FILED

May 12, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

MAY SESSION, 1999

EDWARD DRUMMER, ) C.C.A. NO. 02C01-9902-CR-00059

)

Appellant, )

) SHELBY COUNTY

V. ) 

)

) HON. ARTHUR T. BENNETT, JUDGE

STATE OF TENNESSEE, )

)

Appellee. ) (POST-CONVICTION) 

FOR THE APPELLANT: FOR THE APPELLEE:

EDWARD DRUMMER, pro se PAUL G. SUMMERS 

P.O. Box 549 H-A-114 Attorney General & Reporter

Whiteville, TN 38075 

CLINTON J. MORGAN 

Assistant Attorney General

2nd Floor, Cordell Hull Building

425 Fifth Avenue North 

Nashville, TN 37243

JOHN W. PIEROTTI 

District Attorney General 

LEE COFFEE 

Assistant District Attorney General

Criminal Justice Center, Suite 301

201 Poplar Avenue 

Memphis, TN 38103

OPINION FILED ________________________

REVERSED AND REMANDED 
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THOMAS T. WOODALL, JUDGE
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OPINION

In this case, the Petitioner, Edward Drumm er, appeals as of right from

the trial court’s dismissal of his petition for post-conviction relief. In his issues

presented for review, the Petitioner, who has filed a pro se brief, argues first that his

trial counsel provided ineffective assistance of counsel by giving erroneous advice

on parole eligibility. In his second issue, Petitioner argues that the Department of

Correction wrongfully altered the judgment entered by the trial court regarding his

release eligibility of thirty (30%) percent as a Range I standard offender. For the

reasons stated in this opinion, we reverse the judgment of the trial court and remand

for further proceedings.

On January 7, 1997, the Shelby County grand jury returned an

indictment charging the Petitioner with aggravated rape. The indictment alleged that

the offense occurred on October 29, 1994. The office of the Shelby County Public

Defender was appointed to represent Petitioner. On September 30, 1997, Petitioner

entered into a negotiated plea agreement. The case was set for trial on the date he

entered his plea, and it was entered after the jury was selected, but prior to any proof

being heard. The negotiated agreement was for Petitioner to plead guilty as charged

to aggravated rape and receive a fifteen (15) year sentence in the Department of

Correction as a Range I standard offender with a thirty (30%) percent release

eligibility date. Petitioner entered his plea of guilty and judgment was entered on the

same date in accordance with the plea agreement. 
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On February 2, 1998, Petitioner’s pro se petition for post-conviction

relief was filed in the trial court. In this petition, he alleged that the guilty plea was

involuntarily entered “without understanding of the nature and consequences of the

plea,” and that he had been denied the effective assistance of counsel. Pertinent to

this appeal, Petitioner specifically alleged that when he began confinement in the

Department of Correction, he was advised by that agency that he had a release

eligibility date of eighty-five (85%) percent rather than thirty (30%) percent. He also

specifically alleged that his trial counsel had failed to advise him that Tennessee

Code Annotated section 40-35-501 required Petitioner to serve one hundred (100%)

percent of the sentence imposed less sentence credits earned and retained, but with

a maximum of fifteen (15%) percent reduction. 

The trial court appointed private counsel to represent Petitioner in the

post-conviction case. Appointed counsel filed an amended petition for postconviction relief, and an evidentiary hearing was held. Following the hearing, the

trial court dismissed the petition for post-conviction relief and filed its findings of fact

and conclusions of law.

Subsequently, Petitioner filed a pro se notice of appeal from the trial

court’s dismissal of his petition for post-conviction relief. There is no indication in the

record as to why appointed counsel did not file the notice of appeal on behalf of

Petitioner. There is nothing to indicate that Petitioner knowingly and voluntarily

waived his right to counsel in this appeal. 
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The transcript of the post-conviction evidentiary hearing is not in the

record. However, the transcript of the guilty plea hearing, which was made an

exhibit at the evidentiary hearing, is included in the record.

In its brief, the State argues that Petitioner’s dispute concerning his

release eligibility date is an administrative matter which is not included within the

scope of the Post-Conviction Procedure Act. Moreover, the State, in its brief, points

out that the statute which provides for one hundred (100%) percent service of an

aggravated rape sentence, Tennessee Code Annotated section 40-35-501(i), applies

only to offenses committed on or after July 1, 1995. The State concedes that since

Petitioner’s conviction was for an aggravated rape that occurred on October 29,

1994, Petitioner is not subject to the sentencing provisions requiring one hundred

(100%) percent service of a sentence for aggravated rape.

The query then turns to why the Department of Correction would treat

this sentence as one covered under the provision of Tennessee Code Annotated

section 40-35-501(i). Apparently not noticed by Petitioner, his post-conviction

counsel, the trial court, or the State at either the trial or appellate level, is the fact

that the judgment entered on September 30, 1997, reflecting the conviction for

aggravated rape, states on its face that the offense was committed on October 29,

1995 rather than October 29, 1994 as alleged in the indictment. We also note from

the transcript of the guilty plea hearing that when the Assistant District Attorney

summarized the facts for the court in order to substantiate a basis for the guilty plea,

that he stated the offense occurred on October 29, 1994.
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Thus, there appears to be a clerical mistake in the judgment entered on

September 30, 1997, correction of which by the trial court might resolve Petitioner’s

complaints. Upon rem and, the trial court is to examine the discrepancy, and, if there

is a mistake in the judgment regarding the date of commission of the offense, the

judgment can and must be corrected pursuant to Rule 36, of the Tennessee Rules

of Criminal Procedure.

Tenn. Sup. Ct. R. 28, § 10(a) states that “[a]n appeal from the dismissal

or denial of a post-conviction petition shall be in accordance with the Tennessee

Rules of Appellate Procedure. Rule 18(a) of the Tennessee Rules of Appellate

Procedure provides the following: 

A party who has been perm itted to proceed in an action in the trial court

as a poor person (which includes a person who has been permitted to

proceed there as one who is financially unable to obtain adequate

defense in a criminal case) may proceed on appeal as a poor person

unless, before or after the appeal is taken, the trial court finds the party

is not entitled so to proceed, in which event the trial court shall state in

writing the reasons for such finding. 

In the Post-Conviction Procedure Act, Tennessee Code Annotated

section 40-30-215 states that “[i]ndigency shall be determined and counsel and court

reporters appointed and reimbursed as now provided for criminal and habeas corpus

cases by chapter 14, parts 2 and 3 of this title.” 

Tennessee Code Annotated section 40-14-205 allows an attorney

appointed by the trial court to withdraw as counsel of record upon good cause

shown, but requires the trial court to immediately appoint another attorney in the
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former attorney’s place. Furthermore, Tennessee Code Annotated section 40-14-

203, made applicable to post-conviction cases by Tennessee Code Annotated

section 40-30-215, entitles this Petitioner to counsel on the direct appeal from the

denial of this, his first petition for post-conviction relief. In addition, Tennessee Code

Annotated section 40-14-312, also made applicable to post-conviction proceedings

pursuant to Tennessee Code Annotated section 40-30-215, entitles this Petitioner,

who has already been declared indigent by the trial court, to a transcript of the

evidentiary hearing concerning the post-conviction petition.

There is no indication in the record as to why private counsel, who was

appointed by the trial court to represent the Petitioner in his petition for postconviction relief, and who filed on behalf of the Petitioner an amended petition and

represented him during the evidentiary hearing, is not representing Petitioner in this

appeal. There is no indication that Petitioner voluntarily and knowingly waived his

right to counsel in this appeal. 

CONCLUSION

Accordingly, we reverse the judgment of the trial court and remand for

further hearings for the trial court to appoint counsel to represent Petitioner in the

appeal of the dismissal of his petition for post-conviction relief. We further direct that

a transcript of the evidentiary hearing be prepared and included in the record,

assuming that Petitioner desires to pursue his appeal from the trial court’s dismissal

of his post-conviction petition. In addition, as stated above, the trial court is to
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conduct a further hearing to determine whether the judgment reflecting the

conviction of aggravated rape must be amended to reflect the correct date of

comm ission of the offense. 

____________________________________

THOMAS T. WOODALL, Judge

CONCUR:

___________________________________

JOHN H. PEAY, Judge

___________________________________

JOE G. RILEY, Judge