Petition for Writ of Certiorari — Penny v. United States (No. 05-1666)

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051666 JUN 2 6 2006

_ OFFICE OF THE CLERK

Jn The

Supreme Court of the Anited States

TERRY EUGENE PENNY,

AKA TERRY PENNY,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition from the Denial of a Writ of

Certiorari to the Tennessee Supreme Court

PETITION FOR A WRIT OF CERTIORARI

with Appendix

* Bryan H. Hoss

Charles Leland Davis

DAVIS & Hoss, PC

508 East Fifth Street

Chattanooga, TN 37403

(423) 266-0605

* Counsel of Record

Counsel for Petitioner

June, 2006

A RO a SOE AER A al leeimemmeteente aemeenetall

LEGAL ADVANTAGE © 432 Walnut Street © Cincinnati, OH 45202

(800) 581-2252

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Fifth, Sixth and Fourteenth

Amendments to the United States Constitution mandate a new

rule of law tolling, waiving or suspending the statute of

limitations for post conviction proceedings as contained in

T.C.A. § 40-30-102 due to the inconsistencies in the record,

the unsigned judgment and the severe Boykin violations?

7 a Whether Terry Penny is “in custody” for a

Wnit of Habeas Corpus under his 1976 conviction because

such conviction is now an element of a new charged offense

of being a felon in possession of a firearm in violation of 18

U.S.C. § 922(g)?

TABLE OF CONTENTS

PAGE

Questions Presented for Review .................... 1

Pe NE 5 ik Pew oe be andiee eer ee eh Eres i

See SE Oe RI on aes cecceceas aden ans iii

Citations of the Opinions and Orders................. l

gg BPE OP PET Pees See foe 2

Constitutional Provisions & Statutes Involved ......... 3

gg a ee rrr ey rT reo ret Te oe 7

ES Sree ee aan eee toes Eye wre ap eae, Ty ener pee 19

Appendix

TABLE OF CITED AUTHORITIES

CASES

Boykin v. Alabama,

395 U.S. 238 (1969)

Johnson v. Zerbst,

304 U.S. 458 (1938)

Jones v. Cunningham,

371 U.S. 236 (1963)

Maleng v. Cook,

490 U.S. 488 (1989)

Parke v. Raley,

506 U.S. 20 (1992)

Penny v. State of Tennessee,

2005 WL 3262929 (Tenn.Crim.

App., December 2, 2005)

(NO. E2004-01735-CCA-R3PC),

cert. denied March 27, 2006

State v. Mackey,

553 S.W.2d 337 (Tenn. 1977)

STATUTES

T.C.A. § 29-21-10]

T.C.A. § 40-30-102 i, 4-6, 13, 19, 23

18 U.S.C. § 922(g) i, 12, 24

28 U.S.C. § 1957

CONSTITUTIONAL PROVISIONS

U.S. Constitutional Amend. V, § 1

U.S. Constitutional Amend. VI, § 1

U.S. Constitutional Amend. XIV, § 1

RULES

Supreme Court Rule 10(b) & (c)

Tenn.R.Cnm.P. 36

CITATIONS OF T**® OFFICIAL AND UNOFFICAL

OPINIONS AND € *,’ ERS ENTERED IN THIS CASE

BY THE 1: #NNESSEE COURTS

1. Penny v. State of Tennessee, 2005 WL

3262929 (Tenn.Crim.App., December 2, 2005) (NO.

E2004-01735-CCA-R3PC) (Opinion, Apx at C1-C23), cert.

denied March 27, 2006. (Order, Apx at Al);

2. Penny _v. State of Tennessee, Hamilton

County Cnminal Court Docket No. 130199 (Final Order

denying Motion to Correct Judgment, Petition for Post-

Conviction and Writ of Habeas Corpus entered July 8,

2004, Apx at E1-E10);

a State of Tennessee .v. Penny, Hamilton

County Criminal Court Docket No. 130199 (Final

Judgment entered June 28, 1976, Apx at 118-121). -

BASIS FOR JURISDICTION

The Petitioner is seeking review of a final

-Tennessee State Court Judgment. This Court has

jurisdiction pursuant to Sup. Ct. R. 10(b) & (c) and 28

U.S.C. § 1957 following the Tennessee Court of Appeals’

decision in Penny v. State of Tennessee, 2005 WL 3262929

(Tenn.Crim.App., December 2, 2005) (NO. E2004-01735-

CCA-R3PC) (Opinion, Apx at C1-C23) and subsequent

denial for permission for Writ of Certiorari by the

Tennessee Supreme Court on March 27, 2006. (Order, Apx

at Al). The Petitioner did not file a Petition for Rehearing.

CONSTITUTIONAL PROVISIONS &

STATUTES INVOLVED IN THIS CASE

U.S. Const. amend. V, § 1:

No person shall be held to answer for

a capital, or otherwise infamous crime,

unless on a presentment or indictment of a

Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when -

in actual service in time of War or public

danger; nor shall any person be subject for

the same offence to be twice put in jeopardy

of life or limb; nor shall be compelled in any

criminal case to be a witness against

himself, nor be deprived of life, liberty, or

property, without due process of law; nor

shall private property be taken for public

use, without just compensation.

U.S. Const. amend. V1, § 1:

In all criminal prosecutions, the

accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the State

and district wherein the crime shall have

been committed, which district shall have

been previously ascertained by law, and to

be informed of the nature and cause of the

accusation; to be confronted with the

witnesses against him; to have compulsory

process for obtaining witnesses in his favor,

and to have the Assistance of Counsel for

his defense.

U.S. Const. amend. XIV, § 1:

All persons born or naturalized in the

United States and subject to the jurisdiction

thereof, are citizens of the United States and

of the State wherein they reside. No State

shall make or enforce any law which shall

abridge the privileges or immunities of

citizens of the United States; nor shall any

State deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its jurisdiction the

equal protection of the laws.

T.C.A. § 29-21-101:

Any person imprisoned or restrained

of liberty, under any pretense whatsoever,

- except in cases specified in § 29-21-102,

may prosecute a writ of habeas corpus, to

inquire into the cause of such imprisonment

and restraint.

T.C.A. § 40-30-102:

(a) Except as provided in subsections

(b) and (c), a person in custody under a

sentence of a court of this state must petition

for post-conviction relief under this part

within one (1) year of the date of the final

action of the highest state appellate court to

which an appeal is taken or, if no appeal is

taken, within one (1) year of the date on

which the judgment became final, or

consideration of such petition shall be

barred. The statute of limitations shall not

be tolled for any reason, including any

tolling or saving provision otherwise

available at law or equity. Time is of the

essence of the right to file a petition for

post-conviction relief or motion to reopen

established by this chapter, and the one-year

limitations period is an element of the nght

to file such an action and is a condition upon

its exercise. Except as specifically provided

in subsections (b) and (c), the night to file a

petition for post-conviction relief or a

motion to reopen under this chapter shall be

extinguished upon the expiration of the

limitations period.

, (b) No court shall have jurisdiction

toonsider a petition filed after such time

unless:

(1) The claim in the petition is based

upon a final ruling of an appellate court

sstablishing a constitutional mght that was

not recognized as existing at the time of

trial, if retrospective application of that right

is required. Such petition must be filed

within one (1) year of the ruling of the

highest state appellate court or the United

States supreme court’ establishing a

constitutional right that was not recognized

as existing at the time of trial;

(2) The claim in the petition is based

upon new scientific evidence establishing

that such petitioner is actually innocent of

the offense or offenses for which the

petitioner was convicted; or ~

(3) The claim asserted in the petition

seeks relief from a sentence that was

enhanced because of a previous conviction

and such conviction in the case in which the

claim is asserted was not a guilty plea with

an agreed sentence, and the previous

conviction has subsequently been held to be

invalid, in which case the petition must be

filed within one (1) year of the finality of the

ruling holding the previous conviction to be

invalid.

of only one (1) petition for post-conviction

relief. In no event may more than one (1)

petition for post-conviction relief be filed

attacking a single judgment. If a pmnor

petition has been filed which was resolved

on the merits by a court of competent

jurisdiction, any second or subsequent

petition shall be summarily dismissed. A

petitioner may move to reopen a post-

conviction proceeding that has _ been

concluded, under the limited circumstances

set out in § 40-30-117.

STATEMENT OF THE CASE

On April 1, 1975, the Petitioner, Terry Penny, was

indicted in the Hamilton County Criminal Court for

feloniously selling a controlled substance. (Indictment, Apx

at 115-117).

On May 19, 1976, Terry Penny appeared in

Hamilton County Criminal Court before the Honorable

Judge Campbell Carden. (Courtroom Minutes dated

5/19/76, Apx at 122-124). The Petitioner pled guilty and the

Court continued the case until June 28, 1976 for the

Petitioner to file a Petition for Probation. The courtroom

minutes from May 19, 1976 state that the Petitioner pled

guilt to “selling a controlled substance” and that he

received a sentence of eleven (11) months, twenty-nine

(29) days. (Courtroom Minutes from 5/19/76, Apx at I22-

124).

On June 28, 1976, the Petitioner appeared back in

Court. The courtroom minutes reflect that the Petitioner

had timely filed his Petition for Probation and that his

Petition was sustained and placed a further condition upon

the Petitioner of good behavior for a period of five years.

(Courtroom minutes dated 6/28/76, Apx at I25-1I30).

The Judgment is dated June 28, 1976 but was never

signed by Judge Carden. (Judgment, Apx at 118-121). The

Judgment reflects that the Petitioner pled guilty to “Attempt

to Commit a Felony” not “selling a controlled substance”

as listed in the courtroom minutes. (Judgment, Apx at I18-

121). “Attempt to Commit a Felony” is a separate and

distinct offense and under Tennessee’s felony classification

system prior to 1981 has a different impact on the

Petitioner’s civil liberties.

To further add to the inconsistencies in the record,

the Petitioner file a verified Petition for Probation on June

16, 1976. (Petition for Probation, Apx at 131-134). The

Petition for Probation was sustained by the tral court

according to the courtroom minutes. (Courtroom minutes

dated 6/28/76, Apx at 125-130). The Petition for Probation

reflects that the Petitioner pled guilty to “simple possession

of marijuana” and received a sentence of eleven (11)

month, twenty-nine (29) days. (Petition for Probation, Apx

at 131-134). This is the only record in the entire file that

shows Terry Penny was put under oath by its verification.

Id. This Petition was signed by Mr. Penny’s attorney and

reflects service upon the Hamilton County District

Attorney’s office. Id. It contained a verification signed by

Terry Penny that the allegations, “contained in the

foregoing petition are true.” Id. The verification was sworn

to and subscribed by a Notary Public. Id. Most importantly,

the Petition for Probation corroborates the courtroom

minutes in that both documents reflect that the Petitioner

received a sentence of eleven (11) months, twenty nine (29)

days. Id; (Courtroom minutes dated 6/28/76, Apx at 125-

130). me

Therefore, the unsigned judgment, the courtroom

minutes and the Petition for Probation all reflect that the

Petitioner pled guilty to a separate criminal offense.

This Court can take judicial notice that the standard

demarcation line in common criminal law jurisprudence

between a misdemeanor and a felony is the difference

between an eleven (11) months, twenty-nine (29) day

sentence and a sentence exceeding one year.

The Official Court Reporter for Hamilton County

Criminal Court, Division One, reviewed the official

audiotapes from May 19, 1976 and June 28, 1976, the

purported days Mr. Penny appeared in court. (Affidavit of

Abigail Pearce, Apx at 135). There were recordings on

both dates but of other criminal defendants. The Court

Reporter_listened to them and there was nothing in those

recordings to suggest that the trial court talked to,

acknowledged or ever conducted any type of voir dire or

colloquy with Terry Penny. The audio tapes are direct proof

that the trial court did not conduct the necessary Boykin

voir dire to ensure a knowing, voluntary and intelligent

plea of guilty.

In addition, the unsigned judgment reflects that Mr.

Penney was sentenced to good behavior for five years

under parole supervision by the State of Tennessee. The

State Board of Probation and Parole has no records after

searching under Terry Penny’s name, birth date, and social

security number that he was ever under any supervision for

the five year period in docket number, 130199. (State of

Tennessee’s Board of Probation and Parole letter dated

June 3, 2004, Apx at F3-F4).

The date of Mr. Penny’s judgment’ was

approximately one year prior to the Tennessce Supreme

Court’s landmark decision in State v. Mackey, 553 S.W.2d

337 (Tenn. 1977) adopting the procedu*al protections

outlined by this Court in Boykin v. Ala’ 1a, 395 U.S. 238

(1969). The Mackey Court held that the sentencing

procedures in Hamilton County Criminal Courts, only one

year after Terry Penny’s plea, failed to ensure knowing,

voluntary and intelligent pleas of guilty.

In January, 2004, nearly 28 years later, the

Petitioner became the subject of a multi-count federal

indictment. The government discovered several firearms in

the Petitioner’s residence on two separate occasions in

August, 2003 and January, 2004 and has charged Terry

Penny with violating 18 U.S.C. § 922(g), that is being a

felon in possession of a firearm. The government is relying

upon this 1976 conviction as the predicate felony offense

for the violation of 18 U.S.C. § 922(g). This is Terry

Penny’s only conviction that could possibly be construed as

being a felony. (State’s Response to Petitioner’s Motion to

Correct Judgment, Apx at G1-GS5).

On March 30, 2004, within three months of his

federal indictment, Mr. Penny filed a Motion to Correct

Judgment in the Criminal Court of Hamilton County,

Tennessee. (Motion to Correct Judgment, Apx at K1-K4)

The Petitioner also filed a week later, on April 6,

2004, a Petition for Post-Conviction Relief asserting

various constitutional deficiencies and violations that are

presently before this Court. (Petition for Post Conviction

Relief, Joint Appendix, Apx 11-135).

The Honorable Judge Douglas Meyer, Division I,

Hamilton County Criminal Court, conducted a hearing on

June 7, 2004 on the Petitioner's Motion to Correct

Judgment and Petition for Post Conviction. Judge Meyer

issued an Order dated July 8,-2004 denying the Petitioner’s

Motion to Correct Judgment and finding that the

Petitioner’s claims under the Post Conviction Act were

barred by the statute of limitations contained in T.C.A. §

40-30-102. (Order dated July 8, 2004, Apx at El-E10).

The tnal court also interpreted Mr. Penny’s claims as

seeking habeas corpus relief and denied them as well. Id.

In the Final Order, the trial court agreed that the

record “contained one or more clerical errors...” (Order

dated July 8, 2004, Apx at E3-E4). The trial court noted

that the Judgment and the Courtroom minutes are in

disagreement. (Order dated July 8, 2004, Apx at E3-E4). In

denying the Petitioner’s Motion to Correct Judgment, the

Court stated “although it is clear that the record contains

one or more clerical errors, considering the internal

consistency of the Judgment and the lack of such

consistency of other documents in the record as well as the

absence of the transcript and therefore the absence of

inconsistency between the Judgment and the transcript, the

Court finds that the Judgment is not the location of the

error(s).” (Order dated July 8, 2004, Apx at E5).

As to the Petitioner’s Petition for Post Conviction,

the trial court noted that the Due Process clause precludes

any type of strict applications to “procedural requirements

such as statutes of limitation that would affectively deny a

litigant an opportunity to present his claims at a meaningful

time and a meaningful manner.” (Order dated July 8, 2004,

Apx at E6). However, the Court denied the Petitioner’s

claims as time barred and reasoned:

The oniy explanation that the defendant

offers for his failure to present h'< post-

conviction claims in a timely petition: is that

he did not have any reason to know that the

conviction offense was a felony until his

indictment by a federal grand jury in

January 2004. Not only does the judgment

indicate that the conviction offense was a

felony, however, but the sentence, about

which there is no disagreement, presupposes

a felony conviction. Thus, regardless of the

defendant’s actual belief regarding the

conviction offense, he had reason to know,

as of 28 June 1976 at the latest, that the

conviction offense was a __ felony.

Furthermore, if his guilty plea was

involuntary or unintelligent because of

omissions on the part of the trial court at the

time of the plea, then he had reasons to

know that immediately. (Order dated July 8,

2004, Apx at E6-E7).

Lastly, the trial court addressed the Petitioner’s argument

that the Judgment was illegal which the trial court

interpreted as a claim for a “Writ of Habeas Corpus.”

(Order dated July 8, 2004, Apx at E7). The court reasoned

that since “Attempt to Commit a Felony” was a lesser

included offense of the indicted offense then that such

sentence was not illegal. (Order dated July 8, 2004, Apx at

E8). Ultimately, the tral court concluded that “there is no

clerical error in the Judgment, that the Defendant’s post

conviction claims are untimely, and that there is no grounds

for sua sponte issuance of a Writ of Habeas Corpus,” and

denied the Petitioner’s motion and petition. (Order dated

July 8, 2004, Apx at E10).

On July 15, 2004, the Petitioner timely filed his

Notice of Appeal to the Tennessee Court of Appeals.

(Notice of Appeal, Apx at D1-D2).

In Penny v. State of Tennessee, 2005 WL 3262929,

*4 (Tenn.Crim.App., December 2, 2005) (Opinion, Apx at

C1-C23) (NO. E2004-01735-CCA-R3PC), cert. denied

March 27, 2006, (Order, Apx at Al), the Tennessee Court

of Appeals affirmed the Trial Court’s denial of the

Petitioner’s Motion to Correct the Judgment stating:

[U]nder these circumstances, we cannot

agree with the petitioner’s claim that his

petition for probation, drafted by his trial

counsel, is the most ‘reliable indicator’ that

a clerical error in the judgment may have

existed. In addition, regardless of whether

we decide the clerical error existed in either

of the remaining two court documents, the

judgment or the court minutes, the result is

the same, the petitioner is a convicted felon.

The Court states, “Although a clerical error may

exist, it does not occur in the judgment because it is the

only document with internal consistency between the

conviction charge and sentence. As such, we conclude the

petitioner would not be entitled to a correction of his

judgment under Rule 36.” Id.

In denying the Petitioner’s post-petition conviction

and finding that his claims were time barred, the Court of

Appcals affirmed the trial court and simply cites to the

exact same language the trial court relied upon in finding

the claims time barred. Id.

Lastly, the trial court denied habeas corpus relief.

The Tennessee Court of Appeals held that the Petitioner

was not entitled because he was “not currently being

restrained of his liberty under the 1976 judgment and thus,

is not entitled to habeas corpus relief.” Id. at *8.

The Petitioner timely filed an Application for

Permission to Appeal to the Tennessee Supreme Court and

they denied permission for a writ of certiorari on March 27,

2006.

Finally, the Petitioner timely filed the present

application of a Wnit of Certiorari to the United States

Supreme Court.

ARGUMENT

The Tennessee Supreme Court, as a state court of

last resort, in denying the writ of certioran by Mr. Penny

and affirming the decision by the Tennessee Court of

Appeals has decided an important question of federal law

that has not been but should be settled by this Court. Sup.

Ct. R. 10(b) & (c).

i. Whether the Fifth, Sixth and Fourteenth

Amendments to the United States Constitution

mandate a new rule of law tolling, waiving or

suspending the statute of limitations for post

conviction proceedings as contained in T.C.A. §

40-30-102 due to the inconsistencies in the

record, the unsigned judgment and the severe

Boykin violations?

The United States Supreme Court since its

landmark decision in Boykin v. Alabama, 395 U.S. 238

(1969) has mandated that trial courts conduct a voir dire

with criminal defendants in order to ensure knowing, ~

voluntary and intelligent guilty pleas. The reasoning is

clear: “What is at stake for an accused facing death or

imprisonment demands the utmost solicitude of which

courts are capable in canvassing the matter with the

accused to make sure he has a full understanding of whai

the plea connotes and of its consequence. When the judge

discharges that function, he leaves a record adequate for

any review that may be later sought, (citations omitted) and

forestalls the spin-off of collateral proceedings that seek to

probe murky memories.” Boykin, 395 U.S. at 243-244.

The Boykin Court outlined three separate federal

constitutional mghts that are involved in a criminal

defendant’s waiver during a guilty plea. Id. at 244. They

are the privilege against compulsory self-incrimination

guaranteed by the Fifth Amendment, the right to trial by

jury and the right to confront one’s accusers guaranteed by

the Sixth Amendment. Id. In order for the waiver to be

valid under the Due Process clause, the Supreme Court has

held that it must be “an intentional relinquishment or

abandonment of a known right or privilege.” Johnson v.

| Zerbst, 304 U.S. 458 (1938). If the Defendant’s guilty plea

is not voluntary and knowing, then such pleas have been

obtained in violation of the Due Process clause and are

void. Boykin, 395 U.S. at 244.

The State of Tennessee had not adopted Boykin

until its landmark decision in State v. Mackey, 553 S.W.2d

337 (Tenn. 1977) some one year after Mr. Penny’s case. In

Mackey, the Tennessee Supreme Court found Fifth, Sixth

and Fourteenth Amendment constitutional deficiencies in

the guilty plea procedure in the same Hamilton County

Criminal Courts where Mr. Penny pled guilty nearly one

year prior.

In Parke v. Raley, 506 U.S. 20 (1992), the United

States Supreme Court in reviewing a Kentucky guilty plea

held that Boykin did not prohibit state courts from

presuming, at least initially, that final judgments of

conviction offered for the purpose of a sentencing

enhancement were validly obtained. In Parke, the Court

distinguished cases in which the transcript was

“suspiciously silent on the question whether the defendant

_ waived constitutional rights.” Parke, 506 U.S. at 523-524.

The Parke case involved a guilty plea in which a transcript

did not exist because state officials at that time did not

make a transcript for a guilty plea colloquy. Id. at 524.

The Court stated, “we think it defies logic to presume from

the mere unavailability of a transcript (assuming no

allegation that the unavailability is due to government

misconduct) that the defendant was not advised of his

rights.” Id. Due to.such reasoning, the Court refused to

remove the “presumption of regularity” that attaches to

every final judgment. Id. at 523. Furthermore, the United

States Supreme Court kept open the possibility of removing

such “presumption of regularity” in certain cases when it

stated, “we see no good reason to suspend the presumption

of regularity here.” Id.

In the present case, the Petitioner respectfully

submits that this Court should adopt a new rule of law

tolling, waiving or suspending the statute of limitations

found in T.C.A. § 40-30-102 to collaterally attack a state

court sentence in the limited context of when state

prosecutors and courts have unconditionally failed to

achieve any measure of ensuring that the Petitioner's

constitutional rights have been met. The Boykin voir dire

was clearly mandated by this Court well before the 1976

guilty plea involving Terry Penny and was clearly not done.

This amounts to clear 5", 6" and 14" Amendment

- violations. Moreover, the record has been haphazardly

prepared is constitutionally inadequate leaving three

possible scenarios between the unsigned judgment, the

courtroom minutes and the Petition for Probation. The trial

court and the prosecutors from 1976 left us today with

nothing more than an estimated guess as to the Defendant’s

conviction. Reasonable minds may differ as to the true

nature of the Defendant’s guilty plea. Nevertheless, such

deficiencies in the record and lack of any intelligent

colloquy between the tral court and the Petitioner should

be strictly construed against the State, especially when such

conviction now becomes the basis of a 18 U.S.C. § 922(g)

prosecution some 28 years later. The basic tenants of

fundamental faimess and due process in cnminal

prosecutions require more. The Petitioner respectfully

requests for this Court to adopt a new rule of law tolling,

waiving and/or suspending the statute of limitations to

collaterally attack sentences due to such severe due process

violations.

y & Whether Terry Penny is “in custody” for a Writ

of Habeas Corpus under his 1976 conviction

because such conviction is now an element of a

new charged offense of being a felon in

possession of a firearm in violation of 18 U.S.C. §

922(g)?

In Maleng v. Cook, 490 U.S. 488, 492 (1989), the

United States Supreme held that a Petitioner was not “in

custody” for the purpose of a writ of habeas corpus “merely

because of the possibility that the prior conviction will be

used to enhance the sentences imposed for any subsequent

crimes of which he is convicted.”

In Jones v. Cunningham, 371 U.S. 236, 242 (1963),

this Court held that a prisoner on parole was “in custody”

under his unexpired sentence for habeas corpus purposes.

The Court reasoned that the petitioner's release from

custody was not unconditional and was based upon his

regularly reporting to a parole officer, remaining in the

community, his residence, job and refraining from certain

activities. Id. ‘

In the present case, the Petitioner pursuant to the

Sixth Amendment submits that this Court should extend the

Jones rule to include situations in which the government is

required to prove the underlying conviction beyond a

reasonable doubt as an element of a charged offense. In

Mr. Penny’s case, the 1976 conviction is not being used to

merely enhance his sentence; it is an element of a charged

offense and is entitled to more protection than merely a

conviction used at sentencing as contemplated in Maleng.

The Sixth Amendment and the proof beyond a

reasonable doubt standard implicated those same

constitutional concerns that have opened the Writ of

Habeas Corpus door up to other criminal defendants.

When the government relies upon past convictions that

without them, there would be no criminal violation, then

criminal Defendants should be allowed to attack such

convictions through the historical nature of Writs of Habeas

Corpus.

This conviction plays an integral role in whether

Mr. Penny is in “custody” and strikes at the heart of Mr.

Penny being “restrained of his liberty.”

Respectfully, the Petitioner submits this Court

should extend Jones to situations in which the government

must prove the existence of a prior conviction beyond a

reasonable doubt to allow individuals to file such writs and

challenge constitutional violations in such sentences.

Bryan H. Hoss

Charles Leland Davis

DAVIS & Hoss, PC

508 East Sth Street

Chattanooga, TN 37403

423-266-0605

Counsel for Petitioner

APPENDIX

SUPREME COURT OF TENNESSEE FILING:

Order,

filed 03/27/06

TENNESSEE STATE APPEAL COURT FILINGS:

Judgment,

filed 12/02/05

Opinion,

filed 12/02/05

TTENNESSEE COUNTY COURT FILINGS:

Notice of Appeal,

filed 07/14/04

. Order,

filed 07/08/04

Notice of Filing

Supplemental Exhibits,

filed 06/11/04

Exhibits:

Ex.A Probation Letter, 06/03/04

Ex.B Affidavit of Bryan Hoss, 06/11/04 ..

APPENDIX, CONT.

State’s Response to Correct Judgment,

cues wae ced ee ecacesssscrve G1-G5

Motion to Dismiss Petition for

Post-Conviction Relief,

tee eens H1-HS5

Petition for Post Conviction-Relief,

ec ccc ecccees J1-134

Exhibits:

Ex.A Indictment, 04/01/75 ........... 115-117

Ex.B Judgment, 06/28/76 ............ 118-121

Ex.C Minutes, 05/19/76 & 06/28/76 .... 122-130

Ex.D Petition for Probation, 06/17/76 ... I31-I34

Ex.E Court Reporter’s Certification .... 135-135

Affidavit of Terry Penny,

OE J1-J3

Motion to Correct Judgment,

Ee K1-K4

IN THE COURT OF CRIMINAL APPEALS

OF TENNESSEE AT KNOXVILLE

September 27, 2005 Session

TERRY PENNY v. STATE OF TENNESSEE

Criminal Court for Hamilton County

Nos. 130199 and 248876

No. E2004-01735-CE€A-R11-PC

ORDER

Upon consideration of the application for permission

to appeal of Terry Penny and the record before us, the

application is denied.

PER CURIAM

A-l

IN THE COURT OF CRIMINAL APPEALS

OF TENNESSEE AT KNOXVILLE

September 27, 2005 Session

TERRY PENNY v. STATE OF TENNESSEE

Direct Appeal from the

Criminal Court for Hamilton County

Nos. 130199, 248876

No. E2004-01735-CCA-R3-PC CS

JUDGMENT

Came the petitioner, Terry Penny, by counsel, and

the State, by the Attorney General, and this case was heard

on the record on appeal from the Criminal Court of

“Hamilton County; and upon consideration thereof, this

court is of the opinion there is no reversible error in the

judgment of the trial court.

It is, therefore, ordered and adjudged by this court

that the judgment of the trial court is AFFIRMED, and the

case is remanded to the Criminal Court of Hamilton County

for execution of judgment of that court and for collection of

costs accrued below.

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It appearing that the petitioner is indigent, the costs

of the appeal are taxed to the State of Tennessee.

ALAN E. GLENN, Judge

JERRY L. SMITH, Judge

NORMA McGEE OGLE, Judge

IN THE COURT OF CRIMINAL APPEALS

OF TENNESSEE AT KNOXVILLE

September 27, 2005 Session

TERRY PENNY v. STATE OF TENNESSEE

Direct Appeal from the

Criminal Court for Hamilton County

Nos. 130199, 248876

Douglas A. Meyer, Judge

The petitioner, Terry Penny, appeals the post-

conviction court’s denial of his motion for a corrected

judgment and his petition for post-conviction relief arguing

his 1976 judgment should be corrected pursuant to

Tennessee Ruie of Criminal Procedure 36 and his post-

conviction petition was not time barred by the statute of

limitations. Following our review, we affirm the post-

conviction court.

' Throughout his brief, the petitioner spells his

name “Terry Penney.” However, on the indictment and

judgment, it is spelled “Terry Penny.” We will use this

second spelling.

Tenn. R. App. P. 3 Appeal as of Right;

Judgment of the Criminal Court Affirmed

ALAN E. GLENN, J., delivered the opinion of the court,

in which JERRY L. SMITH and NORMA MCGEE OGLE, JJ.,

joined.

C. Leland Davis and Bryan H. Hoss, Chattanooga,

Tennessee, for the appellant, Terry Penny.

Paul G. Summers, Attorney General and Reporter; Renee

W. Turrer, Assistant Attorney General; William H. Cox,

Ill, District Attorney General; and Lila Statom, Assistant

District Attorney General, for the appellee, State of

Tennessee.

OPINION

FACTS

In 1975, the petitioner was indicted by the Hamilton

County Grand Jury for unlawfully and feloniously selling

or delivering a Schedule IV_ controlled substance,

Ethchlorvynol. In 1976, according to the judgment, the

petitioner pled guilty to an attempt to commit a felony and

was sentenced to eleven months, twenty-nine _ days,

suspended on payments of costs and good behavior for five

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years under parole supervision.? On March 30, 2004, he

filed a motion seeking to correct his 1976 judgment under

Tennessee Rule of Criminal Procedure 36,’ arguing that a

clerical error had occurred and that the judgment should

have reflected he pled guilty to a misdemeanor and not a

felony.’ The petitioner, noting discrepancies between the

judgment, the court minutes from the day of his plea, and

his petition for probation,’ asked the court to correct the

* The petitioner originally pled guilty on May 19,

1976, but the execution of judgment was withheld pending

his petition for a suspended sentence. On June 28, 1976, his

judgment was executed, with the court granting his petition

for a suspended sentence.

> Rule 36 provides: “Clerical mistakes in judgments,

orders, or other parts of the record and errors in the record

arising from oversight or omission may be corrected by the

court at any time and after such notice, if any, as the court

orders.” Tenn. R. Crim. P. 36.

* This motion was filed after the petitioner was

indicted in the United States District Court in Chattanooga

on February 11, 2004, for two counts of being a felon in

possession of a firearm, in violation of Title 18, United

States Code, Section 922(g)(1). The predicate offense

relied on by the federal government is the petitioner’s 1976

conviction which was the subject of this appeal.

> The petitioner noted that while his judgment

showed he pled guilty to “Attempt to Commit a [F]elony,”

the May 19, 1976, court minutes showed he pled guilty to

“Selling a Controlled Substance” and his petition for a

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judgment to reflect that he pled guilty to “selling a

controlled substance,’ which he asserts was a

misdemeanor. On April 6, 2004, approximately one week

later, he filed a petition for post-conviction relief, asserting

that his 1976 “judgment and sentence are illegal and

contrary to the laws of the State of Tennessee and United

States Constitution in light of the incomplete record” and,

in the alternative, that his “conviction is void and/or

voidable due to the abridgment of [his] nights guaranteed

by the Tennessee Constitution and the Constitution of the

United States because he did not enter a knowing,

voluntary and understanding plea to a felony offense.”

In June 2004, the post-conviction court held a

hearing on the motion to correct the judgment and the

petition for post-conviction relief. The court denied relief,

finding no clerical error in the petitioner’s judgment and

that the post-conviction relief claims were untimely. In

addition, after considering if there were any grounds for a

sua sponte issuance of a writ of habeas corpus based on the

petitioner’s claim that his judgment was illegal, the court

concluded that neither the conviction nor sentence was

suspended sentence showed he pled guilty to “simple

possession of marijuana.”

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illegal. The petitioner appealed these rulings, and we will

review the issues-raised on appcal.

ANALYSIS

I. Correction of Judgment

The petitioner contends the trial court erred in

denying his motion, filed under Tennessee Rule of

Criminal Procedure 36, to correct judgment to reflect a

misdemeanor rather than a felony because, according to his

argument, “the entire record including. the judgment,

courtroom minutes from two different dates, the pleadings

and the transcript are all inconsistent to ensure that the

offense as contained on the judgment itself was in fact what

the [petitioner] agreed to plead guilty to.” The State

contends that there is no error in the judgment and that the

petitioner has no appeal of nght under Tennessee Rule of

Appellate Procedure 3.

We agree with the State that the petitioner does not

have an appeal as of nght from the denial of his motion to

correct judgment due to clerical errors. Tennessee Rule of

Appellate Procedure 3 (b) states:

In criminal actions an appeal as of nght by

a defendant lies from any judgment of

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Sane

conviction entered by a trial court from

which an appeal lies to t?'« Supreme Court

or Court of Criminal Appeals: (1) on a plea

of not guilty; and (2) on a plea of guilty or

nolo contendere, if the defendant entered

into a plea agreement but explicitly

reserved the right to appeal a certified

question of law dispositive of the case

pursuant to and in compliance with the

requirements of Rule 37(b)(2)(i) or (iv) of

the Tennessee Rules of Criminal Procedure,

or if the defendant seeks review of the

sentence and there was no plea agreement

concerning the sentence, or if the tssues

presented for review were not waived as a

matter of law by the plea of guilty or nolo

contendere and if such issues are apparent

from the record of the proceedings already

had. The defendant may also appeal as of

right from an order denying or revoking

probation, and from a final judgment in a

criminal contempt, habeas corpus,

extradition, or post-conviction proceeding.

Tenn. R. App. P. 3(b). The denial. of a Rule 36 motion to

correct a judgment for a clerical error is not covered by

Rule 3 and, thus, the petitioner does not have an appeal as

of right. Jonathan Malcolm Malone v. State, No. M2004-

02826-CCA-R3-CO, 2005 WL 1330792, at *2 (Tenn.

Crim. App. June 6, 2005); State v. Greg Smith, No. E2003-

01 092-CCA-R3-CD, 2004 WL 305805, at *1 (Tenn. Crim.

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App. Feb. 18, 2004) (holding there is no appeal as of right

for a trial court’s denial of a motion for pretrial jail credits

under Rule 3 and even if the “motion could be recast as a

motion to correct the sentence, a trial court’s order denying

a motion to correct a sentence is generally not appealable as

a matter of right”).

Even accepting, arguendo, that the petitioner did

have aright to appeal the trial court’s denial of his Rule 36

motion, the records upon which he relies do not establish

that he is entitled to relief According to the judgment, the

petitioner was charged with “FEL. SELLING A CONT.

SUBSTANCE” and pled guilty on May 19, 1976, to

“ATTEMPT TO COMMIT A FELONY.” It also bears the

following notation:

5/19/76. EXECUTION OF JUDGMENT

WITHHELD

6/28/76 JUDGMENT ORDERED INTO

EXECUTION - PET. FOR SUSPENDED

SENTENCE SUSTAINED ON PAYMENT

OF COSTS ON OR BEFORE 7/30/76 AND

GOOD BEHAVIOR FOR FIVE YEARS

UNDER PAROLE SUPERVISION

The May 19, 1976, court minutes state as follows:

130199 State v. Terry Penny - Fel. Selling Controlled

Substance.

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Came the Attorney General and the

[petitioner] in person with his attomey ...

and this case came on for hearing before the

[cjourt without a jury on [the petitioner’s]

plea of guilty.

Upon [the petitioner’s] plea and

upon proof heard, it is adjudged by the

[cJourt that the [petitioner] is guilty of

Selling a Controlled Substance, Schedule

IV, and it is the judgment of the [c]Jourt that

the [petitioner] serve a term of 11 months

and 29 days at the Hamilton County Penal

Farm, and pay all costs. Execution will issue

against the [petitioner] for the costs.

Execution of the judgment is further

ordered withheld pending an investigation

by the State Parole Office. [The petitioner]

is allowed 10 days within which to file a

Petition For Suspended Sentence to be heard

on June 28, 1976. No bond allowed.

The June 28, 1976, court minutes, the day the

petitioner’s judgment was executed, state the following:

130199 State v. Terry Penny - Fel. Selling Controlled

Substance

The above case came on for hearing

on a Petition For Suspended Sentence

heretofore filed by [tral counsel], and the

[cJourt, after hearing said petition, is of the

Opinion same is a proper case for the

suspension of the sentence.

Said petition is, therefore, sustained

and the sentence hereby suspended upon

payment of the costs on or before July 9,

1976, and further conditioried upon the

[petitioner’s] good behavior for a period of 5

years, under the supervision of the State

Parole Office.

Finally, the petition for probation states: “That on

the 19" day of May, 1976, the petitioner entered a plea of

guilty of possession of marijuana, a misdemeanor, and was

sentenced to the workhouse for a period of Eleven (11)

months Twenty-Nine (29) days. The case was passed for an

investigation by the probation officers.”

Thus, according to the judgment, the petitioner pled

guilty to an attempt to commit a felony; according to the

minutes, he pled guilty to selling a Schedule IV controlled

substance; and, according to his petition for probation, he

pled guilty to misdemeanor possession of marijuana.

Rule 36 provides that “[c]lerice! mistakes in

judgments ... maybe corrected by the court at any time and

after such notice, if any, as the court orders.” Tenn. R.

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Crim. P. 36. This court has previously explained that before

a trial court can correct a judgment for clerical errors

“the record in the case must show that the

judgment entered omitted a portion of the

judgment of the court or that the judgment

was erroneously entered. The most reliable

indicator that clerical error was made is the

transcript of the hearing or other papers

filed in connection with the proceedings

which show the judgment was not correctly

entered.”

Donald W. Rhea. Jr. v. State, No. M2003-01034-CCA-R3-

CO, 2004 WL343969, at *3 (Tenn. Crim. App. Feb. 24,

2004) (quoting State v. Jack Lee Thomas. Jr., No. 03COI-

9504-CR-00109, 1995 WL 676396, at *1 (Tenn. Crim.

App. Nov. 15, 1995)). Generally, if there is a discrepancy

between the transcript of the sentencing hearing and the

court minutes, the transcript prevails. State v. Moore, 814

S.W.2d 381, 383 (Tenn. Crim. App. 1991) (citing State v.

Zyla, 628 S.W.2d 39, 42 (Tenn. Crim. App. 1981); Farmer

v. State, 574 S.W.2d 49, 50 (Tenn. Crim. App. 1978)).

Here, however, there was no transcnpt made of the plea

‘ , é ,

and sentencing proceedings,’ and we are left to decide

petition a notarized statement from the official court

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which prevails when there are discrepancies between the

judgment (attempt to commit a felony), the court minutes

(selling a Schedule IV controlled substance), and the

petition for probation (possession of marijuana).

The petitioner urges us to accept the wording of his

petition for probation as proof that he pled guilty to a

misdemeanor and not a felony because, as he explains,

{t]he most “reliable indicator” that a clerical

error was made is the petition for probation

which was signed by the [petitioner], signed

by the [petitioner’s] attorney, served on the

District Attorney’s office and verified under

oath. Most notably, it is this petition in

which the [trial court] states in the

courtroom minutes from July 9, 1976 that

was sustained. And there is nothing in the

courtroom minutes that show that the

District Attorney’s office ever objected to

the Petition.

The petition for probation is the only document that

purports to show the petitioner pled guilty to a

reporter for the Hamilton County Criminal Court - Division

I, which said she had “listened to the official audiotapes for

court proceedings held on May 19, 1976 and June 28, 1976,

before [the trial judge], and hard] found that there was no

recording made relating to the [petitioner’s] case on either

date.”

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misdemeanor, while the other two court documents, the

judgment and the minutes, both show he pled guilty to a

felony.’ Under these circumstances; we cannot agree with

the petitioner’s claim that his petition for probation, drafted

by his trial counsel, is the “most ‘reliable indicator’” that a

clerical crror in the judgment may have existed. In addition,

regardless of whether we decide the clerical error existed in

either of the remaining two court documents, the judgment

or the court minutes, the result is the same, the petitioner is

a convicted felon.

In its order denying the petitioner relief, the post-

conviction court concluded:

Although the description of the conviction

offense in the judgment disagrees with

that in the court minutes and the petition

for probation, unlike the minutes and

the petition, the judgment is_ intcmally

consistent, ie, the description of the

conviction offense in the judgment is

consistent with the sentence. Compare Tenn.

Code Ann. § 39-603 (transferred, § 39 1

501, 1982, repealed 1989) (making an

, Although the petitioner onginally claimed in his

motion to correct the judgment that selling a controlled

substance was a misdemeanor offense, in his appellate

brief, he acknowledges that “[ijn 1976, selling a schedule

IV controlled substance was a felony.”

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attempt to commit a felony punishable by

imprisonment in the penitentiary for not

more than five (5) years or in the workhouse

for not more than one (1) year and by fine

not more than five thousand dollars

($5,000)) with Tenn. Code Ann. § 52

1432(a), (b) (current 39 6 417(a), (b)

(making sale of a schedule IV controlled

substance a _ felony punishable by

imprisonment in the penitentiary for two (2)

to five (5) years and by fine not more than

seven thousand dollars ($7,000.00) and

possession of a controlled substance, with

inapplicable exception, a misdemeanor).

Although it is clear that the record contains

one or more clerical errors, considering the

internal consistency of the judgment and the

lack of such consistency of other documents

in the record as well as the absence of a

transcript and therefore the absence of

inconsistency between the judgment and the

transcript, the {c]ourt finds that the judgment

is not the location of the error(s).

We agree with the post-conviction court that, although a

clerical error may exist, it does not occur in the judgment

because it is the only document with internal consistency

between the conviction charge and sentence. As such, we

conclude the petitioner would not be entitled to a correction

of his judgment under Rule 36.

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Il. Post-Conviction Statute of Limitations

The petitioner seeks post-conviction relief for a

judgment that was executed almost thirty years ago. The

post-conviction court dismissed the petition as being

barred by. the statute of limitations. The original Post-

Conviction Procedure Act of 1967, which was in effect at

the time the petitioner was sentenced, did not include a

statute of limitations for seeking relief, allowing a petition

to be filed “at any time after [a petitioner] hard] exhausted

his appellate remedies and before the sentence hard]

expired or had been fully satisfied.” Tenn. Code Ann. §

40-30-102 (1982) (repealed 1986). However, the 1986

Post-Conviction Act established a three-year statute of

limitations:

A prisoner in custody under sentence of a

court of this state must petition for post-

conviction relief under this chapter within

three (3) ycars of the date of the final action

of the highest state appellate court to which

an arpeal is taken or consideration of such

petition shall be barred.

Tenn. Code Ann. § 40-30-102 (1990) (repealed 1995). “To

ensure that the constitutional requirement of reasonable

notice was observed, the Tennessee Supreme Court ruled

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that those whose convictions were final before the effective

date of the act had three years from July 1, 1986 to file a

post-conviction claim.” Robert L. Smith. Jr. v. Judge

Sterling Gray, No. 01C01-9610-CR-00450, 1997 WL

672664, at *1 (Tenn. Crim. App. Oct. 30, 1997) (citing

Abston v. State, 749 S.W.2d 487, 488 (Tenn. Crim. App.

1988), perm. to appeal denied (Tenn. Mar. 16, 1998). Thus,

in the present matter, because the petitioner did not file an

appeal, the statute of limitations for seeking post-conviction

relief as to the petitioner’s sentence began to run on July 1,

1986, and expired on July 1, 1989. The petition was filed

on April 6, 2004, nearly fifteen years after the statute had

run.

In 1995, the legislature enacted the current post-

conviction relief act, effective May 10, 1995, which

provides that post-conviction petitions are untimely unless

they are filed “within one (1) year of the date of the final

action of the highest state appellate court to which an

appeal is taken or, if no appeal is taken, within one (1) year

of the date on which the judgment became final...” Tenn.

Code Ann. § 40-30-102(a) (2003). Since the statute of

limitations applicable to the petitioner’s post-conviction

claims had expired before the enactment of the 1995 Post-

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Conviction Procedure Act, that subsequent act did not give

him additional time within which to file such claims. See

Carter v. State, 952 S.W.2d 417, 419 (Tenn. 1997).

The current post-conviction relief act does contain

the following statutory exceptions to the statute of

limitations for: (1) claims based upon a new rule of

constitutional law applicable to a petitioner’s case, (2)

claims based upon new scientific evidence showing

innocence, and (3) claims based upon enhanced sentences

that were enhanced because of convictions subsequently

found to be illegal. See Tenn. Code Ann. § 40-30-

102(b)(1)-(3) (2003). The petitioner argues that his post-

conviction petition is not time-barred by the statute of

limitations because, by his view, Blakely v. Washington,

542 U.S. 296, 124 S. Ct. 2531 (2004), created a newly

established constitutional right that permits him to file

beyond the statute of limitations period. Specifically, he

contends that under Blakely, the maximum sentence the

trial judge could have imposed must have been based on

facts admitted by the petitioner. He further asserts that

because there is no record of his admitting to any facts,

other than in his petition for probation where he admitted to

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committing a misdemeanor, “Blakely mandates that he can

only be sentenced to a misdemeanor.”

In considering the Blakely decision, our supreme

court concluded that it did not announce a new rule of

constitutional law. State v. Gomez, 163 S.W.3d 632, 650

(Tenn. 2005). More importantly for the purposes of this

appeal, the Gomez court also noted that the post-conviction

standard for determining whether a new rule of

constitutional law requires retroactive application, as stated

in Tennessee Code Annotated section 40-30-122, does not

permit the retroactive application of Blakely in a post-

conviction proceeding. Id. at 651 n.16. Blakely, therefore,

does not create all exception to the operation of the statute

of limitations in this case.

In addition, the petitioner argues the Due Process

Clause under both the Tennessee and Unites States

Constitutions bars strict application of the statute of

limitations because he was never put on notice of the

consequences of his guilty plea. While he correctly points

out due process dictates that the statute of limitations for

post-conviction relief should not be so strictly applied as to

deny a person the opportunity to have a claim heard and

determined at a meaningful time and in a meaningful

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manner, State v. McKnight, 51 S.W.3d 559 (Tenn. 2001);

Seals v. State, 23 S.W.3d 272 (Tenn. 2000); Burford v.

State, 845 S.W.2d 204 (Tenn. 1992), we cannot conclude

that due process tolls the statute of limitations in this case.

To review the alleged defects in the petitioner’s plea

of guilty, we look to the federal standard announced in

Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L.

Ed. 2d 274 (1969), and the state standard set out-in State v.

Mackey, 553 S.W.2d 337 (Tenn. 1977). State v. Pettus, 986

S.W.2d 540, 542 (Tenn. 1999). In Boykin, the United

States Supreme Court held that there must be an affirmative

showing in the tria! court that a guilty plea was voluntarily

and knowingly given before it can be accepted. 395 U.S. at

242, 89 S. Ct. at 1711. Similarly, our Tennessee Supreme

Court in Mackey required an affirmative showing of a

voluntary and knowledgeable guilty plea, namely, that the

defendant has been made aware of the significant

consequences of such a plea. Pettus, 986 S.W.2d at 542. A

plea is not “voluntary” if it results from ignorance,

misunderstanding, coercion, inducements, or threats.

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993).

The trial court must determine if the guilty plea is

“knowing” by questioning the defendant to. make sure he

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fully understands the plea and its consequences. Pettus, 986

S.W.2d at 542; Blankenship, 858 S.W.2d at 904.

The petitioner contends that his guilty plea violated

both Boykin and Mackey’ because “the record is entirely

silent as to whether [he] understood his constitutional nghts

at the time of the pleas.” Even accepting arguendo that this

is true, the petitioner had ample time to contest his guilty

plea for being unconstitutional within the statute of

limitations period. As discussed above, he had until July 1,

1989, to file a post-conviction petition but failed to do so.

In its order denying the petitioner post-conviction relief for

being time barred, the post-conviction court concluded:

The only explanation that the [petitioner]

offers for his failure to present his post-

conviction claims in a timely petition is that

he did not have any reason to know that the

conviction offense was a felony until his

indictment by a federal grand jury in

January 2004. Not only does the judgment

indicate that the conviction offense was a

felony, however, but the sentence, about

which there is no disagreement, presupposes

a felony conviction. Thus, regardless of the

[petitioner’s] actual belief regarding the

conviction offense; he had reason to know,

as of 28 June 1976 at the latest, that the

® We note that Mackey was decided the year after

the petitioner’s guilty plea.

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conviction offense was a_ felony.

Furthermore, if his guilty plea was

involuntary or unintelligent because of

omissions on the part of the trial court at the

time of the plea, then he had reason to know

that immediately.

On appeal, the petitioner argues, among other

things, that he waited to file for post-conviction relief

because he “had no notice that his conviction was anything

other than a misdemeanor.” This argument is contradicted

by the fact that the judgment clearly reflects that he pled

guilty to a felony. Indeed, the petitioner gives no

explanation as to why the judgment, alone, did not give him

notice that he pled guilty to a felony. The record supports

the finding of the post-conviction court in this regard.

Ill. Habeas Corpus

Finally, we address the post-conviction court’s

consideration of a sua sponte issuance of wnt of habeas

corpus. The State argues that the petitioner is not eligible

for habeas corpus relief under the recent Tennessee

Supreme Court decision, Hickman v. State, 153 S.W.3d 16

(Tenn. 2004).

It is well established that the grounds upon which

habeas corpus relief may be granted in this state are

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narrow. Hickman, 153 S.W.3d at 20 (Tenn. 2004) (citations

omitted). Relief will be granted if the petition establishes

that the challenged judgment is void. Id. A judgment is

void “only when ‘[iJt appears upon the face of the judgment

or the record of the proceedings upon which the judgment

is rendered’ that a convicting court was without jurisdiction

or authority to sentence a defendant, or that a defendant’s

sentence of imprisonment or other restraint has expired.”

Id. at 20 (quoting State v. Ritchie, 20 S.W.3d 624, 630

(Tenn. 2000) (citations omitted)). The petitioner bears the

burden of establishing either a void judgment or an illegal

confinement by a preponderance of the evidence. Passarella

v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994). If

the petitioner carries this burden, he is entitled to

immediate release. Id. Even if the petitioner does not apply

for a writ of habeas corpus, Tennessee Code Annotated

section 29-21-104 requires:

Whenever any court or judge,

authonzed to grant this wnt, has evidence,

from a judicial proceeding, that any person

within the jurisdiction of such court or

officer is illegally imprisoned or restrained

of liberty, it is the duty of such court or

judge to issue, or cause to be issued, the wnt

as aforementioned, although no application

be made therefor.

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Tenn. Code Ann. § 29-21-104 (2000); Cox v. State, 53

S.W.3d 287, 292 (Tenn. Crim. App. 2001), overruled on

other grounds by Moody v. State, 160 S.W.3d 512, 515-16

(Tenn. 2005).

The post-conviction court correctly noted that the

petitioner’s claim that his 1976 judgment was illegal is “in

essence, a claim for the wnt of habeas corpus” and the

court considered it as such. See Cox, 53 S.W.3d at 292

(noting that “the better method of challenging illegal or

void sentences is via an application for a writ of habeas

corpus”). Although he did not file a petition, any habeas

corpus petition that the petitioner may have filed would

have had to assert that he was “illegally restrained of

liberty” by his 1976 judgment. Tenn. Code Ann. § 29-21-

107(b)(1) (2003). We find the petitioner is not currently

being restrained of his liberty under the 1976 judgment and,

thus, is not entitled to habeas corpus relief.

In Hickman, 153 S.W.3d at 19, our supreme court

dealt with a set of facts very similar to those of the present

appeal. The defendant in Hickman, facing a sentence

enhancement in federal court based on an expired 1986

misdemeanor judgment, sought habeas corpus relief in 2002,

challenging the validity of the expired judgment. Affirming

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the trial court’s dismissal of the habeas corpus petition, the

court explained that a person is not “restrained of liberty” for

purposes of the habeas corpus statute unless the challenged

judgment itself imposes a restraint upon the petitioner’s

freedom of action or movement. Use of the challenged

judgment to enhance the sentence imposed on a separate

conviction is not a restraint of liberty sufficient to permit a

habeas corpus challenge to the original conviction long after

the sentence on the original conviction has expired.

Id. at 23 (footnote omitted). Here, the petitioner has

not, and cannot, claim that he is presently being confined

under the 1976 judgment. Instead, he is confined because

he is awaiting tnal on a federal indictment, for which the

1976 judgment is only a predicate offense. As such, we find

that the petitioner is not entitled to habeas corpus relief

because he is not being “restrained of liberty” by his 1976

conviction.

CONCLUSION

Based on the foregoing authorities and reasoning,

we affirm the order of the post-conviction court.

/s/ Alan E. Glenn

ALAN E. GLENN, JUDGE

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IN THE CRIMINAL COURT FOR

HAMILTON COUNTY, TENNESSEE

STATE OF TENNESSEE

No. 130199

Division I

TERRY PENNY ; FILED

July 14, 2004

. County Court,

TERRY E. PENNEY, : {| Tennessee, Clerk }}

Petitioner, : No. 248876

: Division I

STATE OF TENNESSEE,

Respondent.

NOTICE OF APPEAL

Notice 1s hereby given, pursuant to Tennessee

Appellate Procedure Rule 3 (b), the Defendant and

Petitioner, Terry E. Penney, above named, by and through

his attorney, Lee Davis, hereby appeals to the Court of

Cnminal Appeals the Court Orders of July 8, 2004, when

the Court Ordered the following:

1) that the subject motion to correct the judgment in case

130199 be denied and

2) that the subject petition for relief from the conviction or

sentence in case 130199 be dismissed.

Respectfully submitted,

DAVIS & WALLACE, PC

/s/ Lee Davis

Lee Davis, BPR #15958

508 E. 5" Street

Chattanooga, TN 37403

(423) 266-0605

(423) 266-0687 Fax

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and

correct copy of this Notice has been served upon the

Honorable Paul G. Summers, State of Tennessee Attorney

General, 425 Fifth Avenue North, 2 Floor, Nashville, TN

37243-0435; and Assistant District Attorney Lila Statom,

600 Market Street, Chattanooga, TN 37402, this the 14th

day of July, 2004.

/s/ Lee Davis

Lee Davis

COURT MET PURSUANT TO

ADJOURNMENT, PRESENT AND

PRESIDING THE HONORABLE

DOUGLAS A. MEYER, JUDGE,

WHEN THE FOLLOWING

PROCEEDINGS WERE HAD TO-WIT:

IN THE CRIMINAL COURT FOR

HAMILTON COUNTY, TENNESSEE

STATE OF TENNESSEE

v. : No. 130199

: Division I

TERRY PENNY

TERRY E. PENNEY,

Petitioner, :

v. : No. 248876

: Division I

STATE OF TENNESSEE, me

? FILED

Respondent. ; July 8, 2004

: County Court,

ORDER _ Tennessee, Clerk

Before the Court are the defendant’s 30 March 2004

motion, pursuant to Tenn. R. Cnm. P. 36, to correct the

judgment in case 130199 to reflect a conviction offense of

sale of a controlled substance instead of attempt to commit

a felony and 6 April 2004 petition, pursuant to Tenn. Code

E-1

Ann. §§ 40 30 101-22, for relief from the conviction or

sentence in the same case. As grounds therefore, the Court

understands him to allege as follows:

(1) that, on 19 May 1976, he pled guilty

or thought he was pleading guilty to

a misdemeanor, sale of a controlled

substance;

that the judgment contains a clerical

error in that it reflects that he pled

guilty to a felony, attempt to commit

a felony, or, if it does not contain

such an error, then his guilty plea

was involuntary or unintelligent

because he thought he was pleading

guilty to a misdemeanor and the trial

court did net ascertain the voluntary

and intelligent nature of the plea;

that a transcript of the plea is

unavailable and therefore does not

reflect the voluntary and intelligent

nature of the plea, as Boykin v.

Alabama, 395 U.S. 238, 89 S.Ct.

1709, 23 L.Ed.2d 274 (1969)

requires;

that the judgment is illegal;

that a clerical error in a judgment is

subject to correction by the tnal

court at any time under Rule 36;

E-2

that the statute of limitations

applicable to post-conviction claims

should not apply to his _ post-

conviction claims or due process

should preclude its strict application;

and

that an illegal sentence is subject to

correction by the tnal court at any

time under State v. Burkhart, 566

S.W.2d 871 (Tenn. 1978).

In support of his requests for relief, the defendant submits

relevant records from case 130199 as well as the 29 March

2004 affidavit of Abigail M. Pearce, who is the official

court reporter for Division | of the Cnminal Court for

Hamilton County, Tennessee and who certifies that the

official audiorecordings of court proceedings before Judge

Campbell Carden on 19 May and 28 June 1976 do not

contain the proceedings in case 130199 on either date.

The Court first addresses the claim that the

judgment contains a clerical error that is subject to

correction at any time pursuant to Rule 36. The record in

case 130199 reflects that the defendant was charged with a

felony, sale of ethchlorvynol, a schedule IV controlled

substance, but variously describes the offense to which he

pled guilty on 19 May 1976 as attempt to commit a felony

E-3

(the judgment and the rule docket), sale of a schedule IV

controlled substance (the minutes), and possession of

manjuana (the petition for probation). There is no

disagreement in the record, however, that the defendant

was sentenced to the county workhouse for eleven (11)

months, twenty-nine (29) days or that, on 28 June, the

sentence was suspended for five (5) years.

Although the description of the conviction offense

in the judgment disagrees with that in the court minutes and

the petition for probation, unlike the minutes and the

petition, the judgment is internally consistent, i.e., the

description of the conviction offense in the judgment is

consistent with the sentence. Compare Tenn. Code Ann. §

39 603 (transferred, § 39 1 501, 1982, repealed 1989)

(making an attempt to commit a felony punishable by

imprisonment in the penitentiary for not more than five (5)

years or in the workhouse for not more than one (1) year

and by fine not more than five thousand dollars

($5,000.00)) with Tenn. Code Ann. § 52 1432(a), (b)

(current § 39 6 417(a), (b)) (making sale of a schedule IV

controlled substance a felony punishable by imprisonment

in the penitentiary for two (2) to five (5) years and by fine

not more than seven thousand dollars ($7,000.00) and

E-4

possession of a controlled substance, with inapplicable

exception, a misdemeanor). Although it is clear that the

record contains one or more clerical errors, considering the

internal consistency of the judgment and the lack of such

consistency of other documents in the record as well as the

absence of a transcript and therefore the absence of

inconsistency between the judgment and the transcript, the

Court finds that the judgment is not the location of the

error(s).

The Court next considers the post-conviction claim

that the defendant’s guilty plea was involuntary or

unintelligent because he thought he was pleading guilty to a

misdemeanor and the trial court did not ascertain the

voluntary and intelligent nature of the plea. As the

defendant. acknowledges, the subject petition is timely

tinder neither the former nor the current statute of

limitations. See State v. Masucci, 754 S.W.2d 90, 91 (Tenn.

Crim. App. 1988) (holding that the three-year limitation

period for judgments that were final before | July 1986, the

effective date of Tenn. Code Ann. § 40 30 102 (repealed

1995), did not commence until that date); Tenn. Code Ann.

§ 40 30 102 (reducing the limitation period to one (1) year).

He contends, however, that the statute should not apply or

due process precludes its strict application in his case.

No statutory exception to the limitation period

applies in the defendant’s case. See Tenn. Code Ann. § 40

30 1 02(b) (excepting only claims involving violation of a

new and retroactive constitutional night, new, scientific

proof of innocence, and \ invalidation of certain prior

convictions from the current one-year limitation period).

Likewise, although due process precludes strict application

of “‘procedural requirements such as_ statutes of

Limitation’” effectively to deny a potential litigant an

ace

opportunity to present his claim(s) “‘at a meaningful time

sol

and in a meaningful manner{,] the constitutional

exception to the limitation period does not apply in the

defendant’s case, both of his claims predating

commencement of the limitation period.

The only explanation that the defendant offers for

his failure to present his post-conviction claims in a timely

petition is that be did mot have any reason to know that the

La POA A

' See State v. McKnight, 51 S.W.3d 559, 563 (Tenn. 2001)

(recognizing the existence of a constitutional exception to

strict application of procedural requirements) (quoting

Seais v. State, 23 S.W.3d 272, 277-78 (Tenn. 2000)).

E-6

conviction offense was a felony until his indictment by a

federal grand jury in January 2004. Not only does the

judgment indicate that the conviction offense was a felony,

however, but the sentence, about which there is no

disagreement, presupposes a felony conviction. Thus,

regardless of the defendant’s actual belief regarding the

conviction offense, he had reason to know, as of 28 June

1976 at the latest, that the conviction offense was a felony.

Furthermore, if his guilty plea was involuntary or

unintelligent because of omissions on the part of the trial

court at the time of the plea, then he had reason to know

that immediately.

Finally, the Court considers the claim that the

judgment is illegal, which is, in essence, a claim for the

writ of habeas corpus. Cox v. State, 53 $.W.3d 287; 292

(Tenn. Crim. App. 2001) (holding that the proper procedure

for challenging an illegal or void sentence is by an

application for the writ of habeas corpus). Even absent an

application or complete application for the writ of A.abeas

corpus, under Tenn. Code Ann. § 29 21 104, it is the duty

of a court to issue the writ when it “has evidence, from a

judicial proceeding, that any person within [its] jurisdiction

. is illegally imprisoned or restrained of liberty.” The

E-7

Court therefore considers whether it has such evidence in

the defendant’s case.

The defendant does not specify the illegality of

which he complains. To the extent that he alleges that the

involuntary or unintelligent nature of the plea or the

unavailability of a transcript of the plea renders the

judgment void, the Court respectfully disagrees. See Archer

v. State, 851 S.W.2d 157, 164 (Tenn. 1993) (holding that

the involuntary or unintelligent nature of a guilty plea does

not render a judgment void, merely voidable); Zaylor v.

State, 2003 Tenn. Crim. App. LEXIS 849, * 11 (noting

that, “[w]Jhen there is no adequate transcript to establish

that a guilty plea complies with Boykin, the burden is on

the state to prove the plea was [voluntary and intelligent, ]”

thereby implying that the unavailability of a transcript does

not render a judgment void, merely voidable) (citing

Chamberlain v. State, 815 S.W.2d 534, 540-41 (Tenn.

Crim. App. 1991)).

The trial court had jurisdiction to convict the

defendant of attempt to commit a felony, which was a

lesser, included offense of the indictment offense, to

sentence the defendé::i to the county workhouse for eleven

(11) months, twenty-nine (29) days, and to suspend the

E-8

sentence for five (5) years. See State v. Staggs, 554 S.W.2d

620, 624 (Tenn. 1977) (holding that attempt to commit a

felony is a lesser included offense of any felony or crime

punishable by imprisonment in the state penitentiary, absent

other prescription for punishment); Tenn. Code. Ann. § 39

603 (transferred to § 39 1 501 1982, repealed 1989) (making

an attempt to commit a felony punishable by imprisonment in

the penitentiary for not more than five (5) years or in the

workhouse for not more than one (1) year and by fine not

more than five thousand dollars ($5,000.00)); Tenn. Code

Ann. § 40 2901 (transferred to § 40 21 101 1982, repealed

1989) (authorizing, with inapplicable exceptions, suspension

of a sentence for a period equal to the minimum sentence but

not more than the maximum sentence for the defendant’s

offense). The Court concludes that there is no illegality in

either conviction or sentence.’

? If the defendant had been convicted of possession of

marijuana, a schedule VI substance, then he would have been

convicted of an offense with which he was not charged, the

probationary period of felony length would have been

unauthorized, and, as a consequence, the judgment would

have been illegal. See State v. Campbell, 549 S.W.2d 952,

956 (Tenn. 1977) (holding that the sale of two or more

differently scheduled controlled substances constitutes

separate and distinct offenses under the Tennessee Drug

Control Act of 1971).

E-9

Finding, for the preceding reasons, that there is no

clerical error in the judgment, that the defendant’s post-

conviction claims are untimely, and that there is no ground

for sua sponte issuance of the wnt of habeas corpus, the

Court ORDERS as follows:

(1) that the subject motion to correct the

judgment in case 130199 be denied

and

that the subject petition for relief

from the conviction or sentence in

case 130199 be dismissed.

SO ENTER on this 8th day of July, 2004.

/s/ Douglas A. Meyer

Criminal Court Judge

THEREUPON, COURT ADJOURNED PENDING

FURTHER BUSINESS OF THE COURT.

/s/ Douglas A. Meyer

JUDGE DOUGLAS A. MEYER

IN THE CRIMINAL COURT OF

HAMILTON COUNTY, TENNESSEE

_ STATE OF TENNESSEE, NO. 130199

VS. DIVISION I

TERRY E. PENNEY, hens 11, 2008

DEFENDANT. County Court,

Tennessee, Clerk

NOTICE OF FILING SUPPLEMENTAL EXHIBIT

COMES NOW, the Defendant Terry E. Penney, by

and through his counsel, and with permission of the Court,

and hereby files this Notice of Filing Supplemental

Exhibits, attached herein as “Exhibit A.” As stated in the

letter from John Patterson, District Director of the State of

Tennessee Board of Probation and Parole, “there is no

record of probation or parole supervision with the

Tennessee Board of Probation and Parole,” for Terry E.

Penney. Also attached is an Affidavit of Bryan H. Hoss,

attached herein as “Exhibit B.”

Respectfully submitted,

DAVIS & WALLACE, PC

/s/ Brian H. Hoss

Bryan H. Hoss, BPR # 17168

508 E. 5th Street

Chattanooga, TN 37403

(423) 266-0605

(423) 266-0687 Fax

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and

correct copy of this motion has been served upon Lila

Statom, Assistant District Attorney, 600 Market Street,

Chattanooga, TN 37402, and Boyd Patterson, Assistant

District Attorney, 600 Market Street, Chattanooga, TN

37402, by placing same in the United States mail with

sufficient postage thereon to carry same to its destination

on this the 11 day of June, 2004

/s/ Bryan H. Hoss ___

Bryan H. Hoss

STATE OF TENNESSEE

BOARD OF PROBATION AND PAROLE

540 McCallie Ave., Suite 250

Chattanooga, TN

Phone: (423) 634-6333

FAX: (423) 634-6364

June 3, 2004

EXHIBIT

Davis & Wallace, PC

Bryan H. Hoss ! A

508 E. Sth Street

Chattanooga, TN 37403

RE: ‘Terry Penney

Docket No. 130199

Dear Mr. Hoss:

This is in regards to your letter dated May 12, 2004, which

included a subpoena from the Untied States District Court.

We have searched the TOMIS (Tennessee Offender

Management Information System) database and there is no

record of probation or parole supervision with the

F-3

Tennessee Board of Probation and Parole for your client.

We searched by name, birth date and social security

number.

If you have any questions please fee free to call me.

Thank you,

/s/ John Patterson

John Patterson

District Director

IN THE CRIMINAL COURT OF

HAMILTON COUNTY, TENNESSEE

STATE OF TENNESSEE, NO. 130199

vs. DIVISION I

TERRY E. PENNEY,

DEFENDANT.

AFFIDAVIT OF BRYAN H. HOSS

BRYAN H. HOSS, being first duly swom in

accordance with law, deposes and says:

I. My name is Bryan H. Hoss. I am an attorney

in the law firm of Davis & Wallace, P.C. and I currently

represent Terry E. Penney, along with Lee Davis.

2. On May 12, 2004, I subpoenaed District

Director John Patterson of the State of Tennessee Board of

Probation and Parole requesting any and all records

referring to any parole or probation supervision on

Criminal Court number 130199 for Terry E. Penney.

3. On June 3, 2004, Mr. John Patterson

responded in a letter stating, “there is no record of

probation or parole supervision with the Tennessee Board

of Probation and Parole.” A copy of this letter is attached as

Exhibit “A.”

FURTHER AFFIANT SAITH NOT.

/s/ Bryan H. Hoss

BRYAN H. HOSS

Sworn to and subscribed before me

This 11 day of June, 2004.

8-2-07

NOTARY PUBLIC

My Commission Expires: /s/ Mildred H. Gandy

STATE OF TENNESSEE * NO. 130199

* JIN THE CRIMINAL

VS. * COURT FOR

* HAMILTON COUNTY,

TERRY EUGENE PENNEY * TENNESSEE

* DIVISION I

STATE’S RESPONSE TO DEFENDANTS

MOTION TO CORRECT JUDGMENT

Comes now the State of Tennessee, by and through

the Office of the District Attorney General and moves this

Honorable Court to deny the defendant’s motion to correct

judgment. ae

STATEMENT OF FACTS cs

On April 1, 1975, a one-count indictment was

returned against the defendant by a grand jury sitting in

Hamilton County, Tennessee, charging him with

Feloniously Selling or Delivering a Controlled Substance to

wit: Ethchlorvynol (Schedule IV). The parties reached an

agreement wherein the defendant pled guilty to a lesser

offense, namcly, Attempt to Commit a Felony, in violation

of Tennessee Code Annotated Section 39-603 (orig. ed.), as

amended, T.C.A. Section 39-1-501, Attempt to Commit a

Felony. The maximum punishment for this felony offense

was five (5) years incarceration.

G-|

As part of his plea, the defendant was sentenced in

the Hamilton County Criminal Court on May 19, 1976, to

confinement for eleven (11) months and twenty-nine (29)

days. This sentence was later suspended on June 28, 1976,

on payment of costs on or before July 30, 1976, and good

behavior for five (5) years under parole supervision. (See

attached)

Nearly thirty (30) years later, the defendant

committed a new offense wherein he was charged in

Federal Court in counts seven (7) and twelve (12) with

Violating 18 U.S.C. Section 922(g)(1) (felon in possession

of a weapon). In Federal Court on March 11, 2003, the

defendant filed a motion to dismiss the felon in possession

of a firearm counts in the indictment alleging that “the

defendant pled guilty to the misdemeanor crime of Attempt

to Commit a Felony.” (See attached). After the United

States responded to the defendant’s motion and the Federal

Court had declined to dismiss the motion finding that the

crime was in fact a felony, the defendant then filed a reply

to the United States’ response on March 25, 2003, and

stated that “[t]he government?s contention that the

defendant pled to Attempt to Commit a Felony is simply

not true nor accurate” (See attached).; The defendant also

has cited the minutes as reflecting that defendant pled to a

G-2

misdemeanor. (See attached minutes). The minutes do not

state that the defendant pled to a misdemeanor.

ARGUMENT

Rule 36 of the Rules of Criminal Procedure

provides that “clerical mistakes in judgments, orders, or

other parts of the record and errors in the record arising

from oversighj or omission may be corrected by the court at

any time and after such notice, if any, and the Court

orders.”

The Court speaks through its orders and not its

minutes. United States v. Holloway, 142 F.3d 437 (6" Cir.

Mar. 4, 1998). In the Holloway case, the defendant argued

that the State Court minute entries were at odds with the

Tennessee Court’s judgment and that the Court should look

to the minute entries, not the judgment to determine the

nature of the Tennessee conviction. The Court found that it

is the judgment that should be relied upon.

The defendant cites his petition for probation as a

basis for his motion to correct judgment. This is his work

product and not a statement by the Court that should be

construed as authoritative in any respect.-Further, the

petition on close reading reveals that defendant’s claim is

inaccurate and a misstatement of facts. The defendant’s

G-3

mischaracterization of his conviction as a misdemeanor

does not have the effect of magically transforming his

felony conviction into a misdemeanor and transform the

type of drug he possessed into another type of drug

regardless of how much he hopes it to be. It appears that

the defendant is now claiming a third story that he pled to

misdemeanor possession of manjuana.

The judgment in this case is the order of this Court.

There is nothing to support his contention that he pled to

the misdemeanor crime of possession of marijuana. In fact,

the indictment was for an entirely different scheduled drug.

It appears that the defendant’s version of the facts

and theory of his case evolves constantly to suit his needs

at the time. This case is no different than Holloway. The

judgment of conviction clearly shows that the defendant

pled to Attempt to Commit a Felony. There was no

objection through five (5) years of parole supervision.

There was no objection to the judgment for nearly thirty

(30) years. The defendant is of dubious credibility given his

constant evolving story. There is no basis for his motion to

correct judgment.

For the foregoing reasons, the state respectfully

requests tha! the defendant’s motion. be denied.

G-4

Respectfully submitted,

WILLIAM H. COX, Il

DISTRICT ATTORNEY GENERAL

BY: /s/ Lila Statom

LILA STATOM

ASSISTANT DISTRICT ATTORNEY

G-5

STATE OF TENNESSEE * NO. 130199

* IN THE CRIMINAL

VS. * COURT FOR

* HAMILTON COUNTY,

TERRY EUGENE PENNEY * TENNESSEE

DIVISION I

FOR POST-CONVICTION RELIEF Se

The Office of the District General, prosecuting on

behalf of the State of Tennessee, respectfully moves this

Court to dismiss the defendant’s Petition for Post-

Conviction. The State would show as follows:

The Defendant pled guilty on May 19, 1976, to

Attempt to Commit a Felony. On June 17, 1976, the

Petitioner filed a motion to suspend his sentence. The Court

granted the Petitioner’s motion for a suspended sentence on

June 28, 1976. His sentence was suspended on payment of

costs on or before July 30, 1976, and good behavior for five

(5) years under parole supervision. The Defendant filed his

Petition for Post-Conviction Relief on April 6, 2004,

twenty-eight (28) years after his plea.

At the time the defendant pled, a prisoner could

petition for post-conviction relief at any time after appellate

remedies had been exhausted or before the sentence had

expired. However, on July 1, 1986, the General Assembly

H-1

established a three (3) year statute of limitations. See

T.C.A. Section 40-30-102 (repealed 1995). In 1995, our

legislature adopted the new Post-Conviction Act, which is

applicable to all petitions filed after May 10, 1995. The

most recent act reduced the statute of limitations to a one

(1) year statute of limitation.

Under T.C.A. 40-30-102(a), a Petition for Post-

Conviction Relief must be filed “within one () year of the

date of the final action of the highest state appellate court to

which an appeal is taken or, if no appeal is taken, within

one (1) year of the date on which the judgment became

final, or consideration of such petition shall be barred.”

However, this is not the statute of limitation that was in

effect at the time that the defendant pled in this case. In

State v. Carter, 952 S.W.2d 417 (Tenn. 1997), the Supreme

Court found that petitioners for whom the statute of

limitations expired prior to the effective: date of the Post-

Conviction Procedure Act of 1995, i.e. May 10, 1995, were

not entitled to an additional year in which to file their

petition.

Therefore, the defendant’s claim is time-barred and

can no longer be raised unless he meets one of the

exceptions set forth in the most recent statute. The State

H-2

submits that the defendant’s time period for filing expired

three (3) years from the enactment of the 1986 statute. In

any event, if the Court applied the 1995 statute, the statute

of limitations would have, at the latest, expired one (1) year

from the passage of the 1995 statute. Regardless of which

statute is applied, the defendant’s claim is barred.

There are three (3) exceptions to the limitation

period listed in the 1995 statute. The defendant’s case does

not meet any of the criteria set out III that statute. First,

T.C.A. 40-30-102(b)(1) sets an exception for a newly

established constitutional right that did not exist at the time

of trial. There is no new constitutional nght applicable to

this case. Second, T.C.A. 40-30-102(b)(2) sets an exception

for newly discovered evidence. The defendant is not

claiming that this particular exception applies. Finally,

T.C.A. 40-30-102(b)(3) sets an exception where the

defendant “seeks relief from a sentence that was enhanced

because of a previous conviction and such conviction in the

case in which the claim is asserted is not a guilty plea with

an agreed sentence, and the previous conviction has

subsequently been held to be invalid ... “The defendant’s

reliance on this section is also be misplaced, in that, the

defendant is this case pled guilty with an agreed upon

H-3

sentence. See State v. Jenkins, 2001 Tenn. Crim. App.

LEXIS 1002 (Tenn. Crim. App. 2001).

Furthermore, the defendant in his response

incorrectly cites this third exception. The defendant sets

forth in his petition that “the judgment in his case amounts

to an illegal judgment and illegal sentence.” Even if the

claim was not time-barred, such a claim is not a matter

within the purview of the post-conviction statute. Because

the defendant’s petition is time-barred and no exceptions

apply to allow the defendant to file a later petition, the state

need not address the Issues of whether or not the defendant

entered a knowing, voluntary and understanding plea.

Finally, defendant has asserted no facts justifying

the tolling of the statute. See State v. Burford, 845 S.W.2d

204 (Tenn. 1992) and Sands v. State, 903 S.W.2d 297

(Tenn. 1995). The defendant has offered no explanation as

to why his petition was filed twenty-eight (28) years after

he pled guilty. All the issues that he raises in-his present

petition arose before the statute of limitation began to run.

He had a reasonable opportunity to raise all his issues

before the statute of limitations expired.

For the foregoing reasons, the state respectfully

requests that the defendant’s petition for post-conviction

relief be dismissed.

Respectfully submitted,

WILLIAM H. COX, Ii

DISTRICT ATTORNEY GENERAL

BY: /s/ Lila Statom

LILA STATOM

ASSISTANT DISTRICT ATTORNEY

IN THE CRIMINAL COURT OF

HAMILTON COUNTY, TENNESSEE

TERRY E. PENNEY, *

PETITIONER, ”

vs. * DIVISION I

STATE OF TENNESSEE, * JUDGE MEYER

DEFENDANT. *

PETITION FOR POST-CONVICTION RELIEF

COMES NOW, the Petitioner, Terry E. Penney,

and files this Petition for Post Conviction Relief pursuant to

T.C.A. § 40-30-101 et al Petitioner is challenging his

guilty plea in Case No. 130199, Hamilton County Criminal

Court, Division I, entered on May 19, 1976.

The Petitioner submits that relief 1s mandated

pursuant to the Tennessee Post-Conviction Procedure Act

for two reasons. First, the underlying judgment and

sentence are illegal and contrary to the laws of the State of

Tennessee and United States Constitution in light of the

incomplete record. State v. Burkhart, 566 S.W.2d 87]

I-]

(Tenn. 1978); See Also State v. Hamlin, 655 S.W.2d 200,

201 (Tenn. Crim. App. 1983). And second, the Petitioner’s

conviction is void and/or voidable due to the abridgement

of the Petitioner's mghts guaranteed by the Tennessee

Constitution and the Constitution of the United States

because he did not enter a knowing, voluntary, and

understanding plea to a felony offense. T.C.A. § 40-30-103;

Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L. Ed.

2d 274 (1969); Chamberlain v. State, 815 S.W.2d 534

(Tenn. Crim. App. 1990).

As grounds thereto the Petitioner would show the

following:

1. On April], 1975, the Petitioner was indicted

for feloniously selling a scheduled IV controlled substance.

A copy of that indictment is attached hereto as “Exhibit A.”

2. On May 19, 1976, the Petitioner pled guilty

and received a sentence of 11 months and 29 days. The

execution of judgment was withheld on that date. A copy of

the judgment is attached hereto as “Exhibit B.” The

judgment erroneously reflects that the Petitioner pled guilty

to an attempt to commit a felony. The courtroom minutes

show the Petitioner actually pled guilty to the misdemeanor

1-2

of selling a controlled substance. A certified copy of the

courtroom minutes is attached hereto as “Exhibit C.”

3. On May 19, 1976, the Petitioner, through

counsel, filed a petition for suspended sentence and stated:

under oath that he pled guilty to simple possession of

marijuana, a misdemeanor. A copy of the petition is

attached hereto as “Exhibit D.”

4. On June 28, 1976, the Court granted the

Petitioner's motion for a suspended misdemeanor sentence

of 11 months and 29 days.

5. The minutes from Division I of Hamilton

County Criminal Court show that the Petitioner was in

Court, represented by counsel before the Honorable

Campbell Carden, on May 19 and June 28, 1976. The

official court reporter for Division I, Abigail M. Pearce, has

listened to the official selie tapes for court proceedings

held on May 19 and June 28, 1976 before Judge Carden.

The actual in-court proceedings for these dates do siot

reflect any colloquy between the Court and Petitioner or

counsel for Petitioner. A certificate from the official

reporter is attached hereto as “Exhibit E.”

6. The audio tape of the guilty plea on May 19,

1976 and the audio tape of the hearing on the Petitioner’s

1-3

motion for a suspended sentence on June 28, 1976 do not

affirmatively show that the Petitioner voluntarily,

understandingly and knowingly entered the plea to attempt

to commit a felony.

cP The following documents constitute the

entire record of the guilty plea proceedings in case number

130199, Division I of the Criminal Court of Hamilton

County. Those documents are:

1. Courtroom minutes of May 19, 1976,

Exhibit “C”;

ii. Courtroom minutes of June 28, 1976,

Exhibit “C”;

ill. Petition for probation, dated June 16, 1976,

Exhibit “D”;

iv. Transcnpt certifying that the official court

reporter listened to the audio tapes for the court

proceedings held May 19 and June 28, 1976. Exhibit “E.”

1. THE UNDERLYING JUDGMENT

AND SENTENCE ARE ILLEGAL AND

CONTRARY TO THE LAWS OF TENNESSEE

AND THE UNITED STATES IN LIGHT OF

THE INCOMPLETE RECORD.

One of the first inquiries that a tnal court must

make is whether a claim for post-conviction relief was

1-4

timely filed. T.C.A. § 40-30-102. The onginal Post-

Conviction Act of 1967 did not include a statute of

limitations. Effective July 1, 1986, the General Assembly

adopted a three year statute of limitations. T.C.A. § 40-30-

102 (repealed 1995). In consequence, any petitioner whosc

judgment had become final before July 1, 1986 had only

three years after this date to file a petition for post-

conviction relief. State v. Masucci, 754 S.W.2d 90 (Tenn.

Crim. App. 1988).

Under the new Act, the tnal court is required to

dismiss a petition filed after the expiration of the

limitations period, unless (1) the claim is based on a. newly

established constitutional nght; (2) the claim is based on

scientific evidence showing innocence; or (3) the petitioner

is serving a sentence that was enhanced by a no longer

valid prior conviction. Tenn. Code Ann. § 40-30-202(b).

The Defendant/Petitioner, Terry Penney, presents two

claims. First, Terry Penney asserts that the judgment in his

case amounts to an illegal judgment and illegal sentence.

The Tennessee Appellate Courts have held that such a

claim is an exception to the statute of limitations. The

Tennessee Supreme Court has also held as a general rule

that a trial judge may correct an illegal...sentence at any

1-5

time. State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978).

In the context of a post-conviction petition, the Tennessee

Court of Appeals has also held that the statute of limitations

does not bar a Defendant’s claim that his sentence is illegal.

Abston v. State, 1998 WL 906475 (Tenn. Crim. App.

1998); See Also, House v. State, 1999 WL 39019 (Tenn.

Crm. App. 1999) citigg State v. Mahler, 735 S.W.2d 226,

228 (Tenn. 1987) (noting that generally, an illegal

judgment may be noticed at any time, even after it becomes

final). Respectfully, the Petitioner asserts that his claims

that the judgment and his sentence are illegal are not barred

by the statute of limitations and this Court should set a

hearing to determine the issues raised herein.

2. THE PETITIONER’S CONVICTION IS

VOID AND/OR VOIDABLE BECAUSE THE

DEFENDANT DID NOT VOLUNTARILY,

UNDERSTANDINGLY & KNOWINGLY

ENTER A PLEA TO A FELONY.

Additionally, the Petitioner asserts that his second

claim is also not barred by the statute of limitations.

Burford v. State, 845 S.W.2d 204 (Tenn. 1992). The

Petitioner claims that his conviction is void and/or voidable

due to the violation of his constitutional rights in that he did

not enter a voluntary, understanding and knowing plea to

1-6

attempt to commit a felony. The Petitioner pled guilty on

May 19, 1976. Prior to July |, 1986, there was no statute of

limitations applicable to criminal defendants. In the present

case, the Petitioner received 11 months 29 days suspended

on his good behavior and had no reason to believe such

plea was to a felony offense, that is attempt to commit a

felony, as contained in his judgment and as the federal

government is now claiming.

The Petitioner is currently being prosecuted in

Federal Court and is being held without a bond in part for

being a felon in possession of a handgun in violation of 18

U.S.C. § 922(g). The government is using his May 1976

conviction as the predicate offense for 18 U.S.C. § 922(g).

However, the Petitioner pled guilty to a misdemeanor in

May, 1976 as reflected by the courtroom minutes and the

petition for a suspended. See Exhibits C & D.

The Petitioner asserts that the statute of limitations

for post-conviction petitions should not apply to him in that

he never received any notice that he pled guilty to a felony.

He had actual lmowledge that he pled to a misdemeanor.

There was never a colloquy in court. The record is

completely devoid of any evidence that the Petitioner

1-7

believed that it was a felony or that he understood and

knew to what he was pleading guilty.

Furthermore, at the time of the Petitioner’s plea and

under the status of the law in Tennessee at the time, the

Petitioner never lost any nghts as a result of his plea. He

could lawfully vote. He could lawfully possess a firearm.

Based upon the complete lack of record, lack of colloquy,

and lack of any evidence to support that this was in fact a

felony, the Petitioner asserts that his post-conviction

petition is timely. Never has any agent of the State of

Tennessee ever alleged that he was convicted of a felony,

only the federal government has alleged that it was a felony

in a recent January, 2004 indictment. Respectfully, the

Petitioner submits that the statute of limitations should not

apply to him or in the alternative, that the statute of

limitations as applied deprives him of his due process rights

under both the Tennessee and United States Constitution.

The statute of limitations as applied amounts to tnal by

ambush if this Defendant is precluded from attacking this

plea by the statute of limitations for post-conviction

petitions.

In Boykin v. Alabama, 39 U.S. 238, 89 S.Ct. 1709,

23 L. Ed. 2d 274 (1969), the United States Supreme Court

1-8

ruled that when a defendant enters a plea of guilty, the

transcript of the proceeding must affirmatively show that

the defendant voluntarily, understandingly and knowingly

entered the plea. If the transcript does not establish this

fact, the plea is constitutionally infirm. The transcript in

Boykin reveals that, “the trial judge asked no questions of

Petitioner concerning his plea, and defendant did not

address the Court.” Boykin v. Alabama, 395 U.S. at 239, 89

S.Ct. at 1710, 23 L. Ed. 2d at 277 quoted in Chamberlain v.

State, 815 S.W.2d 534, 538 (Tenn. Crim. App. 1990). In

Chamberlain, the Court of Criminal Appeals Tennessee

further quotes Boykin and states that, “it was error, plain on

the face of the record, for the trial judge to accept

Petitioner’s guilty pleas without an affirmative showing

that is was intelligent and voluntary.” Chamberlain, 815

S.W.2d at 539.

Recognizing that there problems with guilty plea

procedures in Hamilton County and throughout Tennessee,

the Tennessee Supreme Court created a procedure that

mandated compliance with Boykin. This procedure was

enunciated by the Tennessee Supreme Court in State v.

Mackey, 553 S.W.2d 337 (Tenn. 1977). The Petitioner’s

plea occurred seven years after the Boykin decision and is

1-9

contemporaneous with Mackey. The appellate courts of this

state have applied the mandate of Boykin and established

the procedures that are now enumerated in Rule 11 and

Mackey.

Specifically, Boykin, Rule 11(c) and Mackey

require that the trial judge address the Defendant personally

in open court. Boykin, Rule 11(c), and Mackey require that

the tral judge explain certain information and

constitutional nghts to the Defendant, and the trial court

must ascertain whether the Defendant understands the

information and his constitutional nghts. The Petitioner

asserts that he was never personally addressed in open

court nor were his constitutional nghts explained to him in

his 1975 plea. Specifically, the Petitioner was never

addressed regarding (i) the nature of the offense to which

the plea was offered; (11) the mandatory minimum and

maximum penalty prescribed by law; (111) the nght to plead

not guilty; (iv) the nght to tral by jury; (v) the night to

assistance of counsel; (vi) the mght to confront and cross-

examine the state’s witnesses; (vii) the privilege against

self incrimination,; (viit) the fact that a plea of guilty waives

the night to a trial; (ix) whether different or additional

punishment may result by reason of a prior conviction; (x)

1-10

that evidence of any conviction, including the conviction

that he was * ‘ng in 1976, could be used against him in the

future; (xi) whether there was a factual basis for the plea;

(xii) and other general remarks required under Boykin,

Mackey and Ruie 11 of the Tennessee Rules of Criminal

Procedure.

As can be gleaned from examination of the court

record submitted with this petition, there is no evidence:

that the trial court had an actual colloquy in open court with

the defendant. The record reflects that the defendant signed

a petition for a suspended sentence. As the court in

Chamberlain notes, “the written documents did not relieve

the trial judge from addressing the appellate in open court

as required,” by law. Chamberlain, 815 S.W.2d at 539.

Like the petitioner in Chamberlain, we assert that the

documents from the guilty plea proceedings do not

affirmatively, “disclose that the [Petitioner] voluntarily and

understandingly entered his plea of guilty,” as mandated by

Boykin, Mackey, and Rule 11 of the Tennessee Rules of

Criminal Procedure. Chamberlain, 815 S.W.2d at 540,

quoting Boykin 395 U.S. at 24489 S.Ct. 1713, 23 L. Ed. at

280.

I-11]

When the record is wholly insufficient to establish

that the plea was knowing and voluntary, the burden shifts

to the state to show by clear and convincing evidence that

thl Petitioner voluntarily, understandingly and knowingly

entered his plea. Chamberlain, 815 S.W.2d at 541; see also,

Roddy v. Black, 516 F.2d 1380, 1384 (6th Cir. 1975).

CONCLUSION

This Petitioner respectfully submits that this Court

should grant him post-conviction relief by finding that the

judgment and sentence from May. 1976 are illegal. Or, in

the alternative, by finding that his conviction from May

1976 is void because the plea was not voluntary, knowing

and/or intelligent in light of the incomplete record.

WHEREFORE PREMISES CONSIDERED,

Petitioner prays:

1. That this Court set an immediate hearing to

determine the issues raised herein;

Zz That this Court find that his judgment and

sentence from May 1976 are illegal;

3: Or in the alternative, that this Court find that

the Petitioner’s conviction from May 1976 is void in that he

I-12

did not voluntarily, understandingly, and knowingly enter a

plea to a felony;

4. For other such relief that the Petitioner is

entitled.

Respectfully submitted,

DAVIS & WALLACE, PC

/s/ Lee Davis

Lee Davis, BPR #15958

Bryan H. Hoss, BPR #021529

508 E. 5th Street

Chattanooga, Tennessee 37403

423-266-0605

423-266-0687 Fax

I-13

CERTIFCATE OF SERVICE

The undersigned hereby certifies that a true and

correct copy of this motion has been served upon the

following by placing same in the United States mail with

sufficient postage thereon to carry same to its destinafion:

Lila Statom

Boyd Patterson

Assistant District Attorney

600 Market Street

Chattanooga, Tennessee 37402

On this the 6 day of April, 2004.

/s/ Lee Davis

LEE DAVIS

I-14

NO. 130199 GJ NO. P 39-266

A TRUE BILL

CHARGE: FELONIOUSLY SELLING

A CONTROLLED SUBSTANCE

HERA ER EEE EEE EEE

STATE OF TENNESSEE

VS.

TERRY PENNY

GARY D. GERBITZ

DISTRICT ATTORNEY GENERAL

/s/ Donald W. Hyden

GRAND JURY FOREMAN

KEKE KEKE KKK KKKKK

CLERK’S SUMMONS for the STATE

¥ CAPT. PAT ROWE,

CHATANOOGA POLICE

JOYCE GADD, % JOE MCCULLOUGH,

CHATTANOOGA POLICE DEPARTMENT

BETH WILSON, % JOE MCCULLOUGH,

CHATTANOOGA POLICE DEPARTMENT

I-15

¥ DET. JOE MCCULLOUGH,

CHATTANOOGA POLICE DEPARTMENT

WAYNE MCMAHON, MILNE AVE

GEORGE BRADLEY, % JOE MCCULLOUGH,

CHATTANOOGA POLICE

TERRY GRIZZARD,

CHATTANOOGA POLICE DEPARTMENT

/s/ Donald W. Hyden ...... FOREMAN

/s/ Charles J. Haley /s/ Rebecca J. Jones

/s/ Damon Lewis /s/ Dorothy P. Haggard

/s/ Andrew T. Powers /s/ Clara Shelley

/s/ King Mason /s/ Cynthia North

/s/ Andrew Baker /s/Cleve Anmstrong

/s/ Sam Love /s/ Katherine Henderson

BRR Ae BOND

FILED

1-16

STATE OF TENNESSEE, HAMILTON COUNTY

130199 Criminal Court Apnl Term, 1975

THE GRAND JURORS for the State aforesaid,

being duly summoned, elected, impaneled, sworm and

charged to inquire for the body of the County aforesaid,

upon their oaths present: .

That Terry Penny heretofore on the 6th day of

February, 1975, in the County aforesaid, did unlawfully

and feloniously sell or deliver a controlled substance, to-

wit: Ethchlorvynol (Schedule IV), against the peace and

dignity of the State.

District Attorney General

FILED IN OFFICE -

S?SAPR-1 PH &: 0S BY _

CLYGE 4. SAUBERS, CLEA a

COPY JUDGMENT - CONVICTION, WORKHOUSE

(WAIVER OF TRIAL BY JURY) _

EXHIBIT

Pleas at a Criminal Court begun and held at the Court

STATE OF TENNESSEE

County of Hamilton

House in the City of Chattanooga County and State aforesaid,

on the First Monday of MAY, 1976, the same being the 3rd

day of said month.

Present and presiding, the Honorable CAMPBELL

CARDEN, Judge of the FIRST Division of the Criminal

Court of the Sixth Judicial Circuit of Tennessee, duly elected,

commissioned and qualified when the following proceedings

were had, to-wit:—

Chattanooga, Tennessee, May 19, 1976.

Court met pursuant to adjournment, present and presiding the

Honoravdle CAMPBELL CARDEN, Judge, etc., when the

following proceedings were had, to-wit:—

~~ Case No. 130199

THE STATE Charge FEL. SELLING CONT.

VS. SUBSTANCE

TERRY PENNY Came the Attorney-General and

the Defendant in person, with his

I-18

attomey, Mr. BUCK DIETZEN,

and this case came on for trial on defendant’s plea of —__

guilty before the court without a jury, the defendant having

waived his right to a trial by jury.

Upon defendant’s plea, upon proof hear and

arguments of counsel, it is therefore adjudged by the Court

that defendant is guilty of ATTEMPT TO COMMIT A

FELONY

and it is the judgment of the Court that defendant be

confined in the Penal Farm of Hamilton County for a term of

11 months 29 days

and pay or secure all costs. Execution will issue against

defendant.

Defendant is to be allowed credit for time in jail as

indicated below:

5/19/76 EXECUTION OF JUDGMENT WITHHELD

6/28/76 JUDGMENT ORDERED INTO EXECUTION -

PET. FOR SUSPENDED SENTENCE SUSTAINED ON

PAYMENT OF COSTS ON OR BEFORE 7/30/76 AND

GOOD BEHAVIOR FOR 5 YEARS UNDER PAROLE

SUPERVISION.

Date of Arrest: 5/12/76

Date made Bond: 5/12/76

FEAKEEKE

Date of Arrest:

Date made Bond:

SEAAEESE -

Date of Arrest:

’ Date made Bond:

Also credit from and after:

STATE OF TENNESSEE

Criminal Court of Hamilton County

I, CLYDE M. SANDERS, Clerk of said Court, do

hereby certify that the above and foregoing one page contains

a full, true and correct copy of the judgment of Court rendered

in the above case, on the day stated, as the same appears of

record in my Office.

Given under my hand and seal of said Court, at office

in Chattanooga, Tennessee, this 28th day of JUNE, 1976.

FID....oreensersearesvesonneeeenensrevssepenttentibesvaneieabemencasbeonninngubenneniiine

Traffic Vio. Pentally.......:.0cccccssssees Miscokatseatcisiepininemmediaiies XXXXX

I Ci victvsitsriinnishtaedinda - RRR ene ea Pa 347.25

State and County Tax.................... Wisiclecissksiuascoimenatelonhe 24.00

Attorney General’s Fee................ Pie dtiicunensdaciasateniamabaias 10.00

SIE OOD ciistccmnsatsitenicicadniiedizdabeldanies Tiainjsikcipsbsidiabcaameaaaal 6.00

State and County Expense Fee......§..........ccccscssesssessessseerseceseees

387.25

1-20

CLYDE M. SANDERS

Clerk of the Cnminal Court of Hamilton County

By:/s/ Clifford A. Dalton

Deputy Clerk

STATE OF TENNESSEE COUNTY OF HAMILTON,

CRIMINAL COURT, SIXTH JUDICIAL CIRCUIT.

To the Superintendent of the Penal Farin of Hamilton County,

Tenn.:

Upon the foregoing certified copy of the Judgment and

Sentence of the FIRST Division of the said Criminal Court of

the Sixth Judicial Circuit of Tennessee, you are hereby

commanded to receive the said defendant, TERRY PENNY,

into your custody, and detain him in the said Penal Farm of

Hamilton County, Tennessee, until he be legally discharged.

CLYDE M. SANDERS

Clerk of the Criminal Court

MICROFILM Sixth Judicial Circuit of Tennessee

REF. NO._ 1342 By: /s/ Clifford A. Dalton

Deputy Clerk

STATE OF TENNESSEE

Hamilton County Criminal Court, Division No. !

___Minutes _§. May ___ Term May 19 _1976

Court met pursuant to adjournment, present and presiding

the Honorable Campbell Carden, Judge, etc., when the

following proceedings were had, to-wit: er

130199 State v. Terry Penny - Fel. Selling Controlled

Substance

Came the Attorney General and the defendant in

person with his attorney, Mr. Buck Dietzen, and this case

came on for hearing before the Court without a jury on

defendant’s plea of guilty.

Upon defendant’s plea and upon proof heard, it is

adjudged by the Court that the defendant is guilty of Selling

A Controlled Substance, Schedule IV, and it is the

judgment of the Court that the defendant serve a term of 11

months and 29 days at the Hamilton County Penal Farm,

and pay all costs. Execution will issue against the defendant

for the costs.

Execution of the judgment is further ordered

withheld pending an investigation by the State Parole

Office, Defendant is allowed 10 days within which to file a

I-22

Petition for Suspended Sentence to be heard on June 28,

1976. No bond allowed. :

130200 State v. Benny Ray Suttles - Fel. Receiving

and/or Concealing Stolen Property

131984 State v. Benny Ray Suttles - Forgery Of

Endorsement

Came the Attorney General and the defendant in

person with his attorney, Mr. Rheubin Taylor, and these

cases came on for hearing before the Court without a jury,

the defendant having waived his right tot a trial by jury

under the provision of Section 40-2504, Tennessee Code

Annotated.

Upon defendant’s pleas and upon proof heard, it is

adjudged by the Court that the defendant is guilty of

Attempting To Commit A Felony in each case, and it is the

judgment of the Court that the defendant be confined in the

State Penitentiary for a term of not less than | nor more

than | year, and pay all costs. Execution will issues against

the defendant for the costs.

| Thereupon, Court adjourned pending further

business of the Court.

/s/ Campbell Carden

Campbell Carden, Judg

1-23

TH= FOREGOING INSTRUMENT IS A

TRUE AND CORRECT COPY OF TES

ORIGINAL NOW ON FILE WS RY GFSICE,

Date MAR 24 2004

GWEN TIDWELL, Criminal Court Clerk.

By ae! ne

1-24

STATE OF TENNESSEE

Hamilton County Criminal Court, Division No. I

Minutes __May __Term___June 28 __1976__

Court met pursuant to adjournment, present and presiding

the Honorable Campbell Carden, Judge, etc., when the

following proceedings were had, to-wit:

132997 State v. Leonard J. Heltie:, Jr. - Fel. Selling

Controlled Substance

Came the Attorney General and the defendant in

person with his attorney, Mr. Leroy Phillips, and the Court

ordered this case set for trial on September 16, 1976.

133033 State v. Charles Lawrence - Fel. Selling

Controlled Substance

133004 State v. Charles Lawrence - Fel. Selling

Controlled Substance

133005 State v. Charles Lawrence - Fel. Selling

Controlled Substance

133006 State v. Charles Lawrence - Fel. Selling

Controlled Substance

133007 State v. Charles Lawrence - Fel. Selling

Controlled Substance. -

Came the Attorney General and the defendant in

person with his attorney, Mr. John Senters, and the Court

ordered this case set for trial on July 9, 1976.

I-25 =

133018

133028

133090

133059

133062

131927

131928

131929

131930

State v. - Fel. Selling Controlled

Substance

State v. Tony Phillips - Fel. Selling

Controlled Substance

State v. William Brazelton - Larceny and/or

Shoplifting

State v. Thornton Lee Handley - Murder

State v. Vernon Robert Harris - Assault

With Intent To Carnally Know Female

Under Twelve

State v. Tom Cole and

Harole Hoke - Fel. Vio. TCA 39-301

State v. Tom Cole and

Harole Hoke - Fel. Vio. TCA 39-301

The above cases are hereby ordered continued to

July 12, 1976, for reassignment.

133087

133088

State v. Larry O. Taylor and

Charles H. Watt, Jr. - Larceny From

Person

For good and sufficient reasons appearing to the

Court, the defendant herein were surrendered by their

bondsman to the Court and...

132841 Samuel Ray Neal v. State - Post-Conviction

Petition

Hearing on the above case is hereby ordered set on

September 13, 1976, along with a Motion To Dismiss, upon

oral motion of Mr. David Nelson.

132745 State v. David O’ Rear and

132746 Frank Merritt - Armed Robbery

Hearing on a Motion To Continue is hereby ordered

continued to June 29, 1976.

130199 State v. Terry Penny - Fel. Selling

Controlled Substance

The above case came on for hearing on a Petition

For Suspended Sentence heretofore filed by Mr. Buck

Dietzen, and the Court, after hearing said petition, is of the

opinion same is a proper case for the suspension of the

entire sentence.

Said petition is, therefore, sustained and the

sentence hereby suspended upon payment of the costs on or

I-27

before July 9, 1976, and further conditioned upon the

defendant’s good behavior for a period of 5 years, under

the supervision of the State Parole Office.

131984 State v. Benny Ray Suttles - Forgery of

Endorsement

131982 State v. Benny Ray Suttles - Fel. Receiving

and/or Concealing Stolen Property

The above case came on for hearing on a Petition

For Suspended Sentence heretofore filed by Mr. Rheubin

Taylor, and the Court, after hearing said petition, is of the

opinion same is not a proper case for the suspension of the

sentence, and it is, therefore, denied and the judgment

heretofore taken in the above case is hereby ordered into

execution and the defendant is allowed credit for the time

served in jail awaiting tral of this cause.

130239 State v. Eddie Dyer - Fel. Selling Controlled

Substance

130261 State v. Eddie Dyer - Fel. Selling Controlled

Substance

130259 State v. Eddie Dyer - Fel. — Controlled

° Substance

1-28

The above cases came on for hearing on a Petition

To Revoke Suspended Sentence heretofore filed by the

State on June 7, 1976, and the Court, after hearing said

petition, is of the opinion same is well taken, and it is,

therefore, sustained and the judgments heretofore taken in

these cases are hereby ordered into execution.

Defendant is further allowed to serve each of the

above sentences at the Hamilton County Penal Farm.

And further allowed credit for the time spent in jail

awaiting hearing of this cause.

131921 State v. Clifford Farris - Armed Robbery

Hearing on a Petition For Suspended Sentence is

hereby ordered continued to July 12, 1976.

127968 - 9

State v. Lois Rose = Pet. Revoke

ORDER OF APPOINTMENT OF LEGAL COUNSEL

FOR INDIGENT DEFENDANT

The defendant, Lois Rose, having been called to

plead to the indictment(s) or presentment(s) found against

him, wherein he is charged with Pet. Revoke Suspended

Sentence and it appearing to the undersigned Judge

I-29

presiding, from affirmations made by the defendant and

after due inquiry made, as appears in the record that the

defendant is unable by reason of his indigency to employ

the services of counsel to represent him in this cause; it is,

ORDERED AND ADJUDGED that the defendant

is an indigent and in need of the services of an attorney, as

contemplated by law; and that CHARLES WRIGHT,

Attorney at Law, duly licensed to practice in the State of

Tennessee is hereby appointed as counsel for the indigent

defendant as is provided by law.

This the 28th day of June, 1976.

/s/ Campbell Carden

Judge

Thereupon, Court adjourned pending further

business of the Court.

/s/ Campbell Carden

Campbell Carden, Judge

THE FOREGOING INSTRURENT an A

TRUE ANE CORRECT COPY CHUTES

ORIGENAL NOW GN FILE BN RA? CICE

Date MAR 24 2004

a = Jf. OC

1-30

NO. 130199

STATE OF TENNESSEE *

* IN THE CRIMINAL

VS. * COURT FOR

* HAMILTON COUNTY,

* TENNESSEE

* DIVISION I

TERRY EUGENE PENNEY

PETITION FOR PROBATION

Comes the petitioner, Terry E. Penney, and shows

to the Court as follows: EXHIBIT

That on the 19th day of May, 1976, the petitioner

entered a plea of guilty of possession. of marijuana, a

misdemeanor, and was sentenced to the workhouse for a

period of Eleven (11) months Twenty-Nine (29) days. The

case was passed for an investigation by the probation

officers.

Il.

Petitioner further shows to the Court that he was

convicted for possession of marnjuana at Clarksville,

Tennessee in Montgomery County and was sentenced to

Eleven (II) Months Twenty-Nine (29) days in the

workhouse and was fined Four Hundred ($400.00) Dollars.

He began serving his time in the workhouse at Clarksville

1-3]

on September 19, 1975. He will have served his full time

on the 18th day of June, 1976. Some two months .ago,

petitioner was allowed to come to Chattanooga and dispose

of the case before the Court.

III.

The petitioner is married and has one child, a son.

He graduated from Soddy-Daisy High School and was

awarded a football scholarship at Austin Peay College

where he played tackle for a period of two years. Since the

petitioner came over to Chattanooga, he has been confined

in the Hamilton County Workhouse and has made a model

prisoner both here and in-Montgomery County Tennessee.

IV.

Prior to his conviction in Clarksville Tennessee, he

was employed with Brock Candy Company and liked his

job. The petitioner believes that he can return to the Brock

Candy Company, if his sentence is suspended. A copy of a

letter from the Director of Personnel is hereto attached as

Exhibit A of said petition.

1-32

Petitioner realizes the seriousness of this charge

and, if granted a parole from said sentence, he will be

forever a law abiding citizen.

VI.

PREMISES CONSIDERED, PETITIONER PRAYS:

]. That the sentence imposed upon him be

suspended and he be placed on probation conditioned upon

his continued good behavior.

2 Grant general relief.

DIETZEN, DIETZEN & BARKER

BY W_N. Dietzen

Attorneys for Petitioner

615 Walnut Street

Chattanooga, Tennessee 37402

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and

exact copy of this pleading has been served upon the

opposing party, or counsel for all parties at interest in this

case by delivering a true and exact copy of said pleading to

I-33

the offices of said counsel or by placing a true and exact

copy of said pleading in the United States Mail addressed

to the opposing party or to said counsel at office, with

sufficient postage thereupon to carry the same to is

destination.

This the 16 day of June, 1976.

By /s/ W. N. Dietzen

STATE OF TENNESSEE

COUNTY OF HAMILTON

Terry E. Penney makes oath in due form of law that

the allegations contained in the foregoing petition are true.

This the 16th day of June, 1976.

/s/ Terry E. Penney

TERRY E. PENNEY

Swom to and Subscribed before me this 16th day of June,

1976.

/s/ W.N. Dietzen

NOTARY PUBLIC

My Commission Expires:

11-18-78

1-34

IN THE CRIMINAL COURT OF

TENNESSEE AT CHATTANOOGA

THE ELEVENTH JUDICIAL CIRCUIT

STATE OF TENNESSEE *

Plaintiff, .

VS. * CASE NO. 130199

TERRY PENNY *

Defendant

I, Abigail M. Pearce, Official Court Reporter for

Division I of Hamilton County Criminal Court, do hereby

certify that I have listened to the official audiotapes for

court proceedings held on May 19, 1976, and June 28,

1976, before Judge Campbell Carden, and have found that

there was no recording made relating to the above-styled

case on either date.

/s/ Abigail M. Pearce

Abigail M. Pearce

Official Court Reporter

Hamilton County Cnminal Court

Division |

Swom to and subscribed before me this 29 day of

March, 2004.

/s/ Melanie Clark Cabin

Notary Public

My Commission Expires:

I-35

IN THE CRIMINAL COURT OF

HAMILTON COUNTY, TENNESSEE

STATE OF TENNESSEE,

vs.

TERRY E. PENNEY,

DEFENDANT.

AFFIDAVIT OF TERRY E. PENNEY

STATE OF TENNESSEE)

COUNTY OF HAMILTON)

Terry E. Penney, being first duly swom in

accordance with law; deposes and says:

1. My name is Terry Eugene Penney. I am the

Petitioner in this Petition for Post Conviction.

2. I am a resident of Hamilton County,

Tennessee. My date of birth is August 3, 1949.

3. In April 1, 1975, when I was 25 years old, I

was named as a defendant in an indictment for feloniously

selling a Schedule [V controlled substance in Hamilton

County, Tennessee, Docket Number 130199.

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4. On May I1, 1976, I pled guilty to a

misdemeanor and received a sentence of 11 months and 29

days.

5. On June 16, 1976, under oath and in due

form of law, I signed and had notarized a “Petition for

Probation” wherein I asked for a suspended sentence for

my misdemeanor plea of possession of marijuana

6. This Court granted my Petition and

suspended the sentence of 11 months and 29 days.

7. The trial court judge never conducted a

discussion with me regarding the nature of my plea, nor did

the Court have any discussion with my attorney: From my

recollection, | appeared in Court. The petition was made

and | was granted_a suspended sentence. I remember the

Judge asking me if |_wanted to plead guilty to misdemeanor

possession and I said that I did.

8. I understood that I was in Court, that I was

pleading to a misdemeanor and that I would receive 11

months and 29 days, suspended on my good behavior. To

the best of my knowledge, I was never on probation,

supervision or parole supervision.

9. The District Attorney General, the Court,

nor my defense attorney never stated or discussed a factual

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basis for the plea with me. I was never asked about my

understanding of the entry of the guilty plea or advised

whether the guilty plea would have any effect on me for

future proceedings.

10. My _ constitutional rights were never

‘explained to me. I was never advised that I would be giving

up certain constitutional nights if I pled guilty.

11. I was never advised at any point during the

proceedings that my misdemeanor plea could later be

construed as a felony or be used by the Federal government

as the basis for prosecution against me. Had that been

explained to me I would not have entered my misdemeanor

plea of guilty.

FURTHER AFFIANT SAITH NOT.

/s/ Terry Penney

TERRY EUGENE PENNEY

Sworn to and subscribed before me

This Sth day of April, 2004.

/s/ Jen Shahan

NOTARY PUBLIC

My Commission Expires: May 2007

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IN THE CRIMINAL COURT OF

HAMILTON COUNTY, TENNESSEE

STATE OF TENNESSEE, ” NO. 130199

VS. by DIVISION ft

TERRY E. PENNEY, "

DEFENDANT.

MOTION TO CORRECT JUDGMENT

COMES NOW, the Defendant, Terry E. Penney,

pursuant to Rule 36 of the Tennessee Rules of Criminal

Procedure and moves this Honorable Court to correct his

judgment.

Rule 36 provides that “clerical mistakes in

judgments, orders, or other parts of the record and errors in

the record arising from oversight or omission may be

corrected by the court at any time and after such notice, if

any, as the Court orders.”

As grounds thereto the Defendant would show the

following:

z On Apnl 1, 1975 the Defendant was

indicted for feloniously selling a schedule IV controlled

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substance. A copy of that indictment is attached hereto as

Exhibit “A.”

2. On May 19, 1976, the Defendant pled guilty

and received a sentence of 11 months and 29 days. The

execution of judgment was withheld on that date. A copy of

the judgment is attached hereto as Exhibit “B.” The

judgment reflects that the Defendant pled guilty to Attempt

to Commit a felony. The courtroom minutes from that date

reflect that the Defendant pled guilty to Selling a

Controlled Substance. A certified copy of the courtroom

minutes is attached as Exhibit “C.”

3. On May 19, 1976, the Defendant, through

counsel, filed a Petition for a Suspended Sentence and

stated under oath that he pled guilt to simple possession of

marijuana, a misdemeanor. A copy of the Petition ts

attached hereto as Exhibit “D.”

4. On June 28, 1976, the Court granted the

Defendant’s Motion for a Suspended Sentence.

2. Respectfully, the Defendant moves this

Court for an order to correct the judgment to reflect that he

pled guilty to selling a controlled substance, reccived a

sentence of 11 months 29 days suspended on his good

behavior, a misdemeanor offense.

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WHEREFORE PREMISES CONSIDERED,

Movant requests:

A. That this Court correct the judgment;

B. Any further and general relief to which the

Defendant is entitled.

Respectfully submitted,

DAVIS & WALLACE, P.C.

/s/ Lee Davis

Lee Davis, BPR #15958

Bryan Hoss, BPR #021529

508 E. Sth Street

Chattanooga, TN 37403

(423) 266-0605

(423) 266-0687 Fax

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and

correct copy of this motion has been served upon Rodney

Strong, Assistant District Attorney, 600 Market Street,

Chattanooga, Tennessee 37402, and Boyd Patterson,

Assistant District Attorney, 600 Market Street, Chattanooga,

TN 37402, by placing same in the United States mail with

sufficient postage thereon to carry same to its destination

on this the 30 day of March, 2004.

/s/ Lee Davis

Lee Davis

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.