         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON

                    ANDRE WILSON v. STATE OF TENNESSEE

                               Criminal Court for Shelby County
                                         No. P-25387



                     No. W2001-02442-CCA-R3-PC - Filed April 17, 2002




David G. Hayes, J., dissenting.

        I am unable to join with the majority in affirming dismissal of the petition upon grounds that
it was time-barred.

        This case is but one of many cases from Shelby County in which a defendant has raised
before this court a challenge to the voluntariness of his guilty plea based upon a plea agreement
which provided that the defendant’s state sentences would be served concurrently to the defendant’s
outstanding or pending federal sentence. Although we acknowledge that the previous cases were
timely filed, we nonetheless note that relief was granted in all cases where the State was found to
have breached its plea agreement. See e.g., Lucious Allen v. State, No. W2000-02320-CCA-OT-PC
(Tenn. Crim. App. at Jackson, Nov. 2, 2001); Joseph T. Faulkner v. State, No. W1999-00223-CCA-
R3-PC (Tenn. Crim. App. at Jackson, Oct. 17, 2000); State v. Bruce C. Reliford, No. W1999-00826-
CCA-R3-CD (Tenn. Crim. App. at Jackson, Oct. 2, 2000); Derrick E. Means v. State, No. 02C01-
9707-CR-00248 (Tenn. Crim. App. at Jackson, Aug. 13, 1998); Joe Seigle v. Oscar Mason, No.
03C01-9610-CR-00364 (Tenn. Crim. App. at Knoxville, Oct. 1, 1997). Although we are not
presented with any factual findings in the instant case, as the post-conviction court summarily
dismissed the petition, the judgment of conviction forms and plea agreement documents reflect that
petitioner’s state convictions were to be served “concurrently with 94-03474, 76, 77, 78, 79, 81 &
94-04332 and LR-CR-92-6(2) of the Federal District Court of Eastern Arkansas.” The obvious
dilemma presented by this plea agreement is that the State of Tennessee lacks any authority to
control a federal sentence. The determination by federal authorities as to the manner in which a
federal sentence is to be served in federal custody in conjunction with a state sentence is a federal
matter “which cannot be overridden by a state court provision for concurrent sentencing on a
subsequently-obtained state conviction.” Derrick E. Means v. State, No. 02C01-9707-CR-00248
(Tenn. Crim. App. at Jackson, Aug. 13, 1998)(citations omitted). One United States Court of
Appeals Judge has summarized the problem from the federal perspective as follows:
         State sentencing judges and defense attorneys in state proceedings should be put on
         notice. Federal prison officials are under no obligation to, and may well refuse to,
         follow a recommendation of state sentencing judges that a prisoner be transported to
         a federal facility. Moreover, concurrent sentences imposed by state judges are
         nothing more than recommendations to federal officials. Those officials remain free
         to turn those concurrent sentences into consecutive sentences by refusing to accept
         the state prisoner until completion of the state sentence and refusing to credit the time
         the prisoner spent in state custody.

Del Guzzi v. United States, 980 F.2d 1269, 1272-73 (9th Cir. 1992) (Norris, J., concurring). In
several of the above cases, as in the present case, the defendant was in federal custody when the state
negotiated guilty plea was entered. In all of these cases, the federal correctional facility refused to
accept return of the defendant until the state sentences had been served; the effect of which resulted
in the defendant’s state negotiated concurrent sentences being transformed into consecutive
sentences.

        This, in turn, leads to the underlying issue presented in the petition, i.e., the voluntariness of
the guilty plea within the context of a negotiated plea agreement. Acknowledging the attachment
of due process rights within the guilty plea proceeding, the United States Supreme Court has
observed:

         [Where] a plea rests in any significant degree on a promise or agreement of the
         prosecutor, so that it can be said to be part of the inducement or consideration, such
         promise must be fulfilled . . . That the breach of agreement was inadvertent does not
         lessen its impact.

Santobello v. New York, 404 U.S. 257, 264, 92 S. Ct. 495, 499 (1971). As Justice Douglas notes in
his concurring opinion, it is “clear that a prosecutor’s promise may deprive a guilty plea of the
‘character of a voluntary act.’” Santobello v. New York, 404 U.S. at 267, 92 S. Ct. at 501 (citations
omitted). Moreover, “where the ‘plea bargain’ is not kept by the prosecutor, the sentence must be
vacated and the state court will decide in light of the circumstances of each case whether due process
requires (a) that there be a specific performance of the plea bargain or (b) that the defendant be given
the option to go to trial on the original charges.” Id.1

        In Williams v. State, 44 S.W.3d 464, 467-72 (Tenn. 2001), our supreme court observed that
due process considerations may toll the statute of limitations for filing an action for post-conviction
relief. In this case, the petitioner first learned that his plea agreement was breached only after the
one-year statute of limitations had expired. Thus, the petitioner was barred from seeking post-

         1
           The irony presented in the prese nt case, how ever, is that there may be no state sentencing remedy. The
petitioner has already completed his eighteen-year state sentence, with the result being that apparently he will be required
to serve approximately six years beyond the trial court's sentencing order. If so, as observed in San tobello, "[t]his record
presents another example of an unfortunate lap se in orderly p rosec utorial p rocedures . . . . The heavy workload may
well explain these episodes, but it does not excuse them." San tobello, 404 U.S. at 260; 92 S. Ct. at 498.

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conviction relief. Additionally, he was barred from seeking state habeas corpus relief because of his
confinement in federal prison. Tennessee Code Annotated § 29-21-102. As found by the post-
conviction court, the petitioner, upon learning of the breach, “fully exhausted his grievance rights,
and on August 23, 2000, the National Inmate Appeal’s Board, in Washington D.C., denied the
Defendant request for relief and refused to credit his Federal sentence with any of the time he served
in the Tennessee Department of Correction.” The petition for post-conviction relief was filed on July
19, 2001.

        In view of these facts, I find a valid question is raised as to whether the petitioner was
prevented from timely filing his petition for post-conviction relief within the statutory one-year filing
period. As such, I would remand to the trial court for an evidentiary to determine: (1) whether due
process tolled the statute of limitations so as to give the petitioner a reasonable opportunity after the
expiration of the limitations period to present his claim in a meaningful time and manner; and (2)
if so, whether the petitioner’s filing of the post-conviction petition on July 19, 2001, was within the
reasonable opportunity afforded by the due process holding. See Williams v. State, 44 S.W.3d at
471.




                                                        ____________________________________
                                                        DAVID G. HAYES, JUDGE




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