### IN THE CO URT OF CR IMINAL APPEALS OF T ENN ESSEE AT NASHVILL E Ass ig ne d o n B rie fs Decem be r 8, 2 00 9

CHARLES EDWARD MERI WEAT HER v . STATE O F TENNESSE E

Appeal f rom the Cr im inal Cou rt for Davidson Coun ty Nos. 2005-B-713, 2005-C -1868 Seth Norm an, Jud ge

No. M2008- 02329-CCA -R3-P C - F iled Janu ary 7, 2010

The petitioner, Charles Edwar d Meriwe ather
, appea ls the denial of his pe tition for post-conviction relief
, arg uing that he rec eived ineffe ctive assistance of counsel and th at h i s gu i lty pleas wer e therefo re unknowing and involuntary
, due to counsel’s failure to inform him that the sentenc es contained in his plea barg ain ag ree ment wer e illega l. The State conce des that the petit i o n er ’s
sentenc es are illega l, rende ring his g uilty pleas unknowing and involuntary

. We ag ree that the plea barg ain contains illega l sentenc es and, acc ording ly
, reve rse the judgme nt of the p o s t- c o n v ic ti o n c o u r t and rema nd the case to the trial court for the petitioner to be allowed to w ithdraw his g uilty pleas.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt R ever sed and Rem anded

A L A N E. G L E N N , J
., delivere d the opinion of the court, in which D A V I D H. W E L L E S and R O B E R T W. W E D E M E Y E R , J J ., joined.

Mark A. K ovach, N ashville, Tenne ssee, f or the a ppellant, Charles Edw ard Me riwea ther.

Robert E. Cooper, J r., Attorney Gene ral and Reporter ; Clarenc e E. L utz, Assistant Attorney Gene ral; Victor S. J ohnson, I I I
, District Attorney Gene ral; and Dan Hamm, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP INION

F ACTS

I n 2006, the petitioner pled g uilty in two separ ate case s to sale of .5 g rams or more of coca ine and “sale of c/s over 26 g r or more coc.,” Class B felonies. Pursuant to the terms of his ne g otiated plea ag ree ment, he was sentenc ed as a Rang e I I
, multipl e offe nder to twelve y ear s for eac h offe nse, with o n e y ea r t o serve at 100 perc ent in the Depa rtment of Correc tion, followed by five y ear s of supervised probation. The sentenc es wer e order ed to be serve d consec utively
, for a total of two y ear s to serve at 100 percen t in the Depa rtment of Correc tion, followed by a term of ten y ear s ofs u p ervised probation. On November 21, 2006, the petitioner filed a pro se petition for p o s t

conviction relief

, followed by an amende d pro se petition, in which he raised claims of ineffe ctive assistance o f counsel and unknowing and involuntary g uilty pleas. Following the appointm ent of post-conviction counsel, the petitioner subsequently filed additional amende d petitions in which he alleg ed, among other things, that his g uilty pleas wer e unknowing and involuntary beca use the day

to-day sentenc es contained in his plea ag ree ment preve nt him from rec eiving statutorily -manda ted
g ood-time cre dits and, thus, are illeg al.

At the J uly 16, 2008, evidentiar y hear ing, the petitioner complained that trial counsel, among other thing s, failed to f

ully explain the ramifications of his g uilty pleas, including the invalidity of his day -for -day sentenc es and the fact that the appellate courts have held that a def endant “cannot be made to g ive up any g ood cre dits[ .]” On cross-e x amination, he conce ded that he had enoug h prior felony convictions at the time of his g uilty pleas to have been classified as a Rang e I I I
, p ersistent offe nder. He also acknow ledg ed that he had committed one of the offe nses to which he pled g uilty while out on bond for the other offe nse, which require d that the sentenc es be serve d consec utively

. Trial counsel testified, inter alia
, that he fully discussed with the petitioner his criminal rec ord, the char g es and evidenc e ag ainst him, the potential sentenc es he fac ed if convicted at trial, and the ramifica tions of his ple a ag ree ment. He said that the petitioner was very knowledg eable about the criminal justice sy stem, understood what he was fac ing and the conditions of his plea ag ree ment, and

was “ver y happy ” with the plea barg ain he rec eived in the case. On cross-e x amination, counsel testified that he a

nd the petitioner discussed that the petitioner would have to se rve two y ear s day

for- day , but that, to his recollection, “[t]he term g ood time never came up.”

The post-conviction court denied the petition in a written order enter ed on October 6, 2008, finding that trial counsel was not defic ient in his repr esenta tion and that the petitioner’s g uilty pleas

wer e knowing and voluntary

. Wit h respe ct to the petitioner’s claim that his da y -for -day sentenc es

wer e illeg al, the post-convic tion court made the following finding s and conc lusions:

A t th e e v id e n

ti a r y h e a r in g , the petitioner broug ht another claim not mention e d in the Petition: that counsel wa s ineffe ctive for allowing petitioner to plead g uilty 1
to a n illega l sentence

. Post-Convi ction counsel claimed that day -for -day sentenc es

are not valid. He contends that day -for -day sentenc ing illega lly deprive s a convicted individual of sentenc e reduc tion cre dits t o which he is statutorily entitled. See T.C.A. 41-2-111 (b). Howe ver, courts can order sentence s of spl it confine ment so long a s the period of confine ment does not exceed the prisoner’ s rele ase eligibility d at e. J onathan Thornton v. State, No. E2003-00393-CCA-R8-PC, 2003 W L 1233478 (Tenn. Crim. [App.] at Knoxvi lle, Mar[.] 17, 2003); State v. J ames Kevin Under wood, No. E2000-01945-CCA-R3-CD, 2001 WL 872436 (Tenn. Crim. App. at Knoxvil le, Aug . 2, 2001).

T h e p e t i t i o n e r r a i s e d t h i s i s s u e i n t h e “ L a w a n d A r g u m e n t ” s e c t i o n o f a n a m e n d e d p e t i t i o n f o r p o s t

- c o n v i c t i o n 1

r e l i e f f i l e d o n t h e s a m e d a y a s t h e e v i d e n t i a r y h e a r i n g

.
-2-ANALYSIS

On appea l, the petitioner contends that the sentenc es contained in his plea barg ain ag ree ment

are illega l beca

use day -for -day service deprive s him of hi s statu t o ry rig ht to ear n g ood conduct or authorized work cre dits. The State ag ree s that the sentenc es are illega l, noting that the petitioner was ineligible f

or proba tion and that “[w]hen a trial court imposes split conf inement, the law is settled that the court cannot deny a defe ndant the statutory rig ht to ear n g ood conduct cre dits or authorized work.”

We ag ree that the sentenc es are illega l, rende ring the petitioner’s g uilty pleas unknowing and involuntary

. Pursuant to T ennesse e Code Annotated section 40-35-303, a defe ndant is elig ible for probation, subject to cer

tain exceptions, if the sentenc e actua lly imposed on him is ten y ear s or less. Since the petitioner rec eived a twelve- y ear sentenc e for eac h conviction, he was statutorily ineligible for probation. Tenn. Code Ann. § 40- 35-303(a ) (2006)

. Moreove r, a defe ndant who is sentenc ed
to a period of continuous confine ment followed by probation is to serve his sentenc e of incar cer ation in the local jail or workhouse. Tenn. Code Ann. § 40-35-306( a) (2006); see also State v. Stephanie C. Hadley
, No. M2002-02441-CCA-R3-CD, 2003 WL 21957078, at *2 (Tenn. Crim. App. Aug

. 15, 2003) (“The desig nated place of confine ment for split confine ment sentenc es must be the local jail

or workhouse.” ). Fur

the r mo r e , Tenne ssee Code Annotated section 41-2-111 provides that a prisoner who has been sentenc ed to the county jail or workhouse for any period of time less than one y ear has the rig ht to ear

n g ood time cre dits. See Tenn. Code Ann. § 41-2-11 1 (b ) (2 0 0 6 ); s ee also State v. J are d M. Ba

rnes, No. E2001-00325-CCA-R3-CD, 2001 WL 1565484, at *9 (Tenn. Crim. App. Dec

. 10, 2001); J ames Ke vin Underw ood, 2001 WL 872436, at *3. Acc ording ly
, we conclude that the post-conviction cour

t erre d in deny ing the petition for post-conviction re lief.

CONCLUSION

Ba sed on t h e fo re g oing authorities and rea soning, we reve rse the judgme nt of the postconviction court and rema nd the case to the trial court for the petitioner to be allowed to w ithdraw his guilty pleas.

___________________________________ AL AN E. GL ENN, JUDGE

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