          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                        MARCH 1998 SESSION
                                                             FILED
DERRICK E. MEANS,          )                           August 13, 1998
                           )      No. 02C01-9707-CR-00248
     Appellant,            )                          Cecil Crowson, Jr.
                           )      Shelby County       Appellate C ourt Clerk
v.                         )
                           )      Honorable John P. Colton, Jr., Judge
STATE OF TENNESSEE,        )
                           )      (Post-Conviction Relief)
     Appellee.             )




FOR THE APPELLANT:                FOR THE APPELLEE:

Randall B. Tolley                 John Knox Walkup
242 Poplar Avenue                 Attorney General & Reporter
Memphis, TN 38103                 425 Fifth Avenue, North
                                  Nashville, TN 37243-0493

                                  Peter M. Coughlan
                                  Assistant Attorney General
                                  425 Fifth Avenue, North
                                  Nashville, TN 37243-0493

                                  William L. Gibbons
                                  District Attorney General
                                  201 Poplar Avenue, Suite 301
                                  Memphis, TN 38103

                                  C. Alanda Horne
                                  Assistant District Attorney General
                                  201 Poplar Avenue, Suite 301
                                  Memphis, TN 38103



OPINION FILED: __________________________



REVERSED AND REMANDED



PER CURIAM
                                                  OPINION

                  The petitioner, Derrick E. Means, appeals the trial court’s denial of

post-conviction relief. The issue presented for our review is whether the petitioner's

guilty pleas were knowingly and voluntarily made.



                  We reverse the judgment and remand to the trial court. In our view,

the petitioner's counsel was ineffective and the pleas were not knowingly and

understandingly made.



                                       Procedural Background

                  On July 5, 1995, the petitioner pled guilty in state court to attempted

second degree murder and aggravated robbery, Class B felonies; attempted

robbery, a Class D felony; and theft under $500, a Class A misdemeanor.1 The

petitioner received three twelve-year sentences (two of them Range II and one

Range III) for the felonies and a sentence of eleven months and twenty-nine days

for the misdemeanor theft conviction.



                   The guilty pleas were the result of a negotiated plea agreement which

provided that all of the petitioner's sentences would be served concurrently. The

agreement also provided that the petitioner was to serve these state sentences

concurrently with a prior federal sentence of forty-six months. This agreement is

memorialized in the "negotiated plea agreement" and also on the judgment sheets.



         1
          The petitioner entered an Alford plea on a best interest basis to attempted second degree
mu rder and a ggra vated robb ery af ter tak ing a J eep Che roke e fro m a She lby Co unty c ar de alers hip in
1993. After asking the salesman to turn on the engine, the petitioner pulled the salesman from the
vehicle and drove off the car lot. The salesman jumped to get out of the way of the vehicle and
landed on the vehicle’s hood; the salesman fell off and suffered minor injuries when the petitioner
drove into the street.

        The p etitioner also pled guilty to attem pted rob bery and m isdem eanor th eft for attem pting to
take a w indow air-c onditioning unit from a Sears store.

                                                        2
The transcript of the submission hearing confirms that the petitioner, his counsel,

the assistant district attorney, and the trial judge, agreed that the state sentences

should be served concurrently with the federal sentence. The trial judge ordered

that the petitioner be transferred to the Federal Bureau of Prisons to begin serving

his state sentence. Later, federal officials refused to accept the petitioner.



                  At the time of his sentencing in federal district court, the petitioner was

in state custody but had not been convicted of the state offenses. The federal

judgment ordered that his federal sentence be served concurrently with another

federal sentence but did not address the pending state cases. After his sentencing

in federal court, the petitioner was returned to state custody.



                  The petitioner did not appeal. He has been serving time in state prison

since July 1995.2 He has yet to serve any federal time.



                                Petition for Post-Conviction Relief

                  Within a year of the state court judgment, the petitioner filed a petition

for post-conviction relief alleging that his plea was defective.3 Post-conviction

counsel was appointed and an amended petition was filed July 15, 1996, alleging

that petitioner's trial counsel was ineffective.



                  An evidentiary hearing was held February 27, 1997. The testimony

demonstrated that Attorney Paula Skahan represented the petitioner on the federal




         2
          When the petitioner pled guilty on July 5, 1995, he was given credit for 730 days (two years)
durin g wh ich he was incar cera ted in the c oun ty jail.

         3
          The petition for post-conviction relief was filed in March or April of 1996. The time stamp on
the petition is n ot visible; how ever, the re spons e filed by the s tate and th e order a ppointing c ounse l to
repres ent the pe titioner were filed April 30, 19 96.

                                                        3
charges4 and the state charges stemming from the robbery at the car dealership.

Attorney William Moore represented the petitioner on the remaining state charges.

The record establishes that Ms. Skahan told the petitioner that all of the sentences,

state and federal, would be served concurrently. She acknowledged that the federal

authorities did, indeed, refuse to take the petitioner into custody. The petitioner

testified that he would not have entered the guilty pleas had he known his state and

federal sentences would not be served concurrently.



                 No one asked Ms. Skahan at the post-conviction hearing if she ever

discussed with federal officials -- before the pleas were entered in state court -- the

plan to have the state sentences concurrent with the federal sentence already

imposed. Our inference from the proof available is that she did not. It was not until

after the sentencing hearing that Ms. Skahan learned the federal authorities would

not honor the agreement. She contacted the Federal Bureau of Prisons and was

told state courts had no authority to order the petitioner into federal custody.



                 The trial court denied the petition for post-conviction relief, finding that

the petitioner’s pleas were freely and voluntarily given and the attorney's

representation was effective. The petitioner was referred to the federal system for

any possible remedy.



                                              Federal Court

                 The petitioner tried to obtain relief in federal court. In 1996, while in

state prison, the petitioner filed a motion in federal district court asking to be taken

into federal custody. The district court denied the request. On appeal, the United

        4
           Ms. Skahan testified that she was appointed to represent the petitioner in federal court after
he fire d his a ttorn ey follo wing a con viction . She was appo inted to ha ndle t he m otion for ne w trial,
sentencing, and appeal. The petitioner’s family then hired Ms. Skahan to handle the guilty pleas on
one se t of his state charge s stem ming from the theft of th e Jeep .

                                                       4
States Court of Appeals for the Sixth Circuit noted that when the petitioner was

sentenced in federal court he was in state custody although he had not been

convicted or sentenced in state court. United States v. Derrick Eugene Means, No.

97-5316, 1997 WL 584259, at * 1 (6th Cir., Sept. 19, 1997). The federal judgment

directed that the petitioner’s federal sentence be served concurrently with another

federal sentence but did not address the state sentences because they had not

been imposed. Later, federal officials chose not to accept the petitioner until after

the service of the state sentence. The Sixth Circuit upheld the district court's

findings that (a) the district court lacked the power to order the United States to run

a federal sentence concurrently with a state sentence that had not been imposed;

(b) the United States was not a party to the state court plea agreement; and (c) the

state court could not order federal authorities to accept the petitioner for service of

sentence. The Sixth Circuit ruled that federal prison officials are under no obligation

to take state prisoners into custody until they are released from state sentence. Id.

at * 2.



                    Appeal of Denial of Post-Conviction Relief

              In this appeal, the state concedes that the petitioner’s pleas were not

knowingly made because he had bargained to receive state credit for his time spent

in federal prison. Now, of course, he is serving consecutive state and federal

sentences.



              During oral argument, this court encouraged the parties to attempt a

settlement. Correspondence from the state attorney general's office indicates that

the district attorney general's office in Shelby County has declined to engage in

further plea negotiations with the petitioner. Both the state and counsel for the

petitioner had asked that the matter be resolved by order of this court.


                                            5
                          Knowingness of the Guilty Pleas

              Findings of the post-conviction court are binding on appeal unless the

evidence preponderates otherwise. Butler v. State, 789 S.W.2d 898, 899 (Tenn.

1990). This court may not reweigh or reevaluate the evidence or substitute its

inferences for those drawn by the post-conviction court. Moreover, the questions

concerning the credibility of witnesses and weight and value to be given their

testimony are for resolution by the post-conviction court. Black v. State, 794 S.W.2d

752, 755 (Tenn. Crim. App. 1990).



              As conceded by the state, however, this court must conclude that the

evidence in the record preponderates against the findings of the trial court. The

petitioner's guilty pleas were not knowingly entered. Clearly, the petitioner pled

guilty under the belief that he would receive credit toward his state sentence while in

federal prison. The trial judge ordered that the petitioner be sent to federal prison.

All parties relied on that directive. Once the sentence had been completed in the

federal system, the petitioner was to be transferred to state prison to serve the

remainder of his time. Because the petitioner was sent to state prison first, he is,

contrary to the intent of the plea agreement, serving consecutive sentences. His

total time of incarceration will far exceed that anticipated in the agreement. Had the

petitioner known the terms of the plea bargain would not be fulfilled, he would not

have pled guilty to the terms offered. The petitioner has demonstrated in this

appeal that the evidence preponderates against the trial court’s findings. Clenny v.

State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).



                         Ineffective Assistance of Counsel

              The representations made by the petitioner's attorney were directly

related to his acceptance of the plea bargain and his pleading guilty. In order for the


                                           6
petitioner to be granted relief on the grounds of ineffective assistance of counsel, he

must first establish that the advice given or the services rendered were below "the

range of competence demanded of attorneys in criminal cases." Baxter v. Rose,

523 S.W.2d 930, 936 (Tenn. 1975). Second, he must show that the deficiencies

"actually had an adverse effect on the defense." Strickland v. Washington, 466 U.S.

668, 693 (1984). Should the petitioner fail to establish either factor, no relief is

warranted. As to guilty pleas, the petitioner must establish a reasonable probability

that, but for the errors of his counsel, he would not have entered the plea and would

have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985).



              On appeal, the findings of fact made by the trial court are conclusive

and will not be disturbed unless the evidence in the record preponderates against

them. Rhoden v. State, 816 S.W.2d 56, 60 (Tenn. Crim. App. 1991); Brooks v.

State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the

petitioner to show that the evidence preponderated against those findings. Clenny,

576 S.W.2d at 14.



              The petitioner claims that Attorney Skahan had a duty to investigate

whether the terms of the plea could be implemented before rendering advice on

whether to accept the plea bargain. Attorney Skahan testified that she represented

the petitioner in federal court on the motion for new trial, the sentencing hearing,

and the appeal. She was employed by the petitioner’s family on a limited basis,

essentially to represent the petitioner for the purpose of guilty pleas in state court.

During the time she represented the petitioner, she negotiated downward the offer

by the state from twenty years to twelve years. She believed that under the

circumstances, particularly the petitioner's eleven prior felony convictions, that the

agreement was favorable.


                                            7
              Ms. Skahan had discussed the option of a trial with the petitioner. The

victim of the robbery had described the suspect as a large black man, six feet and

nine inches tall, with a heavy build and gold dental work; the victim had positively

identified the petitioner as the perpetrator. Ms. Skahan learned that the petitioner,

who is apparently quite distinctive looking, had been identified by a person in

addition to the victim. She did not believe it was good strategy to offer testimony

from the petitioner's alibi witnesses because she did not consider the witnesses to

be particularly credible. Ms. Skahan testified that the better tactic at a trial would

have been to argue for lesser offenses, such as robbery and aggravated assault.

She acknowledged recommending that the petitioner accept the twelve-year offer.



               Ms. Skahan said the agreement that the petitioner was to serve the

time in federal prison was noted on "the paperwork every place we could." She

recalled that she learned from the petitioner that the agreement had not been

honored and conceded that federal authorities told her that state courts had no

authority to order concurrent sentences.



              The effectiveness of the bargain depended upon the petitioner being

sent to federal prison first. All parties assumed that the petitioner would be

accepted by the federal authorities. The trial court so ordered based upon the

common perception that there was authority to do so. In our view, Ms. Skahan had

a duty to investigate and determine whether the terms of the agreement could be

met before recommending the plea.



              The record establishes that the petitioner has met the burden for

demonstrating his counsel was ineffective. He has shown both deficiency in

performance and prejudice in result. The standard of proving prejudice requires


                                            8
only a showing of "a reasonable probability ... sufficient to undermine confidence in

the outcome." Strickland, 466 U.S. at 694; Harris v. State, 875 S.W.2d 662, 665

(Tenn. 1994).



              The lack of action by trial counsel was obviously not the result of bad

faith. Yet the United States Supreme Court has previously observed just because

the "breach of [an] agreement was inadvertent does not lessen its impact."

Santobello v. United States, 404 U.S. 257, 262 (1971).



                         Relief Now Sought in State Court

              The petitioner argues specific performance of the plea agreement is

required when the defendant has suffered prejudice. While the petitioner concedes

that exact performance is not available because of the state court’s lack of authority

over federal authorities, he asks this court to tailor a remedy to embrace the original

intent of the parties.



              The petitioner suggests several alternatives. Initially, he seeks

immediate release from custody on the state charges based upon time served. He

contends he could then be transferred to federal prison to begin serving federal

time. In the alternative, he asks this court to vacate the judgment, remand the

cause, and instruct the prosecutors to effectuate the intent of the plea agreement

and to bargain in good faith. Finally, he argues that his state sentence should be

reduced by forty-six months, the length of his federal prison sentence, in order to

reap the benefits of his bargain. He argues against merely setting aside his guilty

pleas and restoring him to his pre-plea status because one of his alibi witnesses (the

petitioner's brother) has died since the submission hearing.




                                           9
              The state observes that specific performance is not available and

suggests that the petitioner either face a trial or negotiate another plea agreement.

The state argues against enforcement of the bargain. The state points out that it

cannot assume that the federal government will actually keep the petitioner for as

long as forty-six months and that if the petitioner received early parole, the state

would be without jurisdiction to incarcerate him for the balance of his state term.



                      The Problem of Concurrent Sentences

              The Tennessee Rules of Criminal Procedure do provide for

concurrent service of state and federal sentences if explicitly ordered by the trial

court. Tenn. R. Crim. P. 32(c)(2); State v. Graham, 544 S.W.2d 921, 922 (Tenn.

Crim. App. 1976). While authorized by the rule, the implementation of concurrent

state and federal sentences has proven to be difficult. See State v. Hun, 478

S.E.2d 579, 582 (W.Va. 1996). The practical problems with the rule are as a result

of dual sovereignty. Neither sovereign controls the other's proceedings. See United

States v. Howard Thomas Pargen, No. 95-6253, 1996 WL 636193, at * 7 (6th Cir.,

Oct. 30, 1996) (Court found that state court lacked authority to order not-yet

imposed federal sentences be served concurrently with state. The defendant's

recourse is with the state who promised something beyond scope of authority.);

Bloomgren v. Belaski, 948 F.2d 688, 691 (10th Cir. 1991)(Although state court

ordered state sentences to run concurrently with federal sentence which became

final after the imposition of the state sentence, federal authorities refused to take

custody of the defendant until he was finished serving his state sentence. The court

ruled that the federal government had no duty to take Bloomgren into custody. "The

determination by federal authorities that Bloomgren's federal sentence would run

consecutively to his state sentence is a federal matter which cannot be overridden

by a state court provision for concurrent sentencing on a subsequently-obtained


                                           10
state conviction."); see also Clark v. State, 468 S.E.2d 653, 655 (S.C. 1996); Del

Guzzi v. United States, 980 F.2d 1269, 1270 (9th Cir. 1992) (State judge's authority

was limited to sending defendant to state prison to serve state time.)



              The concurring opinion in Del Guzzi summarizes the problem from a

federal court's perspective:

              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, 980 F.2d at 1272-73 (Norris, J., concurring); see also Hun, 478 S.E.2d at

582.



                                        Relief

              When a plea agreement is accepted and breached, one of two results

ordinarily follows. Either specific performance of the agreement is directed or the

parties are restored to the status existing immediately before the plea was entered.

Harris, 875 S.W.2d at 666; Metheny v. State, 589 S.W.2d 943, 945 (Tenn. Crim.

App. 1979).



              When a guilty 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." Santobello, 404 U.S. at 262; Avery v.

United States, No. 93-6572, 1995 WL 6223, at *3 (6th Cir., Jan. 5, 1995). Specific

performance is a permissible remedy. Santobello, 404 U.S. at 263, 92 S.Ct. at 499;

                                         11
State v. Goosby, 917 S.W.2d 700, 707 (Tenn. Crim. App. 1995).



              In arguing for relief, the petitioner relies on Harris and Goosby. In

Harris, the Tennessee Supreme Court fashioned a remedy after affirming a lower

court finding that Harris was denied the effective assistance of counsel because his

attorney failed to timely communicate a plea offer. When an accused is denied the

effective assistance of counsel, the conviction cannot stand. Harris, 875 S.W.2d at

665. Violations of Sixth Amendment right to counsel can be addressed by tailoring

appropriate relief. Harris, 875 S.W.2d at 666. The Tennessee Supreme Court

remanded the case to the trial court instructing the state to reinstate its guilty plea

offer and negotiate in good faith. The trial court was advised that it could accept or

reject the original or any other plea agreement which could be negotiated.

Otherwise, the defendant would face trial. Harris, 875 S.W.2d at 667.



              In Goosby, a panel of this court also remanded a case to the trial court

and directed the state to reinstate its original plea offer after defense counsel was

found to be ineffective for failing to challenge the trial court's rejection of the

defendant's guilty plea. The state was ordered to negotiate in good faith. The trial

court could accept or reject any plea agreement reached by the parties. If no plea

agreement was reached, the defendant would stand trial. Goosby, 917 S.W.2d at

708.



              As in Harris and Goosby, this court suggests several alternative forms

of relief. Fashioning relief for the petitioner will take the combined good faith efforts

of all involved. The parties are first encouraged to make every effort to fulfill the

intent of the plea bargain. Specific performance may, however, be impossible to

effectuate. Both defense counsel and the district attorney's office, while taking


                                            12
steps to preserve the integrity of the state sentence, should contact the federal

authorities and determine whether the federal authorities would be willing to accept

the petitioner for his federal sentence.



              If specific performance is an impossibility, the parties should enter into

new plea negotiations taking into account the intentions of the failed plea

agreement. The agreement failed through no fault of the petitioner. In our view,

plea negotiations and sentencing should take into account the time the petitioner

has served in prison and in the county jail. If these avenues do not provide a

satisfactory resolution, the petitioner may be allowed to withdraw his guilty pleas

altogether and face trial.



                                                 PER CURIAM

                                                 Gary R. Wade, Judge

                                                 Jerry L. Smith, Judge




                                           13
