# FILED
January 26, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE JUNE 1998 SES SION

STEVE E. TODD, ) ) Appellant, ) No. 01C01-9612-CR-00503

) ) Davidson County v. ) ) Honorable Seth Norman, Judge ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. ) For the Appellant : For the Appellee : Thomas A. Potter John Knox Walkup 100 Thompson Lane Attorney General of Tennessee Nashville, TN 37211 and Lisa A. Naylor Assistant Attorney Gener al of Tennessee 425 Fifth Avenue North Nashville, TN 37243-0493 Victor S. Johnson, III District Attorney General and Lila Statom Assistant District A

ttorney General Washington Square, Suite 500 222 2nd Avenue North Nashville, TN 37201-1649

OPINION FILED:____________________ JUDGMENT VACATED; REMAN DED Joseph M. Tipton Judge2 O P I N I O N
The petitioner, Steve E. Todd, appeal s as of right from the Davi dson County Criminal Cour

t’s denial of post-convic tion relief. The petitioner w as charged with six coun ts of rap e of a chi ld and seve n counts of aggrava ted sexua l battery. Pursuant to a plea agreement, he pled guilty to tw o counts of rape of a child and received a sentence of twenty-three years for each count to be served concurrently in the custody of the Department of Correction. He now contends th at (1) his sentence is illegal, (2) his p lea was not knowing ly, understandingly and voluntarily g iven, and (3) he received the ineffective as sistance of counsel. Because the trial court’s order denying the petition for post-conviction relief is incomplete, we remand the ca se to the trial court for the entry of a new order consistent with this

opinion.
The petitioner testified at the post -conviction hearing

that he believed he was pleading guilty to two counts of rape of a c hild for which he woul d be sentenced as a Range I, standard offender to tw enty-three years for e

ach count to be served concurrently at thir

ty percent. He said he believed he would be el igible for parole and behavior credits, and th e opportunity for parole w as one of the reasons why he accepted the plea agreement. He said he also accepted th e plea agreement because he did not want the vic

tim, his daughter, to hav e to testify at trial. H e said he discussed the agreement with his t rial attorney who explained that he would be sentenced to twenty-three year

s to be served at thirty

percent. He admitted that ther e was no mention in the guilty pl ea petition, which he si gned, of the possibility for parole, but he also said there was n o indicat ion that he would ha ve to serve h is senten ce day-fo r-day.

On cross-examination, t he petitioner said that his trial attorney never discussed T.C.A. § 39-13-523 w ith him. He said he did not r ead the guilty plea petition because he relied on his attor ney’s advice. He s

aid he understood that the sentenci ng3

range was fifteen to twent y-five years, and he admitted that he had confessed to all of the crimes.
The petitioner’s trial att orney testified that the stat e offered a plea agreement of two counts of rape of a c hild with a sentence of tw enty-three years for each count to be served concurrently. He said he explained this offer to the pet itioner, and he believed he told the petitioner that he would not get credit toward release because it was a child rape case. He said the petit ioner was unhappy about t his fact, but they discussed it at some length and talked about the possibility of going to trial. He said the petitioner felt forced to accept the plea agreement becaus e under no circumstances did the petitioner want his daughter to have to testify. The attorne y said that ordinarily, he writes on the guilty plea petition whether it is a Range I or Rang e II sentence, and he thought it w as significant that there w as no such range written on the guilty plea petition

in the present case. He sai d that although he discussed w ith the petitioner the fact that he wou ld get no credit towa rd his release, he did not go over T.C.A. § 39-13-52 3 with the p etitione r because he did not think it was necessar y.

The attorney said that whe n the trial court read the judgment saying that the petitioner was sentenc ed as a Range I, standard offender at thirty percent, he thought that he (the attorney) had simply misinterpreted T.C.A. § 39-13-52 3. He said he made no objection to the trial court’s judgment because i t was to his client’ s benefit. He said that after the trial court pronounced the judgment , the petitioner asked him what the trial court meant, and the attorney said he told the petitioner tha t he would serve thirty perc

ent of his sentence and then be elig ible for parole. He said he explained to the petitioner that most sex offende rs are not granted parole on their first request. He said that w hen the petitioner left the courtr oom, he (the attorney) w as under the impression that the pet itioner had received a R ange I sentence to be serv ed at thirty percent.4 On cross-examination, the attorney said he told the petitioner that his reading of th e statute ind icated that the petitione r would not receive c redit for g ood timeor program credits. He said there was a note in his file that read, “Note sent day-forday since July ‘92[ .]” He said that althoug h he did not read T.C.A. § 39-13- 523 to the petitioner, he interpreted the statute for the petitioner. H e said that the petitioner r ead or appeared to read the guilty plea petition which did not say that the petitioner would serve only thirty

percent of his sentence.
The assistant district attorney general who prosecuted the petitioner’s case testified that on the judgment form, she checked both the box for c hild rapist and the box for a Range I, standar d offender. She said that she made a cler ical error because only one box can be checked and that should have been the child rapist box. She said that when she gave the recommended sentence to the judge, it was not for a Range I, standard offender at thir ty percent.
On cross-examination, t he prosecutor testified that the petitioner received no assurance of parole. She said that when she talks to attor neys, it is her prac

tice to tell them that their client s will be requir

ed to serve the entire sentence. She said that at the time the plea agreement w as made and signed, the petitione r did not have the judgment form but only the gu ilty plea petition w hich gave no indicati on that the petitioner would serv

e only thirty perc

ent of his sentence.

The trial court stated that it normally reads from the j udgment form rather than trying to remember sentences. The judgment forms in th e present case reflect that in the sentencing box , two items are checked: (1) the box that says “Standard 30% Range 1” and (2) the box that says “Child R

apist.” The transcript from the guilty plea hearing reflects that the tr ial court explained to the petitioner his rig hts to a jury trial, to counsel, to appeal, to proof beyond a reasonable doubt, to confrontation, cross-5

examination and silence, and the petitioner agreed to w aive these rights. It reflects that the petitioner said he understood that he was charged with six counts of rape of a child and seven counts of aggravated sexual bat tery carryin g sentenc es of fi fteen t o twentyfive years and eight to twelve years , respectively.

At the guilty plea hear

ing, the petitioner said that he signed the guilty plea petition freely and vol untarily after thoroughl y discussing the peti

tion with his trial attorney. The state recommended a t wenty-three year

sentence on each count to run concurrently. When questioned by the trial court, the pe titioner said that this was his understanding of the plea agreement. In pronouncing the judg ment, the trial court said, “It’s the judgment of the Cour t in each count that you be se ntenced to the Department of Correction for a period of tw enty-three years as

a range one standard offender at thirty percent. Those sent ences will run concur

rent, one with the other.”
The guilty plea petitio n is a preprinted form with certain items filled in b y hand. In the portion of the petition calling for the range of punishment, the following is handwritten: 6 counts Rape of A Child; 7 Counts Aggravated Sexual Battery

- Rape of Child 15-25 years plus fine up $50,000 each count. T.C.A. 39-13-522. AggravatedSexual Battery 8-12 y ears plus fine up to $25,000 each count. T.C.A. 39- 13-504[.] In the part setting forth the pl ea agreement, the following is handwritten: Gui lty - Counts 1 & 9 - 23 years each count concurrent. No fin e. Re commendation Special Needs prison. Credit for jail time. The guilty plea petitio n contains the petitioner’s signature.

The trial court filed a w ritten opinion denyingthe petition for postconviction relief. The trial court’s opinion states as follows:

The petitioner herein has filed a Petition for Post Conv iction Relief. The main thrust of his complaint is ai med at the parole syste m for the state. He specificall y states that his plea w a s6 not knowingly and intelligently entered, and that his c ounsel was ineffective.

. . . . The Court has examined the proof on this case as well as the au thoritiesthat have been submitted. The Court is of th e opinion that the complaint of the petitioner is almost on all fours with Wilson v. State [citation omitted]. There is a total lackof evidence under the holdings of Baxter v. Ro se and Strickland v. Washington [citations omitted]. There is nothing in this record that would indicate that counsel for the defendant at the ti me of the plea acted in any other than a highly professional manner. The petitioner has raised a question that continually appears in these matters. He complains that the Court and his attorney did not properly advis

e him about his effective releas e date. This Court, quite frankly , does notbelieve that there is a Judge in this state, at any level, that cou ld explain this date to a defendant at the time that a plea was entered. This fact was emphasized in Howell v. Sta t e [cit ation omitted]. This Court would not presume to tell the Board of Pardons and Paroles how to operate [its] business. The Petition for Post Convic tion Relief is denied.
Initially, we note

that the burden was on the peti tioner in the trial cour

t to prove that his allega

tions entitle him to reli ef beyond a reasonable doubt. T.C.A. § 40- 30-210(f). On appeal, we ar e bound by the trial court ’s findings unless w

e conclude that the evidence preponderates against those findings. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). However, the Post-Conviction Procedure Act mandates that the trial court enter an order or written memorandum detailing all grounds presented by the petitioner and its findings of fact and conclusions of law w ith regard to each ground. T.C .A. § 40-30-211(b). The purpose of this requirement is to facilitate appellate revi ew. State v. Swanson , 680 S.W.2d 487, 489 (Tenn. Crim. App. 1984). Because the trial cou rt failed to address all of the pe titioner’s grounds and because we cannot glean from t he record the trial cour t’s findings of fact and conclusions of law, w

e must remand the case to the tria l court for a more complete written order.7 The petitioner’s first ground for relief is that his sentence is illegal because it is in direct contr

avention of statutory prov isions regarding s

entencing. See State v. Burkhart , 566 S.W.2d 871, 873 (Tenn. 1978). Specifically , he argues that he was sentenced as a Range I, standar d offender to serve thirty percent of his sentence, but T.C.A. § 39-13-523(b) and (c) contemplates that a child rapi st “shall be requir ed to serve the entire sentence imposed by the trial court undiminished by any sentence reduction credits” and w ithout eligibility

for parole. The trial court ’s written order deny

ing the post-conviction peti tion does not address the petiti oner’s argument. Instead, th e order simply states tha t “[t]he main thrust of [the petit ioner’s] complaint is ai med at the parole system for the state.” We view the petitioner’s complai nt not to be with the state parole system but rather with a sentence that he beli eves he is statutoril y ineligible to receive. The trial cou rt’s order does not addres s the merits of the petitioner’ s claim. Under the se circum stances , we have no findings or conclu sions to re view. Thus, we must remand the case to the trial court for a more comp lete order.

In his next argument, the petitioner contends that his plea was not knowing or volunt

ary because he thought he w as receiving a standa rd, Range I sentence at thirty perce nt, but he was actually statutorily inelig ible for such a sentence. In its order, the trial

court makes no finding that the petitioner’s plea was knowing and voluntary. Again, it is imperative that the trial court make findings of fact and conclusions of law on all issues raised by the petitioner in order for us t o review the denial of the petition.

The petitioner also complains that his trial attorney was ineffective for failing to explain to hi m the manner in which he w ould serve his sentence. At the postconvictio n hearing , the pet itioner s tated th at his tria l attorne y told him h e would ser ve thirty percent of his sent ence and that this was one of the reasons he accepted the agreement. The trial attorney testified to the contrary , stating that he did not tel l the8

petitioner before his acceptance of the agreement that he would on ly serve thirty percent. He said that, in fact , it was his belief that he told the petitioner he w ould be ineligible for early

release because the convi ctions were for child rape.

The trial court’s order states that the case is on all fours with Wilso n v. State , that th ere is “

a total l ack of ev

idence u nder the

holdings” of Baxter v. Rose and Strickland v. Washington , and that nothing in the record indicates that the petitioner’s attorney was anything other than highly professional. The problem with the trial court’s order is that we cannot glean from it the trial cou rt’s findings of fact wit h respect to the testimony it accredited on material points. W e cannot discern whether the trial court accredited the testimony of the petitioner or his trial attorney. Although it

may be possible to infer that the trial court accredited the attorney’s testimon y, one of the main purposes behind requiri ng an order with findings of fact and conclusions of law i s to prevent this very type of speculation on appeal. A more detailed order, addressing all of the petitioner’s claims and containing more detailed findi ngs of fact and conclusions of law, is needed.

In consideration of the foregoing and the record as a whole , we are of the opinion that the trial cour t’s findings and conclusi ons denying the petition for postconviction relief are i ncomplete, and we cannot perform a mean ingful appellate review

. Therefore, the judgment is vac ated and the case is remanded to the t rial court for the entry of an order consistent with this opinion.

________________________________ Joseph M. Tipto n, Judge9

CONCUR:

_________________________ John H. Peay, Jud ge

_________________________ David G. Hayes, Judge