Marcus Ward v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
June 3, 2008 Session
MARCUS WARD v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Shelby County
No. 04-06910 Paula Skahan, Judge
No. W2007-01632-CCA-R3-PC - Filed January 14, 2009
In 2005, the petitioner, Marcus Ward, pled guilty to three counts of aggravated assault and one count
each of especially aggravated kidnapping, intentionally evading arrest in a motor vehicle, and
aggravated sexual battery and received an effective sentence of thirteen and one-half years. No direct
appeal was taken. Subsequently, he filed a petition for post-conviction relief, alleging that his guilty
pleas were not knowingly, intelligently, and voluntarily made and that he received the ineffective
assistance of counsel. Following an evidentiary hearing, the post-conviction court denied the
petition. This appeal is only as to his conviction for aggravated sexual battery, with the petitioner
asserting that trial counsel rendered ineffective assistance by not informing him that registration as
a sexual offender was a consequence of his guilty pleas, the trial court committed plain error by not
informing him of this registration requirement, and the post-conviction court erred in finding that
the registration requirement was a “collateral,” rather than direct, consequence of his pleas.
Following our review, we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ALAN E. GLENN , J., delivered the opinion of the court, in which D. KELLY THOMAS, JR., J., joined.
JOSEPH M. TIPTON , P.J., filed a dissenting opinion.
Ryan B. Feeney, Selmer, Tennessee, for the appellant, Marcus Ward.
Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Colin Campbell, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
FACTS
At the petitioner’s guilty plea hearing, the State summarized the proof it would have
presented at trial:
Had these matters gone to trial the facts would have been that on June 15th,
2004, officers responded to an armed robbery call . . . in which the [petitioner], who
was driving a 2000 Cadillac Escalade, tan in color, was broadcast . . . to the
responding cars. Sergeant Ware, while en route to the scene, observed the vehicle
going northbound on Riverdale. Officers then attempted to stop the vehicle in which
the [petitioner] was in but refused to stop. Officers continued to follow [petitioner’s]
vehicle for a while. The [petitioner] stopped his vehicle at 385 Byhalia Road, here
in Shelby County, where he was placed under arrest.
Victim number 1, . . ., was located in the front seat of the [petitioner’s]
vehicle at the time of his arrest. Officers also located a small black and white
handgun in the back of the passenger’s side seat.
. . . [V]ictim number 2 advised that [the petitioner] threatened her while he
was in the examining room. . . . [V]ictim number 3 advised that [the petitioner]
forced him out of his office with a gun before he took [victim number 1] hostage. .
. . [V]ictim number 4 stated that [the petitioner] grabbed her by the arm and pointed
the gun at her. He also pushed her out of the examining room.
[The petitioner] was brought to felony response office where he gave a
statement of admission to these, to this offense. Those would be the facts had this
matter gone to trial.
We note that, as to the conviction for especially aggravated kidnapping, the petitioner pled
guilty as a mitigated offender to a sentence of thirteen and one-half years at 100 percent.
In 2005, the petitioner filed a pro se “Motion for Correction or Reduction of Sentence and/or
Post Conviction.” Counsel was appointed, and in 2007 the petitioner filed an amended and
supplemental petition for post-conviction relief, alleging that he was not mentally competent at the
time of his guilty plea and that trial counsel and the trial court did not inform him that registration
as a sexual offender was a consequence of his guilty plea to aggravated sexual battery. He also
alleged that trial counsel provided ineffective assistance by not contesting the trial court’s finding
that he was competent to stand trial, not advising him of “the full measure of punishment for the
crime of aggravated sexual battery,” not informing him that he would be required to serve 100
percent of his sentence for aggravated sexual battery and would be subjected to lifelong community
supervision, and “in general fail[ing] to know and/or be governed by the American Bar Association’s
standards.”
At the evidentiary hearing, trial counsel testified that he had practiced law in Tennessee since
November 2000. During his representation, counsel learned that the petitioner had mental problems,
so he requested a mental examination and obtained the petitioner’s medical records. Counsel’s
review of the medical records revealed that the petitioner suffered from depression and an
unspecified psychotic disorder and had been prescribed Prozac and Haldol. Following the initial
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medical examination, questions about the petitioner’s ability to assist in his defense arose, and a
thirty-day evaluation was ordered. The conclusion of this evaluation was that the petitioner could
appreciate the wrongfulness and nature of the crime at the time of the offenses and was competent
to stand trial. Counsel testified that he was aware he could request a competency hearing, but he did
not do so because he had no evidence to contradict the determination that the petitioner was
competent. He stated that he asked the petitioner if he was having auditory or visual hallucinations
at the time of the offenses, and the petitioner replied that he had not. Counsel testified that he was
considering hiring an independent expert to evaluate the petitioner’s competency when the petitioner
elected to accept the State’s plea offer.
Trial counsel recalled that he informed the petitioner that his sentences for especially
aggravated kidnapping and aggravated sexual battery were violent crimes which required 100
percent service. He testified that it was his normal practice to inform clients who pled guilty to
sexual offenses that they would be required to register as a sexual offender; however, he testified that
he did not have any independent memory of explaining this to the petitioner.
Trial counsel testified he filled out the petitioner’s judgment sheet for aggravated sexual
battery and acknowledged that at one point he had checked the box for thirty percent release
eligibility. He stated that this was a clerical error and that he subsequently changed the form to
reflect 100 percent service, although he could not recall when he made this change. Additionally,
counsel could not recall whether the petitioner signed the judgment form before or after the
correction was made or whether he informed the petitioner of the change. Counsel testified the trial
court did not inform the petitioner that he was required to register as a sexual offender and undergo
lifetime monitoring which, in his opinion, should have been a part of the plea colloquy.
On cross-examination, trial counsel testified there was “no doubt” in his mind that the
petitioner was competent to assist in the preparation of his defense. He stated that he discussed with
the petitioner his statement to the police and explained to him the elements of each offense and the
potential ranges and manners of service of his sentences.
The petitioner testified that he met with trial counsel “[a]bout four times” prior to entering
his pleas. He said that he believed his only option was to plead guilty because trial counsel did not
adequately prepare for trial. He testified that his understanding was that the aggravated sexual
battery and especially aggravated kidnapping sentences would be served at thirty percent release
eligibility. He said he was not consulted regarding the amendment of the judgment form for
aggravated sexual battery and, when he signed the form, was not told that he would have to give a
DNA sample and be subject to lifelong community supervision. He testified that he would not have
pled guilty if he had been told that he would have to register as a sexual offender and serve 100
percent of his sentences.
Additionally, the petitioner said that he had suffered from auditory and visual hallucinations
and depression since he was about seven years old and took Haldol and Prozac for these conditions.
He stated that he never discussed with trial counsel defenses based on insanity or mental defect. He
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testified trial counsel did not discuss with him whether to seek a competency hearing and that he
would have requested a hearing if asked. He said he was not taking his medications at the time of
the offenses.
The petitioner said that he told the trial court that he understood what was going on at the
guilty plea hearing because “I thought I understood what was going on at the time.” He recalled that
at the hearing the trial court explained the offenses to which he was pleading guilty and the potential
range of punishment. He said he did not recall the trial court’s informing him that he would be
required to register as a sexual offender, and he said that if he had been told this, he would not have
pled guilty.
On cross-examination, the petitioner testified that he was aware that the sentencing range for
especially aggravated kidnapping was fifteen to twenty-five years. He denied that this was the reason
he pled guilty and said, “I don’t know really the reason why. I thought – I was trusting in my lawyer
to make a – trusting in him to just do his job make sure I get the best deal possible or prepare me for
trial to proceed on trial for a resolution.”
On redirect examination, the petitioner testified that the first time he became aware of the
changes to his judgment form for aggravated sexual battery was when he spoke with a counselor at
the penitentiary. He said that he filed his motion for correction of sentence when he learned of the
changes.
Upon examination by the post-conviction court, the petitioner acknowledged that the trial
court informed him for the first time at the guilty plea hearing that his conviction for especially
aggravated kidnapping would be served at 100 percent. The post-conviction court asked why the
petitioner did not stop the plea hearing at that point, and he replied, “I ain’t – my first time. I never
been in front – I ain’t never been in that situation before.”
ANALYSIS
The petitioner makes three closely-related arguments on appeal as to his conviction for
aggravated sexual battery. He asserts that trial counsel rendered ineffective assistance by not
informing him that he would be required to register as a sexual offender, the trial court committed
plain error by making the same omission, and the post-conviction court erred in finding that the
sexual offender registration requirement was a collateral, not direct, consequence of his guilty pleas.
The State responds that the post-conviction court properly denied the petitioner’s claims. As we will
explain, we agree with the State.
Post-conviction relief “shall be granted when the conviction or sentence is void or voidable
because of the abridgment of any right guaranteed by the Constitution of Tennessee or the
Constitution of the United States.” Tenn. Code Ann. § 40-30-103 (2006). The petitioner bears the
burden of proving factual allegations by clear and convincing evidence. Id. § 40-30-110(f). When
an evidentiary hearing is held in the post-conviction setting, the findings of fact made by the court
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are conclusive on appeal unless the evidence preponderates against them. See Wiley v. State, 183
S.W.3d 317, 325 (Tenn. 2006). When reviewing factual issues, the appellate court will not reweigh
the evidence and will instead defer to the trial court’s findings as to the credibility of witnesses or
the weight of their testimony. Id. However, review of a trial court’s application of the law to the
facts of the case is de novo, with no presumption of correctness. See Ruff v. State, 978 S.W.2d 95,
96 (Tenn. 1998). The issues of deficient performance of counsel and possible prejudice to the
defense are mixed questions of law and fact and, thus, subject to de novo review by the appellate
court. See Wiley, 183 S.W.3d at 325; State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).
In its lengthy written order denying the petition, the post-conviction court concluded that the
petitioner failed to establish that trial counsel did not inform him that, as a result of his pleas of
guilty, he would have to register as a sex offender or that the court had a duty to do so:
Petitioner claims that Counsel and [the trial court] failed to inform him of the
full consequences of his plea, specifically the requirement to register as a sex
offender. Addressing the issue of Counsel’s failure to inform Petitioner of this
requirement, Counsel testified that, although he did not have a specific memory of
discussing that the [a]ggravated [s]exual [b]attery charge carried a requirement that
Petitioner register as a sex offender due to the length of time since the discussion
with Petitioner, it was Counsel’s normal practice to do so. Counsel further testified
that he understood the charge to carry such a requirement at the time that he
represented Petitioner. Counsel testified he had no reason to believe that he failed
to follow his normal procedure in Petitioner’s case. In light of Counsel’s testimony
and the failure of Petitioner to bring forward any evidence on this matter other than
his own testimony, Petitioner does not demonstrate by clear and convincing evidence
that Counsel failed to address the issue of Petitioner’s sex offender status.
Regarding [the trial court’s] failure to address the registration requirement
during the plea colloquy, it is certainly deficient to fail to advise Petitioner of the
requirement, although not Constitutionally so. The trial court is under no
Constitutional obligation to inform a defendant of all the possible collateral
consequences of his plea; instead, a defendant need only be made aware of the direct
consequences of his plea. (citations omitted).
Reviewing holdings from other jurisdictions, the court noted in its order that “[m]ost courts
foreclose Constitutional relief by ruling that the trial court must only advise a defendant of direct
consequences of a plea, that is, consequences that are punitive or that otherwise have a definite,
immediate, and largely automatic effect on the range of a defendant’s punishment, and that sex
offender registration is a collateral consequence, and not a direct consequence, of a plea because
registration is remedial and regulatory, not punitive and not a penal consequence.” The court
observed that “[a]nother way courts foreclose Constitutional relief is by ruling that registration is not
a duty imposed by the court and is out of the control of the court. Any liberty right that a sex
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offender claims is impaired by registration and notification provisions is a consequence that does not
have to be explained by a court upon its acceptance of a plea.”
Considering these differing views, the post-conviction court adopted the majority view,
explaining that “[t]his Court agrees with the majority of jurisdictions and holds that sex offender
registration is a collateral consequence of a guilty plea because it is not a penal consequence and is
out of the control of the court.” Applying that principle to the present case, the court concluded that
the “[p]etitioner’s claim that he had a right to be informed by the trial court of the requirement to
register as a sex offender is not cognizable in [a post-conviction] proceeding.” The post-conviction
court also denied the petitioner’s claims that he was incompetent to plead guilty and that his counsel
provided ineffective assistance.
I. Ineffective Assistance of Counsel
The right to effective assistance of counsel is safeguarded by the Constitutions of both the
United States and the State of Tennessee. See U.S. Const. amend. VI; Tenn. Const. art. I, § 9. In
order to determine the competence of counsel, Tennessee courts have applied standards developed
in federal case law. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that
the same standard for determining ineffective assistance of counsel that is applied in federal cases
also applies in Tennessee). The United States Supreme Court articulated the standard in Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), which is widely accepted as the appropriate
standard for all claims of a convicted petitioner that counsel’s assistance was defective. The standard
is firmly grounded in the belief that counsel plays a role that is “critical to the ability of the
adversarial system to produce just results.” Id. at 685, 104 S. Ct. at 2063. The Strickland standard
is a two-prong test:
First, the defendant must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.
Id. at 687, 104 S. Ct. at 2064. The Strickland Court further explained the meaning of “deficient
performance” in the first prong of the test in the following way:
In any case presenting an ineffectiveness claim, the performance inquiry must be
whether counsel’s assistance was reasonable considering all the circumstances. . . .
No particular set of detailed rules for counsel’s conduct can satisfactorily take
account of the variety of circumstances faced by defense counsel or the range of
legitimate decisions regarding how best to represent a criminal defendant.
Id. at 688-89, 104 S. Ct. at 2065. The petitioner must establish “that counsel’s representation fell
below an objective standard of reasonableness under prevailing professional norms.” House v. State,
44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).
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As for the prejudice prong of the test, the Strickland Court stated: “The defendant must
show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” 466 U.S. at 694, 104 S. Ct. at 2068; see also Overton v.
State, 874 S.W.2d 6, 11 (Tenn. 1994) (concluding that petitioner failed to establish that “there is a
reasonable probability that, but for counsel’s errors, the outcome of the proceedings would have been
different”).
The reviewing court must indulge a strong presumption that the conduct of counsel falls
within the range of reasonable professional assistance, see Strickland, 466 U.S. at 690, 104 S. Ct.
at 2066, and may not second-guess the tactical and strategic choices made by trial counsel unless
those choices were uninformed because of inadequate preparation. See Hellard v. State, 629 S.W.2d
4, 9 (Tenn. 1982). The fact that a strategy or tactic failed or hurt the defense does not alone support
the claim of ineffective assistance of counsel. See Thompson v. State, 958 S.W.2d 156, 165 (Tenn.
Crim. App. 1997). Finally, a person charged with a criminal offense is not entitled to perfect
representation. See Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). As explained
in Burns, 6 S.W.3d at 462, “[c]onduct that is unreasonable under the facts of one case may be
perfectly reasonable under the facts of another.”
Although the petitioner presents as the issue for review whether trial counsel was ineffective
in not informing him that he would be required to register as a sexual offender, he argues in his brief
that counsel was ineffective in not informing him that his sentence for aggravated sexual battery was
to be served at 100 percent or that he would be subject to lifelong community supervision. We will
address these claims.
The post-conviction court found that the petitioner had not proven by clear and convincing
evidence his claim that trial counsel failed to inform him that he would be required to register as a
sexual offender. At the evidentiary hearing, trial counsel testified that it was his normal practice to
inform clients of this requirement. The petitioner testified that if he had been told of this
requirement, he would not have pled guilty. However, the post-conviction court accredited trial
counsel’s testimony that the petitioner had been informed. The record supports this determination.
Additionally, trial counsel testified that he remembered telling the petitioner that he would
be required to serve 100 percent of his sentence for aggravated sexual battery. The petitioner
testified that he understood that this sentence would be served at thirty percent. The post-conviction
court found this claim to be baseless, both because the petitioner discussed with counsel the 100
percent requirement and was advised by the court during the plea colloquy that the sentence was to
be served at 100 percent, responding that he understood this requirement:
In addition, Counsel testified that Petitioner asked questions about the sentences and
participated in a “give and take” exchange, including that he “had a problem with a
hundred percent” on the aggravated kidnapping charge. Further, [the trial court] told
Petitioner during the plea colloquy that “Aggravated Sexual Battery . . . carries
anywhere from seven-point-two to thirty years in prison as a hundred percent crime.
Petitioner answered that he understood this, as well as the details of his plea
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agreement relating to the charge. The mere fact of a paperwork error does not, on its
own, constitute ineffective assistance of counsel, especially when Petitioner was
advised as to the actual percentage he would be serving by Counsel and the Judge
during the Post-Conviction proceeding.
Given this, the post-conviction court concluded that the petitioner had “not overcome
[c]ounsel’s credible testimony by clear and convincing evidence.” The record supports this
determination.
Finally, the petitioner argues that trial counsel did not inform him that his aggravated sexual
battery conviction would subject him to lifelong community supervision. However, at the
evidentiary hearing, he did not ask trial counsel whether he told the petitioner about this requirement.
Absent trial counsel’s testimony on this point, we are unable to conclude that the petitioner has
proven this factual allegation by clear and convincing evidence.
II. Claims Regarding the Trial and Post-Conviction Courts
In two closely-related issues, the petitioner argues that the trial court erred in not informing
him of the sexual offender registration requirement and that the post-conviction court erred in
finding that the trial court was not required constitutionally to inform him of this requirement. He
asserts that we should review his claim regarding the trial court as plain error. However, as we will
explain, plain error analysis is inappropriate.
“When necessary to do substantial justice, an appellate court may consider an error that has
affected the substantial rights of an accused at any time, even though the error was not raised in the
motion for a new trial or assigned as error on appeal.” Tenn. R. Crim. P. 52(b). In State v. Smith,
24 S.W.3d 274 (Tenn. 2000), our supreme court adopted the test for plain error first announced by
this court in State v. Adkisson, 899 S.W.2d 626 (Tenn. Crim. App. 1994). In order for us to find
plain error, Adkisson requires that “(a) the record must clearly establish what occurred in the trial
court; (b) a clear and unequivocal rule of law must have been breached; (c) a substantial right of the
accused must have been adversely affected; (d) the accused did not waive the issue for tactical
reasons; and (e) consideration of the error is ‘necessary to do substantial justice.’” Smith, 24 S.W.3d
at 282 (quoting Adkisson, 899 S.W.2d at 641-42). The presence of all five factors must be
established by the record before we will recognize the existence of plain error, and complete
consideration of all the factors is not necessary when it is clear from the record that at least one factor
cannot be established. Id. at 283.
When analyzing a guilty plea, we look to the federal standard announced in Boykin v.
Alabama, 395 U.S. 238, 89 S. Ct. 1709 (1969), and the state standard set out in State v. Mackey, 553
S.W.2d 337 (Tenn. 1977). State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999). In Boykin, the
United States Supreme Court held that there must be an affirmative showing in the trial court that
a guilty plea was voluntarily and knowingly given before it can be accepted. 395 U.S. at 242, 89 S.
Ct. at 1711. Similarly, our Tennessee Supreme Court in Mackey required an affirmative showing
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of a voluntary and knowledgeable guilty plea, namely, that the defendant has been made aware of
the significant consequences of such a plea. Pettus, 986 S.W.2d at 542.
A plea is not “voluntary” if it results from ignorance, misunderstanding, coercion,
inducements, or threats. Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The trial court
must determine if the guilty plea is “knowing” by questioning the defendant to make sure he fully
understands the plea and its consequences. Pettus, 986 S.W.2d at 542; Blankenship, 858 S.W.2d at
904. This requirement is limited to the direct consequences of the plea; the failure of the trial court
to explain the collateral consequences of a conviction will not render a guilty plea involuntary. See
State v. Evans, 669 S.W.2d 708, 713 (Tenn. Crim. App. 1984). “The distinction between collateral
and direct consequences ‘turns on whether the result represents a definite, immediate and largely
automatic effect on the range of the defendant’s punishment.’” Adkins v. State, 911 S.W.2d 334,
350 (Tenn. Crim. App. 1994) (quoting Torrey v. Estelle, 842 F.2d 234, 236 (9th Cir. 1988)).
The Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification, and
Tracking Act of 2004 requires that persons convicted of certain enumerated sexual and violent
sexual offenses register in person with a registering agency within forty-eight hours of (1)
establishing or changing a primary or secondary residence; (2) establishing a physical presence at
a particular location; or (3) becoming employed, practicing a vocation, or becoming a student in this
state. Tenn. Code Ann. § 40-39-203(a)(1) (2006). Aggravated sexual battery, to which the petitioner
pled guilty, is a violent sexual offense. Id. § 40-39-202(25)(C).
We now analyze the petitioner’s claim of plain error. The parties agree that the record clearly
shows that the trial court did not inform the petitioner of the sexual offender registration
requirement. Regarding whether a clear and unequivocal rule of law has been breached, the
petitioner argues, and we agree, that Tennessee Rule of Criminal Procedure 11 “require[s] that the
trial courts advise defendants of certain rights before accepting guilty pleas and require[s] that this
notification be upon the record.” However, from this general proposition it does not necessarily
follow that the trial court was required to inform the petitioner of the sexual offender registry
requirement. We must analyze this claim in further detail.
This issue appears to be one of first impression in Tennessee. In its order denying the
petition, the post-conviction court canvassed case law from other jurisdictions and found, as we have
set out, that most jurisdictions considering the issue have held that sexual offender registration is a
collateral consequence of a guilty plea. See Nollette v. State, 46 P.3d 87, 89-90 (Nev. 2002); State
v. Bollig, 605 N.W.2d 199, 206 (Wis. 2000); State v. Burr, 598 N.W.2d 147, 158-159 (N.D. 1999);
Doe v. Poritz, 662 A.2d 367, 406 n.18 (N.J. 1995); State v. Ward, 869 P.2d 1062, 1076 (Wash.
1994) (en banc); Boutwell v. State, 776 So. 2d 1014, 1016 n.2 (Fla. Dist. Ct. App. 2001); Ducker
v. State, 45 S.W.3d 791, 796 (Tex. Ct. App. 2001); State v. Legg, 13 P.3d 355, 358 (Kan. Ct. App.
2000); Ray v. State, 982 P.2d 931, 934-36 (Idaho 1999); but see State v. Jones, 729 N.W.2d 1, 9
(Minn. 2007), overruling Kaiser v. State, 641 N.W.2d 900 (Minn. 2002); People v. McClellan, 862
P.2d 739, 745 (Cal. 1993) (en banc).
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We agree with the conclusion of the post-conviction court that the sexual offender registry
requirement is a collateral consequence of a defendant’s guilty plea for the registration requirement
is remedial and regulatory, not punitive or penal. Our conclusion is supported by the findings made
by the General Assembly when it enacted the Registration Act. The General Assembly declared that
the “primary governmental interest” furthered by the Registration Act was “protecting vulnerable
populations from potential harm,” and that continued registration of offenders was necessary “[t]o
protect the safety and general welfare of the people of this state.” Tenn. Code Ann. § 40-39-
201(b)(4), (b)(6) (2006). The General Assembly also declared that, in making certain information
about sexual offenders publicly available, it did not intend for the information to be used to inflict
retribution or additional punishment on those offenders. Id. § 40-39-201(b)(8). In addition, we also
note that the Sixth Circuit discussed the Registration Act in Cutshall v. Sundquist, 193 F.3d 466 (6th
Cir. 1999), and determined that the Act served legitimate regulatory purposes and did not impose
punishment. Accordingly, we conclude that the post-conviction court did not err in determining that
the sexual offender registry requirement is a collateral consequence of a defendant’s guilty plea.
On appeal, the petitioner additionally argues that the post-conviction court failed to consider
the application of Tennessee Code Annotated section 39-13-524(a), which provides:
In addition to the punishment authorized by the specific statute prohibiting
the conduct, any person who, on or after July 1, 1996, commits a violation of §
39-13-502, § 39-13-503, § 39-13-504, § 39-13-522, or attempts to commit a violation
of any of these sections, shall receive a sentence of community supervision for life.
In the petitioner’s view, “[t]he purpose of this statute, which applies to sex offenders, is clearly to
be part of the sentence for the offense, rather than a regulatory scheme having only collateral
connection to the sentence.”
Initially, we note that it is not clear from the record whether the petitioner argued to the post-
conviction court, as he does on appeal, that the effect of this statute is that the lifelong community
supervision requirement is, itself, punishment. In any event, because the petitioner arguably alleged
he would not have pled guilty had he known about the community supervision for life requirement,
we will address his allegation.
Our review indicates that our supreme court has yet to address this issue, but Nevada and
New Jersey courts, in looking at similar statutory provisions, have concluded that lifetime
supervision is a direct, not collateral, consequence of a plea. See Palmer v. State, 59 P.3d 1192,
1196-97 (Nev. 2002); State v. Jamgochian, 832 A.2d 360, 362 (N.J. Super. App. Div. 2003).
In Chad Alan Parker v. State, No. M2007-02799-CCA-R3-PC, 2008 WL 2938046, at *9
(Tenn. Crim. App. July 31, 2008), this court considered an similar issue. Parker pled guilty to one
count of aggravated sexual battery and one count of burglary of an automobile. He was sentenced
to ten years at 100 percent for the aggravated sexual battery conviction and to two years, to be served
concurrently, for the burglary of an automobile conviction. As a result of Parker’s conviction for
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a sexual offense, the court ordered community supervision for life. Subsequently, Parker filed a
petition for post-conviction relief, asserting at the evidentiary hearing, inter alia, that had he known
“he would actually have to be on parole the rest of his life and that he would have to pay a $45 fee
every month . . . he would have asked Counsel to get another plea agreement or to take the case to
trial.” Id. at *4.
This court explained its reasons for finding that “the Petitioner, relying on Counsel’s advi[c]e
that the two programs were the same, was significantly misinformed”:
[We] conclude that the Petitioner’s guilty plea was not knowingly and voluntarily
entered. Counsel readily admits that the Petitioner wanted to go to trial but
participated in lengthy plea negotiations, after which he agreed to enter a “best
interest” plea. Counsel informed the Petitioner that community supervision for life
would require nothing more of the Petitioner than he was already required to do as
part of his participation in the sex offenders registry. The sex offenders registry
program is unsupervised, free, and requires that an offender register his address. The
community supervision for life program is much more intensive, requiring the
offender to report to a parole officer, who has wide discretion in the imposition of
requirements, and to pay a monthly fee. Under these circumstances, we conclude that
the Petitioner, relying on Counsel’s advi[c]e that the two programs were the same,
was significantly misinformed. Therefore, under such circumstances, his plea cannot
be found to have been knowing and voluntary.
Id. at *8.
In the present case, the petitioner’s claim is that he was not advised at all about community
supervision for life, not, as in Parker, that he received incorrect legal advice. Therefore, we
distinguish the holding in Parker.
We decline to follow the New Jersey and Nevada decisions, previously mentioned, believing
the better approach is that taken by Judge Thomas in his dissent in Parker. In Parker, Judge Thomas
likened the obligations of community supervision for life under Tennessee Code Annotated section
39-13-524(a) to prerequisites for a sex offender’s release on parole and concluded that “the specifics
of community supervision for life are . . . more of a collateral consequence of a guilty plea as
opposed to a substantial consequence.” Id. (Thomas, J., dissenting). Judge Thomas based his
opinion on the following language in our supreme court’s decision in Jaco v. State, 120 S.W.3d 828,
833 (Tenn. 2003):
Finally, were we to adopt Mr. Jaco’s argument that a guilty plea of a sex
offender will be constitutionally deficient unless the offender is informed of the
mandatory psychological evaluation and certification that is required before release
on parole is appropriate, then guilty pleas to other felony offenses are arguably
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invalid as well unless the offender is advised of all the criteria that will affect the
offender’s release on parole. We decline to adopt such a rule.
Based on this language and by analogy, Judge Thomas declined to “include the complete disclosure
of all elements of parole supervision as a necessary requirement of the effective assistance of counsel
and a constitutionally firm guilty plea.” Parker, 2008 WL 2938046, at *10 (Thomas, J., dissenting).
The aim of community supervision as elucidated in section 39-13-524(d)(1) is “to protect the
public from the person’s committing a new sex offense, as well as promoting the rehabilitation of
the person.” Tenn. Code Ann. § 39-13-524(d)(1). Section 39-13-524 provides that upon a sex
offender’s completion of his or her term of imprisonment, he or she then falls under the supervision
of the Board of Probation and Parole “in the same manner as a person under parole supervision” and
is, by the Board, given individualized conditions to follow. Id. Even though it is referred to as
lifelong, the sex offender can petition for release from community supervision after fifteen years.
Id. § 39-13-525(a).
Given the protective and rehabilitative aims of sex offender community supervision and the
similarities to regular parole, by extension of our supreme court’s reasoning in Jaco, we conclude
that community supervision is not punishment but, instead, a collateral consequence of the
petitioner’s guilty plea.
Because the sexual offender registry and community supervision requirements were
collateral consequences of the petitioner’s guilty plea, the trial court was not required to inform the
petitioner of these requirements before accepting his plea. Although the better practice is to inform
defendants of the requirements, we cannot conclude that the trial court’s omission violated a clear
and unequivocal rule of law. Therefore, the petitioner has not established the existence of one of the
five prerequisites for plain error relief, and our analysis need go no further. The petitioner is not
entitled to relief.
CONCLUSION
Based upon the foregoing authorities and reasoning, the judgment of the post-conviction
court is affirmed.
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ALAN E. GLENN, JUDGE
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