State v. Gregory Turner ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JUNE 1998 SESSION
FILED
August 6, 1998
Cecil Crowson, Jr.
GREGORY TURNER, ) Appellate C ourt Clerk
) NO. 02C01-9707-CC-00238
Appellant, )
) CROCKETT COUNTY
VS. )
) HON. DICK JERMAN, JR.,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
GREGORY TURNER, pro se JOHN KNOX WALKUP
#241929 Attorney General and Reporter
Cold Creek Correctional Facility
P.O. Box 1000 PETER M. COUGHLAN
Henning, TN 38041-1000 Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
CLAYBURN L. PEEPLES
District Attorney General
110 S. College Street
Trenton, TN 38382
OPINION FILED:
REMANDED FOR FURTHER PROCEEDINGS
JOE G. RILEY,
JUDGE
OPINION
The petitioner, Gregory Turner, appeals the Crockett County Circuit
Court's dismissal of his petition for post-conviction relief. The petitioner contends
his plea agreement in Crockett County designating concurrent sentencing with
Haywood County was violated when the Haywood County trial court ran the
sentences consecutive. The state concedes error and suggests that the
petitioner be allowed to withdraw the guilty plea in Crockett County. We
REMAND the case for further proceedings due to the lack of a complete record
of the Haywood County proceedings.
FACTS
The petitioner pled guilty pursuant to a plea agreement to one (1) count of
burglary in Crockett County. As a condition of the plea, he was sentenced to two
(2) years in the Tennessee Department of Correction. The guilty plea transcript
reveals that, upon taking the plea, the trial judge was informed that the Crockett
County sentence was to run concurrent with the Haywood County sentence yet
to be imposed. The trial judge agreed that the sentences would run
concurrently. The Crockett County judgment specifically stated the sentence
was to be served concurrently with his conviction in Haywood County; however,
as previously noted, the Haywood County sentence had not yet been imposed at
the time of the Crockett County plea. We note that both Crockett County and
Haywood County are in the same judicial district, and the same trial judge
handled both proceedings.
It is alleged that the Haywood County judgment, entered after the Crockett
County judgment, states that its ten (10) year sentence runs “consecutive to any
other sentence he may have.” Although the state concedes the Haywood
County sentence was ordered to run consecutive to the Crockett County
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sentence, the record of the Haywood County proceeding is not before this Court.
The record does contain an uncertified, unsigned copy of an alleged Haywood
County judgment running the sentences consecutively.
The opinion of this Court in the original appeal of the Haywood County
conviction shows that the Haywood County sentence of ten (10) years resulted
from a jury trial. The conviction was affirmed by this Court. State v. Gregory
Turner, C.C.A. No. 02C01-9508-CC-00212, Haywood County (Tenn. Crim. App.
filed May 24, 1996, at Jackson). Permission to appeal was denied by the
Tennessee Supreme Court on October 28, 1996. Sentencing was not an issue
on appeal.
It further appears that the petitioner filed a motion with the Haywood
County trial court requesting that court to correct its judgment so that the
sentences would run concurrently as specified in the Crockett County judgment.
The record does not reflect the action of the Haywood County court on this
request. Although we assume the sentence probably remained unchanged, we
are unable to verify this due to the absence of the Haywood County records.
What is clear from the record is that the petitioner in the present case filed
a petition for post-conviction relief relating to the Crockett County judgment and
alleges concurrent sentencing as specified in the judgment is not being honored.
The trial court dismissed the petition without a hearing, noting that the petitioner
stated no claim upon which relief “may or should” be granted. This appeal
followed.
PLEA AGREEMENT
The defendant pled guilty in Crockett County to one (1) count of burglary,
and, as part of a plea agreement, the two (2) year sentence would run
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concurrently with a sentence he was to receive in Haywood County. The trial
court in Crockett County, as the first sentencing court, did not have the authority
at that time to make any final determination as to consecutive/concurrent
sentencing in the subsequent Haywood County case. Because the defendant,
the prosecuting attorney and the trial judge agreed that sentencing would be
concurrent, this obviously presents a problem if consecutive sentencing was
subsequently ordered in Haywood County. Ordinarily, the remedy would be to
allow the petitioner to withdraw his guilty plea in Crockett County. See State v.
Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978).
However, there is no problem if the Haywood County sentence was
concurrent with the Crockett County sentence. Although we assume the
petitioner and the state are probably correct in stating the Haywood County
sentence runs consecutive to the Crockett County sentence, the record before
us does not allow us to determine if this is true. For this reason, a remand is
appropriate.
CONCLUSION
This case is remanded to the Circuit Court of Crockett County where
counsel shall be appointed. In the event the Haywood County judgment in case
no. 2110 reflects or is amended to reflect concurrent sentencing with the
Crockett County judgment, the Crockett County petition is moot and shall be
dismissed. In the event the Haywood County judgment is not amended to reflect
concurrent sentencing, the petitioner shall be allowed to withdraw his guilty plea
in Crockett County.
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_________________________
JOE G. RILEY, JUDGE
CONCUR:
_________________________
PAUL G. SUMMERS, JUDGE
_________________________
DAVID H. WELLES, JUDGE
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