismissed as it was barred by the statute of limitations.
    3
    count.
    CLERICAL ERROR
    Initially, we must agree with the trial court that this entire matter arose out of
    a mere technicality. Although the judgment does state that petitioner was convicted
    on Count One of the indictment, the transcript unquestionably shows that petitioner
    pled guilty to the sale of cocaine. When there is a conflict between the court
    minutes or judgment and the transcript, the transcript controls. State v. Moore, 
    814 S.W.2d 381
    , 383 (Tenn. Crim. App. 1991); State v. Davis, 
    706 S.W.2d 96
    , 97
    (Tenn. Crim. App. 1985). Therefore, we conclude that petitioner pled guilty to Count
    Three of the indictment, which charged the sale of cocaine. The trial court properly
    ordered the modification of the judgment to correct this clerical error. Clerical errors
    may be corrected at any time. See Tenn. R. Crim. P. 36.
    VOLUNTARINESS OF GUILTY PLEA
    Petitioner claims that his plea of guilty was involuntarily and unknowingly
    entered because he did not know that his plea of guilty was not supported by any
    facts. To the contrary, attached as an exhibit to the post-conviction hearing is a lab
    report which identifies 21.1 grams of white powder as cocaine, which was collected
    in connection with the case against petitioner. 2
    Furthermore, the trial court found that petitioner’s guilty plea to the sale of
    cocaine was knowingly and voluntarily entered. The trial judge's findings of fact on
    post-conviction hearings are conclusive on appeal unless the evidence
    preponderates otherwise. Butler v. State, 
    789 S.W.2d 898
    , 899-900 (Tenn. 1990);
    2
    Another lab report was also made an exhibit at the hearing which stated that a bag
    of 13.4 grams of white powder did not contain any controlled substances. It is this report
    which petitioner refers to as being determinative of his claim that no evidence exists to
    support the conviction for the sale of cocaine. However, we must conclude that this report
    is the basis for the initial charge of sale of a counterfeit controlled substance as alleged in
    Count One of the indictment.
    4
    Adkins v. State, 
    911 S.W.2d 334
    , 354 (Tenn. Crim. App. 1995). The burden of
    establishing that the evidence preponderates otherwise is on petitioner. Black v.
    State, 
    794 S.W.2d 752
    , 755 (Tenn. Crim. App. 1990). Petitioner has failed to meet
    this burden.
    This issue is without merit.
    ILLEGAL SENTENCE
    Petitioner further asserts that his sentence of six (6) years is illegal because
    it falls outside the range of punishment for the sale of a counterfeit controlled
    substance. However, as previously discussed, petitioner pled guilty to the sale of
    cocaine, not the sale of a counterfeit controlled substance. At the time the offense
    was committed, the range of punishment for the sale of cocaine was four (4) to ten
    (10) years. 
    Tenn. Code Ann. § 39-6-417
    (a)(1)(B)(i) (Supp. 1988). Therefore,
    because the imposed sentence of six (6) years is within the prescribed range,
    petitioner’s sentence is not illegal.
    This issue is without merit.
    INEFFECTIVE ASSISTANCE OF COUNSEL
    Finally, petitioner claims that trial counsel was ineffective in that he did not
    ascertain whether there was a factual basis to support the guilty plea. He maintains
    that he pled guilty in reliance on his attorney’s erroneous advice. He also insists
    that he received ineffective representation in that his attorney allowed him to receive
    an illegal sentence.
    This Court reviews a claim of ineffective assistance of counsel under the
    standards of Baxter v. Rose, 
    523 S.W.2d 930
     (Tenn. 1975), and Strickland v.
    Washington, 
    466 U.S. 668
    , 
    104 S.Ct. 2052
    , 
    80 L.Ed.2d 674
     (1984). The petitioner
    has the burden to prove that (1) the attorney’s performance was deficient, and (2)
    the deficient performance resulted in prejudice to the defendant. Strickland v.
    5
    Washington, 
    466 U.S. at 687
    , 
    104 S.Ct. at 2064
    ; Goad v. State, 
    938 S.W.2d 363
    ,
    369 (Tenn. 1996); Overton v. State, 
    874 S.W.2d 6
    , 11 (Tenn. 1994); Butler v. State,
    
    789 S.W.2d 898
    , 899 (Tenn. 1990).
    In Hill v. Lockhart, 
    474 U.S. 52
    , 
    106 S.Ct. 366
    , 
    88 L.Ed.2d 203
     (1985), the
    Supreme Court applied the two-part Strickland standard to ineffective assistance of
    counsel claims arising out of a guilty plea. The Court in Hill modified the prejudice
    requirement by requiring a defendant to show that there is a reasonable probability
    that, but for counsel's errors, he would not have pleaded guilty and would have
    insisted on going to trial. 
    474 U.S. at 59
    , 
    106 S.Ct. at 370
    .
    During petitioner’s testimony at the post-conviction hearing, the following
    exchange took place:
    Q.            Would you have pled guilty to Count Three that
    day which is a sale of crack cocaine -- a sale of cocaine
    if you had been advised that Count One was a
    counterfeit substance?
    A.              I probably would have.
    Therefore, even if petitioner’s allegations were true,3 he is not entitled to relief.
    Because petitioner would have pled guilty anyway, he cannot prove prejudice.
    Thus, his ineffective assistance of counsel claim must fail.
    This issue is without merit.
    CONCLUSION
    Based upon the foregoing, the judgment of the trial court is affirmed.
    3
    We do not, however, concede that petitioner’s allegations are true. As previously
    discussed, petitioner entered a knowing and voluntary guilty plea to the sale of cocaine and
    received a sentence within the range permitted by the statute. Furthermore, petitioner has not
    established that trial counsel’s performance was inadequate or deficient.
    6
    JOE G. RILEY, JUDGE
    CONCUR:
    JOE B. JONES, PRESIDING JUDGE
    PAUL G. SUMMERS, JUDGE
    7