### IN THE CO URT OF CR IMINAL APPEALS OF T ENN ESSEE AT NASHVILL E Aug us t 1 9, 2 00 9 S es si on

DENNIS J. ROUNTRE E, JR. v . STATE O F TENNESSE E

Appeal f rom the Cr im inal Cou rt for Davidson Coun ty No. 2002-A- 545 Seth Norm an, Jud ge

No. M2008- 02527-CCA -R3-P C - F iled October 2, 2009

The Petitioner, Dennis J

. Rountree, J r., appea ls from the summary dismiss al of his petition for postconviction relief

. The post-conviction court dismiss ed the petition beca use it found the petition to be barr ed by the statute of limit ations. Following our revie w, we reve rse the order of dismiss al and

rema nd this case to the post-c onviction court for a hea ring on the merits of the pe tition.

Tenn. R. App . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt R ever sed; Rem anded

D A V I D H. W E L L E S , J
., delivere d the opinion of the court, in which J E R R Y L

. S M I T H and R O B E R T W. W E D E M E Y E R , J J ., joined.

David L

. Ray

bin and Sarah S. Richter, Nashville, Tenne ssee, for the appellant, Dennis J

. Rountree, J r.

Robert E

. Cooper, J r., Attorney Gene ral and Reporter ; L acy Wil ber, Assistant Attorney Gene ral; Victor S. J ohnson, I I I
, District Attor n ey Gene ral; and Dan Hamm, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP INION The Petitione r was orig inally char g ed with six counts of ag g ravated sexual battery

. He pleade d g uilty to two counts of attempted ag g ravated sexual battery
, judgme nts on those counts being enter ed ag ainst him on J uly 18, 2002. Those judgme nts ref lect a sentenc e of six y ear s on eac h count, to be serve d concur rently
, with all but nine months of the resulting six -y ear sentenc e to be

serve d on probation. The judgme nts ref lect that the Petitioner was to be treated as a sex offe nder and place d on the sex offe nder reg istry
, but do not ref lect that he was also to be sentenc ed to community supervision for life afte r the expiration o f h i s sentenc e, pursuant to Tenne ssee Code Annotated section 39-13-524. On J une 25, 2008, corr ecte d judgme nt s we re enter ed adding community supervision for life. The Petitioner then, on September 11, 2008, filed a petition for post-conviction relief contending t h at h e re ceive d the ineffe ctive assistance of counsel when enter ing his plea beca use he was not made awa re of the community supervision requirement. The post-convictioncourt summarily dismiss ed the peti t i o n as b ar red by the one-year statute of limit ations. I n this

appea l, the Petitioner contends that this dismis sal was e rror

.
The post-convi ct i o n court dismiss ed the petition for post-conviction relief based on its holding that the omission of community supervision from the Petitioner’s orig inal judgme nt forms

was a cler ical err or and t h u s co rr ec table at any time under Rule 36 of the Tenne ssee Rules of Criminal Proc edure

. The post-conviction court also noted this Court’s holding that “c orre ction of

a judgme nt pursuant to Rule 36 does not ex t en d t h e statutory period for filing a petition for postconviction relief

.” Kenne th J. H all v. State, No. E2000-01522-CCA-R3-PC, 2001 WL 543426, at *3 (Tenn. Crim. App., Knoxville, May 23, 2001) (c itation omit ted).

Tenne ssee Code Annotated section 39-13-524( a) states that, “[i] n addition to the punishment authorized by the specific statute prohibiting the conduct, any person who, on or afte r J uly 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 rec eive a sentenc e of community supervision for life.” The Petitioner pleade d g uilty of attempting to violate Tenne ssee Code Annotated section 39-13-504 as

a result of conduct that took place afte r J uly 1, 1996. This Court has held that the failure to include the mandatory community supervision sentenc e as part of a judgme nt results in an illega l sentenc e,
see State v. Br onson, 172 S.W .3d 600, 601-02 (Tenn. Crim. App. 2005), an d there fore
, does not

mere ly constitute a cler ical err or. As such, t he Petitioner’s judgme nts beca me final on J une 25, 2008, the day the corr ecte d judgme nts wer e enter ed. See Dennis Eug ene Evans v. State, No. E2004- 01059-CCA-R3-PC, 2004 WL 2853296, at *2 (Tenn. Crim. App., Knoxvi lle, Dec

. 13, 2004). The one-y ear statute of limit ations acc ording ly beg an to run on that date. I d.; see also Tenn. Code Ann. § 40-30-102( a). Be cause the Petitioner filed his petition for post-conviction relief within a y ear of that date, it is not nece ssary for us to decide whether due proce ss would require us to toll the statute of limit ations had the Petitioner not r ece ived notice of the corr ecte d judgme nt until m ore tha n one y ear afte r its entry

.

Be cause the Petitioner filed his petition within the limit ations period, we conclude
, and the State conce des
, that he has demonstrated he is entitled to reve rsal of the post-conviction court’s dismiss al of his petition and a r emand f or an e videntiary

hear ing on the claims there in.

T h e P et i t ioner additionally asks us to vacate his g uilty plea beca use he was not informe d about the community supervision require ment befor e enter ing the plea, either by his trial counsel or the ac ce p t i ng court, and there fore
, did not enter his plea voluntarily and intelligently

. See Hill v. L ockhar t, 474 U.S. at 56 (citing North C arolina v. Alford, 400 U.S. 25, 31 (1970)) . Although the dismiss al of his pe tition prevented the Petitioner f rom developing a full rec ord, he has included as

an attachme nt to his brief an aff idavit f rom Stephen G. Young
, his le ad trial counsel, in w hich Mr. Young aff

irms that h e wa s unawa

re of the community supervision require ment at the time the P et i t i o n er pleade d g uilty
, that he there fore did not discuss it with the Petitioner, and that to h i s knowledg e the Petitioner wa s not awar e of the require ment.

-2-The Petitioner also argues that the trial court’s failure to advise him of the supervision-for

life conseque nce of his conviction constituted a “fatal fl aw ” i n his g uilty plea which is “per se
err oneous.” The Petitioner asser ts that this prec ise issue is pending in the Tenne ssee Supreme Court. See Marc us Ward v. State, No. W2007-01632-CCA-R3-PC, 2009 WL 113236, at *11 (Tenn. Crim. App., J ackson, J an. 14, 2009), perm. to appea l g rante d, (Tenn. Apr. 27, 200 9 ). Reg ardle ss, we conclude that an evident iary hear ing is nece ssary to aff ord the State the opportunity to rebut the Petitioner’s claimed lack of knowledg e or allow the post-conviction court to c onsider whether any lack of knowledg e the Petitioner might prove by clea r and convincing evidenc e aff ecte d his decision to plead g uilty

. See Tenn. Code Ann. § 40-30-110( f); Momon v. State, 18 S.W .3d 152, 156 (Tenn. 1999).

Conclusion Ba sed on the fore g oing authorities and rea soning, we reve rse the post-co n v i cti on court’s summary d i s m i s s al of the Petitioner’s petition for post-conviction relief and rema nd for an evidentiar y hear ing c onsistent with thi s opinion.

______________________________ DAVI D H. WEL L ES, J UDGE

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