        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 March 11, 2015 Session

              DANIEL DAVID EDEN v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Robertson County
                 No. 74CC2-2010-CR-461 Michael R. Jones, Judge


                 No. M2014-00862-CCA-R3-PC – Filed June 10, 2015


The Petitioner, Daniel David Eden, appeals as of right from the Robertson County Circuit
Court‟s summary dismissal of his petition for post-conviction relief, wherein he alleged
that he received ineffective assistance of counsel at his probation revocation hearing. The
Petitioner contends that Young v. State, 101 S.W.3d 430 (Tenn. Crim. App. 2002), on
which the post-conviction court relied in its summary dismissal, should be abrogated
because it offends equal protection guarantees. Upon review, we affirm the judgment of
the post-conviction court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR. and ROGER A. PAGE, JJ., joined.

John E. Herbison, Clarksville, Tennessee, for the Petitioner, Daniel David Eden.

Herbert H. Slatery, III, Attorney General and Reporter; Leslie E. Price, Senior Counsel;
John W. Carney, Jr., District Attorney General; and Jason C. White, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

       On November 3, 2010, the Petitioner entered a nolo contendere plea to attempted
aggravated sexual battery and was sentenced to a six-year sentence of split confinement,
requiring service of 320 days of incarceration followed by five years and forty-five days
of supervised probation. At the July 20, 2012 probation revocation hearing, the State
agreed to dismiss two new felony charges if the Petitioner admitted that he violated the
terms and conditions of his probation by not reporting to his probation officer and agreed
to serve the balance of his sentence in incarceration. The Petitioner subsequently
acknowledged that he had violated the terms of his probation by failing to report to his
probation officer. Pursuant to the above agreement, the trial court revoked the
Petitioner‟s probation and ordered him to serve the balance of his six-year sentence in
incarceration after giving him the appropriate jail credits.

        On January 15, 2013, the post-conviction court received a letter from the
Petitioner requesting post-conviction relief and claiming he received ineffective
assistance of counsel at the probation revocation hearing because his attorney failed to
discuss the possibility of his serving the remainder of his unexpired term in a community
based alternative to incarceration. On February 19, 2013, the court received a second
letter from the Petitioner requesting assistance in obtaining a “post-conviction relief
form.” On February 22, 2013, the post-conviction court appointed counsel to the
Petitioner.

       On September 10, 2013, the Petitioner, through counsel, filed an amended post-
conviction petition alleging that he received ineffective assistance of counsel at the
probation revocation hearing. The State filed a motion to dismiss the post-conviction
petition based upon Young v. State, which held that a post-conviction petition cannot be
used to collaterally attack the validity of a probation revocation proceeding. On March
14, 2014, the Petitioner filed a response to the motion to dismiss, which was similar in
content to his brief on appeal. At the hearing on the State‟s motion to dismiss held the
same day, the State argued that, pursuant to Young, the Petitioner was precluded from
using post-conviction proceedings to collaterally attack a probation revocation and that
the Petitioner‟s constitutional rights had not been violated. The Petitioner responded that
he should be entitled to a hearing on the post-conviction claim because a court
“essentially” resentences a defendant in a probation revocation matter just as it does in a
community corrections revocation matter. After considering the pleadings and arguments
of counsel, the post-conviction court granted the State‟s motion to dismiss pursuant to
Young and entered an order dismissing the post-conviction petition the same day. The
Petitioner then filed an untimely appeal thirty-seven days after entry of the post-
conviction court‟s order.

                                      ANALYSIS

        Initially, we note that the post-conviction court entered its order summarily
dismissing the post-conviction petition on March 14, 2014, and that the Petitioner filed
his notice of appeal seven days late on April 21, 2014. The State correctly asserts that the
Petitioner did not file a motion requesting this court to waive the thirty-day time period
for filing a notice of appeal and did not provide an explanation as to why the notice of
appeal was untimely or why the interest of justice requires a waiver of the notice
requirement. Moreover, the State asserts that because this court has consistently followed
the holding in Young, this issue is well-settled. Citing the need to enforce adherence to
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procedural rules and to expedite cases, the State argues that dismissal is required in this
case. Tennessee Rule of Appellate Procedure 4(a) states that “the notice of appeal
required by Rule 3 shall be filed with and received by the clerk of the trial court within 30
days after the date of entry of the judgment appealed from . . . .” However, this rule also
states that “in all criminal cases the „notice of appeal‟ document is not jurisdictional and
the filing of such document may be waived in the interest of justice.” Tenn. R. App. P.
4(a). Upon evaluation, we conclude that the “interest of justice” is best served by
granting a waiver in this case. See Tenn. R. App. P. 4(a); see also Crittenden v. State,
978 S.W.2d 929, 932 (Tenn. 1998). We will now address the merits of this case.

       The Petitioner argues on appeal that the post-conviction court erred in summarily
dismissing his post-conviction petition because Young is “unsound and should be
abrogated.” Specifically, he argues that Young offends equal protection guarantees by
denying him an opportunity to litigate an ineffective assistance of counsel claim at his
probation revocation proceedings when such an opportunity is available to petitioners in
community corrections revocation proceedings. The State responds that the post-
conviction court acted appropriately in summarily dismissing the post-conviction petition
pursuant to Young, a decision that has been consistently upheld. In light of Young and
the Tennessee Supreme Court‟s decision to distinguish community corrections revocation
proceedings from probation revocation proceedings in Carpenter v. State, 136 S.W.3d
608 (Tenn. 2004), we agree with the State.

        Post-conviction relief is only warranted when a petitioner establishes that his or
her conviction or sentence is void or voidable because of an abridgement of a
constitutional right. T.C.A. § 40-30-103. Petitions for post-conviction relief must
include a “specific statement of all grounds upon which relief is sought, including full
disclosure of the factual basis of those grounds.” Id. § 40-30-106(d). As it did in this
case, the State may file, in lieu of a response, a motion to dismiss the post-conviction
petition on the basis that the facts alleged in the petition fail to show that the petitioner is
entitled to relief. See id. § 40-30-108(c)(5). “If, on reviewing the petition, the response,
files, and records, the court determines conclusively that the petitioner is entitled to no
relief, the court shall dismiss the petition.” Id. § 40-30-109(a); see id. § 40-30-106(f)
(stating that the post-conviction court may summarily dismiss the petition when “the facts
alleged, taken as true, fail to show that the petitioner is entitled to relief”); Tenn. Sup. Ct.
R. 28 § 5(F)(5) (stating that a post-conviction petition may be summarily dismissed if the
facts alleged in the petition do “not entitle petitioner to relief even if taken as true”).

       The Petitioner asserts that Young v. State, 101 S.W.3d 430 (Tenn. Crim. App.
2002), should be abrogated. In Young, this court considered whether an order revoking
probation and requiring that the sentence originally imposed be carried out is a „sentence‟
subject to collateral attack under the post-conviction act. Id. at 431. The Young court
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concluded that a probation revocation order does not impose a new sentence for post-
conviction purposes:

       [U]nder [Tennessee Code Annotated section 40-30-203 of the Post-
       Conviction Procedures Act], the subject of the collateral attack must either
       be the conviction itself or the sentence. It is clear that the appellant in the
       instant case is not attacking his conviction. Rather, as noted above, he is
       complaining of alleged constitutional violations that he asserts render the
       order revoking probation void or voidable.

              ....

       [T]he “sentence” a criminal defendant receives is the period of time that the
       defendant could be incarcerated. In contrast, an order revoking suspension
       of sentence or probation typically ends the period of suspension of the
       execution of the original term and mandates that the original sentence be
       carried out. But it cannot be said that the order revoking suspension of
       sentence and probation imposes a new sentence subject to collateral attack
       under the Tennessee Post-Conviction Procedures Act.

Id. at 431-32 (emphasis added) (citations omitted). Based on the aforementioned
reasoning, the court held that “the Tennessee Post-Conviction Procedures Act does not
permit the filing of a petition under its provisions to attack collaterally the validity of a
proceeding to revoke the suspension of sentence and/or probation.” Id. at 433.

       In Carpenter v. State, 136 S.W.3d 608, 609 (Tenn. 2004), the Tennessee Supreme
Court considered whether the revocation of a community corrections sentence could be
collaterally attacked in a post-conviction petition on the ground of ineffective assistance
of counsel. In that case, the trial court revoked the petitioner‟s community corrections
sentence and imposed a new sentence of eight years in incarceration, which exceeded his
original sentence of six years. Id. at 610. The petitioner then filed a post-conviction
petition, alleging that he received ineffective assistance of counsel at his community
corrections revocation and resentencing hearing, and the post-conviction court dismissed
the petition for failing to state a cognizable claim after determining that the right to
effective assistance of counsel did not apply in a revocation hearing. Id. (citing T.C.A. §
40-30-101 to -122 (2003)). The Tennessee Supreme Court affirmed the ruling of the
Court of Criminal Appeals by declining to extend the holding in Young to community
corrections revocation proceedings. Id. at 611-12. It concluded that a revocation of a
community corrections sentence, which includes a resentencing, is substantially different
from a revocation of probation:

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               Following a revocation of a community corrections sentence, the
       trial court exercises the same discretion in resentencing as did the initial
       sentencing court. Tenn. Code Ann. §§ 40-36-106(e)(2), (e)(4) (2003). The
       trial court has the authority, upon considering the evidence in the
       revocation and resentencing hearing, to order a new and longer sentence
       than had initially been ordered. See Tenn. Code Ann. § 40-36-106(e)(4)
       (2003). Such authority was exercised in the case at bar. Another important
       difference between the revocation of probation and the revocation of a
       community corrections sentence is that a defendant whose probation is
       revoked is not entitled to credit toward the sentence for time on probation,
       while a defendant whose community corrections sentence is revoked is
       entitled to credit toward the sentence for time spent in community
       corrections prior to the revocation. See id.

Id. In light of these substantive differences, the court held that “the issue of ineffective
assistance of counsel in a revocation of a community corrections sentence may be raised
in a post-conviction proceeding.” Id.

       This court has consistently affirmed its holding in Young, and the Tennessee
Supreme Court has never abrogated the Young decision. See Young v. State, 101
S.W.3d 430 (Tenn. Crim. App. 2002), perm. app. denied (Tenn. Feb. 18, 2003); see, e.g.,
Christopher Johnson v. State, No. E2011-00562-CCA-R3-PC, 2012 WL 1066502, at *3
(Tenn. Crim. App. Mar. 22, 2012) (concluding that the post-conviction court did not err
in summarily dismissing the petition based on Young), perm. app. denied (Tenn. Aug. 15,
2012); Charles J. Miller, v. State, No. M2008-01861-CCA-R3-PC, 2010 WL 565666, at 3
(Tenn. Crim. App. Feb. 18, 2010) (asserting that the petitioner was without remedy
because Young precludes a petitioner from collaterally attacking the revocation of his
probation); Michael Joseph Grant v. State, No. E2008-02161-CCA-R3-PC, 2009 WL
4282032, at *3 (Tenn. Crim. App. Dec. 1, 2009) (reiterating that a petition for post-
conviction relief cannot be used to attack the effectiveness of counsel at a probation
revocation hearing pursuant to Young); Sherman Clark v. State, No. W2008-02557-CCA-
R3-PC, 2009 WL 4039083, at *2 (Tenn. Crim. App. Nov. 23, 2009) (memorandum
opinion) (holding that the petitioner is without remedy to collaterally attack the
revocation of his probation pursuant to Young); Thomas Dewey Perry, Jr. v. State, No.
E2008-02324-CCA-R3-PC, 2009 WL 2590050, at *1 (Tenn. Crim. App. Aug. 24, 2009)
(memorandum opinion) (concluding that a post-conviction petition may not be used to
challenge a probation revocation pursuant to Young); Gregory D. McDaniel v. State, No.
M2008-01534-CCA-R3-PC, 2009 WL 1684598, at *1 (Tenn. Crim. App. June 12, 2009)
(holding that Young precludes a petitioner from collaterally attacking a probation
revocation proceeding). In light of this well established precedent, we decline to
abrogate Young.
                                            -5-
        Although the Petitioner claims he is entitled to relief pursuant to Massey v. State,
929 S.W.2d 399 (Tenn. Crim. App. 1996), this court made it clear that Massey and other
similar cases “do not stand for a contrary position to that announced by the Court” in
Young. Young, 101 S.W.3d at 433. Moreover, while the Petitioner claims that Allen v.
State, 505 S.W.2d 715 (Tenn. 1974), stands for the proposition that a defendant has the
right to effective assistance of counsel at a probation revocation proceeding, a review of
Allen shows that it, in fact, held that a defendant has a constitutional right to a speedy
trial on a probation violation. Id. at 719; see Christopher Johnson, 2012 WL 1066502, at
*2 (noting that although there is a constitutional right to counsel in criminal cases, there
is no constitutional right to counsel at a probation revocation hearing). Finally, as to the
Petitioner‟s equal protection argument, we reiterate this court‟s decision in Carpenter,
which declined to extend Young to community corrections proceedings in light of the
substantive differences between the revocation of a community corrections sentence and
the revocation of probation. Carpenter, 136 S.W.3d at 612. Although the Petitioner
argues that a court essentially resentences a defendant in a probation revocation
proceeding just as a court does in a community corrections revocation proceeding,
Carpenter makes it clear that probation revocation proceedings and community
corrections revocation proceedings are fundamentally dissimilar proceedings involving
different levels of discretionary authority given to the trial court and different classes of
defendants. See State v. Smoky Mountain Secrets, Inc., 937 S.W.2d 905, 912 (Tenn.
1996) (“Equal protection requires that all persons in similar circumstances be treated
alike; but it does not „require things which are different in fact or opinion to be treated in
law as though they were the same.‟” (quoting Tigner v. State, 310 U.S. 141, 147 (1940)));
State v. Banks, 271 S.W.3d 90, 155 (Tenn. 2008) (reiterating that a defendant who asserts
an equal protection violation must prove that there was purposeful discrimination and that
this purposeful discrimination had a discriminatory effect on him or her); State v. Tester,
879 S.W.2d 828, 829 (Tenn. 1994) (noting that under the rational basis test, “„[t]here
must be reasonable and substantial differences in the situation and circumstances of the
persons placed in different classes which disclose the propriety and necessity of the
classification‟” (quoting State v. Nashville, Chattanooga & St. Louis Railway Co., 135
S.W. 773, 775-76 (Tenn. 1911))). Therefore, in light of Young and Carpenter, the
Petitioner is not entitled to relief.




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                               CONCLUSION

      Based upon the foregoing authorities and analysis, we affirm the summary
dismissal of the post-conviction petition.



                                           _________________________________
                                           CAMILLE R. McMULLEN, JUDGE




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