Steve E. Todd v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JUNE 1998 SESSION
January 26, 1999
Cecil W. Crowson
STEVE E. TODD, ) Appellate Court Clerk
)
Appellant, ) No. 01C01-9612-CR-00503
)
) Davidson County
v. )
) Honorable Seth Norman, Judge
)
STATE OF TENNESSEE, ) (Post-Conviction)
)
Appellee. )
For the Appellant: For the Appellee:
Thomas A. Potter John Knox Walkup
100 Thompson Lane Attorney General of Tennessee
Nashville, TN 37211 and
Lisa A. Naylor
Assistant Attorney General of Tennessee
425 Fifth Avenue North
Nashville, TN 37243-0493
Victor S. Johnson, III
District Attorney General
and
Lila Statom
Assistant District Attorney General
Washington Square, Suite 500
222 2nd Avenue North
Nashville, TN 37201-1649
OPINION FILED:____________________
JUDGMENT VACATED; REMANDED
Joseph M. Tipton
Judge
OPINION
The petitioner, Steve E. Todd, appeals as of right from the Davidson
County Criminal Court’s denial of post-conviction relief. The petitioner was charged
with six counts of rape of a child and seven counts of aggravated sexual battery.
Pursuant to a plea agreement, he pled guilty to two counts of rape of a child and
received a sentence of twenty-three years for each count to be served concurrently in
the custody of the Department of Correction. He now contends that (1) his sentence is
illegal, (2) his plea was not knowingly, understandingly and voluntarily given, and (3) he
received the ineffective assistance of counsel. Because the trial court’s order denying
the petition for post-conviction relief is incomplete, we remand the case to the trial court
for the entry of a new order consistent with this opinion.
The petitioner testified at the post-conviction hearing that he believed he
was pleading guilty to two counts of rape of a child for which he would be sentenced as
a Range I, standard offender to twenty-three years for each count to be served
concurrently at thirty percent. He said he believed he would be eligible for parole and
behavior credits, and the opportunity for parole was one of the reasons why he
accepted the plea agreement. He said he also accepted the plea agreement because
he did not want the victim, his daughter, to have to testify at trial. He said he discussed
the agreement with his trial attorney who explained that he would be sentenced to
twenty-three years to be served at thirty percent. He admitted that there was no
mention in the guilty plea petition, which he signed, of the possibility for parole, but he
also said there was no indication that he would have to serve his sentence day-for-day.
On cross-examination, the petitioner said that his trial attorney never
discussed T.C.A. § 39-13-523 with him. He said he did not read the guilty plea petition
because he relied on his attorney’s advice. He said he understood that the sentencing
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range was fifteen to twenty-five years, and he admitted that he had confessed to all of
the crimes.
The petitioner’s trial attorney testified that the state offered a plea
agreement of two counts of rape of a child with a sentence of twenty-three years for
each count to be served concurrently. He said he explained this offer to the petitioner,
and he believed he told the petitioner that he would not get credit toward release
because it was a child rape case. He said the petitioner was unhappy about this fact,
but they discussed it at some length and talked about the possibility of going to trial. He
said the petitioner felt forced to accept the plea agreement because under no
circumstances did the petitioner want his daughter to have to testify. The attorney said
that ordinarily, he writes on the guilty plea petition whether it is a Range I or Range II
sentence, and he thought it was significant that there was no such range written on the
guilty plea petition in the present case. He said that although he discussed with the
petitioner the fact that he would get no credit toward his release, he did not go over
T.C.A. § 39-13-523 with the petitioner because he did not think it was necessary.
The attorney said that when the trial court read the judgment saying that
the petitioner was sentenced as a Range I, standard offender at thirty percent, he
thought that he (the attorney) had simply misinterpreted T.C.A. § 39-13-523. He said
he made no objection to the trial court’s judgment because it was to his client’s benefit.
He said that after the trial court pronounced the judgment, the petitioner asked him
what the trial court meant, and the attorney said he told the petitioner that he would
serve thirty percent of his sentence and then be eligible for parole. He said he
explained to the petitioner that most sex offenders are not granted parole on their first
request. He said that when the petitioner left the courtroom, he (the attorney) was
under the impression that the petitioner had received a Range I sentence to be served
at thirty percent.
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On cross-examination, the attorney said he told the petitioner that his
reading of the statute indicated that the petitioner would not receive credit for good time
or program credits. He said there was a note in his file that read, “Note sent day-for-
day since July ‘92[.]” He said that although he did not read T.C.A. § 39-13-523 to the
petitioner, he interpreted the statute for the petitioner. He said that the petitioner read
or appeared to read the guilty plea petition which did not say that the petitioner would
serve only thirty percent of his sentence.
The assistant district attorney general who prosecuted the petitioner’s
case testified that on the judgment form, she checked both the box for child rapist and
the box for a Range I, standard offender. She said that she made a clerical error
because only one box can be checked and that should have been the child rapist box.
She said that when she gave the recommended sentence to the judge, it was not for a
Range I, standard offender at thirty percent.
On cross-examination, the prosecutor testified that the petitioner received
no assurance of parole. She said that when she talks to attorneys, it is her practice to
tell them that their clients will be required to serve the entire sentence. She said that at
the time the plea agreement was made and signed, the petitioner did not have the
judgment form but only the guilty plea petition which gave no indication that the
petitioner would serve only thirty percent of his sentence.
The trial court stated that it normally reads from the judgment form rather
than trying to remember sentences. The judgment forms in the present case reflect
that in the sentencing box, two items are checked: (1) the box that says “Standard 30%
Range 1” and (2) the box that says “Child Rapist.” The transcript from the guilty plea
hearing reflects that the trial court explained to the petitioner his rights to a jury trial, to
counsel, to appeal, to proof beyond a reasonable doubt, to confrontation, cross-
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examination and silence, and the petitioner agreed to waive these rights. It reflects that
the petitioner said he understood that he was charged with six counts of rape of a child
and seven counts of aggravated sexual battery carrying sentences of fifteen to twenty-
five years and eight to twelve years, respectively.
At the guilty plea hearing, the petitioner said that he signed the guilty plea
petition freely and voluntarily after thoroughly discussing the petition with his trial
attorney. The state recommended a twenty-three year sentence on each count to run
concurrently. When questioned by the trial court, the petitioner said that this was his
understanding of the plea agreement. In pronouncing the judgment, the trial court said,
“It’s the judgment of the Court in each count that you be sentenced to the Department
of Correction for a period of twenty-three years as a range one standard offender at
thirty percent. Those sentences will run concurrent, one with the other.”
The guilty plea petition is a preprinted form with certain items filled in by
hand. In the portion of the petition calling for the range of punishment, the following is
handwritten:
6 counts Rape of A Child; 7 Counts Aggravated Sexual Battery
- Rape of Child 15-25 years plus fine up $50,000 each count.
T.C.A. 39-13-522. Aggravated Sexual Battery 8-12 years plus
fine up to $25,000 each count. T.C.A. 39-13-504[.]
In the part setting forth the plea agreement, the following is handwritten:
Guilty - Counts 1 & 9 - 23 years each count concurrent. No
fine. Recommendation Special Needs prison. Credit for jail
time.
The guilty plea petition contains the petitioner’s signature.
The trial court filed a written opinion denying the petition for post-
conviction relief. The trial court’s opinion states as follows:
The petitioner herein has filed a Petition for Post Conviction
Relief. The main thrust of his complaint is aimed at the parole
system for the state. He specifically states that his plea was
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not knowingly and intelligently entered, and that his counsel
was ineffective.
....
The Court has examined the proof on this case as well as the
authorities that have been submitted. The Court is of the
opinion that the complaint of the petitioner is almost on all
fours with Wilson v. State [citation omitted]. There is a total
lack of evidence under the holdings of Baxter v. Rose and
Strickland v. Washington [citations omitted]. There is nothing
in this record that would indicate that counsel for the defendant
at the time of the plea acted in any other than a highly
professional manner.
The petitioner has raised a question that continually appears
in these matters. He complains that the Court and his attorney
did not properly advise him about his effective release date.
This Court, quite frankly, does not believe that there is a Judge
in this state, at any level, that could explain this date to a
defendant at the time that a plea was entered. This fact was
emphasized in Howell v. State [citation omitted]. This Court
would not presume to tell the Board of Pardons and Paroles
how to operate [its] business.
The Petition for Post Conviction Relief is denied.
Initially, we note that the burden was on the petitioner in the trial court to
prove that his allegations entitle him to relief beyond a reasonable doubt. T.C.A. § 40-
30-210(f). On appeal, we are bound by the trial court’s findings unless we conclude
that the evidence preponderates against those findings. Black v. State, 794 S.W.2d
752, 755 (Tenn. Crim. App. 1990). However, the Post-Conviction Procedure Act
mandates that the trial court enter an order or written memorandum detailing all
grounds presented by the petitioner and its findings of fact and conclusions of law with
regard to each ground. T.C.A. § 40-30-211(b). The purpose of this requirement is to
facilitate appellate review. State v. Swanson, 680 S.W.2d 487, 489 (Tenn. Crim. App.
1984). Because the trial court failed to address all of the petitioner’s grounds and
because we cannot glean from the record the trial court’s findings of fact and
conclusions of law, we must remand the case to the trial court for a more complete
written order.
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The petitioner’s first ground for relief is that his sentence is illegal because
it is in direct contravention of statutory provisions regarding sentencing. See State v.
Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978). Specifically, he argues that he was
sentenced as a Range I, standard offender to serve thirty percent of his sentence, but
T.C.A. § 39-13-523(b) and (c) contemplates that a child rapist “shall be required to
serve the entire sentence imposed by the trial court undiminished by any sentence
reduction credits” and without eligibility for parole. The trial court’s written order denying
the post-conviction petition does not address the petitioner’s argument. Instead, the
order simply states that “[t]he main thrust of [the petitioner’s] complaint is aimed at the
parole system for the state.” We view the petitioner’s complaint not to be with the state
parole system but rather with a sentence that he believes he is statutorily ineligible to
receive. The trial court’s order does not address the merits of the petitioner’s claim.
Under these circumstances, we have no findings or conclusions to review. Thus, we
must remand the case to the trial court for a more complete order.
In his next argument, the petitioner contends that his plea was not
knowing or voluntary because he thought he was receiving a standard, Range I
sentence at thirty percent, but he was actually statutorily ineligible for such a sentence.
In its order, the trial court makes no finding that the petitioner’s plea was knowing and
voluntary. Again, it is imperative that the trial court make findings of fact and
conclusions of law on all issues raised by the petitioner in order for us to review the
denial of the petition.
The petitioner also complains that his trial attorney was ineffective for
failing to explain to him the manner in which he would serve his sentence. At the post-
conviction hearing, the petitioner stated that his trial attorney told him he would serve
thirty percent of his sentence and that this was one of the reasons he accepted the
agreement. The trial attorney testified to the contrary, stating that he did not tell the
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petitioner before his acceptance of the agreement that he would only serve thirty
percent. He said that, in fact, it was his belief that he told the petitioner he would be
ineligible for early release because the convictions were for child rape.
The trial court’s order states that the case is on all fours with Wilson v.
State, that there is “a total lack of evidence under the holdings” of Baxter v. Rose and
Strickland v. Washington, and that nothing in the record indicates that the petitioner’s
attorney was anything other than highly professional. The problem with the trial court’s
order is that we cannot glean from it the trial court’s findings of fact with respect to the
testimony it accredited on material points. We cannot discern whether the trial court
accredited the testimony of the petitioner or his trial attorney. Although it may be
possible to infer that the trial court accredited the attorney’s testimony, one of the main
purposes behind requiring an order with findings of fact and conclusions of law is to
prevent this very type of speculation on appeal. A more detailed order, addressing all
of the petitioner’s claims and containing more detailed findings of fact and conclusions
of law, is needed.
In consideration of the foregoing and the record as a whole, we are of the
opinion that the trial court’s findings and conclusions denying the petition for post-
conviction relief are incomplete, and we cannot perform a meaningful appellate review.
Therefore, the judgment is vacated and the case is remanded to the trial court for the
entry of an order consistent with this opinion.
________________________________
Joseph M. Tipton, Judge
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CONCUR:
_________________________
John H. Peay, Judge
_________________________
David G. Hayes, Judge
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