# FILED
August 20, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE FEBRUARY 1998 SESSION

TERRY L. CHARLTON, * C.C.A. # 01C01-9701-CC- 00002 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 Repor ter Nashville, TN 37204 Daryl J. Brand Assistant Attorney Gener al 425 Fifth Avenue North Cordell Hull Buildi ng, Second Floor Nashville, TN 37243-0493

OPINION FILED:__________________________

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

GARY R. WADE, JUDGE2 OPINION The petitioner, Terry L. Charlton, appeals the trial court's denial of h is application for post-convi ction 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 o f the judgment and remand to the tri al court for further proceedings consistent with this opinion.

Facts

On September 19, 1995, the petitioner pled guilty in Hi ckman County to two counts of aggrav ated burglary and tw

o counts of theft over $1,000.00. Tri al Judge Donald P. Harris imposed Range II sentences of si x years on each count and ordered two of the sentences to be served consecutive ly for an effective term of twelve years. The twelve-year t erm was ordered to be ser ved concurrently "w

ith [a] sentence [the defendant is] currently serving [with] TDOC" for a prior conviction in Cheatha m County.

On September 11, 1996, the petitioner comp leted and mailed this petition, alleging tha

t his pleas were "inv

oluntar[y] ... without understanding the nature or consequences...." At the same time, the petitioner fil ed 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 Hic kman County plea agreement. The Williamson County sentence of twenty -one years had been ordered to be served consecutiv

ely to the H ickman Count y term.

The record establishes that the petitioner was serv

ing an eighteen-3 year Cheatham County sent ence in the Department of Correc tion at the time of the Hickman County sentence. After determining that the tran script of the guilty plea established that Judge Har ris, who imposed the Hi ckman County sentences, had sought clarification before ac cepting the plea, Judge C lark denied relief. In doing so, she recited a portion of the submission hearing trans cript: Judge Harris: I cannot run a sentence concurrent w ith the sentence that you haven' t gotten yet. It wi ll be up to that judge [Cornelia A. Clark]. I feel confident that if somebod y tells her t hat that was the agre ement do wn here, that she'll run it concurrent, but I can't g uarantee you, and she may say ["n o, it's consecutive"]. I am certainly not going

to try to say w

hat Judge Clark wi ll do. After this statement, the assist ant district attorney general assured the tri al court that the concurrent sentence agr eement applied only to the Cheatham County sentence. When asked whether he was satisfied w ith that, the defendant answered, "Y es, that will be fine. Sentences I am already serving . I've already got eighteen years."

In dismissing the petiti on and motion, Judge Clark further observed as follows: This court has recently reviewed the vi deotape of the sentencing hearing in Williamson C ounty. The written and videotape record is c lear. The attorneys did r ecite the prior sentences imposed on the defendant. However, no assertion was made that any ag reement had been entered into or recommendati on made to run the sentence concurrently . In fact, no mention whatsoever was made of the discussion that occurred in Hickman County one month earl ier. After making reference to the dismissal of the po st-conviction petition, the trial court also ruled that the motion to amend the Hickman County sentence by asking for concurrent service w

ith the Williamson County sentence w as 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,1 Mandatory Consecuti ve Sentences. Where a defendant is convicted of multipl e offenses from one trial

or where the def

endant has additional sent ences not yet

fully served as the r

esult 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). 4 the petitioner reasserted that his guilty plea was involuntary. He insisted that portions of the transcript s upported his claim that he did not understand that the Williamson County sentences could be cons ecutive. Of greater si gnificance, the petitioner reiterated his complaint that the Department of Cor rection had refused to treat the Hickman County sentences as concurrent with his Cheatham County term because of a parole violation on the latter sentence. SeeTenn. R. Crim. P. 32(c)(3)(A). 1 In denying the motion to r econsider, 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 at torney 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, i n turn, requires a cons ecutive sentence, the ensuin g guilty plea under these circumstances i s knowingly and v oluntarily entered. Bailey v. State , 924 S.W.2d 918 (Tenn. Crim. App. 1995). Judge C lark ruled that based upon the Bailey opinion from this court, the petitioner could not claim i gnorance of the law.

In Bailey , the trial court had enter ed a summary dismissal of a postconviction petition base d upon the allegation of ineffectiv e assistance of counsel by5 the failure to warn that a g uilty plea could lead to revocation of parole and consecutive sentencing . By footnote, the panel expl ained 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 e veryday layman, that criminal convictions can lead to parole revocation. We find it equally apparent that th e parole revocating offense's sentence would run consecutiv ely to an existing paroled sentence.... We, the refore, reject petitioner's argument that he would not have pled g uilty had counsel informed him of information he i s presumed to possess. Bailey , 924 S.W.2d at 919. In th at case, the panel relied primarily upon a holding in Sheehan v. State , 411 So. 2d 824, 828 (Ala. Crim. App. 1981). The pan el also made reference to an Arizona cas e, State v. Young , 480 P.2d 345 (Ariz. 1971), which held that a defendant must be "p resumed 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 applicati on for permission to appeal to the supreme court.

Procedure Upon the filing of a post-conv iction petition in proper form, or upon receipt of an amended petition, our l aw requires tri al courts to subject the peti tion to "preliminary consideration." Tenn. Code Ann. § 40-30-206 . During this preliminary phase, the trial judge must examine the allegations o f fact in the petition. "If the facts alleged, taken as true,fail to show that the petiti oner is entitled to reli ef ... the petition shall be dismiss ed." 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 color able claim is "'one that all eges facts showing that the conviction resulted from an abridgment of a constitut ional right and which6 demonstrates that the ground for relief was not previously determined or waived.'" Id. , 948 S.W .2d at 284-85 (qu oting 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 basi c 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 f acts in support of his claim which would entitl e him to relief." Waite , 948 S.W.2d at 284 (secon d alteration in original). See also Tenn. Sup. Ct. R. 28(2)(H)

.

The amended Post-Conviction Ac t requires trial c

ourts, 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 dismiss

al, however, the statute requires the trial court to assume "as true" the facts alleged by the petitioner.

Several unpublished opini ons from this court have rul ed that at the preliminary stage, the trial judge is to assume the facts alleged in the petition are true. No authority ex

ists for the trial court to do independent fact investigation into the truth of the allegations. In Loring C. Warner v. State , No. 03C01-9610-CR00407 (Tenn. Crim. App., at Knox ville, Jan. 30, 1998), app. filed by petitioner , Mar. 26, 1998, the trial court summar ily dismissed a pro s

e petition after examining the record of the prior proceedings, ruling that the record and the petition "con clusively show[ed] that [Warner was] not entitl ed to relief." Id. , slip op. at 2. This court reversed on direct appeal and remanded for the appointment of counsel, c oncluding that "the court exceeded its statutory mandate, whic h was simply to ev

aluate the7 petition to determine whether a colorable claim was

stated, rather than to exami ne and adjudicate the factual merits of the allegations." Id. , slip op. at 3. A simila r result was reached in Garry E. Collins v. State , No. 01C01-9603-CR-00120 ( Tenn. Crim. App., at Nashvil le, Mar. 13, 1997). In Collins , the trial court took "j udicial notice of the [qualifications of tr ial counsel] and the properl y executed [w]aiv

ers of the [d]efendant." Id. , slip op. at 2. On appeal, this court ruled that the trial "court may not take judicial noti ce of the qualifications of defense counse l and the contents of the waiver so as to c onclusively determi ne 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 w ithout merit are not permiss ible. The preliminary stage is not the appropriate forum for adjudi cation of the facts of the
case.
By his claim that the pl ea was neither knowi ngly nor voluntar ily made, the petitioner has stated a colorable claim. The petitione r contends that his submission to the charges was brought about throug h a misapprehension that the Cheatham and Hickman County s entences would be concurr ently served. In summarily rejecting

that claim, Judge Clark followed our ruling in Bailey , a case in which this court may

have overlooked pri or opinions from our supreme cour t.
Controlling Precedent The record indicates that prosecution, the def ense, and Judge Harris in the Hickman County cas es all believed that sent encing concurrent wi

th the Cheatham County offenses was permissible. Two supreme court op inions address this issue and require

a different result than that reached in Bailey

.8 In Henderson v. State , 419 S.W.2d 176 (Tenn . 1967), our supreme court, through former Chief Jus tice Hamilton Burnett, rul ed that a plea agreement which included concurr ent sentencing for an offense committed w hile the defendant was on parole for a prior crime, rendered the plea v oid: We think even if as it is argued by the Warden that the man shou ld have kno wn what was going to happen and his submission, or what he agreed to or had traded for, couldn't work out li ke he thought it might[,] that he is entitled to go back and hav e a new trialas was ordered in the instant case. Id. , 419 S.W.2d at 178 (emphasis added). Servi ce of the concurrent sentences w as "what [the parties] thoug ht would happen, and [they] just [were] not rig ht." Id. Our supreme court ruled that w hen the accused enters a plea w herein all parties (the state, the defendant, and the trial judge) agree to a lesser sente nce than is permissible by law, "the accused should be allow ed to withdraw his plea." Id.
Our supreme court reaffirmed that r ule 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, whi ch was legislati vely mandated to be consecutive, was deemed a nullity and, if the con current 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 dir ect conflict with both Henderson and Burkhart . In Eugene Montgomery v. State , No. 03C01-9507-CC-00189 ( Tenn. Crim. App., at Knoxvi lle, Sept. 10, 1997), a panel of thi s court declined to follow the reasoni ng 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 o p. at 2. The panel follow ed the ra tionale of Henderson v. State , 419 S.W.2d 176 (Tenn. 1967), and remanded the cause for the appoi ntment of9 counsel and an evidentiary hearin g.

In our view, the petitioner has stated a colorabl e claim. Thus, the cause must be remanded for the appointment of cou nsel. 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 guil t. Included among those requir ed warnings are the r

ight against self-incrimination, the right to confront witn esses, and the right to a t rial by jury. Id. at 243. Yet the overriding Boykin requirement is that the g uilty plea must be know ingly and voluntarily made. Id. at 242-44.

In Wallen v. State , 863 S.W.2d 34, 38 ( Tenn. 1993), o ur supreme court ruled that several factors are relevant in determining whether a plea is voluntary and intell igent:

[A] court charged wi

th determining whether those pleas were "voluntary" and "intelligent" must look to various circumstantial factors, suc h as the relative intel ligence of the defendant; the degree of his familiar ity with crimi nal proceedings; whether h e was represented by c ompetent counsel and had the opportunity to confer with counsel about the options available to him; the extent of advice from counsel and the court concern ing the charges against him; and the reasons for his decision to plead guilty, including a desire to av oid 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 c ontended the trial transcri pt shows that "petitioner,trial counsel and the prosecutor ag reed to his sentences being served concurrently

to10 the sentences already impose d in Cheatham County" and that he only agreed to "a sentence of 12 years to be serv ed concurrently wi

th the sentences that he already had, which included a 12 y ear sentence that he was ser ving in the Tennessee Department of Correction." Judge Harris entered judgment reflecting the sentences would be concurrent, ther eby accrediting the as

sertion by the petitioner in this case.
If these allegations are tr ue, 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 i s entitled to rely upon the advice of his attorney, especially when confir med by the trial judge. In our view, the petitioner should have been g ranted counsel, allowed t o amend, and permitted an evidentiary hearing. If, based upon the particular circumstances of this case, it is establis hed that the plea agreemen t was enter ed into u nder 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 proceed ings. The motion seeking a declaration that the Hickman and Williamson County s entences be served concurr ently was properly denied.

________________________________ Gary R. Wade, Judge11 CONCUR:

_____________________________ William M. Barker, Specia l Judge

_____________________________ Curwood Witt, Judge