# FILED May 12, 1999 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON MAY SESSION, 1999
EDWARD DRUMMER, ) C.C.A. NO. 02C01-9902-CR-00059 ) Appe llant, ) ) SHELBY COUNTY V. ) ) ) HON.ARTHUR T.BENNETT,JUDGE STA TE O F TEN NES SEE , ) ) Appellee. ) (POST-C ONVIC TION)

FOR THE APPELL

ANT : FOR THE APPELLEE : EDW ARD DRU MM ER, pro se PAUL G. SUMMERS P.O. Box 549 H-A-114 Attorney General& Reporter Whitevill e, TN 38075 CLINTON J.MORGAN Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue Nor th Nashville, TN 37243 JOH N W. P IERO TTI District Attorn ey Ge neral LEE COFFEE Assistant Distri ct Attor ney General Criminal Just ice Center, Suite 301 201 Poplar Avenue Memphis, TN 38103

OPINION FILED ________________________ REVERSED AND REMANDED-2-

THOMAS T. WOODALL, JUDGE-3- 

# OPINION

In this cas e, the P etitione r, Edw ard D rumm er, app eals as of ri ght from the trial court’s dismissal of hi s petition for post-co nvicti on relief . In hi s issues presented for revi ew, the Peti tioner, who has fil ed a pro se brief, argue s first tha t his trialcounsel provided ineffect ive assistance of counsel by givi ng erroneous advice
on parole eli gibility. In his second issue, Pet itioner argues that the Department of Correction wrongfull y altered t he judgment entered by the t ri al cou rt rega rding h is release eligibility of th ir ty(30 %) percent as a Range I standard off ender. For t he
reasons stated in thi s opi nion , we reverse the j udgment of the t rial court and remand for further pr

oceedings.

On Janua ry 7, 1997, the Sh elby Co unty gra nd jury ret urned an indict ment charging the Petition er with ag gravate d rape. The indict ment alleged t hat the offense occurred on October 29, 1994. The of

fice of the Shelb y Cou nty Pu blic Defenderwas appointed to represent Pet itioner . On September 30, 1997, Petiti oner entered into a neg otiated ple a agree ment. The case was set for t rial on t he date he entered his plea, and it was entered after the jur y was selected, but prior to anyproof being heard. The negotiated agreement was for Pet itioner to plead gui lty as char ged to aggrav ated rap e and re ceive a fi ft een (15) year sent ence in the Depart ment of Correction as a Range I standard offender with a thi rty (30%) percent release eligibility date. Peti tioner entered his pl ea of guil ty and judgment was entered on the
same date in ac cordan ce with th e plea ag reeme nt.-4- O n Febr uary 2, 1998, Petiti oner’s pro sepetiti on for post- convicti on relief was filed i n the tri al court. In thi s petiti on, he alleged t hat the gui lty pl ea was involu ntarily entered “wi thout understanding of t he nature and consequences of the plea,” and that he had b een d enied the effe ctive a ssista nce o f coun sel. Pertinen t to thi s appeal, Peti tioner spec ifical ly all eged that when he began conf inement in th e De partmentof Cor rection , he wa s adv ised b y that a genc y that h e had a rele as e eligibility date of eighty-f ive (85%) percent rather than t hirty (30%) percent. He also spec ifical ly alleged t hat his t rial coun sel had fai led to advi se him that Tennessee Code Annotated section 40-35-501 required Peti tioner to serveonehun dre d (1 00%) percentof the sen tence im posed less sen tence cre dits earne d and re tained, bu t with
a max imum of fifteen (15 %) per cent red uction.

The trialcourt appoi nted private counsel to r epresentPetiti oner in the post-convi ction case. A ppointe d coun sel fi le d an am ended petition for p ostconvicti on relief , and an evident iary he aring was held. Foll owing the heari ng, the trialcourt dis missed the peti tion for post- convicti on relief and fil ed its f indingsof fact and co nclu sion s of l aw.

Subsequently, Petiti oner fil ed a pro senoti ce of appeal f rom the tri al court’s dismissal of his pe tition for post-conviction relief. The re is no indicat ion in t he record as to why appointed counsel did not file the notice of appeal on behal f o f Petitioner. There is noth ing to in dicate that Pe titioner k now ingly a nd vo luntarily waived his right to co unsel in th is appea l.-5- The tran script

of the post -convict ion evident iary heari ng is not i n the record. Howev er, the transcript of the gu ilty plea heari ng, which w as made an exhibit at the evi dentiary hearing, is included i n the record.

In its br ief, the S tate arg ues th at Petitio ner’s d ispute conc erning his release eligibility date is an admin istrative matter w hich i s not incl uded within t he scope of the Post-Convi ction Procedur e Act. Moreover, the State, in its brief, points out that the statute wh ich provides for on e hundred (100%) p ercent serv ice of a n aggravated rape s entence, Tennessee Code Annotated section 40-35-501 (i), appl ies only to offense s com mitted on or after July 1, 1995 . The State concedes that since Petition er’s convicti on was for an aggravated rape that occ urred on October 29 , 1994 , Petiti oner is not subject to the sentenci ng p rovisio n s requiri ng one hundred (100%) percent ser

vice of a sentence for aggravated rape.

The query th en turns to why the Department of Correctio n would treat this sentence as one cover ed under the prov ision of T ennessee Code Annotated section 40-35-501(i ). Apparent ly not not iced by Peti tioner, his post- convicti on coun sel, the trial cour t, or the Sta te at either th e trial or app ellate level , is the fact thatthe judgment entered on September 30, 1997, reflec tin g the convict ion for aggravated rape, states on its face that t he offense was committed on October 2 9, 1995 rather t han October 29, 1994 as alleged i n the indi ctment. We also note from the transcri pt of the gu ilty plea hearing that when the Assi stant Dist rict At torney summarized the fac ts for the court in order to substantiate a basis for the guil ty plea, that he sta ted the offe nse oc curred o n Octo ber 29, 1994
.-6- Thus, there appears t o be a cleri cal mistake i n the judgment entered on September 30, 19 97, co rrection of whic h by th e trial co urt mig ht reso lve Pe titioner’s complaints. Upon rem and, the trial court is to exa mine the disc repancy, an d, if there is a mistake in t he judgment regardi ng the date of commission of t he offense, the judgment can a nd m ust be correc ted pu rsuan t to Ru le 36, ofthe Tennessee Rules of CriminalProcedure.

Tenn. Sup. C t. R. 28, § 10(a) states t hat “[a] n appeal from t he dismissal
or denial of

a post-convi ction pet ition s hal l be i n accordance with the Tennessee Rules of Appe llate Proce dure. Ru le 18(a) o f the Ten nesse e Rules of Appe llate Proced ure prov ides the fo llowing: A party w ho ha s bee n perm itted to p rocee d in an action in the tri al court as a poor person (which includes aperson who h as bee n perm itted to proceed there a s one who is financ ially una ble t o obtain a dequa te defense in a criminal case ) may proceed on appeal as a poor person unless, before o r after the ap peal is take n, the trial cou rt finds the p arty is not entit led so to proceed, in which event the tri al court s hall sta te in writing the reason s for such finding.
In the Post-Convi ction Procedur e Act, Tennessee Code Annotated section 40-30-215 states that “[ i]ndigenc y sha ll be de termined an d counse l and court reporters appo inted an d re imbu rse d asnow p rov ide d fo r crimi nal and habeas corpus cases by c hapter 14, pa rts 2 and 3 of this title.”

Tennessee Code A nnotated se ction 40-1 4 -205 allows an at torney appoin te d by the trialcourt to withdraw as counsel of r ecord upon good ca us e shown, but requir

es the tri al court t

o immediately appoi nt another at torney in t he-7-

former attorney’s pl ace. Furthermore, Tennessee Code Annotated s ection 40-14- 203, made appl icabl e to post-co nvict ion ca ses by Te nnesseeCode An not ated section 40-30-2 15, entitl es this Pet itioner to counsel on t he direct a ppeal from the denial of this, hi s first

petiti on for post- convicti on relief . In addi tion, Tenness ee Code Annotated section 40- 14-312, also made applicable t o post-convi ction proceedings pursuantto Tennessee Code Anno tated s ection 40-30 -215, e ntitles th is Petitioner, who has a lr eady b een de clared ind igent by th e trial court, to a transcript o f t h e evidenti ary hearing concerning thepost-convi ction pet ition.

There is no indi cation i n the record as to why private counsel, who was appointed by the trial co urt to representthe Petition er in his pe tition for postconvicti on relief , and who fil ed on behalf of the Petit ioner an amended peti tion and represented him during the ev identia ry hea ring, is n ot repr esen ting Pe titioner in this appe al. The re is no indica tion tha t Petition er volu ntarily a nd kn owin gly wa ived h is right to cou nsel in this a ppeal.

C ONCLUSION

Accordingly, we reverse the j udgment of the trial court and remand for further hearing s for the trial co urt to ap point counselto represent Petiti oner in the appeal of the di smissal of his petition for post-co nviction re lief. We further direct t hat
a transcri pt of the ev identiar y hearing be prepared a nd inc luded in t he record, assuming that Peti tioner desi res to pursue hi s appeal fr om the trialcourt’s dismissal of his p ost-co nvictio n petitio n. In ad dition, a s state d abo ve, the trial cou rt is t o-8-

conduct a further

hearing to d etermine whether the judgment ref lect ing the convicti on of aggravated rape must be amend ed to reflect the correct

date of
comm ission of the offense.

____________________________________ THOMAS T. WO ODALL, Judge

CONCUR:

___________________________________ JOHN H. PEAY, Judge

___________________________________ JOE G. RILEY, Judge