### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs N ovembe

r 20, 2002 STEVE E. TODD v. STATE OF TENNESSEE Direct Appeal from the Criminal Court for Davidson County

No. 93-B-901 Seth Norman, Judge

No. M2001-03080-CCA-R3-PC - Filed May 30, 2003

The petitioner, Steve E. Todd, pled guilty in 1994 t o two counts of rape of a child, receiving concurrent

twenty -three -y ear sen

tences a s a Ran ge I off

ender. He filed a post-conviction petition in 1995 alleging, inter alia , that at th e time of h

is pleas o f guilty

he had no t underst

ood th a t his sentences would be served without the

possibility

of parol e. Counsel, appointe d to repr esent him, filed an amended petition, which the post-conviction court dismissed following an evident iar y hearin g. This cour

t rever sed the di smissal and remand ed th e matter for additional findings to be made. Following the r emand, the post-conviction court granted the petition, concluding that the guilty pleas had not been knowing. The State appealed and, following our review, we reverse the order o f the p ost-c onvi ction court and rem and th is mat ter fo r anot her evi denti ary hearin g. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cr

iminal Court Reve rsed and Remanded
A L A N E. G LENN , J., delivered the opinion of the court, in which D AVID H. W ELLES and J OE G. R ILEY , JJ., joined.
Paul G. Summ

ers, Attorney Gene

ral and Reporter; David H. F indley , Assistan

t Attorne y General ; Vict or S . Johnson, III , District Attorney Gene ral; and Bernard F. McEvoy , Assistant District Attorney Gene

ral, for the appellant, State of Tennessee. Thomas H. Potter, Nashville, Tennessee, for the appellee, Steve E. Todd.
OPINION
FACTS
Becau se of the le

ngthy and compl

icated n ature of

this matter, w e will set o ut its history, as detailedin the opinion of

this court, released

on Ja nuary 26, 1999, remand ing for addit ional findi ngs to be made:-2- The petitioner testified at the post-conviction hearingthat he believedhe was pleading guilty to two c oun ts of rape of a child for which he would be sent enced as a Rang e I, standar d offend er to twenty-three

yearsfor eac

h count to b e serve d concur rently at thirty percen t. He said he belie ved he would be eligible for parole and behavior credits, and the o p portunity for parole was one of the reasons why

he acce pte d t he plea a

greem ent. He s aid he al so accepted the plea agr

eement because he did not

want the v

ictim, his daughter, to have to t es tify at trial. He said he discussed the agreement

wi th his trial attorney who e xplained that he would be sentenced to twenty-three

years to be

served at thirty pe

rc ent. He admitted that there was no me ntion in the

guilty plea petition, which he signed, of the possibility for pa role, but he also said there was no in di ca ti on th at he wo ul d h av e t o s er ve hi s s en te nc e d ay- fo r- da y. 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 rang e wa s fi fteen to twenty-five

ye ars, 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

senten ce of twenty-three

yearsfor each count to be served concurr ently . He said he explained t his offer t o the petitioner, and he believed he told the petitioner that

he would n ot get c

redit tow ard rel ease

because it was a child rape case. He said the petitioner was unha ppy about this fact, butthey discusse d it at some

length and talke d about the

possibility of going to trial. He said the petitioner felt forced

to accept the plea agreement

because under no circumst ances di d the petitioner wa nt his daughter to have to

testify . The atto

rney said that o

rdin arily, he writes on th e guilt y plea pet itio n whet her it is a R ange I or R ang e II sentence, and he tho

ught it wa s signif

icant th at ther e was no such range written o n the guilty plea pet ition in the

present case. H e said that although he discussed with the petitioner the fact that he wo

uld get no credit toward his release, he did n ot go over T.C.A. § 39-13-523 with the petitioner because he did no t think it was ne ce ss ar y. The attorney said that whe n the trial court read

the judgment saying th at t he p eti ti one r wa s s ent enc ed a s a R ang e I, stan dard offender at thirty perce

nt, he thought

that he (the attorne

y) had simply-3- misinterpretedT.C.A.§ 39 -13-523. He said he made no objectio n to the trial cou

rt's jud gment because it

was to his c li en t's benefit. He said that after the trial court pronounced the judgme nt, the petitioner askedhim what the trial cou rt meant, and the a

ttorney said he to ld the petitioner that he would serve thirty pe

rcent of his sentence and then be eligible

for par ole. He s aid

he explained to the p etitioner that most sex offende

rs are n ot gran

ted paro le on thei

r first r equest. He said that when the pe titioner left the courtroom, he (the attorney ) was und erthe impression that the petitioner had received a Range I sentenc e to be se

rved at t hirty percen t. On cross-examination, the attorney said he told the petitioner that his reading of the

statute indicated

that the p etitioner

would not receivecredit

for good time or program cr edits. He said ther

e was a notein his file

that rea d, "Note sent day -for-d ay since July

'92[ .]" He said that although he did not read T.C.A. § 39-13-523 to the petitioner, he inter

preted t he statute f or the petitioner. He said that the petitione

r read o r appea red to read

the guilty plea

petition which didnot say

that the p etitio ner w ould serv e only thirty percen t of his sentence. Th e assi stant district attorney g eneral who prosecuted the petit ioner 's case te stified th at on the j udgmen t form, she chec

ked both the box for chi ld rapist and the box for a Range I, standa rd offender. She said that she made a clerical er ror b ecause only

one box can be checked and that s hould hav e been th e child r apist box. She said

that when she gave th

e recom mended se

ntence t o the judge, it was not for a Range I, sta ndard of fender at thirty percen t. On cross-e

xamination, the prose

cutor te st ified that the petitio nerrec eived no assurance of parole. She said that whe n she talks toattorne

ys, it is her pr

actice to tell the

m that thei

r clientswill 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 g

uilty plea petition wh

i ch gave no indication that the p eti tioner wo uld serve only thirty percen t of his sentence. Steve E. Todd v. State

, No. 01C01-9612-CR-00503, 1999 WL 30678, at **1-2 (Tenn. Crim. App. Jan. 26, 1999).
We now will r

eview the procee dings fo llowing t

he rema nd to the po st-convi ction cou rt.-4-

Alth ough the docum

ent is not in

the technical record, an “Opinion” of the post-conviction court, bearing a stamped d ate of September 9, 1999, is included in the petitioner’s brief. In that docum ent, the court noted that on the judgment forms for the charg es against the petitione r, th e blocks were checked both for “standa rd 30% Range I ” and “child r apist,” which , the court determined, created a conflict. The opinion conc luded:

A close re ading o f the re cord in this cause raises grave doubt concerning the kn owledge of the defendant of [Tenn. Code Ann. § 39-13-523] at the time

he enter ed into thisplea ag

reemen t. This Courtis unable to satisfy itself tha t the def endant e ntered i nto this pl ea kn ow in gl y. This Court is of the opinion that the petitioner has carried the burden of proof required, and that the petition for post conviction relief should be granted. Bec ause the court has granted the pe tition on this particular ground, the others will not be addressed.
This document

bears a ty

ped notation indicating that copies were sent to counse

l. The fir st document in the technical record reflecting an action of t

he post-conviction court following the remandi s an order, bearing the c lerk’s st amp of Janu ary

4, 2000, g

ranting the petiti on for pos tconviction relief:
This cause was originally heard by the

Courton a Petition for Post Conviction Relief. The petition was denied by the Court af ter a hearin g. An appeal of the denial re sul ted in the Criminal Court of Appeals remanding thematter for further determination by the Court.
The Court has considered the case of State v. Burkhart , 5 66 S.W.2d 871 (Tenn[.] 1978) and has carefully studied the judg ement [sic] form file d in this mat ter purs uant to the

releva nt holding

in Burkhart

. The court therefore makes the fo llow ing fin dings of fact and conclusions of law:
FIN DIN GS OF FA CT
The petitione

r in th is matter was convicted as a [range] one standard offender at thirty percent (30%); The petit ioner wa s convict

ed as a child rapis t;-5- T he applica

ble statut e, T.C.A. Section 39 -13-523 r equir es a pe rson convicted as a child rapist “be required to serve the entire senten ce imposed by the court, undiminished by any sentenc e reduction credit such person may be eligible for or earn;” any credits the convicted personis eligible to earn may be used for

“any purpose other than the reduction of

the sentence imposed by the court.” T.C.A. Section 39-13-523 (b) “. . . Release eligibility status a nd parole shall not a

pply to or authorize the release of a multiple or

child rapist . . . prior

to se rvice of the entire sentence imposed by the Court.” T.C.A. Section 39-13-523 (c). The Governor and the B oard of Probation and Parole are estopped f r om releasing or causing the relea se of a child rapist “prior to the serve of the entire se nt enc e imposed by the Court.” T.C.A. Section 39-13-523 ( d)[.]
The record of this matter reveals the Petition er’s lack of knowl edge of

the effect of

the provisions of T.C.A. section 39-13-523 as it is applie d to his n ego tiated plea. It is apparent on the r ecord, therefore, that the p etitioner did not ent

er intothe plea in the matter sub judice kn ow in gl y; That a plea must be entere d into know ingly is well founded. Boy kin v. Alaba

ma , 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709; Statev. Mackey , 553 S.W.2d 3 37 (Tenn . 1977); State v. Neal , 810 S.W.2d 131 (Tenn. 1991).

CONCLUSIO NS OF LAW
The P etitioner did not enter his plea knowing the effec t o f T.C.A. Section 39 -13-523 o n a sente nce of c onviction

as a chil d rapist. The court holds that the Petitioner in this cause has carried his burden of proof in the Petition for Post-Conviction Relief.
It is therefore ORDERED, ADJUDGED, and DECREED that the Peti t ion for Pos t-Convict ion Relief

in this cas e is gra

nted this [illegible] day of

December 1999. This cause is returned to the Court for such further proceedings asma y be ne ce ss ar y. The Petiti oner is to b e returne d to the custody of the Da vidson County Sheriff’s Department so as to be available for further proceedings.
We note that

the orde r bearsthe ty

ped date as r elie f was granted on “this 29 th day of September

1999.” Howeve

r, handw ritten ch anges were ma

de so that the date was “this [illegible] day of December 1999. ” T he order does not bear a clerk’ s certificate as to copies being provided to the parties.-6-

On August 13, 2001, the petiti oner filed a motion to enforc e the ord

er gra nting pos tconviction relief, the motion reciting that on September 9, 1999, the post-conviction court had “filed a document

entitled ‘ Opinion’ in which it reversed its prior ruling and directed petitioner’s counsel to prepare an

order granting post-conviction re lief.” Additionally, the petitioner’smotion stated that on November 15, 19 99, the State “filed a motion for leave to present further a rgument and/or evidence,” and rec ited that a hearing was cond

ucted on M ay

12, 2000, a

pparent ly pursuan t to the State’s motion and that the petitioner had requested a transcript of that hea ring.
Su bs eq ue nt ly, the post-conviction court filed an opinionbearing the clerk’s stamped date of Novembe r 2, 2001, stating

as follow s: This is a Petition for Post Conviction Relief that has been before this Court for a con siderab le length o f time. I t concer ns a judgment which wa s origin ally

entere d in this c ause

February 3, 1994. Thereafter, the petition for post conviction relief was filed. The matter was heard, after lengthy

delay, and the

Court issued an opinion dated July 2, 199 8. That matter was appealed and on January 26, 1999, the Court of Criminal Appeals filedan opinion. That opinion r equiredthis Court to enter specific findings of fact. A fter th e remandorder w as rece

ived, the matter w as se t for f

urthe r heari ngs and, on September 9, 1999, the Court issued an opinion, as instructed by the Court o f Criminal

Appeals . In that

opinion, this Court su stai ned the Petition for Post Conviction Relief and instructed the a ttorney for the petitioner to prepare an order. T his order was subseque ntly pr ep ar ed an d s ig ne d b y t he Court. That orde r refle cts that it was fi led J anuary

4, 2000. H owever , the file reflec ts that in November

of 1999, the District Attorney Ge neral for the20th Judicial District f il ed an instrument styled: Motion For L eave To Present Further Argument And/Or Evidence. In May of 2000, counsel for the petitioner fil ed a mo ti on t o di spo se o f th at i nst rum ent . In August of 2001, t he pe titioner’s attorney filed a motion to enforce the order entered in January of

2000.
This Court has many case s assigned to it for determinat ion

. There is no way the Court can ke ep u p with each individual matter. The Court must rely on counsel for the S tate and fo r the petitioners and defenda

nts to tend to their various cases. This Court has looked at this matte

r on this da

te to try to deter mine the current s tatus of th is cause. Regar dless of

what ty pes of mot

ions have been fil ed in this cause subsequent to the entry of the orde r in this case, the order has been entered. It has bee

n signed by the

Judge. No appeal has been taken from that

order. T herefo re, this Court is of the opinion that the order filed in January of

2000 is in effect.1 Although the tra nscr ipt of this hearing recit es that i t occurred on Novem ber 2, 2002, we presume that t he corre ct da te i s November 2, 2001. -7- On November 29, 2001, the State filed a notice of appeal f rom this opinion.
ANALYSIS
The parties d

isagree as to wh at the issu es are i n this matter. The State, as appellant, pre sents the single issue of “[w]het her the d efenda nt’s gui lty

plea was knowing and voluntary .” In addition to that issue, the petitioner presents as issues whether the post-conviction court exceede d its manda

te on remandand whether the State’s appeal was timely, or, if not, should be waive d in the interest of justice.
To ascertai n wh ether the State timely appe aled the granting of post-conviction re lief, we briefly will review

the chronology

of this matter, focusing on the motion and orders.
As we have stated, the brief of the petitioner contains, although thetechnic al reco rd does not, a copy of wha

t appears to be a September 9, 1999, opinion of the post-conviction court stating that “[t]his Court is u nable to satisfy itself that the def endant entered into this plea knowingly ,” and granting post-conviction relief. Post-conviction counsel for the petitioner was directed to prepare an order reflecting the court’ s determination. On November 15, 1999, the State filed a motion seeking “to present further argument a nd/or evidence in support of its position that the Court’s initial rul ing in this matter was correct.” The post-conviction court’s orde r was then filed on J an ua ry 4 , 2000, concluding that the petitioner’s plea had not been “knowing” and grant ing post-conviction relief. At a hearing before the post-c onviction court on May 12, 2000, pursua ntto the State’s motion to “present further argume ntand/or evide nce,” t he St ate ask ed tha t the c ourt “ actual ly make fi ndin gs of fact in more detail and let the case g o up and f ollow the normal channels.” Post-conviction counsel advised the court that specific findings of fa ct and conclusions of law had been made, but the court in formed counsel that “[t]he order has not been entered.” T he court then directed e ac h counsel to prepare proposed findings of fact and conclusions of law for the court to review. Su bs eq ue nt ly, on Augu st 13, 2001 , post -conviction counsel filed a motion to enforce the court’s order granting post-conviction

relief, reciting that the order pre pared by c ounsel granting such relief “was executed December 21, 1999,” and filed on January 4, 2000. On November 2, 2001, 1 counsel again appeared before the post-conviction cour t, apparently, because the State had filed proposed findi ngs of facts and conclusions of law, which are not included in the record on appeal. L ater that da y, the court entered an order, reciting that the court’s order filed on January 4, 2000, w as “i n effect” and had not been appe aled.
This court may, " in the interest of justice," waive an untimely filing o f a notic e of appe al. SeeTenn. R. App. P. 4(a). The petitioner argues on a ppeal that the time for the State to file its notice of appeal b egan to

run on Sep tember 9 , 1999, when the co urt filed its opinion g

rantingpostconviction relief and

directing that post- convicti on counse l “prepa re an or der to thiseffec t.” This-8-

document , which is not included in the record on appeal, although re ferred to by

documents which are, a pparently re sulted in the State’s then filing its motion to present additional proof. Althou g h an order was entered on January 4, 2000, granting post-conviction relief, n either co unsel nor the post-conviction court was aware, as of the May 12, 2000, hearing, that the order had bee n entered and we note that the order does not show that copies were se ntto counsel. Post-conviction counsel’s motion of August 13, 2001, seeking enforcement of the order of January

4, 2000, should have put the State on notice that a prompt determination should be made as to whether there w as an order of the post-con

viction c ourt w hic h should be appealed. Howev er, cons idering the diffi culty

in identifying

which order of the post-conviction court trigg ered the period within which the State was to appeal, a s well as the fact that a determination has not been made a s to the credibility of the parties, which was the purpose of our earlier rema nd, we conclude that, in the interest of justice, we will treat the State’s appeal as timely

. To assess the confli cting c laims of the parties, we first will review the basis for this matter being remanded to the post-conviction court af ter the initial dismissal of the petition. During the 1997 evidentiary he aring, the petitioner testified that his belief as to the sentences hewas to receive would be “two counts, r

un concu rrent, tw enty -three

ye ars at thi

rty percen t, with a chance for parole. And that’s what I acc epted.” By contras t, the petitioner’s trial counsel testified at the hearing that he understood “that on a child rape that you don’t get cre dit toward rel ease.” He said that the petitioner “was not happy” about th

is informa

tion,” wh ich they discusse d “at some

length. ” He said that the petiti oner’s “ attitude a t that time was that h

e just lite rally was forc ed to take

what the S tate was willing to offer, because under no circumstances did he want his little girl to have to face a court and be examined.”
In the remand, this court set out the conflict between the testimony of the petitioner

and that of his trial counsel which resulted in the remand:

The petitioner also complains that his tr ial attorney wa s ineffective for fail

ing to expl ain to him th

e manner in which he would serve his sentence. At the postconv iction hearing, the petitioner stated that his trial attorne y to ld him he wo

uld serve thirty percent of his sentenc e and tha

t this wa s one of the reasons he accepted the agree ment. The trial attorney

testified to the contrary , stating that he didnot tell

the petitioner before his acceptance of the agreement that he would only

serve th irty percen

t. He said

that, in fa

ct, it washis belief that he told the petitioner he would be ineligible for early release because the convictions wer e for child rape.

. . . . We cannot discernwhether the trial court accredited the testimony of the petitioner or his trial attorney. A lthough it may be

possible to infer that the trial court accredited the attorney 's testimony, one of the main-9- purposes behind requiring an order with findings of fact and conclusions of law is to prevent this very type of spec

ulation o n appeal. A more de tailed order, addres sing al l of th e peti tion er's claims and containing more detailed findings of fa ct and conclusions of law, is needed.
Todd , 1999 WL 30678, at *4.
This matter was remanded initially because, other than inferent ially as a result of the dismissal of

the petition, we could not determine whether the court had ac credited the testimony of the petitioner or his trial counsel. Following the remand, the post-conviction cour t granted therelief sought, concluding that the petitioner’s pleas of guilty were not knowing. Thus, we now have the revers e of the original situation, fo r we now c annot determine, other than inferentially because of the post-con

viction c ourt’s re

versal o f its pre vious order, whether the post-conviction court accredited

the testimony of the petitioner or hi s trial counsel. Ac cording ly, we conc lude that this matte r must be reversed and remanded for a ppropriate findings of fact and conc lusions of law

. However, b ecause over

five y ears ha ve passe d since th

e eviden tiary hearing in this matter, we cannot conclude that the p ost-conviction court could , at this po int, make the requ ired find ings as t o credibi lity

and other matters. Accordingly , we remand for another evid entiary hea

ring as to the petition for post-con viction re li ef, and d irect tha t the pre siding ju dge of

the David son County Criminal Court reassign the matter to another division of cou rt for such hearing and other proceedings consistent with this opinion.
CONCLUSION
Based upon the foregoing authorities and re asoning, we reverse the orde r of the post

conviction court and remand this matter for proceeding s consistent with this opinion.

___________________________________ ALAN E. GL

ENN, JUDGE