          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                            JANUARY 1998 SESSION
                                                     FILED
                                                     January 30, 1998

                                                     Cecil Crowson, Jr.
MELVIN CURRIE,                       )               Appellate C ourt Clerk
                                     )    NO. 02C01-9701-CC-00047
      Appellant,                     )
                                     )    HAYWOOD COUNTY
VS.                                  )
                                     )    HON. DICK JERMAN, JR.,
STATE OF TENNESSEE,                  )    JUDGE
                                     )
      Appellee.                      )    (Post-Conviction)



FOR THE APPELLANT:                        FOR THE APPELLEE:

TOM W. CRIDER                             JOHN KNOX WALKUP
District Public Defender                  Attorney General and Reporter

JOYCE DIANE STOOTS                        KENNETH W. RUCKER
Assistant Public Defender                 Assistant Attorney General
107 South Court Square                    Cordell Hull Building, 2nd Floor
Trenton, TN 38382-1866                    425 Fifth Avenue North
                                          Nashville, TN 37243-0493

                                          CLAYBURN L. PEEPLES
                                          District Attorney General

                                          LARRY HARDISTER
                                          Assistant District Attorney General
                                          110 College Street, Suite 200
                                          Trenton, TN 38382-1841




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                      OPINION



       The petitioner, Melvin Currie, appeals the order of the Circuit Court of

Haywood County dismissing his petition for post-conviction relief. Petitioner pled

guilty in 1991 to the sale of cocaine and received a sentence of six (6) years with

all time suspended except for time served. In his post-conviction petition, he alleges

that: (1) his guilty plea was not knowing and voluntary; (2) he received an illegal

sentence; and (3) trial counsel was ineffective. Furthermore, he contends that his

guilty plea should be set aside because there was no factual basis to support the

plea. We find no error; therefore, the judgment of the trial court is affirmed.



                         PROCEDURAL BACKGROUND



       Two years subsequent to the entry of his guilty plea to the sale of cocaine,

petitioner filed a pro se petition for writ of habeas corpus, which was summarily

dismissed by the trial court without an evidentiary hearing. This Court reversed that

decision, finding that: (1) the trial court erred in dismissing the petition without

appointing counsel and conducting an evidentiary hearing; and (2) the petition

should have been treated as one for post-conviction relief. Melvin Currie v. State,

C.C.A. No. 02C01-9501-CC-00020, Haywood County (Tenn. Crim. App. filed

September 13, 1995, at Jackson). The case was remanded to the trial court.

       Subsequently, the trial court issued an order appointing counsel, and

petitioner filed a petition for post-conviction relief. After a hearing on the petition

was conducted, the trial court dismissed the petition. Petitioner now brings this

appeal.



                            FACTUAL BACKGROUND



       The subject guilty plea arose from a five (5) count indictment charging

petitioner with: (1) illegal sale of a counterfeit controlled substance in Count One;


                                          2
(2) possession with the intent to sell or deliver cocaine in Count Two; (3) sale of

cocaine in Count Three; (4) delivery of cocaine in Count Four; and (5) simple

possession of cocaine in Count Five.1

       Petitioner agreed to enter a guilty plea to one count of the sale of cocaine in

exchange for the dismissal of the remaining charges. During the guilty plea

proceedings, defense counsel stated, “[s]ubject to your Honor’s approval Mr. Currie

and the State have agreed that upon his plea of guilty to one count of sale of a

Schedule II controlled substance, to-wit, cocaine, that he will receive a six year

sentence suspended with time served.” (emphasis added). At no time during the

proceedings did anyone specify that the plea was to any specific count number of

the indictment.

       The written plea of guilty and waiver of jury trial form listed the offense as one

(1) count of selling a Schedule II controlled substance. This document similarly did

not enumerate the corresponding count number on the indictment.

       However, the judgment entered by the trial court indicated that petitioner was

convicted on Count One of the indictment, even though the document named the

offense as the sale of cocaine. The indicted charge in Count One was the sale of

a counterfeit controlled substance, not the sale of cocaine. In other words, the

judgment erroneously specified that petitioner was convicted on Count One of the

indictment, when, in fact, he pled guilty to Count Three.

       Petitioner seeks post-conviction relief claiming that there is no factual basis

for a conviction of the sale of cocaine under Count One of the indictment because

the substance sold under Count One was not cocaine. At the hearing on the

petition, the trial court found that petitioner knowingly and voluntarily entered a plea

of guilty to the sale of cocaine and accepted a six (6) year sentence with all time

suspended except for time served. The trial court determined that the entry of

“Count One” on the judgment form was merely a clerical error in that “[t]here [was]

no question in anybody’s mind, including Mr. Currie’s, that he pled guilty to Count

Three.” The court then ordered that the judgment be amended to reflect the proper


       1
           This count was eventually dismissed as it was barred by the statute of limitations.

                                               3
count.



                                   CLERICAL ERROR



         Initially, we must agree with the trial court that this entire matter arose out of

a mere technicality. Although the judgment does state that petitioner was convicted

on Count One of the indictment, the transcript unquestionably shows that petitioner

pled guilty to the sale of cocaine. When there is a conflict between the court

minutes or judgment and the transcript, the transcript controls. State v. Moore, 814

S.W.2d 381, 383 (Tenn. Crim. App. 1991); State v. Davis, 706 S.W.2d 96, 97

(Tenn. Crim. App. 1985). Therefore, we conclude that petitioner pled guilty to Count

Three of the indictment, which charged the sale of cocaine. The trial court properly

ordered the modification of the judgment to correct this clerical error. Clerical errors

may be corrected at any time. See Tenn. R. Crim. P. 36.



                         VOLUNTARINESS OF GUILTY PLEA



         Petitioner claims that his plea of guilty was involuntarily and unknowingly

entered because he did not know that his plea of guilty was not supported by any

facts. To the contrary, attached as an exhibit to the post-conviction hearing is a lab

report which identifies 21.1 grams of white powder as cocaine, which was collected

in connection with the case against petitioner. 2

         Furthermore, the trial court found that petitioner’s guilty plea to the sale of

cocaine was knowingly and voluntarily entered. The trial judge's findings of fact on

post-conviction hearings are conclusive on appeal unless the evidence

preponderates otherwise. Butler v. State, 789 S.W.2d 898, 899-900 (Tenn. 1990);



         2
         Another lab report was also made an exhibit at the hearing which stated that a bag
of 13.4 grams of white powder did not contain any controlled substances. It is this report
which petitioner refers to as being determinative of his claim that no evidence exists to
support the conviction for the sale of cocaine. However, we must conclude that this report
is the basis for the initial charge of sale of a counterfeit controlled substance as alleged in
Count One of the indictment.

                                              4
Adkins v. State, 911 S.W.2d 334, 354 (Tenn. Crim. App. 1995). The burden of

establishing that the evidence preponderates otherwise is on petitioner. Black v.

State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Petitioner has failed to meet

this burden.

       This issue is without merit.



                                ILLEGAL SENTENCE



       Petitioner further asserts that his sentence of six (6) years is illegal because

it falls outside the range of punishment for the sale of a counterfeit controlled

substance. However, as previously discussed, petitioner pled guilty to the sale of

cocaine, not the sale of a counterfeit controlled substance. At the time the offense

was committed, the range of punishment for the sale of cocaine was four (4) to ten

(10) years. Tenn. Code Ann. § 39-6-417(a)(1)(B)(i) (Supp. 1988). Therefore,

because the imposed sentence of six (6) years is within the prescribed range,

petitioner’s sentence is not illegal.

       This issue is without merit.



                   INEFFECTIVE ASSISTANCE OF COUNSEL



       Finally, petitioner claims that trial counsel was ineffective in that he did not

ascertain whether there was a factual basis to support the guilty plea. He maintains

that he pled guilty in reliance on his attorney’s erroneous advice. He also insists

that he received ineffective representation in that his attorney allowed him to receive

an illegal sentence.

       This Court reviews a claim of ineffective assistance of counsel under the

standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner

has the burden to prove that (1) the attorney’s performance was deficient, and (2)

the deficient performance resulted in prejudice to the defendant. Strickland v.



                                          5
Washington, 466 U.S. at 687, 104 S.Ct. at 2064; Goad v. State, 938 S.W.2d 363,

369 (Tenn. 1996); Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State,

789 S.W.2d 898, 899 (Tenn. 1990).

       In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the

Supreme Court applied the two-part Strickland standard to ineffective assistance of

counsel claims arising out of a guilty plea. The Court in Hill modified the prejudice

requirement by requiring a defendant to show that there is a reasonable probability

that, but for counsel's errors, he would not have pleaded guilty and would have

insisted on going to trial. 474 U.S. at 59, 106 S.Ct. at 370.

       During petitioner’s testimony at the post-conviction hearing, the following

exchange took place:

       Q.            Would you have pled guilty to Count Three that
               day which is a sale of crack cocaine -- a sale of cocaine
               if you had been advised that Count One was a
               counterfeit substance?

       A.              I probably would have.

Therefore, even if petitioner’s allegations were true,3 he is not entitled to relief.

Because petitioner would have pled guilty anyway, he cannot prove prejudice.

Thus, his ineffective assistance of counsel claim must fail.

       This issue is without merit.




                                      CONCLUSION



       Based upon the foregoing, the judgment of the trial court is affirmed.




       3
         We do not, however, concede that petitioner’s allegations are true. As previously
discussed, petitioner entered a knowing and voluntary guilty plea to the sale of cocaine and
received a sentence within the range permitted by the statute. Furthermore, petitioner has not
established that trial counsel’s performance was inadequate or deficient.

                                              6
                                    JOE G. RILEY, JUDGE



CONCUR:




JOE B. JONES, PRESIDING JUDGE




PAUL G. SUMMERS, JUDGE




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