### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Februar y 25, 2 003 Session
DONALD McA RTHUR CARVER v. STATE OF T ENNESSEE
Direct Appeal from the Circuit Court for Cocke County No. 27,114 - III Rex Henry Ogle, Judge

No. E2 002-0 0297- CCA-R3 -PC July 15, 2003

The petitioner appea ls the d enial of his petition for post-conviction relief. He contends that he accepted his plea bargain on the condition that he would ser

ve his ten -y ear sen

tence in the count y jail. No such agreement

was cont ained in t he plea a greem ent or an nounced in open court. However, the testimony is overwhelming that tria l couns el gave

ass urance s to the pet

itioner th at, unles s his medical condition

chang ed or he w as a disc ipline pro blem, he w ould

be allowed

to serve his ten-ye ar sentence in the county jail. We concl ude the adv ice and assurances given by trial counsel were
errone ous, as contr

ary to the law . But for

said advice a nd assura nces, the petitioner would not have pled guilty. We rever se the pos t-conviction cour t’s denia l of relie f, allow t he petitio ner to withdraw his guilty plea, and remand

for new trial. Tenn. R. App.P. 3 Appeal as of Right ; Judgme nt of the Cir

cuit Cour

t Rever sed and Remanded

J OHN E VERE TT W IL LI AMS , J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R . and R OBER T W. W EDEMEYER , JJ., joined. Tim S. Moore, Newport, Tennessee, for the appellant, Dona ld McArthur Carver.

Paul G. Summers , Attorne y General and Repor

ter; Pete r M. Coug

hlan, Ass istant Atto

rney Genera l; Al C. Schmutzer , Jr., Distr ict Attorn ey Genera l; and JamesB. Dunn, Assista n t District Attorney General, for the appellee, State of Te nnessee.

OPINION

The petitioner, Donald McArthur Carver, contends that due to the ineffective assistance of his trial cou

nsel, he d id not ente

r a knowing gui lty p lea. Specifically , he claims th at, but for the
assurances trial counsel made that he would ser ve his ten -y ear sen

tence in the Cocke

County Jail unless his medica

l condition

worse ned or he was a discipline problem, he would not have pled gu il ty.-2-

Origina lly, the petiti oner ple d guilty on June 13, 2 000, to pos session of a Schedule II

drug (cocaine) with t

he intent to re se ll , a Cl as s B fe lo ny; possession of a Schedule VI drug (marijuana) withthe inten

t to resell, a Class E

felony ; and posse ssio n of dr ug paraphe rnalia, a Class A misdemeanor. Pu rsu ant to hi s pl ea a gre eme nt , t he p eti ti one r ag ree d t o be sen ten ced as a Ran ge I, st andar d offender, to ten years on the Class B felony , two years on the Class E felony, and ele

ven months, twenty-nine da

ys o n the Class

A misdemea

nor, with a

ll sentences to run concurrently . On June 4, 2001, he filed a petition for post-conviction relief which the post-convict ion cou rt, after a hearing , denied. It is f

rom this de

nial the p etitioner

now appe als.

After an evidenti ary

hearing , the post- convicti on court f ound that no agreement was approve d which would allow the petitioner to serve his ten-y ear sentence

in the Cock

e County Jail. On this point, we agree with the post-conviction court that ne ither the trial judge nor

the District Attorney’s office (each of which are indispen sable to a plea agreement) kne w of, discussed, or promised the petitione r that he could ser ve his ten -y ear sen

tence in the Cocke

County Jail.
However, to the extent t

he post-c onviction

court’sfinding

could be r

ead to find that tr

ia l counsel never

made assurances to the petitioner nor did the petitioner believe he would serve his tenyear sentence in the Cocke County Jail, we co nclude th e evidence preponderates ag ainst such a findi ng. We conclude that the advice and assurances g iven by trial counsel to the pe t itioner we re erroneous and served as the cornerstone of the pe titioner’s decision to plead guilty. The pe

titioner’s guilty plea w as therefore entered involuntarily , and he is entitled to withdraw his guilty ple a. Analysis

When a claim

of ineffective assistance of counsel is made unde r the Sixth Amendment, the petitioner bears the burden of proving (1) that c ounsel’s performance was deficie ntand (2) that

the deficie ncy was pre judicial in terms of

render ing a re asonable

probabil ity t hat the r esult of the trial
was unreliable or the proceedings we re fundamentally

unfair. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984) . This standard has also been applied t o the right to counsel under Article I , Section 9 of the Tennessee Constitution. State v. Melson , 772 S.W.2d 417, 419 n.2 (Tenn. 1989). When a petitioner claim s ineffective as sistance of counse

l in rel ati on to a guilty plea , the petitioner must prove that counsel performed deficiently , and, but for counsel’s errors, the petitioner would not have pled guilty but would ha ve, instea d, insisted upon going to trial. Hill v. Lockhart , 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985).

In Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court required that the services be rendered within the range of competence demanded of attorn eys in cri mi nal cas es. In reviewing counsel’ s conduc t, a “fair assessment of attorney performance

requires that every

effort be made to eliminate the distorting effects of hindsight, to rec onstruct the circumstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland , 466 U.S. a

t 689, 104 S. Ct. at 2065 ; see Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982).-3-

The petitioner bears the bur den of proving by c lear and convincing evidence the factual allegations which would entitle the petitioner to relief. Tenn. Code Ann. § 40-30-210(f). This Court is bound by the post-conviction court’ s findings of fact unl e ss the evi dence p reponde rates a gainst those findings. Fields v. State , 40 S.W.3d 450, 456-57 (Tenn. 2001).

The following are excerpts of testimony givenby trial c ounse l at t he pos t-con victi on hea ring: Q. Ok ay. And did h e have a concer n about wh

ere he w as going

to s erve hi s sentence? A. Yes, he did. He wa s v er y co nc er ne d a bo ut re ma in in g h er e i n C oc ke Co un ty. One of his primary conc erns was his medical condition because he did have
somedifficulties while he was here. He had some ra ther serious heart problemsand he was concerned about that and he was also concerned about stay ing clos e to his fa

mily for visita tion purpo ses and th

ings.

. . . . Q. And did he initially have rese rvat ions or not want to

enter in to a guil ty agreement

because of the unc ertainty

associa ted with where he

would serve the sentence? A. I think he had some mixed feelings about it partly because he wa s n’t comforta ble withentering a guilty plea at all but he was very

concerned about where he could spend his time. Q. Ok ay. Was he assured not only by you or did he hea

r anybody at the Sheriff’s Department

indicate to him that it wouldn’t

be a prob lem for him to s erve that sente nce her e in the Coc

ke County

Jail? A. WhatI told him was that I had talked to someone in the Sheriff’s Department and that it was my understanding that the Sheriff’s Department personnel would choose w ho was se nt when beds becam

e availa ble and that there were two situationsthat migh

t lead to him being sent to the penitentiary . One was if he developed a medical

condition

that they couldn’t deal with here and he couldn’t be released, that tha

t was a possibility. The second one wa s if he had disciplina

ry problemsthat he c ould

be sent. B ut I

had been assured that other than that, that he would not be scheduled to be sent and would not be if one of those two situations didn’t develop.

. . . . Q. Ok ay. And when was the last conversation y ou had with anybody except Mr. Carver about that issue as to where he was going to spend his time before the guilty plea w as entered? A. It would have b een th at mor ning. Q. Ok ay. A. Becau se that was really the key deciding factor I think to him. I think if he hadn’t gotten that assurance he wouldn’t have entered the plea.

. . . .-4-

THE COURT : Okay , let me as k yo u this: you said to

him apparently that

he could or he would stay at the Cocke County Jail unless he had a disciplinary violation
or he go t s ic k a nd th ey c ou ld n’ t h an dl e i t h er e i n t he co un ty? A. Those

are the two things that we talked about. I wo ul dn ’t ha ve sa id pr ob ab ly, I would hav e never

said worl d without e

nd. But I would have said these are the two things that

would most l

ikely trigg er that.

. . . . Q. Based

on your experience

up to that point, except fo r thos e two things you represented

to him that h

e would sta

y in the Cocke

County Jail unless one of those two things occurred? A. Yes. And I told him that it would b e u p to the Sheriff’s Department under any circ umstances as to what his placement would be. Q. So you

r advice to him, your discu ssion with h im was unle ss the Sheriff’s Department

had a pro blem with him he would stay

in the Cocke

County Jail? A. That’s e

xactly right.

. . . Q. And y ou told him th at it would be up to the

Sheriff ’s Depa rtment? A. Yes.

. . . . Q. And he knew that you had ta lked with the Sheriff

’s Depa rtment ab out that? A. Yes. Q. And that was the straw that broke the camel’sback as f

ar as him a

greeing to pleadguilty wasassurance that he would stay

here in t he Cocke County Jail to serve his sentence? A. Right.

. . . . Q. Well, of cours e my question w

hen we st arted th is case was whether that was the decid ing th ing th at mor ning t hat he agr eed to take the plea agreement because he was satisfied that he was g oing to stay her e. A. I was satisfied that he was g oing to stay her e. Q. And that was the deciding factor in y our opinion. . A. Yes. Q. . . in him tak

ing the p lea ag

reemen t? A. Yes.

The petitioner testified he was assured he would stay in the Cocke County Jail and but for those assurances, he w ould

not have pled guilty . The petitioner’s daughter testified and confirmed hi s t es ti mo ny.
We had the op

portunity to addre ss a simila

r claim by a petitioner

in State v. Johnny E. Foster , No. 01C01-9510-CC-00342, 1996 Tenn. Crim. App. LEXI S 589 (Tenn. Crim. App. Sept. 30, 1996, at Nashv ille ). The contr olli ng factor in dec iding both Foster and the instant case is the testimony givenby trial counsel. In Foster , the tria l counsel testifie d he repe atedly

told his client that it would-5-

be impossible under

Tennessee law for a

judge to sentence any

one to a ten-ye ar prison term in the county jail. Wher

eas, in the instant c ase, tria l counsel testifie d that the

controlling fac tor in th e petitioner’s decision to plead guilty w as where he would serve his sentence. Trial counsel attempted to assure the petitione

r that unle ss he bec ame sick or a disc ipline pro

blem, he w ould serv e his entire ten-yea r sentence in the Cocke County Jail.

Trial counsel’s mistaken advice was not reasonably competent. One convicted of possession of a Sche dule I

I dru g (coc aine) wi

th the inte

nt to rese ll and ordered to serve

a ten-ye ar sentencein the Tenness ee Depa

rtment of Co rrection shoul d not expec t to serve his sente nce in a c ounty

jail. Tenness ee Code A

nnotated section 4 0-35-314 (a) pro vides: If confinement is directed, the cour t shall des ignate the plac e of conf

inement a s a local jail or wo

rkhouse if required pursuant to § 40-35-10 4(b) or, if the sen

tence is eight (8) yea rs or less and combined with periodic or split confinement not to exceed
one (1) yea

r, the court shall designate the place of c onf inement as a l ocal jail or workhouse. If confinement in a loca l jail or workhouse is not mandated by § 40- 35- 104(b), § 40-35-306 or § 40-35-307, all convicted felons sentenced after November 1, 1989, to continuous confinement for a p eriod o f one (1) y ear or more shall be sentenced to the depart ment of correction. After November 1, 1989, if a court sentences or has sentenced a defendant to a loca l jail or workhouse when such court was not authorized to do so by this chapter, it shall be deemed that such sentence was
a se ntence to the department, and the commissioner of correction shall have the authority to take su ch a def

endant in to the cus tody

of the de partmen t.
This code section clea

rly requires that any

sentence of confinement

over eight years is to be served in the Tennessee Department of Correction. Trial counsel believed and advised the petitioner that whoever is sent to th

e state p enitentia

ry is within the discr

etion of th

e County Sheriff . This advice i s not compe

tent.

Tennessee Code Annotated section 40-23 -103 s tates tha t “[i]t is the d

uty of the she

riff in whose custod y the defendan t is at the r endition o f the judg

ment, or a

fterwa rds leg ally

comes, to execute the judgment of imprisonment by committing the defe

ndant, as soon as possible, to jail, or to th e w ar de n o f t he pe ni te nt ia ry, accord ing to the exigenc y of

the writ. ” This Court has interpreted “as soon as possible” to mean as soon as space is available a t the penitentiary. See Statev. David Wayne Walker and Neely

Lenard Love , No. 02C01-9304-CC-00066, 02C01-9304-CC-00067, 1993 Tenn. Crim. App. LEXI S 723 (Tenn. Crim. App. Oct. 20, 1993, at Jackson). Therefore, in this case, we conclude that we are to interpret “ as soon as possible” in its most literal sense. Another troubling portion of trial counsel’s testimony occurred when asked: Q. Have y ou had other cases where tha

t was an is sue and w

here defendant s entered plea agreements on the

understanding they

would stay here

and it was not i n the p lea agre ement or oth erwis e note d in wr itin g? A. Yes.-6-

Agree ments concer ning p lea bar ga ins are made with the District Attorney’ s office and approved or rejected by

the trial judge. Trialcounsel s hould not make side agreements with third parties which serve as the cornerstone of the c lient’s decision to enter a guilty plea, without disclosing such agreement to the District Attorney and the trial judge.

We are equally

troubled by the trial counse l’s performance in open court when the trial judge, at plea submission, asked the

petitione r “if anybody had promised you any

thing other than what’s been said in open court tod ay .” The pe titioner a nswere d, “No,”and tria

l counsel didnot respond. Here, trial counsel knew assurances had been given to the petitioner that he could serve his ten-year sentence in the Cocke County Jail and the assurance s served a s the key factor in his decision to enter a guilty plea

. Trial counsel’ s silence

does not f ulfill the obligat ion to fully advise the trial court of the terms of the plea bargain. As stated in Tennessee Criminal Practice and Procedure:

[T]here is a very pra

ctical side to disclosure. To insure that a defendant’s plea is voluntary the judg e must distinguish between promises from others and promises that result from

plea agreements. I

n addition, the judge must make a careful inquiry regarding th e nature of the plea agreement so that the defendant may understand whether the judg e will be “

bound” by

the plea agree ment. David LouisRaybin, Tennessee Practice: Criminal Practice and Proce dure § 22.96 (V ol. 10, 1985) (footnotes omitted).

It is clear from this record that the trial judge wa s not bound and c ould not agree that the pe titioner serve hi s entire t

en-y ear sen tence in the Cocke

County jail. What i s in th e client’s bes t in ter est is to plea bargain terms that are enfor ceable. By

failing to disclose the side agreement or assurance, the court is not bound and the client is effectively denied the bene fit of any bar

gain.

Conclusion

Trial counsel g ave inco mpetent a dvice to t he petitio ner that

if he pled guilty he w ould serve his ten-yea

r sentence in the Cocke

County jail unles s his medica

l condition

worsene d or he be came a discipline problem. This assur ance wa s the key

factor in the pet itioner’ s decisio n to pl ea d g ui lt y. We conclude

that the incompete

nt advice render s the petit

i oner’s guilty p lea invol

untary . We reve

rse the post-conviction court’s denial of relief, allow the petitioner to withdraw h is gu ilty plea, and remand f or trial.

______________________________ JOHN EV ERETT WIL

LI AMS, JUDGE