Terry Charlton v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
FEBRUARY 1998 SESSION
August 20, 1998
Cecil W. Crowson
TERRY L. CHARLTON, * C.C.A. # 01C01-9701-CC-00002 Clerk
Appellate Court
Appellant, * HICKMAN COUNTY
VS. * Hon. Cornelia A. Clark, Judge
STATE OF TENNESSEE, * (Post-Conviction)
Appellee. *
For Appellant: For Appellee:
Peter D. Heil John Knox Walkup
P.O. Box 40651 Attorney General and Reporter
Nashville, TN 37204
Daryl J. Brand
Assistant Attorney General
425 Fifth Avenue North
Cordell Hull Building, Second Floor
Nashville, TN 37243-0493
OPINION FILED:__________________________
AFFIRMED IN PART; REVERSED AND REMANDED IN PART
GARY R. WADE, JUDGE
OPINION
The petitioner, Terry L. Charlton, appeals the trial court's denial of his
application for post-conviction relief. In this appeal of right, the petitioner claims that
the trial court erred by entering an order of summary dismissal without the
appointment of counsel or the opportunity to amend. We must reverse a portion of
the judgment and remand to the trial court for further proceedings consistent with
this opinion.
Facts
On September 19, 1995, the petitioner pled guilty in Hickman County
to two counts of aggravated burglary and two counts of theft over $1,000.00. Trial
Judge Donald P. Harris imposed Range II sentences of six years on each count and
ordered two of the sentences to be served consecutively for an effective term of
twelve years. The twelve-year term was ordered to be served concurrently "with [a]
sentence [the defendant is] currently serving [with] TDOC" for a prior conviction in
Cheatham County.
On September 11, 1996, the petitioner completed and mailed this
petition, alleging that his pleas were "involuntar[y] ... without understanding the
nature or consequences...." At the same time, the petitioner filed a motion to amend
the September 19, 1995, order in Hickman County asking that these sentences also
be served concurrently with a sentence imposed by Judge Clark in Williamson
County some twenty-seven days after the Hickman County plea agreement. The
Williamson County sentence of twenty-one years had been ordered to be served
consecutively to the Hickman County term.
The record establishes that the petitioner was serving an eighteen-
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year Cheatham County sentence in the Department of Correction at the time of the
Hickman County sentence. After determining that the transcript of the guilty plea
established that Judge Harris, who imposed the Hickman County sentences, had
sought clarification before accepting the plea, Judge Clark denied relief. In doing
so, she recited a portion of the submission hearing transcript:
Judge Harris: I cannot run a sentence concurrent with
the sentence that you haven't gotten yet. It will be up to
that judge [Cornelia A. Clark]. I feel confident that if
somebody tells her that that was the agreement down
here, that she'll run it concurrent, but I can't guarantee
you, and she may say ["no, it's consecutive"]. I am
certainly not going to try to say what Judge Clark will do.
After this statement, the assistant district attorney general assured the trial court that
the concurrent sentence agreement applied only to the Cheatham County sentence.
When asked whether he was satisfied with that, the defendant answered, "Yes, that
will be fine. Sentences I am already serving. I've already got eighteen years."
In dismissing the petition and motion, Judge Clark further observed as
follows:
This court has recently reviewed the videotape of the
sentencing hearing in Williamson County. The written
and videotape record is clear. The attorneys did recite
the prior sentences imposed on the defendant.
However, no assertion was made that any agreement
had been entered into or recommendation made to run
the sentence concurrently. In fact, no mention
whatsoever was made of the discussion that occurred in
Hickman County one month earlier.
After making reference to the dismissal of the post-conviction petition, the trial court
also ruled that the motion to amend the Hickman County sentence by asking for
concurrent service with the Williamson County sentence was not only untimely but
also without merit. See Tenn. R. Crim. P. 35.
In a motion for reconsideration filed twelve days after the initial order,
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the petitioner reasserted that his guilty plea was involuntary. He insisted that
portions of the transcript supported his claim that he did not understand that the
Williamson County sentences could be consecutive. Of greater significance, the
petitioner reiterated his complaint that the Department of Correction had refused to
treat the Hickman County sentences as concurrent with his Cheatham County term
because of a parole violation on the latter sentence. See Tenn. R. Crim. P.
32(c)(3)(A).1 In denying the motion to reconsider, Judge Clark made the following
observation:
During the [Hickman County] hearing, no one specifically
stated that the Cheatham County convictions were
sentences imposed as a result of the parole violation. In
fact, statements made by petitioner seemed to indicate
that they were simply other sentences imposed. It is
apparent that neither ... [J]udge [Harris] nor any attorney
knew that petitioner's Cheatham County sentences were
imposed as a result of a parole violation. However, it is
clear that the petitioner knew or should have known his
status.
The trial judge cited a case in which a panel of this court had ruled that because it is
commonly known that a criminal conviction qualifies as a ground for parole
revocation which, in turn, requires a consecutive sentence, the ensuing guilty plea
under these circumstances is knowingly and voluntarily entered. Bailey v. State,
924 S.W.2d 918 (Tenn. Crim. App. 1995). Judge Clark ruled that based upon the
Bailey opinion from this court, the petitioner could not claim ignorance of the law.
In Bailey, the trial court had entered a summary dismissal of a post-
conviction petition based upon the allegation of ineffective assistance of counsel by
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Mandatory Consecutive Sentences. Where a defendant is convicted of multiple offenses
from one trial or where the defendant has additional sentences not yet fully served as the result of the
con viction s in th e sam e or o ther c ourt a nd th e law requ ires c ons ecu tive se nten ces , the s ente nce shall
be con secutive whethe r the judgm ent exp licitly so orders o r not. This rule shall ap ply:
(A) To a senten ce for a fe lony com mitted w hile on paro le for a felon y.
Tenn. R. Crim . P. 32(c)(3)(A).
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the failure to warn that a guilty plea could lead to revocation of parole and
consecutive sentencing. By footnote, the panel explained that whether counsel was
aware of his parole status was irrelevant because the petitioner knew or should
have known that he was on parole with conditions:
We find it readily apparent, even to the everyday
layman, that criminal convictions can lead to parole
revocation. We find it equally apparent that the parole
revocating offense's sentence would run consecutively to
an existing paroled sentence.... We, therefore, reject
petitioner's argument that he would not have pled guilty
had counsel informed him of information he is presumed
to possess.
Bailey, 924 S.W.2d at 919. In that case, the panel relied primarily upon a holding in
Sheehan v. State, 411 So. 2d 824, 828 (Ala. Crim. App. 1981). The panel also
made reference to an Arizona case, State v. Young, 480 P.2d 345 (Ariz. 1971),
which held that a defendant must be "presumed to be aware" when entering a guilty
plea, of the concept of "separate punishments for separate crimes...." Id. at 346-47.
In Bailey, there was no application for permission to appeal to the supreme court.
Procedure
Upon the filing of a post-conviction petition in proper form, or upon
receipt of an amended petition, our law requires trial courts to subject the petition to
"preliminary consideration." Tenn. Code Ann. § 40-30-206. During this preliminary
phase, the trial judge must examine the allegations of fact in the petition. "If the
facts alleged, taken as true, fail to show that the petitioner is entitled to relief ... the
petition shall be dismissed." Tenn. Code Ann. § 40-30-206(f). In Waite v. State,
948 S.W.2d 283 (Tenn. Crim. App. 1997), our court discussed how to determine,
under the new Act, whether a claim is "colorable" or actionable. If so, the petition is
allowed to pass beyond the preliminary stage. This court relied on case law prior to
the 1995 Act to hold that a colorable claim is "'one that alleges facts showing that
the conviction resulted from an abridgment of a constitutional right and which
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demonstrates that the ground for relief was not previously determined or waived.'"
Id., 948 S.W.2d at 284-85 (quoting Hugh Ronald Carmley v. State, No. 03C01-9305-
CR-00167, slip op. at 6 (Tenn. Crim. App., at Knoxville, Jan. 13, 1994)). "The pro se
petitioner must assert a basic theory of relief." Waite, 948 S.W.2d at 284 (quoting
Lowe v. State, 805 S.W.2d 368, 372 (Tenn. 1991)). Under the new statute, at the
preliminary stage, the trial judge is required to determine "whether it appear[s]
beyond doubt that the [petitioner could] prove no set of facts in support of his claim
which would entitle him to relief." Waite, 948 S.W.2d at 284 (second alteration in
original). See also Tenn. Sup. Ct. R. 28(2)(H).
The amended Post-Conviction Act requires trial courts, at the
preliminary stages, to first "determine whether the petitioner is indigent and in need
of counsel." Tenn. Code Ann. § 40-30-206(e). The trial court "may provide counsel
and allow time for an amendment to the petition." Id. Before there can be a
preliminary dismissal, however, the statute requires the trial court to assume "as
true" the facts alleged by the petitioner.
Several unpublished opinions from this court have ruled that at the
preliminary stage, the trial judge is to assume the facts alleged in the petition are
true. No authority exists for the trial court to do independent fact investigation into
the truth of the allegations. In Loring C. Warner v. State, No. 03C01-9610-CR-
00407 (Tenn. Crim. App., at Knoxville, Jan. 30, 1998), app. filed by petitioner, Mar.
26, 1998, the trial court summarily dismissed a pro se petition after examining the
record of the prior proceedings, ruling that the record and the petition "conclusively
show[ed] that [Warner was] not entitled to relief." Id., slip op. at 2. This court
reversed on direct appeal and remanded for the appointment of counsel, concluding
that "the court exceeded its statutory mandate, which was simply to evaluate the
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petition to determine whether a colorable claim was stated, rather than to examine
and adjudicate the factual merits of the allegations." Id., slip op. at 3. A similar
result was reached in Garry E. Collins v. State, No. 01C01-9603-CR-00120 (Tenn.
Crim. App., at Nashville, Mar. 13, 1997). In Collins, the trial court took "judicial
notice of the [qualifications of trial counsel] and the properly executed [w]aivers of
the [d]efendant." Id., slip op. at 2. On appeal, this court ruled that the trial "court
may not take judicial notice of the qualifications of defense counsel and the contents
of the waiver so as to conclusively determine the petition has no merit." Id., slip op.
at 3.
An independent review of the transcript of the guilty plea hearing and
conclusive determination that the petition was without merit are not permissible.
The preliminary stage is not the appropriate forum for adjudication of the facts of the
case.
By his claim that the plea was neither knowingly nor voluntarily made,
the petitioner has stated a colorable claim. The petitioner contends that his
submission to the charges was brought about through a misapprehension that the
Cheatham and Hickman County sentences would be concurrently served. In
summarily rejecting that claim, Judge Clark followed our ruling in Bailey, a case in
which this court may have overlooked prior opinions from our supreme court.
Controlling Precedent
The record indicates that prosecution, the defense, and Judge Harris
in the Hickman County cases all believed that sentencing concurrent with the
Cheatham County offenses was permissible. Two supreme court opinions address
this issue and require a different result than that reached in Bailey.
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In Henderson v. State, 419 S.W.2d 176 (Tenn. 1967), our supreme
court, through former Chief Justice Hamilton Burnett, ruled that a plea agreement
which included concurrent sentencing for an offense committed while the defendant
was on parole for a prior crime, rendered the plea void:
We think even if as it is argued by the Warden that the
man should have known what was going to happen and
his submission, or what he agreed to or had traded for,
couldn't work out like he thought it might[,] that he is
entitled to go back and have a new trial as was ordered
in the instant case.
Id., 419 S.W.2d at 178 (emphasis added). Service of the concurrent sentences was
"what [the parties] thought would happen, and [they] just [were] not right." Id. Our
supreme court ruled that when the accused enters a plea wherein all parties (the
state, the defendant, and the trial judge) agree to a lesser sentence than is
permissible by law, "the accused should be allowed to withdraw his plea." Id.
Our supreme court reaffirmed that rule in State v. Burkhart, 566
S.W.2d 871 (Tenn. 1978). In Burkhart, an order authorizing a concurrent sentence
for an escape from incarceration for a prior crime, which was legislatively mandated
to be consecutive, was deemed a nullity and, if the concurrent sentence for escape
was the result of a plea bargain, the defendant would be entitled to withdraw his
plea.
The Bailey opinion appears to be in direct conflict with both Henderson
and Burkhart. In Eugene Montgomery v. State, No. 03C01-9507-CC-00189 (Tenn.
Crim. App., at Knoxville, Sept. 10, 1997), a panel of this court declined to follow the
reasoning of Bailey. In Montgomery, the petitioner complained that the "State
agreed his sentence for aggravated assault would run concurrently with a parole
violation." Id., slip op. at 2. The panel followed the rationale of Henderson v. State,
419 S.W.2d 176 (Tenn. 1967), and remanded the cause for the appointment of
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counsel and an evidentiary hearing.
In our view, the petitioner has stated a colorable claim. Thus, the
cause must be remanded for the appointment of counsel. In Boykin v. Alabama,
395 U.S. 238 (1969), the United States Supreme Court ruled that defendants should
be advised of certain of their constitutional rights before entering pleas of guilt.
Included among those required warnings are the right against self-incrimination, the
right to confront witnesses, and the right to a trial by jury. Id. at 243. Yet the
overriding Boykin requirement is that the guilty plea must be knowingly and
voluntarily made. Id. at 242-44.
In Wallen v. State, 863 S.W.2d 34, 38 (Tenn. 1993), our supreme
court ruled that several factors are relevant in determining whether a plea is
voluntary and intelligent:
[A] court charged with determining whether those pleas
were "voluntary" and "intelligent" must look to various
circumstantial factors, such as the relative intelligence of
the defendant; the degree of his familiarity with criminal
proceedings; whether he was represented by competent
counsel and had the opportunity to confer with counsel
about the options available to him; the extent of advice
from counsel and the court concerning the charges
against him; and the reasons for his decision to plead
guilty, including a desire to avoid a greater penalty that
might result from jury trial.
(quoting Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (emphasis added)
(alteration in original)).
The petitioner has alleged he was advised that his new sentence in
Hickman County would be served concurrently to his sentence on the case which
had parole revoked. He contended the trial transcript shows that "petitioner, trial
counsel and the prosecutor agreed to his sentences being served concurrently to
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the sentences already imposed in Cheatham County" and that he only agreed to "a
sentence of 12 years to be served concurrently with the sentences that he already
had, which included a 12 year sentence that he was serving in the Tennessee
Department of Correction." Judge Harris entered judgment reflecting the sentences
would be concurrent, thereby accrediting the assertion by the petitioner in this case.
If these allegations are true, the petitioner would be entitled to relief
under the authority of both Burkhart and Henderson. While it may be true that one
should realize the consequences for a crime committed while on parole status,
common sense would also suggest that the petitioner is entitled to rely upon the
advice of his attorney, especially when confirmed by the trial judge. In our view, the
petitioner should have been granted counsel, allowed to amend, and permitted an
evidentiary hearing. If, based upon the particular circumstances of this case, it is
established that the plea agreement was entered into under the collective
misunderstanding that the Cheatham County and Hickman County sentences could
and would be concurrently served, the plea agreement should be set aside as
neither knowingly nor voluntarily made and the petitioner should be brought to trial in
Hickman County.
The judgment is reversed and the cause is remanded for the
appointment of counsel and further proceedings. The motion seeking a declaration
that the Hickman and Williamson County sentences be served concurrently was
properly denied.
________________________________
Gary R. Wade, Judge
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CONCUR:
_____________________________
William M. Barker, Special Judge
_____________________________
Curwood Witt, Judge
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