Steve E. Todd v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 20, 2002

STEVE E. TODD v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Davidson County

No. 93-B-901 Seth Norman, Judge

No. M2001-03080-CCA-R3-PC - Filed May 30, 2003

The petitioner, Steve E. Todd, pled guilty in 1994 to two counts of rape of a child, receiving

concurrent twenty-three-year sentences as a Range I offender. He filed a post-conviction petition

in 1995 alleging, inter alia, that at the time of his pleas of guilty he had not understood that his

sentences would be served without the possibility of parole. Counsel, appointed to represent him,

filed an amended petition, which the post-conviction court dismissed following an evidentiary

hearing. This court reversed the dismissal and remanded the matter for additional findings to be

made. Following the remand, the post-conviction court granted the petition, concluding that the

guilty pleas had not been knowing. The State appealed and, following our review, we reverse the

order of the post-conviction court and remand this matter for another evidentiary hearing.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed and

Remanded

ALAN E. GLENN, J., delivered the opinion of the court, in which DAVID H. WELLES and JOE G.

RILEY, JJ., joined.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;

Victor S. Johnson, III, District Attorney General; and Bernard F. McEvoy, Assistant District

Attorney General, for the appellant, State of Tennessee.

Thomas H. Potter, Nashville, Tennessee, for the appellee, Steve E. Todd.

OPINION

FACTS

Because of the lengthy and complicated nature of this matter, we will set out its history, as

detailed in the opinion of this court, released on January 26, 1999, remanding for additional findings

to be made:

The petitioner testified at the post-conviction hearing that he

believed he was pleading guilty to two counts of rape of a child for

which he would be sentenced as a Range I, standard offender to

twenty-three years for each count to be served concurrently at thirty

percent. He said he believed he would be eligible for parole and

behavior credits, and the opportunity for parole was one of the

reasons why he accepted the plea agreement. He said he also

accepted the plea agreement because he did not want the victim, his

daughter, to have to testify at trial. He said he discussed the

agreement with his trial attorney who explained that he would be

sentenced to twenty-three years to be served at thirty percent. He

admitted that there was no mention in the guilty plea petition, which

he signed, of the possibility for parole, but he also said there was no

indication that he would have to serve his sentence day-for-day.

On cross-examination, the petitioner said that his trial attorney

never discussed T.C.A. § 39-13-523 with him. He said he did not

read the guilty plea petition because he relied on his attorney's advice.

He said he understood that the sentencing range was fifteen to

twenty-five years, and he admitted that he had confessed to all of the

crimes.

The petitioner's trial attorney testified that the state offered a

plea agreement of two counts of rape of a child with a sentence of

twenty-three years for each count to be served concurrently. He said

he explained this offer to the petitioner, 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 petitioner was unhappy about this 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 because under no circumstances did the petitioner want his

daughter to have to testify. The attorney said that ordinarily, he

writes on the guilty plea petition whether it is a Range I or Range II

sentence, and he thought it was significant that there was no such

range written on the guilty plea petition in the present case. He said

that although he discussed with the petitioner the fact that he would

get no credit toward his release, he did not go over T.C.A. §

39-13-523 with the petitioner because he did not think it was

necessary.

The attorney said that when the trial court read the judgment

saying that the petitioner was sentenced as a Range I, standard

offender at thirty percent, he thought that he (the attorney) had simply

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misinterpreted T.C.A.§ 39-13-523. He said he made no objection to

the trial court's judgment because it 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 that he would serve thirty percent of his sentence and then

be eligible for parole. He said he explained to the petitioner that most

sex offenders are not granted parole on their first request. He said

that when the petitioner left the courtroom, he (the attorney) was

under the impression that the petitioner had received a Range I

sentence to be served at thirty percent.

On cross-examination, the attorney said he told the petitioner

that his reading of the statute indicated that the petitioner would not

receive credit for good time or program credits. He said there was a

note in his file that read, "Note sent day-for-day since July '92[.]" He

said that although he did not read T.C.A. § 39-13-523 to the

petitioner, he interpreted the statute for the petitioner. He said that

the petitioner read 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 child rapist and the box for a Range I, standard offender.

She said that she made a clerical 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 thirty percent.

On cross-examination, the prosecutor testified that the

petitioner received no assurance of parole. She said that when she

talks to attorneys, it is her practice to tell them that their clients will

be required to serve the entire sentence. She said that at the time the

plea agreement was made and signed, the petitioner did not have the

judgment form but only the guilty plea petition which gave no

indication that the petitioner would serve only thirty percent of his

sentence.

Steve E. Todd v. State, No. 01C01-9612-CR-00503, 1999 WL 30678, at **1-2 (Tenn. Crim. App.

Jan. 26, 1999).

We now will review the proceedings following the remand to the post-conviction court.

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Although the document is not in the technical record, an “Opinion” of the post-conviction

court, bearing a stamped date of September 9, 1999, is included in the petitioner’s brief. In that

document, the court noted that on the judgment forms for the charges against the petitioner, the

blocks were checked both for “standard 30% Range I” and “child rapist,” which, the court

determined, created a conflict. The opinion concluded:

A close reading of the record in this cause raises grave doubt

concerning the knowledge of the defendant of [Tenn. Code Ann. §

39-13-523] at the time he entered into this plea agreement. This

Court is unable to satisfy itself that the defendant entered into this

plea knowingly.

This Court is of the opinion that the petitioner has carried the

burden of proof required, and that the petition for post conviction

relief should be granted. Because the court has granted the petition

on this particular ground, the others will not be addressed.

This document bears a typed notation indicating that copies were sent to counsel. The first

document in the technical record reflecting an action of the post-conviction court following the

remand is an order, bearing the clerk’s stamp of January 4, 2000, granting the petition for post-

conviction relief:

This cause was originally heard by the Court on a Petition for

Post Conviction Relief. The petition was denied by the Court after a

hearing. An appeal of the denial resulted in the Criminal Court of

Appeals remanding the matter for further determination by the Court.

The Court has considered the case of State v. Burkhart, 566

S.W.2d 871 (Tenn[.] 1978) and has carefully studied the judgement

[sic] form filed in this matter pursuant to the relevant holding in

Burkhart.

The court therefore makes the following findings of fact and

conclusions of law:

FINDINGS OF FACT

The petitioner in this matter was convicted as a [range] one

standard offender at thirty percent (30%);

The petitioner was convicted as a child rapist;

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The applicable statute, T.C.A. Section 39-13-523 requires a

person convicted as a child rapist “be required to serve the entire

sentence imposed by the court, undiminished by any sentence

reduction credit such person may be eligible for or earn;” any credits

the convicted person is eligible to earn may be used for “any purpose

other than the reduction of the sentence imposed by the court.”

T.C.A. Section 39-13-523 (b) “. . . Release eligibility status and

parole shall not apply to or authorize the release of a multiple or child

rapist . . . prior to service of the entire sentence imposed by the

Court.” T.C.A. Section 39-13-523 (c). The Governor and the Board

of Probation and Parole are estopped from releasing or causing the

release of a child rapist “prior to the serve of the entire sentence

imposed by the Court.” T.C.A. Section 39-13-523 (d)[.]

The record of this matter reveals the Petitioner’s lack of

knowledge of the effect of the provisions of T.C.A. section 39-13-523

as it is applied to his negotiated plea. It is apparent on the record,

therefore, that the petitioner did not enter into the plea in the matter

sub judice knowingly;

That a plea must be entered into knowingly is well founded.

Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709;

State v. Mackey, 553 S.W.2d 337 (Tenn. 1977); State v. Neal, 810

S.W.2d 131 (Tenn. 1991).

CONCLUSIONS OF LAW

The Petitioner did not enter his plea knowing the effect of

T.C.A. Section 39-13-523 on a sentence of conviction as a child

rapist. The court holds that the Petitioner in this cause has carried his

burden of proof in the Petition for Post-Conviction Relief.

It is therefore ORDERED, ADJUDGED, and DECREED that

the Petition for Post-Conviction Relief in this case is granted this

[illegible] day of December 1999. This cause is returned to the Court

for such further proceedings as may be necessary. The Petitioner is

to be returned to the custody of the Davidson County Sheriff’s

Department so as to be available for further proceedings.

We note that the order bears the typed date as relief was granted on “this 29th day of

September 1999.” However, handwritten changes were made so that the date was “this [illegible]

day of December 1999.” The order does not bear a clerk’s certificate as to copies being provided

to the parties.

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On August 13, 2001, the petitioner filed a motion to enforce the order granting post-

conviction relief, the motion reciting that on September 9, 1999, the post-conviction court had “filed

a document entitled ‘Opinion’ in which it reversed its prior ruling and directed petitioner’s counsel

to prepare an order granting post-conviction relief.” Additionally, the petitioner’s motion stated that

on November 15, 1999, the State “filed a motion for leave to present further argument and/or

evidence,” and recited that a hearing was conducted on May 12, 2000, apparently pursuant to the

State’s motion and that the petitioner had requested a transcript of that hearing.

Subsequently, the post-conviction court filed an opinion bearing the clerk’s stamped date of

November 2, 2001, stating as follows:

This is a Petition for Post Conviction Relief that has been

before this Court for a considerable length of time. It concerns a

judgment which was originally entered in this cause February 3, 1994.

Thereafter, the petition for post conviction relief was filed. The

matter was heard, after lengthy delay, and the Court issued an opinion

dated July 2, 1998. That matter was appealed and on January 26,

1999, the Court of Criminal Appeals filed an opinion. That opinion

required this Court to enter specific findings of fact. After the

remand order was received, the matter was set for further hearings

and, on September 9, 1999, the Court issued an opinion, as instructed

by the Court of Criminal Appeals. In that opinion, this Court

sustained the Petition for Post Conviction Relief and instructed the

attorney for the petitioner to prepare an order. This order was

subsequently prepared and signed by the Court. That order reflects

that it was filed January 4, 2000. However, the file reflects that in

November of 1999, the District Attorney General for the 20th Judicial

District filed an instrument styled: Motion For Leave To Present

Further Argument And/Or Evidence. In May of 2000, counsel for the

petitioner filed a motion to dispose of that instrument. In August of

2001, the petitioner’s attorney filed a motion to enforce the order

entered in January of 2000.

This Court has many cases assigned to it for determination.

There is no way the Court can keep up with each individual matter.

The Court must rely on counsel for the State and for the petitioners

and defendants to tend to their various cases. This Court has looked

at this matter on this date to try to determine the current status of this

cause. Regardless of what types of motions have been filed in this

cause subsequent to the entry of the order in this case, the order has

been entered. It has been signed by the Judge. No appeal has been

taken from that order. Therefore, this Court is of the opinion that the

order filed in January of 2000 is in effect.

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On November 29, 2001, the State filed a notice of appeal from this opinion.

ANALYSIS

The parties disagree as to what the issues are in this matter. The State, as appellant, presents

the single issue of “[w]hether the defendant’s guilty plea was knowing and voluntary.” In addition

to that issue, the petitioner presents as issues whether the post-conviction court exceeded its mandate

on remand and whether the State’s appeal was timely, or, if not, should be waived in the interest of

justice.

To ascertain whether the State timely appealed the granting of post-conviction relief, we

briefly will review the chronology of this matter, focusing on the motion and orders.

As we have stated, the brief of the petitioner contains, although the technical record does not,

a copy of what appears to be a September 9, 1999, opinion of the post-conviction court stating that

“[t]his Court is unable to satisfy itself that the defendant entered into this plea knowingly,” and

granting post-conviction relief. Post-conviction counsel for the petitioner was directed to prepare

an order reflecting the court’s determination. On November 15, 1999, the State filed a motion

seeking “to present further argument and/or evidence in support of its position that the Court’s initial

ruling in this matter was correct.” The post-conviction court’s order was then filed on January 4,

2000, concluding that the petitioner’s plea had not been “knowing” and granting post-conviction

relief. At a hearing before the post-conviction court on May 12, 2000, pursuant to the State’s motion

to “present further argument and/or evidence,” the State asked that the court “actually make findings

of fact in more detail and let the case go up and follow the normal channels.” Post-conviction

counsel advised the court that specific findings of fact and conclusions of law had been made, but

the court informed counsel that “[t]he order has not been entered.” The court then directed each

counsel to prepare proposed findings of fact and conclusions of law for the court to review.

Subsequently, on August 13, 2001, post-conviction counsel filed a motion to enforce the court’s

order granting post-conviction relief, reciting that the order prepared by counsel granting such relief

“was executed December 21, 1999,” and filed on January 4, 2000. On November 2, 2001,1 counsel

again appeared before the post-conviction court, apparently, because the State had filed proposed

findings of facts and conclusions of law, which are not included in the record on appeal. Later that

day, the court entered an order, reciting that the court’s order filed on January 4, 2000, was “in

effect” and had not been appealed.

This court may, "in the interest of justice," waive an untimely filing of a notice of appeal.

See Tenn. R. App. P. 4(a). The petitioner argues on appeal that the time for the State to file its notice

of appeal began to run on September 9, 1999, when the court filed its opinion granting post-

conviction relief and directing that post-conviction counsel “prepare an order to this effect.” This

1

Although the transcript of this hearing recites that it occurred on Novem ber 2, 2002, we presume that the

correct date is November 2, 2001.

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document, which is not included in the record on appeal, although referred to by documents which

are, apparently resulted in the State’s then filing its motion to present additional proof. Although

an order was entered on January 4, 2000, granting post-conviction relief, neither counsel nor the

post-conviction court was aware, as of the May 12, 2000, hearing, that the order had been entered

and we note that the order does not show that copies were sent to counsel. Post-conviction counsel’s

motion of August 13, 2001, seeking enforcement of the order of January 4, 2000, should have put

the State on notice that a prompt determination should be made as to whether there was an order of

the post-conviction court which should be appealed. However, considering the difficulty in

identifying which order of the post-conviction court triggered the period within which the State was

to appeal, as well as the fact that a determination has not been made as to the credibility of the

parties, which was the purpose of our earlier remand, we conclude that, in the interest of justice, we

will treat the State’s appeal as timely.

To assess the conflicting claims of the parties, we first will review the basis for this matter

being remanded to the post-conviction court after the initial dismissal of the petition. During the

1997 evidentiary hearing, the petitioner testified that his belief as to the sentences he was to receive

would be “two counts, run concurrent, twenty-three years at thirty percent, with a chance for parole.

And that’s what I accepted.” By contrast, the petitioner’s trial counsel testified at the hearing that

he understood “that on a child rape that you don’t get credit toward release.” He said that the

petitioner “was not happy” about this information,” which they discussed “at some length.” He said

that the petitioner’s “attitude at that time was that he just literally was forced to take what the State

was willing to offer, because under no circumstances did he want his little girl to have to face a court

and be examined.”

In the remand, this court set out the conflict between the testimony of the petitioner and that

of his trial counsel which resulted in the remand:

The petitioner also complains that his trial attorney was

ineffective for failing to explain to him the manner in which he would

serve his sentence. At the postconviction hearing, the petitioner

stated that his trial attorney told him he would serve thirty percent of

his sentence and that this was one of the reasons he accepted the

agreement. The trial attorney testified to the contrary, stating that he

did not tell the petitioner before his acceptance of the agreement that

he would only serve thirty percent. He said that, in fact, it was his

belief that he told the petitioner he would be ineligible for early

release because the convictions were for child rape.

....

We 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 testimony, one of the main

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purposes behind requiring an order with findings of fact and

conclusions of law is to prevent this very type of speculation on

appeal. A more detailed order, addressing all of the petitioner's

claims and containing more detailed findings of fact and conclusions

of law, is needed.

Todd, 1999 WL 30678, at *4.

This matter was remanded initially because, other than inferentially as a result of the

dismissal of the petition, we could not determine whether the court had accredited the testimony of

the petitioner or his trial counsel. Following the remand, the post-conviction court granted the relief

sought, concluding that the petitioner’s pleas of guilty were not knowing. Thus, we now have the

reverse of the original situation, for we now cannot determine, other than inferentially because of

the post-conviction court’s reversal of its previous order, whether the post-conviction court

accredited the testimony of the petitioner or his trial counsel. Accordingly, we conclude that this

matter must be reversed and remanded for appropriate findings of fact and conclusions of law.

However, because over five years have passed since the evidentiary hearing in this matter, we cannot

conclude that the post-conviction court could, at this point, make the required findings as to

credibility and other matters. Accordingly, we remand for another evidentiary hearing as to the

petition for post-conviction relief, and direct that the presiding judge of the Davidson County

Criminal Court reassign the matter to another division of court for such hearing and other

proceedings consistent with this opinion.

CONCLUSION

Based upon the foregoing authorities and reasoning, we reverse the order of the post-

conviction court and remand this matter for proceedings consistent with this opinion.

___________________________________

ALAN E. GLENN, JUDGE

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