Jaco v. State

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

October 1, 2003 Session

CLESSIE JACO, Jr. v. STATE OF TENNESSEE

Appeal by permission from the Court of Criminal Appeals

Circuit Court for Maury County

No. 9854 Robert L. Jones, Judge

No. M2001-02150-SC-R11-PC - Filed December 5, 2003

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We granted permission to appeal in this post-conviction case to determine whether the Court of

Criminal Appeals erred in holding that Mr. Jaco’s guilty plea was knowingly and voluntarily

entered even though he was not informed of the psychiatric certification mandated by Tennessee

Code Annotated section 40-35-503(c) for sex offenders before release on parole. We hold that

Mr. Jaco’s guilty plea met the standard of knowing and voluntary. A defendant need not be

informed of all criteria that affect his possible release on parole in order for his guilty plea to be

constitutionally sound. Accordingly, the holding of the Court of Criminal Appeals is affirmed.

Tenn. R. App. P. 11; Judgment of the Court of Criminal Appeals Affirmed

FRANK F. DROWOTA , III, C. J., delivered the opinion of the court, in which E. RILEY ANDERSON,

ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.

John S. Colley, III, Columbia, Tennessee, for the appellant, Clessie Jaco, Jr.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Kim R.

Helper, Assistant Attorney General; T. Michael Bottoms, District Attorney General; and Larry

Nickell, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural Background

Clessie Jaco was charged with two counts of rape of his thirteen-year-old niece. He

pleaded guilty to two counts of attempted rape. Pursuant to the plea agreement, he received a

six-year sentence on each conviction, which sentences the trial court ordered served

consecutively. The Court of Criminal Appeals affirmed the trial court’s denial of alternative

sentencing and its decision to order consecutive sentences.

Thereafter, Mr. Jaco filed a timely petition for post-conviction relief, alleging that his

plea was not knowingly, intelligently, and voluntarily entered because he was not advised of the

effect of Tennessee Code Annotated section 40-35-503(c) (2003), which provides:

No person convicted of a sex crime shall be released on parole

unless a psychiatrist or licensed psychologist designated as a health

service provider has examined and evaluated such inmate and

certified that, to a reasonable medical certainty, the inmate does not

pose the likelihood of committing sexual assaults upon release

from confinement. The examination and evaluation shall be

provided by psychiatrists or licensed psychologists designated as

health service providers whose services are contracted or funded by

the department of correction or the board of paroles. The board

shall consider any such other evaluation by a psychiatrist or

licensed psychologist designated as a health service provider which

may be provided by the defendant.

Following a hearing, the post-conviction court found that at the time he entered the plea,

Mr. Jaco understood that he would be eligible for parole and possible release after serving thirty

percent of his sentence. Although Mr. Jaco’s former attorney indicated that during the plea

hearing he had advised Mr. Jaco about the implications of Tennessee Code Annotated section 40-

35-503(c), the post-conviction court found that defense counsel probably had not provided this

advice. Furthermore, the post-conviction court found that no sex offender had been released

after serving only thirty percent of a sentence unless a mental health professional had opined that

a future sex offense was physically impossible. Finally, the post-conviction court found that the

trial court had failed to consider this statute when it accepted Mr. Jaco’s plea and had commented

that Mr. Jaco should be eligible for release after serving thirty percent of his sentence.

Nonetheless, the post-conviction court ruled that counsel’s failure and the trial court’s comments

did not affect the validity of his guilty plea. Accordingly, the petition for post-conviction relief

was denied.

Mr. Jaco appealed, and the Court of Criminal Appeals affirmed the denial. We granted

Mr. Jaco’s application for permission to appeal to consider this issue of first impression.

Standard of Review

To prevail upon a claim for post-conviction relief, a petitioner bears the burden of

proving factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f)

(2003); Momon v. State, 18 S.W.3d 152, 156 (Tenn.1999). Where appellate review involves

purely factual issues, this Court will not re-weigh or reevaluate the evidence. Momon, 18

S.W.3d at 156; Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). The trial judge's findings

of fact are afforded the weight of a jury verdict and are conclusive on appeal unless the evidence

preponderates against those findings. Momon, 18 S.W.3d at 156; Henley, 960 S.W.2d at 578-79.

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However, review of a trial court's application of the law to the facts of the case is de novo, with

no presumption of correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). Whether a

guilty plea meets the constitutional standards of voluntary and knowing is a mixed question of

law and fact. See, e.g., United States v. Gray, 152 F.3d 816, 819 (8th Cir. 1998). Mixed

questions of fact and law are reviewed de novo, with a presumption of correctness given only to

the post-conviction court's findings of fact. See, e.g., Fields v. State, 40 S.W.3d 450, 458 (Tenn.

2001).

Analysis

Post-conviction relief may be granted only if a conviction or sentence is void or voidable

because of a violation of a constitutional right. Tenn. Code Ann. § 40-30-103 (2003). The Due

Process Clause of the United States Constitution requires that guilty pleas be knowing and

voluntary. State v. Wilson, 31 S.W.3d 189, 194 (Tenn. 2001). The cases of Boykin v. Alabama

and State v. Mackey are the landmark constitutional cases for analyses of guilty pleas. Boykin v.

Alabama, 395 U.S. 238 (1969) (federal standard); State v. Mackey, 553 S.W.2d 337 (Tenn.

1977) (state standard). In Boykin, the United States Supreme Court held that before a trial judge

can accept a guilty plea, there must be an affirmative showing that it was given intelligently and

voluntarily. 395 U.S. at 242. In order to find that the plea was entered "intelligently" or

"voluntarily," the court must "canvass [ ] the matter with the accused to make sure he has a full

understanding of what the plea connotes and of its consequences." Id. at 244. A plea is

“knowing” if the court informed the accused of his constitutional rights against self-

incrimination, to confront accusers, and to trial by jury. Id. at 243. Likewise, in Mackey, this

Court held that "the record of acceptance of a defendant's plea of guilty must affirmatively

demonstrate that his decision was both voluntary and knowledgeable, i.e., that he has been made

aware of the significant consequences of such a plea. . . ." 553 S.W.2d at 340. Any requirement

in excess of Boykin is not based on the federal or state constitution. State v. Prince, 781 S.W.2d

846, 853 (Tenn. 1989). Therefore, in evaluating the knowing and voluntary nature of a guilty

plea, “[t]he standard was and remains whether the plea represents a voluntary and intelligent

choice among the alternative courses of action open to the defendant.” North Carolina v. Alford,

400 U.S. 25, 31 (1970). The United States Supreme Court has “never held that the United States

Constitution requires the State to furnish a defendant with information about parole eligibility in

order for the defendant’s plea of guilty to be voluntary.” Hill v. Lockhart, 474 U.S. 52, 56

(1985).

Mr. Jaco does not contend that this plea agreement failed to meet the requirements of

Boykin. He was informed of and indicated that he understood the constitutional rights that he

waived by entering the guilty plea. Instead, Mr. Jaco argues that his plea was not knowingly and

voluntarily entered because he was not informed of one of the criteria that guides the

determination of whether he will actually be released upon arriving at his release eligibility date.

As support for this proposition, he relies on Howell v. State, 569 S.W.2d 428 (Tenn.

1978). In Howell, the defendant pleaded guilty to two counts of first degree murder with

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consecutive life sentences. He later challenged the validity of these pleas because his attorney

and the trial court had erroneously advised him that consecutive life sentences would result in an

earlier parole eligibility date than would consecutive thirty-five-year sentences. Id. at 430. After

clarifying the formula for determining parole eligibility for life sentences, this Court granted Mr.

Howell relief because he had “agreed to life sentences under mistaken advice as to their true

effect” on his parole eligibility date. Id. at 435. There are significant differences between this

case and Howell. In Howell, the plea agreement was the direct result of inaccurate information

that resulted in Mr. Howell agreeing to a longer prison term. In contrast, Mr. Jaco was not

advised nor did he agree to a longer prison term on the mistaken belief that a longer term would

result in an earlier release eligibility date. Indeed, had Mr. Jaco refused the plea agreement, he

could have been tried on charges of rape, and if convicted, sentenced to a much lengthier

sentence. See Tenn. Code. Ann. § 39-13-503(b) (classifying rape as a Class B felony) (2003); §

40-35-112(a)(2) (2003) (providing that a Range I sentence for each Class B felony is not less

than eight months nor more than twelve years.)

Unlike the defendant in Howell, Mr. Jaco was not misinformed about his parole

eligibility date. He will in fact become parole eligible after serving thirty percent of his sentence

although he may not actually be released. His release eligibility date is simply the point at which

he will be considered for parole under the applicable standards. “The release eligibility date

provided for in this section is the earliest date an inmate convicted of a felony is eligible for

parole. . . .” Tenn. Code Ann. § 40-35-501(k) (2003). After an inmate becomes parole eligible,

release is not guaranteed. “Release on parole is a privilege, not a right....” Tenn. Code Ann. §

40-35-503(b) (2003). The Criminal Sentencing Reform Act includes the following criteria for

denying release to a parole eligible inmate: 1) if there is substantial risk that the defendant will

not conform to the conditions of the release programs; 2) if the release at that time would

depreciate the seriousness of the crime or promote disrespect of the law; 3) if the release would

have a substantially adverse effect on institutional discipline; or 4) if the inmate’s continued

correctional treatment, medical care, or vocational or other training in the institution will

substantially enhance the inmate’s capacity to lead a law-abiding life at a later release time. Id.

For sex offenders, there is an additional prerequisite which must be satisfied before release on

parole is appropriate – certification by a psychiatrist or licensed psychologist who has examined

and evaluated the inmate that, to a reasonable medical certainty, the inmate does not pose the

likelihood of committing sexual assaults upon release from confinement. Tenn. Code Ann. § 40-

35-503(c) (2003).

In this case, the post-conviction trial court found that no sex offender has been released

after serving only thirty percent of his sentence unless the mental health professional concluded

that a future sex offense was physically impossible. Nonetheless, a Range I standard offender

convicted of a sex crime becomes parole eligible after serving thirty percent of the actual

sentence imposed. Tenn. Code Ann. § 40-35-501(c) (2003). The required evaluation affects the

likelihood of actual release, but it does not affect the release eligibility date. Thus, unlike the

defendant in Howell, Mr. Jaco received accurate information regarding his release eligibility date

prior to entering his plea.

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As grounds for invalidating his plea, Mr. Jaco relies upon the following statement of the

trial court: “I frankly think that the service of a twelve year sentence would be more than this

offense deserves. At the same time I know that it is highly unusual unless he engages in future

misconduct that he would ever serve anything near twelve years. As a standard range one

offender he would not have to serve more than thirty percent of the twelve year sentence of 3.6

years. . . I suspect that weighed heavily on the mind of the attorney general and his staff in

reaching the decision to settle this case as it was settled.” In our view, this statement provides no

basis for invalidating the plea. Mr. Jaco apparently fails to recognize that the trial court made

this statement after the guilty plea had been entered. Therefore, this statement could not have

influenced Mr. Jaco’s decision to plead guilty and did not vitiate the knowing and voluntary

nature of his plea.

Finally, were we to adopt Mr. Jaco’s argument that a guilty plea of a sex offender will be

constitutionally deficient unless the offender is informed of the mandatory psychological

evaluation and certification that is required before release on parole is appropriate, then guilty

pleas to other felony offenses are arguably invalid as well unless the offender is advised of all the

criteria that will affect the offender’s release on parole. We decline to adopt such a rule.

Conclusion

For the foregoing reasons, we conclude that Mr. Jaco’s guilty plea met the

constitutionally required standard of knowing and voluntary. Actual release is a decision left to

the parole board. Mr. Jaco was correctly informed of his release eligibility date. Neither the

federal nor the state constitution requires that he be informed of all possible factors that could

affect the parole board’s decision. Mr. Jaco understood the constitutional rights he waived in

order to accept two consecutive six-year sentences rather than face trial on two rape charges.

Due Process is not offended by such an agreement. It appearing that the petitioner is indigent,

costs of this appeal are assessed against the State of Tennessee.

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FRANK F. DROWOTA, III, CHIEF JUSTICE

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