# FILED
January 30, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JANUA RY 1998 SESSION
MELVIN CURRIE, ) ) NO. 02C01-9701-CC-00047 Appellant, ) ) HAYWOOD COUNTY VS. ) ) HON. DICK JERMA N, JR., STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPELLANT : TOM W. CRIDER District Public Defender JOYCE DIANE STOOTS Assistant Public Defender 107 South Court Square Trenton, TN 38382-1866 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter KENNETH W. RUCKER Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 CLAYBURN

L. PEEPLES District Attorney General LARRY HA

RDISTER Assistant

District Attorney

General 110 College Street, Suite 200 Trenton, TN 38382-1841

OPINION FI LED:

AFFIRMED

JOE G. RILEY, JUDGE2 OPINION

The petitioner, Melvin Currie, appeals the order of the Circuit Court of Haywood County dismissing his petition for post- co nviction relief. Petitioner pled guilty in 1991 to the sale of

coc aine and received a sentence of six (6) years w ith all time suspended except for time serv ed. In his post-conviction petition, he alleges that: (1) his guilty

plea was not knowing and voluntary; (2) he received an illeg al sentence; and (3) trial counsel was ineffective. Furthermore, he contends that his guilty plea should be set aside becau se there was no factual basis to support the plea. We find no error; therefore, the judgment of the trial court is affirmed.

PROCEDURAL BACKGROUND
Two years subsequent t o the entry of his guilt

y plea to thesale of cocaine, petitioner

filed a pro se

petition for writ of

habeas corp us, which was summarily dismissed by

the trial court without an evidentiary hear ing. This Court rev

ersed that decision, finding that: (1) the trial court erred i n dismissing the petiti on without appointing counsel and con ducting an eviden tiary hearing; and (2 ) the petition should have been tre

ated as o ne for pos

t-conv iction relief. Melvin Currie v. State , C.C.A. No. 02C01-9501-CC-00020, Ha ywood County (Tenn. C rim. App. filed September 13, 1995, at Jackson). The case was remanded to the tri al court. Subseque ntly, the tr ial c ourt issued an order appointi ng counsel, and petitioner

filed a petition for post-conv iction relief. After a he aring on the petition
was condu ct ed, the trial court dismissed the petition. Petitioner now brings this appeal.

FACTUAL BA CKGROUND

The subject guilty pl ea arose from a five (5) count indictment charging petitioner

with: (1) il legal s

ale of a coun terfeit controlled substance i n Count One;1 This count was eventually dismissed as it was barred by the statute of limita

tions. 3 (2) possession w i th the intent to sell or del iver cocaine in Count Two; (3) sale of cocaine in Count Three; (4) deliv ery of cocaine in C ou nt Four; and (5) simple possession of cocaine in Count F ive. 1 Petitioner

agreed to enter

a guilty plea

to one count of the sale of cocaine in excha nge for the dismissal of the remainin g charges. During the guilty plea proceedings, defense counsel stated, “[s]ubject to your Honor’s approval Mr. Currie and the State have agreed th at upon his plea of guilty to one countof sale o f a Sched ule II con trolled substance, to-w it, cocaine, that he wil l receive a six year s enten ce suspended with time serv ed.” (emphasis added). At no time during the proceedings did anyone specify that the plea was to any

specific count number of the indictment. The written plea of guilty and waiver of jury trial form listed the offense as one (1) count of selling a Schedule II controlled substance. This docu ment similarly did not enumerate the corresponding count number on the indictment. However, the judgment entered by the t rial court indicatedthat petitioner was convicted on Count One of the indictment, even though the document named the offense as the sale of co caine. The ind icted charge in Count One was the sale of
a counterfeit controlled substa nce, not the sale of cocaine. In other words , the judgmenterroneously specified that petitioner was conv icted on Count

One of the indictment, when, in fact, he p led guilty to Count Thr ee. Petitioner

seeks post-convicti on relief claiming that there is no factual basis fora conviction of the sale of coc aine under Count One of the indictment because the substance sold under Count One was not cocaine. At the hear ing on the petition, the trial court found that petitioner knowingly and voluntarily ente red a plea of guilty to th e sale of cocaine a nd accep ted a six (6 ) ye ar s entence with all time susp ended except for time served. The trial court determined tha t the entr

y o f “CountOne” on the judgment form was merely a clerical error in that “[t]here [was] no question in anybody’s mind, including Mr. C urrie’s, that he pled guilty to Count Three.” The court then ordered that the j udgment be amended to reflect the proper2 Another lab repo rt was also made a

n exhibit at the hearing which

stated that a bag of 13.4 grams of white powder did not contain any controlled substanc es. I t is this report whichpetiti oner refers to a s being determin

ative of his claim t

hat no evidence e

xists to support the convictionfor the sale of cocaine. However, we must conclude that this report is the basis for the initial charge of sale of a counterfeit controlled sub stanc e as alleged in Count One of the ind

ictment. 4 count.

CLERICAL ER ROR

Initiall y, we must agree with the trial court that this entire matte r arose out of
a mere technicality. Although the judgment does st ate that petitioner was c onvicted
on Count One of the in dictmen t, the tra nscript u nquestio nably sho ws that petitioner pled guilty to the sale of c ocaine. When there i s a conflict between the court minutes or judgment and the transcr ipt, the transcript

controls. State v. Moore , 814 S.W.2d 381, 383 (Tenn. Crim. App. 1991); St ate v. Davis , 706 S.W.2d 96, 97 (Tenn. Crim. App. 1985). Therefore, we conclude that peti tioner pled guilty to Count Three of the indictment, which charged the sale of cocaine. The trial court properly ordered the modification of the judgment to correct this clerical error. Clerical errors may be corrected at any time. See Tenn. R. Crim. P. 36.

VOLUNTARIN ESS OF GUILTY PLEA

Petitioner

claims th at his ple a of guilt y was invo luntarily and unknowingly entered because hedid not know that his pl ea of guilty was not supported by any facts. To the contrary, attached as an exhibit to the post-conv iction hearing is a l ab report which identifies 21.1 grams of white powder as cocaine, which was collected in connection with the case against petitioner. 2 Furthermore, the tri al cour t fo und that petitioner’s guil ty plea to the sale of cocaine was knowingly and voluntarily ente red. The trial judge's findings of fact on post-convictionhear ing s are conclusive on appeal unless the evidence preponderatesotherwise. Butler v. State , 789 S.W.2d 898, 899-900 (Tenn. 1990);5

Adkins v. State , 911 S.W.2d 334, 354 (Tenn. Crim. Ap p. 1 995). The burden of establishing that t he eviden ce preponderates otherwis e is on petitioner. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Petitioner has failed to meet this burden. This issue is without merit.

ILLEGAL SENTENCE

Petitioner

further asserts that his sentence of six (6) years is illegal because it falls outside the ran ge of punish ment for the sale of a counterfeit control led substance. However,as previously di scussed, petitioner pled g uilty to the sale of cocaine, not the sale of a counterfeit controlled substance. At the time the offense
was committed, the range of punishment for the sale of cocaine was four (4 ) to ten (10) years. Tenn. Code Ann. § 39-6-417(a)(1)( B)( i) (Supp. 1988). Therefore, because the imposed sentence of six (6) years is withi n the prescribed range, petitioner’s sentence is not illegal. This issue is without merit.

INEFFECTIVE A

SSISTANCE OF C

OUNSEL
Finally, petitioner claims that tr ial counsel w as ineffective in that he did not ascertain whether there was a factual basis to support the guilty plea. He maintains that he pled guilty in r

elian ce on his attorney’s err oneous advice. He also i nsists that he receive d ineff ective rep resenta tion in th at his att orney allo wed him to receive an illegal sentence. This Court reviews a

claim of ineffective assistanc e of c ounsel under the standards of Baxter v . Rose , 523 S.W.2d 930 (Tenn. 1975), and Stricklan d v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) . The petitioner has the burden to prove that (1) the attorney’s performance w as deficient, and (2) the deficient performance resulted in prejud ice to the defendant. Stricklan d v.3 We do not, however, concede that petitioner’s

allegations ar

e true. As previo

usly discussed, petitioner entered a knowingand voluntary guilty plea

to the sale of cocaine and received a sentence within the range permitted by the statute. Furthermore, petitioner has not established that tr

ial counsel’s per

formance was in

adequate or def

icient. 6 Washington , 466 U.S. at 687, 104 S.Ct. at 2064; Goad v. State , 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State , 874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State , 789 S.W.2d 898, 89 9 (Tenn. 1990). In Hill v. Lockhart , 474 U.S. 52, 106 S. Ct. 366, 88 L.Ed.2d 203 (1985), the SupremeCourt applied the two-part Strickland standard to ineff ective assistance of counsel claims arising out of a g uilty plea. The Court in Hill modified the prejudice requirement

by requiring a defendant to show that there is a reasonable probability that, but for counsel's errors,he would no t have p leaded gu ilty and wou ld have insisted on going to tr

ial. 474 U.S. at 59, 106 S.Ct . at 370. During petitioner’s testimony at the post-conviction hearing, t he fo llowing exchange took place: Q. Would you have pled guilty to Count Three that day which is a sale of crack cocaine -- a sale of cocaine if you had been advised t hat Cou nt One was a counterfeit substance? A. I probably would hav e. Theref ore, even if petitioner’s all egations were true, 3 he is not entitled to relie f

. Because petitioner would hav e pled guilty anyw

ay, he cannot prove pr ejudice. Thus, his ineffective assistance of counsel claim must fail. This issue is without merit.

CONCLUSION
Based upon the foregoing, the ju dgment of the trial court is affirmed.7 JOE G. RILEY, JUDGE

CONCUR:

JOE B. JONES, PRESIDING JU DGE

PAUL G. SUMM ERS, JUDGE