# FILED
August 13, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON MARCH 1998 SESSION DERRICK E. MEANS, ) ) No. 02C01-9707-CR-00248 Appellant, ) ) Shelby County v. ) ) Honorable John P. Colton, Jr., Ju dge STATE OF TENNESSEE, ) ) (Post- Convic

tion Rel ief) Appellee. )

FOR THE APPE LLANT: FOR THE APPELLEE: Randall B. Tolley John Knox Walkup 242 Poplar Avenue Attorney General & Repor ter Memphis, TN 38103 425 Fifth Avenue, North Nashville, TN 37243-0493 Peter M. Coughlan Assistant Attorney Gener al 425 Fifth Avenue, North Nashville, TN 37243-0493 William L. Gibbons District Attorney General 201 Poplar Avenue, Suite 301 Memphis, TN 38103 C. Alanda Horne Assistant District A

ttorney General 201 Poplar Avenue, Suite 301 Memphis, TN 38103

OPINION FILED: __________________________

REVERSED AND REMAND ED

PER CURIAM1 The petiti oner entered an Alford plea on a best interest basis to at

tempted second degree mu rder and a ggra vated robb ery af ter tak ing a J eep Che roke e fro m a She lby Co unty c ar de alers hip in 1993. After

asking the sal esman to turn on the e ngine, t he petit ioner pul led the sal esman from the vehicle a nd drove off t he car lot . The salesman jumped to get out of the way of the vehi cle and landed on the vehicle’ s hood; the sal esman fell off and suffered minor i njuries when the petit ioner drove into the street. The p etitioner also pled guilty to attem pted rob bery and m isdem eanor th eft for attem pting to take a w indow air-c onditioning unit from a Sears store. 2 OPINION The petitioner, Derrick E. Means, appeals the trial court’s denial of post-conviction relief. The issue presented for our review is whether the petitioner's guilty pleas wer

e knowingly and v

oluntarily made.

We re verse the j udgment and rema nd to the trial cour t. In our vie w, the petitioner's counsel w as ineffective and the pleas w ere not knowingly

and understandingly made.
Procedural Background

On July 5, 1995, the petiti oner pled guilty in state court to attempted second degree murder and agg ravated robbery, Cl ass B felonies; attempted robbery, a Class D felony; and theft under $500, a Class A misdemea nor. 1 The petitioner received thr

ee twelve-year sentences (two of them Range II and one Range III ) for the felonie s and a sen tence of eleven mo nths and twenty-nin e days for the misdemeanor theft convicti on.

The guilty pleas were the result of a negotiated plea agreement which provided that all of the petitioner's sentences woul d be served concurrentl y. The agreement also provided that the petitioner was to serve these state sentences concurrently with a prior federal sentence of forty-six months. This agreement is memorialized in the "negot iated plea agreement" and also on the judgment sheets.2 When the petitione r pled gui lty on July 5, 1995, he was giv en credit for 730 days ( two years) durin g wh ich he was incar cera ted in the c oun ty jail.

3 The petiti on for post- convicti on reli ef was fil ed in March or Apri l of 1996. The time stamp on the petition is n ot visible; how ever, the re spons e filed by the s tate and th e order a ppointing c ounse l to repres ent the pe titioner were filed April 30, 19 96. 3 The transcript of the submission hearing confirms tha t the petitioner, his counsel, the assistant district attorney, and the trial j udge, agreed that the state s entences should be served concurr ently with the federal sentence. The trial judge or dered that the petitioner be transferr ed to the Federal Bureau of Pris ons to begin serving his state sentence. Later, federal off icials refused to accept the petitioner.

At the time of his sentencing i n federal district court, the petitioner was in state custody but had not been convicted of the state offenses. The federal judgment ordered that his federal sentence be served concur rently with another federal sentence but did not address the pending state cases. After his sentencing in feder al court, the petit ioner was re turned t o state cu stody.

The petitioner did not appeal. H e has been serving time in state prison since July 1995. 2 He has yet to serv e any federal time.

Petition for Post-

Conviction Reli ef Within a year of the state court judgment, the petitioner filed a petition for post-conviction rel ief alleging that his pl ea was defective. 3 Post-conviction counsel was appointed and an amende d petition was filed July 15, 1996, alleging that petitioner's trial

counsel was ineffective.
An evidentiary heari ng was held February 27, 1997. The testimony demonstrated that Attorney Pa ula Skahan represented the petiti oner on the federal4 Ms. Skahan testi fied that she was appointed to represent the peti tioner i n federal cour t after he fire d his a ttorn ey follo wing a con viction . She was appo inted to ha ndle t he m otion for ne w trial, sentencing, and appeal. The petiti oner’s famil y then hi red Ms. Skahan to handl e the guilty pl eas on one se t of his state charge s stem ming from the theft of th e Jeep

. 4 charges 4 and the state charges stemming from the robbery at the car dealership. Attorney William Moore represented the petitioner on the remaining state charges. The record establishes that Ms. Skahan told the petitione r that all of the sentences, state and federal, would be ser ved concurrently. She acknowledged that the feder al authorities did, indeed, refuse to take the petitioner into custody. The petitioner testified that he would not hav e entered the guilty pl eas had he known his state and federal sentences would not be served concurrently

.

No one asked Ms. Skahan at the pos t-conviction hearing

if she ever discussed with federal offici als -- before the pleas w ere entered in state court -- the plan to have the state sentences concurrent with the federa l sentence already imposed. Our inference from the proof available is that she did not. It was not until after the sentencing hearing that Ms. Skahan learned the f ederal authorities would not honor the agreement. She contac ted the Federal Bureau of Prisons and was told state courts had no authori ty to order the petitioner into federal custody.
The trial court denied the petition for post-conviction relief, finding that the petitioner’s pleas were freely and voluntarily given and the attorney's representation was effectiv e. The petitioner was referr ed to the federal system for any possible remedy.

Federal Court

The petitioner tried to obtain relief in federal court. In 1996, while in state prison, the petitioner filed a motion in federal distri ct court asking to be tak en into federal custody. The dis trict court denied the req uest. On appeal, the United5 States Court of Appeals for the Six th Circuit noted that w hen the petitioner was sentenced in federal court he w as in state custody althou gh he had not been convicted or sentenced in state court. United States v. Derr ick Eugene Means , No. 97-5316, 1997 WL 584259, at * 1 (6th Cir., Sept. 19, 1997). The federal judgment directed that the petitioner’ s federal sentence be served c oncurrently with another federal sentence but did not address the state s entences because they had not been imposed. Later, federal officials chose not to accept the petitio ner until after the service of the state sentence. The Sixth Circuit upheld the district court's findings that (a) the dist rict court lacked the pow er to order the United States to run a federal sentence concurrently with a state sentence that had not been imposed; (b) the United States w as not a party to the state c ourt plea agreement; and (c) the state court could not order federal authorities to accept the petitioner for servic e of sentence. The Sixth Circuit ruled that federal prison officials are under no oblig ation to take state prisoners into custody until they are released from state sentence. Id. at * 2.
Appeal of Den ial of Post-Conv iction Relief In this appeal, the state concedes that the petitioner’s pleas were not knowingly made becaus e he had bargained to receiv e state credit for his time s pent in federal prison. Now,of course, he is servin g consecutive state and federal sentences.
During oral argument, this court encouraged the parties to attempt a settlement. Correspondence from th e state attorney general 's office indicates that the district attorney general's office in Shelby County has declined to engage in further plea negotiations w ith the petitioner. Both the s tate and counsel for the petitioner had asked that the matter be resolved by order

of this court.6 Knowingness of the Guilt y Pleas Findings of the post-conv iction court are binding on appeal unless the evidence preponderates other wise. Butler v. State , 789 S.W.2d 898, 899 (Tenn. 1990). This court may not r eweigh or reeval uate the evidence or substitute its inferences for those drawn by the post-conviction co urt. Moreover, the q uestions concerning the credibility of witnesses and weight and value to be given their testimony are for resoluti on by the post-convic tion court. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).

As conceded by the state, how ever, this court must c

onclude that the evidence in the record pr eponderates against the findings of the trial court. The petitioner's guilty

pleas were not knowi ngly entered. Clear ly, the petitioner pled guilty under the belief that he would receive credit toward his state sentence while in federal prison. The trial j udge ordered that the petition er be sent to federal prison. All parties relied on that directive. Once the sentence had been completed in the federal system, the petitioner was to be transferred to s tate prison to serve the remainder of his time. Because the petitioner was sent to state p rison first, he is, contrary to the intent of the plea agreement, serving consecutive sentences. His total time of incarceration w ill far exceed that anticipated in the agreement. Had the petitioner known the ter ms of the plea bargain would not be fulfilled, he would not have pled guilty to the terms offered. The petitioner has dem onstrated in this appeal that the evidence preponde rates against the trial court’s findings. Clenny v. State , 576 S.W.2d 12, 14 (T enn. Crim. App. 1978).

Ineffective A

ssistance of Counsel The representations made by the petitioner's attorney were directly related to his acceptance of the pl ea bargain and his pleading guilty. In order for the7 petitioner to be granted r elief on the grounds of ineffective a ssistance of counsel, he must first establish that the ad vice given or the services rendered w ere below "the range of competence demanded of attorneys in criminal cases." Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Second, he must show that the deficiencies "actually had an advers e effect on the defense." Strickland v. Washington , 466 U.S. 668, 693 (1984). Should the petitioner fail to estab lish either factor, no relief is warranted. As to gui lty pleas, the petitioner must establish a reasonable pr obability that, but for the errors of his counsel, he would not have entered th e plea and would have insisted on going

to trial. Hill v. Lockhart , 474 U.S. 52, 59 (1985).
On appea l, the fi ndings of fact mad e by the tri al court a re conclu sive and will not be disturbed unless the evidence in the record preponderates against them. Rhoden v. State , 816 S.W.2d 56, 60 (Tenn. Crim. App. 1991); Brooks v. State , 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the petitioner to show that t he evidence preponderated ag ainst those findings. Clenny , 576 S.W.2d at 14.

The petitioner claims that Attor ney Skahan had a duty to inv estigate whether the terms of the plea c ould be implemented before rendering advice on whether to accept the plea ba rgain. Attorney Skaha n testified that she represented the petitione r in federal cou rt on the motion for new trial, the s entencing hear ing, and the appeal. She was employed by the petitioner’s family on a limited basis, essentially to repres

ent the petitioner for the purpose of guilty pleas in stat e court. During the time she repr esented the petitioner, she neg otiated downward the offer by the state from twenty years to twelv

e years. She believed

that under the circumstances, particul arly the petitioner's eleven prior felony c

onvictions, that the agreement was favorable.8 Ms. Skahan had discussed the opt ion of a trial with the petitioner. The victim of the robbery had described the suspect as a l arge black man, six feet a nd nine inches tall, with a heavy build and gold dental work; the victim had positively identified the petitioner as the perpetrator. Ms. Skahan learned that the petitioner, who is apparently quite distinctive looking, had been identified by a person in addition to the victim. She did not believe it w as good strategy to o

ffer testimony from the petitioner's alibi witnesses because she di d not consider the witnes ses to be particularly credible. Ms. Skahan testified that the better tactic at a trial would have been to argue for lesse r offenses, such as robbery and aggravated assault. She acknowledged recommendin g that the petitioner acce pt the twelve-yea r offer.

Ms. Skahan said the agreement that the petitioner was to serve the time in federal prison was noted on "the paperwork ev ery place we could. " She recalled that she learned from the petitioner that the agreement had not been honored and conceded that federal authori ties told her that state cour ts had no authority to order concurrent sentences.

The effectiveness of the bargain depended upon the petitioner being sent to federal prison first. All parties assumed that the pe titioner would be accepted by the federal authorities. The trial court so ordered based upon the common perception that there w as authority to do so. In our view, Ms. Sk ahan had a duty to investig ate and determine whether the t erms of the agreement could be met before recommending the plea.

The record establishes that the petitioner has met the burden for demonstrating his counsel was ineffective. He has shown both deficiency in performance and prejudice in res ult. The standard of proving prejudice requires9 only a showing of "a reasonable probability ... sufficient to undermine con fidence in the outcome." Strickland , 466 U.S. at 694; Harris v. State , 875 S.W.2d 662, 665 (Tenn. 1994).

The lack of action by trial counsel was obvious ly not the result of bad faith. Yet the United States Supreme Court has previously observed just because the "breach of [an] agreement was inadvertent does not less en its impact." Santobello v. United States , 404 U.S. 257, 262 (1971).
Relief Now Sought in St ate Court The petitioner argues specific performance of the plea agreement is required when the defendant has suffered prejudice. While the petitioner conc edes that exact performance is not a vailable because of the state c ourt’s lack of authority over federal authorities , he asks this court to tai lor a remedy to embrace the o riginal intent of the parties.

The petitioner suggests several alternatives. Initially, he seeks immediate release from custody on the state charges base d upon time served. He contends he could then be transferr ed to federal prison to begin serving federal time. In the alternative, he asks this court to v acate the judgment, remand the cause, and instruct the pros ecutors to effectuate the intent of the plea agreement and to bargain in good faith. Finally, he argues that his state sentence should be reduced by forty-six

months, the length of his federal pr ison sentence, in order to reap the benefits of his bargain. He argues against mere ly setting aside hi s guilty pleas and restoring him t o his pre-plea status becaus e one of his alibi witness es (the petitioner's brother) has died since the submission hear ing.10 The state observes that speci fic performance is not available and suggests that the petiti oner either face a trial or negotiate another plea agr eement. The state argues against enforcement of th e bargain. The state points out that it cannot assume that the federal gov ernment will actually

keep the petitioner for as long as forty-six

months and that if the petitioner r eceived early parol e, the state would be without jur

isdiction to incarcera

te him for the balance of his state ter m.

The Problem of Concu rrent Sentences The Tennessee Rules of Criminal Pr ocedure do provide for concurrent service of s tate and federal sentences if expl icitly ordered by the trial court. Tenn. R. Crim. P. 32( c)(2); State v. Graham , 544 S.W.2d 921, 922 (Tenn. Crim. App. 1976). While authorized by the rule, the implementation of concurrent state and federal sentences has prov en to be difficult. See State v. Hun , 478 S.E.2d 579, 582 (W.Va . 1996). The practical problems with the rule are as a result of dual sovereignty. Neither sovereign controls the other's proc eedings. See United States v. Howard Thomas Pargen , No. 95-6253, 1996 WL 636193, at * 7 (6th Cir., Oct. 30, 1996) (Court found that state court lacked authorit y to order not-yet imposed federal sentences be served concurrently with state. The def endant's recourse is with the state who promised something beyond scope of authority.); Bloomgren v. Belaski , 948 F.2d 688, 691 (10th Cir. 1991)(Although state court ordered stat

e sentences t

o run concurrently with federal s entence whi ch became final after the imposition of the state sentence, federal authorities refused to take custody of the defendant until he was finished serving his state sente nce. The court ruled that the federal gover nment had no duty to take Bloomgr en into custody. "The determination by federal author ities that Bloomgren's feder al sentence would run consecutively to hi s state sentence is a federal matt er which cannot be over ridden by a state court prov

ision for concurrent sentenci ng on a subsequently-obtained11 state conviction."); see also Clark v. State , 468 S.E.2d 653, 655 (S.C. 1996); Del Guzzi v. Unite

d States , 980 F.2d 1269, 1270 (9th Cir. 1992) (State judge's author ity was limited to sending

defendant to state prison to serv e state time.)
The concurring opinion in Del Guzzi summarizes the problem fr

om a federal court's perspectiv e: State sentencing judges and defense attorneys in state proceedings should be put on no tice. Federal prison officials are under no obligation to, and may well refuse to, follow a recommendation of state sentencing judges that a prisoner be transport ed to a federal facility. Moreover, concurrent sentences imposed by state j udges are nothing more than recommendati ons to federal officials. Those officials remain f ree to turn those concurrent sentences into co nsecutive sentences by refusing to accept the state pr isoner until completion of the state sentence and refusing t o credit the time the prisoner spent in s tate cust ody. Del Guzzi , 980 F.2d at 1272-73 (Norri s, J., concurring); see also Hun , 478 S.E.2d at 582.

Relief

When a plea agreement is accepted and breached, one o f two results ordinarily follow

s. Either specific performance of the agreement is directed or the parties are restored to th e status existing i mmediately before the plea was entered. Harris , 875 S.W.2d at 666; Metheny v. State , 589 S.W.2d 943, 945 (Tenn. Crim. App. 1979).
When a guilty plea "rests in any significant degree on a pr omise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Santobello , 404 U.S. at 262; Avery v. United States , No. 93-6572, 1995 WL 6 223, at *3 (6th Cir., Jan. 5, 1995). Specific performance is a permissible remedy. Santobello , 404 U.S. at 263, 92 S.Ct. at 499;12 State v. Goosby , 917 S.W.2d 700, 70 7 (Tenn. Crim. App. 1995).

In arguing for relief, the petitioner relies on Harris and Goosby . In Harris , the Tennessee Supreme Court fashioned a remedy after affirming a low er court finding that Harris was denied the effective assistance of coun sel because his attorney failed to timely communicate a plea offer. When an accused is denied the effective assistance of counsel, the conviction cannot stand. Harris , 875 S.W.2d at 665. Violations of Sixth Amendment right to counsel can be ad dressed by tailoring appropriate relief. Harris , 875 S.W.2d at 666. T he Tennessee Supreme Court remanded the case to the trial c ourt instructing the s

tate to reinstate its gui lty plea offer and negotiate in good faith. The tr ial court was advi sed that it could accept or reject the original or

any other plea agreement w hich could be negotiated. Otherwise, the defendant wo uld face trial. Harris , 875 S.W.2d at 667.

In Goosby , a panel of this court also remanded a case to the trial court and directed the state to rein state its original pl ea offer after defense counsel was found to be ineffective for failing to challenge the trial cour t's rejection of the defendant's guilty plea. The state was ordered to neg otiate in good faith. The trial court could accept or rej ect any plea agreement reac hed by the parties. If no plea agreement was reached, the defendant would stand trial. Goosby , 917 S.W.2d at 708.

As in Harris and Goosby , this cour t suggests

several a lternativ

e forms of relief. Fashioning rel ief for the petitioner wil l take the combined good faith efforts of all involved. The parties are first encouraged t o make every effort to fulfill the intent of the plea bargain. Specific performance may, howev er, be impossible to effectuate. Both defense counsel and the district attorney 's office, while taking13 steps to preserve the integrity of the state senten ce, should contact the federal authorities and determine w hether the federal authorities w ould be willing to accept the petitioner for his federal s entence.
If specific performance is an imposs ibility, the parties should enter into new plea negotiations ta king into account the intent ions of the failed plea agreeme nt. The a greemen t failed through n o fault o f the pe titioner . In our view, plea negotiations and sentenci ng should take into account the time the petitioner has served in prison and in the county jail. I f these avenues do not provid e a satisfactory resolutio n, the petitioner may be all owed to withdraw his guilty pleas altogether and face trial.

PER CURIAM Gary R. Wade, Judge Jerry L. Smith, Judge