         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                     May 21, 2002 Session

                       ERIC BOYD v. STATE OF TENNESSEE

                       Appeal from the Criminal Court for Knox County
                          No. 71525    Mary Beth Leibowitz, Judge


                                  No. E2001-02069-CCA-R3-PC
                                        October 10, 2002

Appellant, Eric Boyd, appeals the trial court's denial of his petition for post-conviction relief. The
issues presented for review are, whether the State’s promise not to offer Appellant’s co-defendant
a lesser sentence than Appellant, was in fact a condition of Appellant’s plea agreement, and if so
what relief Appellant should receive as a result of the State’s breach of that condition. We hold that
the State breached the conditions of its plea agreement with Appellant, thereby entitling him to post-
conviction relief. We further hold that the appropriate remedy is to set aside Appellant’s guilty pleas
and for the original charges to be reinstated.

                Tenn. R. App. P. 3; Judgment of the Criminal Court Reversed.

THOMAS T. WOODA LL, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
NORMA MCGEE OGLE , JJ., joined.

Mark E. Stephens, District Public Defender; and John Halstead, Assistant Public Defender,
Knoxville, Tennessee, for the appellant, Eric Boyd.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
Randall Eugene Nichols, District Attorney General; Marsha Mitchell, Assistant District Attorney
General; and Fred Bright, Assistant District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                           I. Background

        Appellant, Eric Boyd, entered guilty pleas on October 30, 1995, to eleven counts of
aggravated robbery, one count of attempted aggravated robbery, and one count of aggravated assault.
He received an effective sentence of twenty years. During Appellant’s plea submission hearing,
counsel for Appellant approached the bench to make as a part of the record the following two
additional conditions of the plea agreement as Appellant understood it: 1) that he be transported from
the Knox County Jail to the state penitentiary as soon as possible; and 2) that his co-defendant,
Collier, not be offered a plea agreement with a sentence less than twenty years.
       Proof at the post-conviction hearing showed that the second condition weighed heavily in
Appellant’s acceptance of the plea agreement. This was because of Appellant’s concern that he, an
African-American being represented by the public defender’s office, would receive harsher treatment
than Collier, who is a white male, and whose father had hired a prominent Knoxville attorney to
defend him. Before and during plea negotiations between the State and Appellant, a motion to
suppress evidence was pending in the State’s case against Collier. After long delays and after
Appellant had already entered his guilty pleas, the trial court ultimately ruled in favor of Collier,
suppressing the evidence. Subsequently, the State offered, and Collier accepted, an eight year fully
probated sentence. Collier pled guilty on October 4, 2000.

        On October 23, 2000, Appellant filed his petition for post-conviction relief, alleging that the
State breached its promise not to offer Collier a lesser sentence than Appellant received. The trial
court denied his petition and held the agreement unenforceable, stating that “the state cannot be
bound to such a condition precedent when it has no real control over the raised issues in another
persons [sic] case...”
                                      II. Statute of Limitations

        As a preliminary matter, the lower court correctly held, and the State concedes in its brief,
that the statute of limitations does not bar Appellant’s petition for post-conviction relief. The
circumstances giving rise to Appellant’s claim made it impossible for Appellant to file his petition
inside the one year limitations period within which to seek relief. See Tenn. Code Ann. § 40-30-
202(a) (1997).

        The State’s breach of a plea agreement is a ground for post-conviction relief. See Harris v.
State, 875 S.W.2d 662 (Tenn. 1994). Pursuant to statute, a petitioner has one year from the date on
which the judgment became final if no appeal is taken, or one year from the action of the highest
state appellate court to which an appeal is taken, to file his petition for post-conviction relief. Tenn.
Code Ann. § 40-30-202(a) (1997). It is well settled that in some cases, due process considerations
prevent strict application of the statute of limitations, therefore, “before a state may terminate a claim
for failure to comply with procedural requirements such as statutes of limitations, due process
requires that potential litigants be provided an opportunity for the presentation of claims at a
meaningful time and in a meaningful manner.” Burford v. State, 845 S.W.2d 204 (Tenn. 1992).

        Applying its analysis in Burford, the Tennessee Supreme Court has established a three-part
test to determine whether the grounds for relief should survive the expiration of the statute of
limitations. Sands v. State, 903 S.W.2d 297 (Tenn. 1995). A court must:

        (1) determine when the limitations period would normally have begun to run; (2)
        determine whether the grounds for relief actually arose after the limitations period
        would normally have commenced; and (3) if the grounds are “later-arising,”
        determine if, under the facts of the case, a strict application of the limitations period
        would effectively deny the petitioner a reasonable opportunity to present the claim.
        Id. at 301.

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         Appellant entered his guilty pleas on October 30, 1995, and his one-year period within which
to file a claim began to run at that time because he did not appeal. See Tenn. Code Ann. § 40-30-
202(a). Appellant’s claim for relief did not arise until the State breached the plea agreement on
October 4, 2000, when it entered into a plea agreement with Appellant’s co-defendant. Appellant
filed his petition for post-conviction relief nineteen days later, a reasonable time after his claim
arose. Due process requires allowing Appellant’s claim to be heard.

                                      III. The Plea Agreement

       We conclude that the post-conviction court erroneously held that the State could not be
bound to the condition that it not offer Appellant’s co-defendant a lesser sentence than Appellant
received. The Tennessee Supreme Court recognizes that agreements between prosecutors and
defendants are “contractual in nature and [are] enforceable under the law of contracts.” State v.
Howington, 907 S.W.2d 403, 403 (Tenn. 1995). In Santobello v. New York, 404 U.S. 257 (1971),
the U.S. Supreme Court held that “when 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.” Id. at 262. The record shows without question that Appellant relied on
the State’s promise. A breach of that agreement, even where due to unforeseen or changed
circumstances, does not lessen the impact of the breach, and a guilty plea based on “a false
premise...cannot stand.” Id.; see also Mabry v. Johnson, 467 U.S. 504, 509 (1984).

        In this appeal, the State now concedes, contrary to the position it took in the trial court, that
a promise not to offer a co-defendant a more favorable sentence may become an enforceable
condition of the plea agreement. The State asserts, however, that the post-conviction court’s
Findings of Fact and Conclusions of Law are unclear as to whether the court indeed found the State’s
promise to be an actual condition of the plea agreement. In its brief, the State asks this Court to
remand these proceedings to the post-conviction court for more specific findings. We conclude,
however, that remanding for further findings is unnecessary because the lower court found, and the
record supports the finding, that the State’s agreement with Appellant included the condition that
the State not offer Collier a sentence less than twenty years.

        In its denial of Appellant’s petition for post-conviction relief, the court ruled that “the state
cannot be bound to such a condition precedent when it has no real control over the raised issues in
another persons [sic] case...” (Emphasis added). In its findings of fact, the trial court stated “[t]he
state only through silence has acquiesced to the two conditions that Mr. Boyd imposed, these
conditions being to be removed from the Knox County Jail as soon as possible after plea, and that
Mr. Collier be offered no less than the number of years that Mr. Boyd was offered.” (Emphasis
added). The entire record supports the factual conclusion that Appellant and the State agreed that
the two conditions were a part of the agreement. The court’s findings clearly regard the State’s
promise to have been a condition upon which Appellant’s assent to the agreement was based.
Having determined that a plea agreement may be conditioned on a promise not to offer a lesser
sentence to a co-defendant, we hold that the State in fact entered into such an agreement with
Appellant and is now in breach of that agreement.


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                                     IV. Post-Conviction Relief

        The State concedes that if its promise not to offer Collier a lesser sentence than Appellant
is held to be an actual condition of the plea agreement, the State breached the condition and
Appellant is entitled to post-conviction relief. The parties disagree, however, as to the appropriate
relief. Once a plea bargain has been accepted by the court and the State later breaches the agreement,
“the aggrieved defendant may either seek specific performance of the agreement or ask the court to
restore both parties to the status they occupied immediately before the plea was entered.” State v.
Turner, 713 S.W.2d 327, 329 (Tenn. Crim. App. 1986).

        Appellant, having already served almost seven years in prison, is seeking specific
performance of the plea agreement and requesting that his sentence be vacated and he receive the
same sentence the State offered to Collier, thereby “establishing in fact that the co-defendant will
receive no less time than [Appellant received].” Appellant argues that the deal between himself and
the State contemplated that the two defendants’ sentences be equal and asks this Court to enforce
the “spirit” of the agreement. We disagree with Appellant’s reasoning. The State agreed not to offer
Collier a sentence less than twenty years, which is what the State offered Appellant and he accepted.
It did not, however, agree to offer Collier the same sentence as Appellant. Neither did the State
agree to offer Appellant the same sentence it offered Collier. The distinctions are subtle, but
significant. The condition, not less than twenty years, includes a range of possible sentences,
whereas the same sentence leaves only one possible alternative, twenty years. The promise to offer
the co-defendant not less than twenty years includes an offer of twenty years, twenty and one half
years, or thirty years, so long as the offer is not less than twenty years. Had the State offered Collier
a lesser sentence and Collier rejected the offer, went to trial and was subsequently acquitted, the
State would still be in breach, but Appellant would not thereby be entitled to an acquittal. For the
foregoing reasons, we reject Appellant’s argument.

        We therefore conclude that “specific performance” is not an appropriate remedy in this case
and that the only available remedy is to restore Appellant and the State to the positions they occupied
before the plea was entered, by setting aside his pleas and reinstating the charges against him. The
State cites State v. Head, 971 S.W.2d 49 (Tenn. Crim. App. 1986), for the proposition that a court
may not require the State to make a particular plea bargain. Id. at 51; see also Turner, 713 S.W.2d
327 at 329. The State distinguishes several cases in which courts have found it impossible to restore
the parties to their former positions. In State v. Howington, 907 S.W.2d 403 (Tenn. 1995), the
supreme court noted that “[f]undamental principles of justice and fair play would require that the
parties to the unconsummated bargain be restored to their former positions.” Id. at 411. The
defendant, however, had incriminated himself by testifying at the preliminary hearing as a condition
to his bargain with the State, making the remedy impossible. Id. Here, allowing Appellant to
withdraw his guilty pleas will successfully restore the parties to their original positions.

        In State v. Turner, 713 S.W.2d 327 (Tenn. Crim. App. 1986), the defendant rejected the
State’s offer of a two year sentence in exchange for a guilty plea due to ineffective assistance of
counsel. Id. at 328. This Court held that the State could not be required to reinstate the plea offer.


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Id. However, in a habeas corpus proceeding involving the same parties, the Sixth Circuit Court of
Appeals held that a new trial would not permit defendant to consider the original offer with effective
counsel, but that requiring the State to make the original two year offer again might infringe upon
the interests of the State. Turner v. State, 858 F.2d 1201 (6th Cir. 1988). The court determined that
the appropriate remedy was to order another plea hearing during which the State would be required
to overcome a presumption of prosecutorial vindictiveness if it made a plea offer in excess of two
years, effectively granting the defendant the opportunity to accept the original two year offer. Id. at
1209.

        In Turner, the defendant lost the opportunity to meaningfully consider the State’s offer
because of ineffective assistance of counsel. Had the defendant received effective assistance of
counsel in the original proceedings, he likely would have accepted the State’s offer. Therefore, the
court granted a remedy that would, in effect, allow the defendant the opportunity to consider the
original plea offer.

         Appellant, in this case, negotiated an agreement with the State whereby he would plead guilty
on the condition that his co-defendant not receive an offer less than twenty years. Appellant’s
argument rests on the assumption that he would have rejected the State’s offer had it not agreed to
the second condition. Had Appellant rejected the offer, or had the State not agreed to this condition,
the case apparently would have proceeded to trial. We cannot see how ordering the State to make
an offer of an eight year fully probated sentence now would be the proper remedy for the State’s
breach. Appellant has requested post-conviction relief based upon the State’s breach of its
agreement. We agree the State breached its agreement. Appellant is entitled to post-conviction
relief, which is setting aside his convictions and permitting the original charges to be reinstated.

        Appellant, in his reply brief, raises the issue that the relief hereby granted will deny him his
right to a speedy trial as guaranteed by both the federal and state constitutions. U.S. Const. amend
VI; Tenn. Const. Art. I, Sec. 9. In State v. Harris, 978 S.W.2d 109 (Tenn. Crim. App. 1997), this
Court applied the standard set forth by the U.S. Supreme Court in Barker v. Wingo, 407 U.S. 514
(1972), to determine whether a new trial following the grant of post-conviction relief violated the
defendant’s right to a speedy trial. Id. at 113. The factors to be considered under Barker are as
follows: a) the length of the delay; b) the reason for the delay; c) the defendant’s assertion of his right
to a speedy trial; d) and prejudice to the defendant resulting from the delay. Barker at 530. This
Court, however, is not the appropriate court for the initial presentation of this issue. Appellant’s
claim of a denial of his right to a speedy trial has not yet been pursued before the trial court. See
State v. Townes, 56 S.W.3d 30, 35 (Tenn. Crim. App. 2000). We, therefore, decline consideration
of such issue until it has properly been heard by the trial court.




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                                           V. Conclusion
         We hold that Appellant is entitled to post-conviction relief as a result of the State’s breach
of its plea agreement with Appellant. The proper remedy is to set aside Appellant’s guilty pleas and
for the original charges to be reinstated. Accordingly, the judgment of the trial court is reversed.
Appellant is granted post-conviction relief. This cause is remanded to the trial court for proceedings
consistent with this opinion and with Tennessee Code Annotated § 40-30-219.

                                                       ___________________________________
                                                       THOMAS T. WOODALL, JUDGE




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