            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE             FILED
                          FEBRUARY 1998 SESSION
                                                        August 20, 1998

                                                     Cecil W. Crowson
TERRY L. CHARLTON,            *    C.C.A. # 01C01-9701-CC-00002 Clerk
                                                   Appellate Court

             Appellant,       *    HICKMAN COUNTY

VS.                           *    Hon. Cornelia A. Clark, Judge

STATE OF TENNESSEE,           *    (Post-Conviction)

             Appellee.        *




For Appellant:                     For Appellee:

Peter D. Heil                      John Knox Walkup
P.O. Box 40651                     Attorney General and Reporter
Nashville, TN 37204
                                   Daryl J. Brand
                                   Assistant Attorney General
                                   425 Fifth Avenue North
                                   Cordell Hull Building, Second Floor
                                   Nashville, TN 37243-0493




OPINION FILED:__________________________




AFFIRMED IN PART; REVERSED AND REMANDED IN PART




GARY R. WADE, JUDGE
                                         OPINION

                The petitioner, Terry L. Charlton, appeals the trial court's denial of his

application for post-conviction relief. In this appeal of right, the petitioner claims that

the trial court erred by entering an order of summary dismissal without the

appointment of counsel or the opportunity to amend. We must reverse a portion of

the judgment and remand to the trial court for further proceedings consistent with

this opinion.



                                           Facts

                On September 19, 1995, the petitioner pled guilty in Hickman County

to two counts of aggravated burglary and two counts of theft over $1,000.00. Trial

Judge Donald P. Harris imposed Range II sentences of six years on each count and

ordered two of the sentences to be served consecutively for an effective term of

twelve years. The twelve-year term was ordered to be served concurrently "with [a]

sentence [the defendant is] currently serving [with] TDOC" for a prior conviction in

Cheatham County.



                On September 11, 1996, the petitioner completed and mailed this

petition, alleging that his pleas were "involuntar[y] ... without understanding the

nature or consequences...." At the same time, the petitioner filed a motion to amend

the September 19, 1995, order in Hickman County asking that these sentences also

be served concurrently with a sentence imposed by Judge Clark in Williamson

County some twenty-seven days after the Hickman County plea agreement. The

Williamson County sentence of twenty-one years had been ordered to be served

consecutively to the Hickman County term.



                The record establishes that the petitioner was serving an eighteen-


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year Cheatham County sentence in the Department of Correction at the time of the

Hickman County sentence. After determining that the transcript of the guilty plea

established that Judge Harris, who imposed the Hickman County sentences, had

sought clarification before accepting the plea, Judge Clark denied relief. In doing

so, she recited a portion of the submission hearing transcript:

              Judge Harris: I cannot run a sentence concurrent with
              the sentence that you haven't gotten yet. It will be up to
              that judge [Cornelia A. Clark]. I feel confident that if
              somebody tells her that that was the agreement down
              here, that she'll run it concurrent, but I can't guarantee
              you, and she may say ["no, it's consecutive"]. I am
              certainly not going to try to say what Judge Clark will do.

After this statement, the assistant district attorney general assured the trial court that

the concurrent sentence agreement applied only to the Cheatham County sentence.

When asked whether he was satisfied with that, the defendant answered, "Yes, that

will be fine. Sentences I am already serving. I've already got eighteen years."



              In dismissing the petition and motion, Judge Clark further observed as

follows:

              This court has recently reviewed the videotape of the
              sentencing hearing in Williamson County. The written
              and videotape record is clear. The attorneys did recite
              the prior sentences imposed on the defendant.
              However, no assertion was made that any agreement
              had been entered into or recommendation made to run
              the sentence concurrently. In fact, no mention
              whatsoever was made of the discussion that occurred in
              Hickman County one month earlier.

After making reference to the dismissal of the post-conviction petition, the trial court

also ruled that the motion to amend the Hickman County sentence by asking for

concurrent service with the Williamson County sentence was not only untimely but

also without merit. See Tenn. R. Crim. P. 35.



              In a motion for reconsideration filed twelve days after the initial order,


                                            3
the petitioner reasserted that his guilty plea was involuntary. He insisted that

portions of the transcript supported his claim that he did not understand that the

Williamson County sentences could be consecutive. Of greater significance, the

petitioner reiterated his complaint that the Department of Correction had refused to

treat the Hickman County sentences as concurrent with his Cheatham County term

because of a parole violation on the latter sentence. See Tenn. R. Crim. P.

32(c)(3)(A).1 In denying the motion to reconsider, Judge Clark made the following

observation:

                   During the [Hickman County] hearing, no one specifically
                   stated that the Cheatham County convictions were
                   sentences imposed as a result of the parole violation. In
                   fact, statements made by petitioner seemed to indicate
                   that they were simply other sentences imposed. It is
                   apparent that neither ... [J]udge [Harris] nor any attorney
                   knew that petitioner's Cheatham County sentences were
                   imposed as a result of a parole violation. However, it is
                   clear that the petitioner knew or should have known his
                   status.

The trial judge cited a case in which a panel of this court had ruled that because it is

commonly known that a criminal conviction qualifies as a ground for parole

revocation which, in turn, requires a consecutive sentence, the ensuing guilty plea

under these circumstances is knowingly and voluntarily entered. Bailey v. State,

924 S.W.2d 918 (Tenn. Crim. App. 1995). Judge Clark ruled that based upon the

Bailey opinion from this court, the petitioner could not claim ignorance of the law.



                   In Bailey, the trial court had entered a summary dismissal of a post-

conviction petition based upon the allegation of ineffective assistance of counsel by



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          Mandatory Consecutive Sentences. Where a defendant is convicted of multiple offenses
from one trial or where the defendant has additional sentences not yet fully served as the result of the
con viction s in th e sam e or o ther c ourt a nd th e law requ ires c ons ecu tive se nten ces , the s ente nce shall
be con secutive whethe r the judgm ent exp licitly so orders o r not. This rule shall ap ply:

         (A) To a senten ce for a fe lony com mitted w hile on paro le for a felon y.

Tenn. R. Crim . P. 32(c)(3)(A).

                                                          4
the failure to warn that a guilty plea could lead to revocation of parole and

consecutive sentencing. By footnote, the panel explained that whether counsel was

aware of his parole status was irrelevant because the petitioner knew or should

have known that he was on parole with conditions:

                       We find it readily apparent, even to the everyday
               layman, that criminal convictions can lead to parole
               revocation. We find it equally apparent that the parole
               revocating offense's sentence would run consecutively to
               an existing paroled sentence.... We, therefore, reject
               petitioner's argument that he would not have pled guilty
               had counsel informed him of information he is presumed
               to possess.

Bailey, 924 S.W.2d at 919. In that case, the panel relied primarily upon a holding in

Sheehan v. State, 411 So. 2d 824, 828 (Ala. Crim. App. 1981). The panel also

made reference to an Arizona case, State v. Young, 480 P.2d 345 (Ariz. 1971),

which held that a defendant must be "presumed to be aware" when entering a guilty

plea, of the concept of "separate punishments for separate crimes...." Id. at 346-47.

In Bailey, there was no application for permission to appeal to the supreme court.



                                        Procedure

               Upon the filing of a post-conviction petition in proper form, or upon

receipt of an amended petition, our law requires trial courts to subject the petition to

"preliminary consideration." Tenn. Code Ann. § 40-30-206. During this preliminary

phase, the trial judge must examine the allegations of fact in the petition. "If the

facts alleged, taken as true, fail to show that the petitioner is entitled to relief ... the

petition shall be dismissed." Tenn. Code Ann. § 40-30-206(f). In Waite v. State,

948 S.W.2d 283 (Tenn. Crim. App. 1997), our court discussed how to determine,

under the new Act, whether a claim is "colorable" or actionable. If so, the petition is

allowed to pass beyond the preliminary stage. This court relied on case law prior to

the 1995 Act to hold that a colorable claim is "'one that alleges facts showing that

the conviction resulted from an abridgment of a constitutional right and which

                                              5
demonstrates that the ground for relief was not previously determined or waived.'"

Id., 948 S.W.2d at 284-85 (quoting Hugh Ronald Carmley v. State, No. 03C01-9305-

CR-00167, slip op. at 6 (Tenn. Crim. App., at Knoxville, Jan. 13, 1994)). "The pro se

petitioner must assert a basic theory of relief." Waite, 948 S.W.2d at 284 (quoting

Lowe v. State, 805 S.W.2d 368, 372 (Tenn. 1991)). Under the new statute, at the

preliminary stage, the trial judge is required to determine "whether it appear[s]

beyond doubt that the [petitioner could] prove no set of facts in support of his claim

which would entitle him to relief." Waite, 948 S.W.2d at 284 (second alteration in

original). See also Tenn. Sup. Ct. R. 28(2)(H).



              The amended Post-Conviction Act requires trial courts, at the

preliminary stages, to first "determine whether the petitioner is indigent and in need

of counsel." Tenn. Code Ann. § 40-30-206(e). The trial court "may provide counsel

and allow time for an amendment to the petition." Id. Before there can be a

preliminary dismissal, however, the statute requires the trial court to assume "as

true" the facts alleged by the petitioner.



              Several unpublished opinions from this court have ruled that at the

preliminary stage, the trial judge is to assume the facts alleged in the petition are

true. No authority exists for the trial court to do independent fact investigation into

the truth of the allegations. In Loring C. Warner v. State, No. 03C01-9610-CR-

00407 (Tenn. Crim. App., at Knoxville, Jan. 30, 1998), app. filed by petitioner, Mar.

26, 1998, the trial court summarily dismissed a pro se petition after examining the

record of the prior proceedings, ruling that the record and the petition "conclusively

show[ed] that [Warner was] not entitled to relief." Id., slip op. at 2. This court

reversed on direct appeal and remanded for the appointment of counsel, concluding

that "the court exceeded its statutory mandate, which was simply to evaluate the


                                             6
petition to determine whether a colorable claim was stated, rather than to examine

and adjudicate the factual merits of the allegations." Id., slip op. at 3. A similar

result was reached in Garry E. Collins v. State, No. 01C01-9603-CR-00120 (Tenn.

Crim. App., at Nashville, Mar. 13, 1997). In Collins, the trial court took "judicial

notice of the [qualifications of trial counsel] and the properly executed [w]aivers of

the [d]efendant." Id., slip op. at 2. On appeal, this court ruled that the trial "court

may not take judicial notice of the qualifications of defense counsel and the contents

of the waiver so as to conclusively determine the petition has no merit." Id., slip op.

at 3.



              An independent review of the transcript of the guilty plea hearing and

conclusive determination that the petition was without merit are not permissible.

The preliminary stage is not the appropriate forum for adjudication of the facts of the

case.



              By his claim that the plea was neither knowingly nor voluntarily made,

the petitioner has stated a colorable claim. The petitioner contends that his

submission to the charges was brought about through a misapprehension that the

Cheatham and Hickman County sentences would be concurrently served. In

summarily rejecting that claim, Judge Clark followed our ruling in Bailey, a case in

which this court may have overlooked prior opinions from our supreme court.



                                Controlling Precedent

              The record indicates that prosecution, the defense, and Judge Harris

in the Hickman County cases all believed that sentencing concurrent with the

Cheatham County offenses was permissible. Two supreme court opinions address

this issue and require a different result than that reached in Bailey.


                                             7
              In Henderson v. State, 419 S.W.2d 176 (Tenn. 1967), our supreme

court, through former Chief Justice Hamilton Burnett, ruled that a plea agreement

which included concurrent sentencing for an offense committed while the defendant

was on parole for a prior crime, rendered the plea void:

              We think even if as it is argued by the Warden that the
              man should have known what was going to happen and
              his submission, or what he agreed to or had traded for,
              couldn't work out like he thought it might[,] that he is
              entitled to go back and have a new trial as was ordered
              in the instant case.

Id., 419 S.W.2d at 178 (emphasis added). Service of the concurrent sentences was

"what [the parties] thought would happen, and [they] just [were] not right." Id. Our

supreme court ruled that when the accused enters a plea wherein all parties (the

state, the defendant, and the trial judge) agree to a lesser sentence than is

permissible by law, "the accused should be allowed to withdraw his plea." Id.



              Our supreme court reaffirmed that rule in State v. Burkhart, 566

S.W.2d 871 (Tenn. 1978). In Burkhart, an order authorizing a concurrent sentence

for an escape from incarceration for a prior crime, which was legislatively mandated

to be consecutive, was deemed a nullity and, if the concurrent sentence for escape

was the result of a plea bargain, the defendant would be entitled to withdraw his

plea.



              The Bailey opinion appears to be in direct conflict with both Henderson

and Burkhart. In Eugene Montgomery v. State, No. 03C01-9507-CC-00189 (Tenn.

Crim. App., at Knoxville, Sept. 10, 1997), a panel of this court declined to follow the

reasoning of Bailey. In Montgomery, the petitioner complained that the "State

agreed his sentence for aggravated assault would run concurrently with a parole

violation." Id., slip op. at 2. The panel followed the rationale of Henderson v. State,

419 S.W.2d 176 (Tenn. 1967), and remanded the cause for the appointment of

                                           8
counsel and an evidentiary hearing.



               In our view, the petitioner has stated a colorable claim. Thus, the

cause must be remanded for the appointment of counsel. In Boykin v. Alabama,

395 U.S. 238 (1969), the United States Supreme Court ruled that defendants should

be advised of certain of their constitutional rights before entering pleas of guilt.

Included among those required warnings are the right against self-incrimination, the

right to confront witnesses, and the right to a trial by jury. Id. at 243. Yet the

overriding Boykin requirement is that the guilty plea must be knowingly and

voluntarily made. Id. at 242-44.



               In Wallen v. State, 863 S.W.2d 34, 38 (Tenn. 1993), our supreme

court ruled that several factors are relevant in determining whether a plea is

voluntary and intelligent:

               [A] court charged with determining whether those pleas
               were "voluntary" and "intelligent" must look to various
               circumstantial factors, such as the relative intelligence of
               the defendant; the degree of his familiarity with criminal
               proceedings; whether he was represented by competent
               counsel and had the opportunity to confer with counsel
               about the options available to him; the extent of advice
               from counsel and the court concerning the charges
               against him; and the reasons for his decision to plead
               guilty, including a desire to avoid a greater penalty that
               might result from jury trial.


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

(alteration in original)).



               The petitioner has alleged he was advised that his new sentence in

Hickman County would be served concurrently to his sentence on the case which

had parole revoked. He contended the trial transcript shows that "petitioner, trial

counsel and the prosecutor agreed to his sentences being served concurrently to

                                            9
the sentences already imposed in Cheatham County" and that he only agreed to "a

sentence of 12 years to be served concurrently with the sentences that he already

had, which included a 12 year sentence that he was serving in the Tennessee

Department of Correction." Judge Harris entered judgment reflecting the sentences

would be concurrent, thereby accrediting the assertion by the petitioner in this case.



              If these allegations are true, the petitioner would be entitled to relief

under the authority of both Burkhart and Henderson. While it may be true that one

should realize the consequences for a crime committed while on parole status,

common sense would also suggest that the petitioner is entitled to rely upon the

advice of his attorney, especially when confirmed by the trial judge. In our view, the

petitioner should have been granted counsel, allowed to amend, and permitted an

evidentiary hearing. If, based upon the particular circumstances of this case, it is

established that the plea agreement was entered into under the collective

misunderstanding that the Cheatham County and Hickman County sentences could

and would be concurrently served, the plea agreement should be set aside as

neither knowingly nor voluntarily made and the petitioner should be brought to trial in

Hickman County.



              The judgment is reversed and the cause is remanded for the

appointment of counsel and further proceedings. The motion seeking a declaration

that the Hickman and Williamson County sentences be served concurrently was

properly denied.



                                           ________________________________
                                           Gary R. Wade, Judge




                                           10
CONCUR:



_____________________________
William M. Barker, Special Judge



_____________________________
Curwood Witt, Judge




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