### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE Assigned on Briefs January 21 , 201 6

GORDON WAYNE DAVIS v. STATE OF TENNESSEE

Appeal from the Criminal Court for Knox County

No. 103692 Bobby Ray McGee , Judge

No. E 2015

- 0 0 772

- CCA

- R3

- P C

– Filed September 9, 2016

The Petitioner, Gordon Wayne Davis , pleaded guilt y to multiple felony offenses including one count of possession with intent to sell a Schedu le II narcotic in a park zone,

two counts of s ale of a Schedule II narcotic, one count of possession of a firea rm during the commission of a dangerous felony , and one count of simple possession

. In accordance with the plea agreement, the trial court sentenced the Petitioner, a Range II offender, to an effective sentence of fifteen years, to be served at 100%. The Petitioner filed a petition for post

- conviction relief in which he alleged that he h ad received the ineffective assistance of counsel and that his guilty plea was not knowingly and voluntarily entered. After a hearing, the post

- conviction court dismissed the petition. On appeal, the Petitioner maintains that his counsel was ineffective and that his guilty plea was not knowingly and voluntarily entered. After review, we conclude tha t the post

conviction court err ed when it dismissed the Petitioner‟s petition for post

- conviction

relief. We therefore reverse the p ost

- conviction court ‟s ju dgment

.

Tenn. R. App. P. 3 Appeal as o f Right; Judgment of the C riminal Court Revers ed

R OBERT W. W EDEMEYER

, J. delivered the opinion of the Court, in which N ORMA M C G EE
O GLE and C AMILLE R. M C M ULLEN

, J J. joined.

Joseph Liddell Kirk

, Knox ville, Tennessee, for the appellant, Gordon Wayne Davis

.

Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz

, Senior Counsel ; Charme Allen , District Attorney General; and Hector Sanchez

, Assistant District Attorney Gen eral, for the a ppellee, State of Tennessee.

OPINION

I. Fact s A. Guilty Plea Hearing2

This case arises from the Petitioner‟s indictment in multiple cases , numbers 99522, 9963 3 , and 99834

. Because n either the indictments nor the judgments of

conviction are included in the record

, we include the State‟s summary to the trial court at the April 2015 guilty plea hearing of the charges to which the Petitioner pleaded guilty :

[The Petitioner] will be pleading guilty to Count 1 to an amended offense.

Your Hon or, the case will be a Class B felony, that is, possession with

intent to sell Schedule II, cocaine, more than 26 grams, in a drug

- free park zone, not a drug

- free school zone. The parties have agreed to amend the

indictment to reflect as such.

. . . .

The recommended sentence, Your Honor, is 12 years at 100 percent, as a Range II offender. . . . The date of the offense was September 12th,

2011.

Counts 2 through 5 will be dismissed.

The [Petitioner] will also plead guilty in Count 6, to the Class D felony of possession of a firearm during the commission of a dangerous felony.

Recommended sentence in that case is the mandatory

- minimum, which is three years, to serve at 100 percent, consecutive to Count 1.

And that was the same date of offense, Sept ember 12th, 2011.

Counts 7 through 10 will be dismissed, per the agreement.

. . . .

Further, in 99522, the [Petitioner] will plead guilty in Count 1, to Class B felony, sale of Schedule II, cocaine, more than half a gram.

Recommended sentence is eight years to serve, at Range I, 30 percent, concurrent with 99363. . . . the date was August 31st, . . . 2011.

Count 2 will be dismissed.3 And he will plead, again, in Count 3 to a Class B felony, a sale of Schedule II, cocaine, more than half a gram.

Again, recommended sentence eight years to serve at 30 percent, Range I, concurrent with 99363 and to Count 1.

. . . .

Count 4 will be dismissed, per the agreement.

Finally, in 99 834, [the Petitioner], will be pleading guilty to the

lesse r

- included offense of simple possession, a Class A misdemeanor.

Recommended sentence, 11 months and 29 days, concurrent with

99363.

. . .

The date of the offense was February 9th, 2012.

Counts 2 and 3 will be dismissed, per the agreement.

Total effective sentence of 15 year s , to serve at 100 percent.

The trial court then questioned the Petitioner about the voluntariness of his plea and his understanding of his rights. The trial court informed the Petitioner that these pleas would be a part of his criminal record and could be used against him in the future.

The Petitioner indicated that he had reviewed the plea agreement with his attorney and

that he understood the agreement . The trial court went through each of the rights that the

Petitioner was waiving by pleading guilty, and the Petitioner indicated th at he understood. The Petitioner indicated that he was entering into the plea agreement freely, voluntarily, and knowingly. He said that he was pleading guilty because he was in fact guilty.

The State then summarized the facts that it would have shown had the case gone to

trial.

[Petitioner], this is to inform you that in 99363, the Grand Jurors for the State of Tennessee charge that in Count 1, on the 12th of September,4

2012, 1 you did unlawfully and knowingly possess with intent to sell a Schedule II controlled substance, more than 26 grams of cocaine within 1,000 feet of the real property of a public park, in violation of TCA 39

- 17

- 432 and 39

- 17

- 417, and against the peace and digni ty of the State of

Tennessee.

Further, in Count 6, on the same date, you did unlawfully and knowingly possess a firearm, that is a Ruger .357 revolver , with the intent to go armed during the commission of a dangerous felony, in violation of

TCA 39

- 17

- 1324, and against the peace and dignity of the State of

Tennessee.

. . . .

[Petitioner], this is to inform you that the Grand Jurors charged that

on the 31st of August, 2011, you did unlawfully and knowingly sell a Schedule II controlled substance, more than half a gram of cocai ne, in

violation of TCA 39

- 17

- 417, and against the peace and dignity of the State

of Tennessee.

And in Count 3, on the 6t h of September, 2011, you did, again, unlawfully and knowingly sell a Schedule II controlled substance, more than half a gram of cocaine, in violation of TCA 39

- 17

- 417, and against the peace and dignity of the Stat e of Tennessee.

. . . .

And, You [r] Honor, the parties agree to waive formalities in 99834, being a misdemeanor

.

The Petitioner offered a plea of guilty to each of these offenses, and the trial court entered his plea. The State then informed the trial court:

[I]f called to trial in thi s matter

, the State would call witnesses listed on both indictments, who would testify, first, as to the offense of 99522, Officer Terry Pate of the Knoxville Police Department Repeat Offender

1 We note that the State informed the trial court that the offense date as listed in the indictment was September 12, 2011. When summarizing the facts it listed the offense date as September 12, 2012. We again note that the indictment is not included in the record.5

Squad, utilized a confidential informant to make purchases of c rack cocaine

out of [an apartment] , which is the residence of [the Petitioner].

On August 31st, 2011, . . . Officer Pate utilized a CI, provided the CI with undercover funds and undercover audio and video recording devices. The CI was taken to [the same apartment] and met with [the Petitioner].

At that point, the CI exchanged $120 in undercover funds for an

amount of crack cocaine that was sent to the TBI crime lab to confirm it to be cocaine base, in the amount of 2.01 grams, that that evidence and the digital recordings were turned over to Officer Pate.

Again, on September 6, 2011, Officer Pate, again, used a confidential informant to purchase out of [the same apartment]. The same procedures were followed. And the CI was given, this time, $150 t o purchase what came back from the lab as 2.51 grams of Schedule II,

cocaine base.

The CI was observed going into that apartment, met with [the Petitioner], and exchanged the cash for the cocaine. The video recording

devices were turned over to the offi cers, as were the drugs.

. . . .

Now, Your Honor, based on those purchases of cocaine out of the residence, officers sought and obtained a search warrant for that residence, naming [the Petitioner] in the search warrant.

And on September 12, 2011, Officer Pate and other officers went to

execute that search warrant. They observed [the Petitioner] sitting in a vehicle. He exited the apartment, got into a vehicle and started driving away. Officer P ate had the [Petitioner] stopped because he also had a suspended driver‟s license.

[The Petitioner] was found to be in possession of what came back from the lab as 28.07 grams of Schedule II cocaine. Also, inside the residence were two revolvers, one of which was that Ruger.357 revolver stipulated to.6 Your Honor, officers . . . [M] irandized [the Petitioner]. And he agreed to speak with them. He admitted possessing the cocaine and that he had been selling out of the apartment for a period of time.

He further stated that he had traded an 8

- ball of cocaine, or an eighth ounce for two guns earlier that morning, and that he intended to then flip those guns for approximately $300.

He stated that he had sold marijuana that day and did possess . . . those 28 grams with the intent to sell them.

The events took place within 1,000 feet of Rock City Park, which is a park here in Knox County.

The Petitioner stipulated that the State would have proven these facts had the case gone

to trial. The trial court entered the Petitioner‟ s plea and the sentence agreed to by the parties. The trial court stated, “The total effective sentence is 15 years. And it says at 85 percent. It‟s actually 100 percent with the possibility of 15 percent reductions.”

B. Post

- Conviction Facts

In June 2014, the Petitioner filed a timely petition for post

- conviction relief alleging that his counsel was ineffective. The post

- conviction court appointed counsel and held a hearing during which the parties presented the following evidence: The

Petit ioner testified that three months after Counsel was appointed to represent him Counsel presented him with a plea offer from the State. He said that, at the time, he was aware that he had been charged with three separate felony drug

- related offenses. The Petitioner, who had a passenger with him at the time he was arrested for possessing
twenty

- eight grams of cocaine, said that he asked Counsel about a motion to suppress. Counsel told him that it was “too late or something like that.”

The Petitioner testified that his co

- defendant had a hearing on a motion to suppress but that the Petitioner never had such a hearing. The Petitioner said that his co

- defendant successfully defended the charges and was released from incarceration. The Petitioner

said t hat he discussed this fact with Counsel, who told him that his case was different

from his co

- defendant. Counsel explained that the State had separated their cases. The Petitioner said that he asked Counsel to file a motion to suppress but that Counsel n ever did.

The Petitioner agreed he ple a d ed guilty to possessing a firearm. He said that the firearm was found at the apartment, which belonged to Amber Evans. He testified that he7

had not rented the apartment and was not listed on the lease. The Peti tioner contended that, at the time of his arrest, he had not been staying at the apartment but rather he was just “hanging out” there because Ms. Evans was his friend from high school. The Petitioner said that there were “a couple of other people” who wer e selling narcotics out of the apartment.

The Petitioner testified that he and Counsel discussed a trial strategy. If the case went to trial, their plan included the Petitioner testify ing that he was not selling drugs in a

school zone. The Petitioner said that he did not understand how the school zone charge would affect his sentence, if convicted. The Petitioner said that he understood, with regard to the plea agreement, that he would serve 85% of his sentence. The Petitioner

said that Counsel first relayed the State‟s plea offer of eighteen years at 85%, but he

declined this offer. He said that Counsel never informed him of the total time he would serve pursuant to the plea offer he did accept. Counsel only told him that, if he lost at trial, he w ould serve thirty to sixty years in prison. The Petitioner said that he was “in shock” because he had never been to prison before and had never previously been charged with a serious offense. The Petitioner said that he ple ade d guilty to avoid a thirty

- y ear sentence.

The Petitioner testified that he discussed with Counsel the proof that he was within 1,000 feet of a school zone, but he said that Counsel never gave him an “actual distance” or a map. He did not independently believe that he was within 1 ,000 feet of a park. He said that he had never been to Rock City Park and that he was not aware that there was such a park in the vicinity.

The Petitioner said that he admitted to the p olice that he possessed the twenty

eight grams of cocaine that they had found in his pocket. The Petitioner acknowledged that he understood he would be charged with this offense. He said, however, that he was

unaware that he was in a park zone at the time

.

The Petitioner said that Counsel told him that he would serv e 85% of his sentence. He said that, however, he later learned that he wa s not eligible for release until 100% of

his sentence wa s served. The Petitioner also learned that his co

- defendant had been

released from incarceration. The Petitioner testified t hat he sought post

- conviction relief

after he learned that he would have to serve 100% of his sentence and after he learned that his sentences were ordered to run consecutively.

The Petitioner testified that Counsel told him before the guilty plea hear ing to respond “yes” to the trial court‟s questions. The Petitioner said that he complied with this request but did not really understand the substance of the trial court‟s questions . He said8

that he was not satisfied with Counsel‟s representation of him , a fact that impacted his decision to enter a plea of guilt.

During cross

- examination, the Petitioner acknowledged that he ple ade d guilty on June 27, 2013, and that, at the time, he understood that the agreement included a sentence of fifteen years of incarceration. The Petitioner conceded that the trial court at his guilty plea hearing informed him of his constitutional rights and ensured he understood those rights. He said, however, that he only answered that he understood those rights because

Coun sel told him to answer “yes” to the judge‟s questions.

The Petitioner agreed that he signed the guilty plea form itself but said that, at the time, he did not know that he was entering his plea as a Range II offender. He

maintained that he thought he would serve his sentence at 85% rather than 100%.

On redirect

- examination, the Petitioner said that, had he know n that he would

serve his sentence at 100%, he would not have pled guilty.

The State informed the trial court that it had spoken with Coun sel who informed the State that he had, in fact, told the Petitioner that the service of his sentence would be

at 85% and not 100%. 2 Additionally, the Petitioner‟s judgment reflected a sentence of

85%. The Petitioner‟s attorney and the post

- conviction co urt discussed that, while some sentences are subject to earning a fifteen percent reduction, the sentences in this case are

not.

Based upon this evidence, the post

- conviction court found:

I notice in the amended petition for post

- conviction relief, t he statement is made by agreement, the [P]etitioner received total effective sentences of 15 years, to be served at 100 percent; 12 at 100 percent for the park zone, plus three at 100 percent for the weapon offense.

Apparently, trying to put all this together . . . he did understand that he was being sentenced to 15 years at 100 percent, but was told by [C]ounsel that he would be eligible for up to 15 percent sentence reduction[]

. . . .

2 In practice, this Court finds it more beneficial to have Counsel testify rather than to have the State enter a stipulation regarding what Counsel‟s testimony would have been.9 [T]he claim here is ineffective assistance of counsel. And . . . what the [P]e t itioner must show is that the assistance of counsel that he received was so ineffective that his Constitutional right to a fair trial was violated, or some due process right was violated.

[A] great bit of what‟s happened here is the [ P]etitioner accepted his fate until he found out that [his co

- defendant] ended up getting out of jail . . . quicker than he was going to. He‟s looking at 15 years day

- for

- day. And, apparently, [the co

- defendant] go t out in, it looks, apparently, less

th an two years.

[The Petitioner] has no Constitutional right to the agreement that the State entered into with [the co

- defendant]. And so whatever the agreement was with [the co

- defendant], it could not violate [the Petitioner‟s] Constitutional right.

No w, this is not . . . I know the phrase, allow him to set aside his guilty plea. This is not a case that falls under the Rule of Criminal Procedure that allows the withdrawal of a guilty plea. The judgment clearly became final before this issue was raised

.

So the Court must look at this, not in terms of just setting aside a guilty plea, which, by the way, if the case . . . had been back at the time of the plea, this Court probably would have set it aside. But at this point, the

court has to look at it i n terms of whether or not . . . the advice rendered by [C]ounsel constitutes such ineffective assistance of counsel that [the Petitioner‟s] Constitutional rights had been violated, which brings this Court to this question: Is there a Constitutional right to a particular release eligibility date? And it would appear to this Court the answer to that question is no. There is no Constitutional requirement that a person who was sentenced to 15 years ever be released in less than 15 years. The State

has the r ight to keep them in prison for 15 years.

Release eligibility date doesn‟t mean you get out, it just means that, under our law, that‟s the point at which the State has to start considering letting you out.

And the fact that [the co

- defendant] is not go ing to have that release eligibility date, in this Court‟s view, does not constitute a violation of his Constitutional rights. And accordingly, the petition fails.10

It is from this judgment that the Petitioner now appeals.

II. Analysis

On appeal, the Pe titioner contends that his guilty plea was not knowingly and voluntarily entered because he thought that he was going to serve his sentence at 85% rather than 100%. He asserts further that Counsel was ineffective for misinforming him in this regard. He f

urther asserts that the evidence showed that he was frustrated with Counsel‟s lack of interest in pursuing a motion to suppress, and in explaining the park zone enhancement. He described himself as in a frightened, confused, and emotional

state when he en tered his plea of guilt. The State counters that the Petitioner has not proven that he is entitled to post

- conviction relief.

In order to obtain post

- conviction relief, a petitioner must show that his or her conviction or sentence is void or voidable because of the abridgment of a constitutional right. T.C.A. § 40

- 30

- 103 (201 4 ). The petitioner bears the burden of proving factua l allegations in the petition for post

- conviction relief by clear and convincing evidence. T.C.A. § 40

- 30

- 110(f) (201 4 ). Upon review, this Court will not re

- weigh or re

- evaluate the evidence below; all questions concerning the credibility of witnesses, t he weight and value to be given their testimony, and the factual issues raised by the evidence are to be resolved by the trial judge, not the appellate courts. Momon v. State , 18 S.W.3d 152, 156 (Tenn. 1999) (citing Henley v. State , 960 S.W.2d 572, 578

- 79 (Tenn. 1997)). A post

conviction court‟s factual findings are subject to a de novo review by this Court; however, we must accord these factual findings a presumption of correctness, which can be overcome only when a preponderance of the evidence is contr ary to the post

conviction court‟s factual findings. Fields v. State , 40 S.W.3d 450, 456

- 57 (Tenn. 2001). A post

- conviction court‟s conclusions of law are subject to a purely de novo review by this Court, with no presumption of correctness. Id. at 457.

The right of a criminally accused to representation is guaranteed by both the Sixth Amendment to the United States Constitution and article I, section 9, of the Tennessee

Constitution. State v. White , 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). The following two

- prong test directs a court‟s evaluation of a claim for ineffectiveness:

First, the [petitioner] must show that counsel‟s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the [petitioner] by the Sixth Amendment. Second, the [petit ioner] must show that the deficient performance prejudiced the defense. This requires showing that counsel‟s errors were so serious as to deprive the [petitioner] of a fair trial, a trial11

whose result is reliable. Unless a [petitioner] makes both showing s, it

cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington , 466 U.S. 668, 687 (1984); see also State v. Melson , 772 S.W.2d 417, 419 (Tenn. 1989 ).

In reviewing a claim of ineffective assistance of counsel, this Court must determine whether the advice given or services rendered by the attorney are within the range of competence demanded of attorneys in criminal cases. Baxter , 523 S.W.2d at

93 6. To prevail on a claim of ineffective assistance of counsel, “a petitioner must show that counsel‟s representation fell below an objective standard of reasonableness.” House

v. State , 44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State , 938 S.W.2d 36 3, 369 (Tenn. 1996)).

When evaluating an ineffective assistance of counsel claim, the reviewing court should judge the attorney‟s performance within the context of the case as a whole, taking

into account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell

, 753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court should avoid the “distorting effects of hindsight” and “judge the reasonableness of counsel‟s challenged conduct on the facts of the particular case, viewed as of the time of counsel‟s conduct.”
Strickland, 466 U.S. at 689

- 90. In doing so, the reviewing court must be highly deferential and “should indulge a strong presumption that counsel‟s conduct falls within the wide range of reasonable professional assistance .” Burns , 6 S.W.3d at 462. Finally, we note that a defendant in a criminal case is not entitled to perfect representation, only constitutionally adequate representation. Denton v. State , 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of ineffective assistance of counsel, „we address not what is prudent or appropriate, but only what is constitutionally compelled.‟” Burger v. Kemp , 483 U.S. 776, 794 (1987) (quoting United States v.

Cronic , 466 U.S. 648, 665 n.38 (1984 )). Counsel should not be deemed to have been ineffective merely because a different procedure or strategy might have produced a

different result. Williams v. State , 599 S.W.2d 276, 279

- 80 (Tenn. Crim. App. 1980). “The fact that a particular strategy or tactic failed or hurt the defense, does not, standing alone, establish unreasonable representation. However, deference to matters of strategy and tactical choices applies only if the choices are informed ones based upon adequate preparation.” House , 44 S.W.3d at 515 (quoting Goad, 938 S.W.2d at 369).

If the petitioner shows that counsel‟s representation fell below a reasonable standard, then the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating “there is a reasonabl e probability that, but for counsel‟s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at12

694; Nichols v. State , 90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability
must be “sufficient to under mine confidence in the outcome.” Strickland , 466 U.S. at 694; Harris v. State , 875 S.W.2d 662, 665 (Tenn. 1994). In the context of a guilty plea, as in this case, the effective assistance of counsel is relevant only to the extent that it

affects the volu ntariness of the plea. Therefore, to satisfy the second prong of Strickland

, the petitioner must show that “there is a reasonable pr obability that, but for counsel‟ s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hil l

v. Lockhart , 474 U.S. 52, 59 (1985) (footnote omitted); see also Walton v. State , 966 S.W.2d 54, 55 (Tenn. Crim. App. 1997)

.

In the case under submission, we conclude that the post

- conviction court err ed

when it d enied the Petitioner post

- conviction relief. According to the State, Counsel agreed that he informed the Petitioner that, in accordance with the plea agreement, he would serve his sentence at 85%. The Petitioner then entered his plea, and, during the hearing, all the parties agreed that the Petitioner‟s sentence was to be served at 85%. At the conclusion of the hearing, the trial court informed the Petitioner that his sentence was to be served at 100% with the possibility of fifteen percent reductions, seemin gly confirming w hat Counsel had said to the Petitioner. The difference to the Petitioner is two years and three months more of incarceration

. Counsel‟s informing the Petitioner that he would be released after serving 85% of his sentence was ineffective.

In order for the Petitioner to prevail herein, he must show, by clear and convincing evidence, that his attorney failed to properly advise him of the possible consequences of his plea and that C ounsel ‟ s failure to do so resulted in prejudice. Once a gu ilty plea has been entered, effectiveness of counsel is relevant only to the extent that it affects the voluntariness of the plea. In this respect, such claims of ineffective assistance necessarily implicate the principle that guilty pleas be voluntarily and intelligently made. See Hill,

474 U.S. at 56. We have concluded that Counsel was ineffective for failing to accurately inform the Petitioner that his sentence was not eligible for sentencing credit and that he would be required to serve the fifteen

- y ear sentence day

- for

- day. We, therefore, turn to

a ddress whether the Counsel‟s deficient performance rendered the Petitioner‟s guilty plea

un knowingly and in voluntarily entered.

When evaluating the knowing and voluntary nature of a guilty plea, the Unite d States Supreme Court has held that “[t]he standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open
to the defendant.” North Carolina v. Alford , 400 U.S. 25, 31 (1970). The cour t reviewing the voluntariness of a guilty plea must look to the totality of the circumstances.

See State v. Turner , 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995); see also

Chamberlain v. State , 815 S.W.2d 534, 542 (Tenn. Crim. App. 1990). The circumstances

include:13

the relative intelligence of the defendant; the degree of his familiarity with criminal proceedings; whether he was represented by competent counsel and had the opportunity to confer with counsel about the options available to him; the extent of advice from counsel and the court concerning the charges against him; and the reasons for his decision to plead guilty, including a desire to avoid a greater penalty that might result from a jury

trial.

Blankenship v. State , 858 S.W.2d 897, 904 (Tenn. 19 93) (citing Caudill v. Jago , 747 F.2d 1046, 1052 (6th Cir. 1984)). A plea resulting from ignorance, misunderstanding, coercion, inducement, or threats is not “voluntary.” Id

.

In the case under submission, the post

- conviction court found that the Petitio ner understood that he was being sentenced to 100% but that he could be eligible for release at 85%. The statement by the State, however, was that Counsel conceded that he told the Petitioner he would be released at 85%, with no mention of his being sente nced at 100%. The post

- conviction court also found that, had the Petitioner filed a motion to withdraw his guilty plea on this basis that the court “probably” would have granted the motion. The court went on to say, however, that because the Petitioner h ad no “Constitutional right to a particular release eligibility date” that he was not entitled to post

- conviction relief. We cannot agree.

We find instructive the cases discussing whether a petitioner is entitled to post

conviction relief in the context of the parole eligibility requirements of the sex offender

statute. These cases distinguish between circumstances in which the petitioner ‟ s counsel fails to inform the petitioner of release requirements of the sex offender statute

, and when the petitioner ‟ s counsel misinforms the petitioner of such requirements.

In Jaco v. State , 120 S.W.3d 828, 830 (Tenn. 2003), the petitioner argued that his guilty pleas to two counts of attempted rape were rendered unknowing and involuntary

because he was not advised o f the mental health requirements he would be required to meet as a sex offender, pursuant to Tennessee Code Annotated section 40

- 35

- 503(c) (2003), before he could be released on parole. In rejecting the petitioner ‟ s claim, our Supreme Court distinguished the facts of his case, in which he was advised of the accurate parole eligibility date but not informed of the specific conditions he would be required to meet to achieve release, from the facts in Howell v. State , 569 S.W.2d 428, 435 (Tenn. 1975), in whic h the Court granted a petitioner post

- conviction relief on the basis that he entered his guilty plea while under a misunderstanding about his release eligibility date:14 Unlike the defendant in Howell, Mr. Jaco was not misinformed about his parole eligibili ty date. He will in fact become parole eligible after serving thirty percent of his sentence although he may not actually be

released. His release eligibility date is simply the point at which he will be considered for parole under the applicable standar ds

. . . .

In this case, the post conviction trial court found that no sex offender has been released after serving only thirty percent of his sentence unless the mental health professional concluded that a future sex offense was physically impossible. N onetheless, a Range I standard offender convicted of a sex crime becomes parole eligible after serving thirty percent of the actual sentence imposed. Tenn. Code Ann. § 40

- 35

- 501(c) (2003). The required evaluation affects the likelihood of actual release, but it does not affect the release eligibility date. Thus, unlike the defendant in Howell, Mr. Jaco received accurate information regarding his release eligibility date prior to entering his plea.

Jaco , 120 S.W.3d at 832.

This Court similarly concluded that erroneous information given to a petitioner

- that certain of his sentences would run concurrently

- entitled him to the appointment of counsel and an evidentiary hearing on the issue of whether his guilty pleas were unknowing and involuntar y. Charlton v. State , 987 S.W.2d 862, 867 (Tenn. Crim. App. 1998). We held that a petitioner is entitled to “rely upon the advice of his attorney, especially when confirmed by the trial judge.” Id

. Further, we concluded that, “If, based upon the partic ular circumstances of this case, it is established that the plea agreement was entered into under the collective misunderstanding that [the sentences] would be concurrently served, the plea agreement should be set aside as neither knowing nor voluntarily m ade

. . . .” Id.

We have, in other instances, granted a petitioner post

- conviction relief when his guilty plea is entered after having been significantly misinformed. See Joseph A. Maine

v. State , No E2004

- 00143

- CCA

- R3

- PC, 2005 WL 1996631, at *7 (Tenn. Crim. App., at Knoxville, Aug. 19, 2005) (granting post

- conviction relief when a petitioner was misinformed about the sentences he would be required to serve), no Tenn. R. App. P. 11 application filed ; cf. Thomas Studdard v. State , No. W2004

- 00500

- CCA

- R3

- P C, 2006 WL 2771033, at *7 (Tenn. Crim. App., at Jackson, Sept. 27, 2006) (denying post

conviction relief when counsel correctly informed the petitioner of his parole eligibility date but failed to inform the petitioner about the requirements he must comple te prior to being paroled), no Tenn. R. App. P. 11 application filed

.15

In the case under submission, considering the totality of the circumstances, we

conclude t hat the Petitioner ‟ s guilty plea was not knowingly and voluntarily entered.

This is the Petiti oner‟s first “serious” offense, he had never before been incarcerated, and his trial counsel misinformed him about his release eligibility date. Counsel told the Petitioner that he would be released after serving 85% of his sentence, which is two years

an d three months less than he will be required to serve pursuant to this plea agreement. The trial court also misinformed the Petitioner his sentences were eligible for an up to fifteen percent reduction, confirming to the Petitioner the information given t o him by Counsel. These sentences must, by statute, be served day

- for

- day. The Petitioner turned down the State‟s initial eighteen year offer, which he believed would require him to serve between fifteen and sixteen years. He insisted, against Counsel‟s advice, on going to trial. Counsel then brought him a second offer by the State of fifteen years, to serve at 85%, or twelve years and nine months, and the Petitioner reluctantly agreed, only to later learn that he was required to serve two years and thr ee months more than Counsel had

stated

. He testified that but for the ability to receive this 15% credit he would have insisted on going to trial, and his credibility on that issue is not challenged. Under these circumstances, we conclude that the Petiti oner, relying on Counsel‟ s advi c e, was significantly misinformed. Therefore, under such circumstances, his plea cannot be found to have been knowing and voluntary. Accordingly, we re verse the post

- conviction

court‟ s d enial of the petition and remand for the Petitioner to withdraw his plea and for further proceedings consistent with this opinion.

III. Conclusion

Based on the foregoing reasoning and authorities, we reverse the judgment of the
post

- conviction court and remand the matter for the Petitioner to withdraw his best interest plea and for further proceedings consistent with this opinion.

_________________________________ ROBERT W. WEDEMEYER

, JUDGE