                                                                                          01/15/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs December 11, 2019

        STATE OF TENNESSEE v. ALEJANDRO AVILA-SALAZAR

                Appeal from the Criminal Court for Davidson County
                    No. 2005-A-32     Mark J. Fishburn, Judge
                     ___________________________________

                           No. M2019-01143-CCA-R3-PC
                       ___________________________________


Alejandro Avila-Salazar, Petitioner, appeals the dismissal of what the post-conviction
court determined to be his second petition for post-conviction relief (the “2018 Petition”).
The State concedes that the post-conviction court “improperly dismissed” the 2018
Petition and asks this court to remand the case to the post-conviction court for a ruling on
Petitioner’s claims “based on the evidence received at the hearing already afforded.” We
hold that the amended judgment of conviction correcting an illegal sentence in the
original judgment by imposing a new, more punitive sentence that includes community
supervision for life was a separate judgment for the purposes of Tennessee Code
Annotated section 40-30-102, that the 2018 Petition presented an issue that had not been
previously litigated, that the 2018 Petition was the first post-conviction challenge to the
new judgment, and that the post-conviction court erred in finding the 2018 Petition was a
second petition. We reverse and remand for a determination on the merits of the claims
raised in the 2018 Petition.


 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed
                                  and Remanded


ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and TIMOTHY L. EASTER, JJ., joined.

Manuel B. Russ, Nashville, Tennessee, for the appellant, Alejandro Avila-Salazar.

Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Senior
Assistant Attorney General; Glenn R. Funk, District Attorney General; and Tammy
Meade, Assistant District Attorney General, for the appellee, State of Tennessee.
                                        OPINION

                                   Procedural History

       Plea and Sentence. On January 21, 2005, Petitioner was indicted in count one of
Case No. 2005-A-32 for felony murder and in count two for attempted aggravated rape.
On September 6, 2006, Petitioner pled guilty to second degree murder and attempted
aggravated rape. Pursuant to a negotiated plea agreement, the trial court sentenced
Petitioner out of range to forty years with a release eligibility of 100 percent for second
degree murder and to a concurrent term of twelve years as a standard offender for
attempted aggravated rape.

        November 2006 Petition for Post-Conviction Relief. Petitioner filed a timely
Petition for Post-Conviction Relief alleging that his guilty pleas were not knowingly and
intelligently entered because he received ineffective assistance of counsel. Following a
hearing on March 10, 2008, the post-conviction court denied the petition. This court
affirmed the denial. Alejandro Avila-Salazar v. State, No. M2008-02120-CCA-R3-PC,
2009 WL 3029604, at *5 (Tenn. Crim. App. Sept. 22, 2009), perm. app. denied (Tenn.
Feb. 22, 2010).

       May 2014 Petition for Writ of Habeas Corpus. Petitioner filed a Petition for
Writ of Habeas Corpus “alleging that his guilty pleas were not knowingly and voluntarily
entered because his sentence violated the jurisdictional limits of the trial court” and “that
the indictment against him failed to apprise him of the offense that he was being called to
defend.” Alejandro Avila-Salazar v. State, No. M2014-01665-CCA-R3-HC, 2015 WL
739669, at *1 (Tenn. Crim. App. Feb. 20, 2015), no perm. app. filed. The habeas corpus
court found that Petitioner failed to prove that his judgments were void and summarily
denied the petition. This court affirmed. Id.

       June 2015 Petition for Writ of Habeas Corpus. Petitioner then filed a Petition
for Writ of Habeas Corpus in Wayne County, where he was incarcerated, in which he
alleged that his sentence was illegal and the judgments were void because the judgment
of conviction for attempted aggravated rape failed to include community supervision for
life as required by Tennessee Code Annotated section 39-13-524(a). Following an
evidentiary hearing on May 12, 2016, the habeas corpus court entered an order denying
the petition, which provided in part:

       The court finds that the omission of the mandatory provision of community
       supervision for life renders the sentence for attempted aggravated rape void.
       However, nothing in the record has established that the illegal sentence was
       a material bargained-for element of the plea agreement, which included a
                                            -2-
      [forty]-year sentence on a reduced charge of second degree murder. The
      [c]ourt finds that the Petitioner has not carried his burden of showing that
      the absence of the community supervision component was a material
      component of the plea bargain. Therefore, the Petitioner’s convictions for
      attempted aggravated rape and second degree murder shall remain intact,
      and he is not entitled to withdraw his plea of guilty in this matter. The
      [c]ourt finds that the only remedy to which the Petitioner is entitled is the
      correction of his sentence to remove the illegality by imposing the
      condition of community supervision for life.

       The habeas corpus court ordered the case transferred to Davidson County Criminal
Court for entry of an amended judgment of conviction for attempted aggravated rape
providing community supervision for life.

       On appeal, Petitioner claimed “that the omission of community supervision for life
was a material, bargained-for element of his plea agreement.” Alejandro Avila[-]Salazar
v. State, No. M2016-01336-CCA-R3-HC, 2017 WL 2334880, at *1 (Tenn. Crim. App.
May 30, 2017), perm. app. denied (Tenn. Sept. 21, 2017), cert. denied, 138 S. Ct. 998,
(2018). Based on the guilty plea hearing transcript, this court determined that

      the disposition of the Petitioner’s first degree felony murder charge, which
      carried a mandatory sentence of life or life without parole, was more likely
      the material element of his plea agreement. Indeed, the overwhelming
      majority of the guilty plea hearing was spent on the Petitioner’s plea to the
      lesser charge of second degree murder, and his plea to attempted
      aggravated rape was not mentioned until the very end of the hearing when
      the trial court had to inform the parties that the Petitioner had an additional
      charge to resolve.

Id at *3. This court noted that, “although the Petitioner’s attempted aggravated rape
sentence [wa]s void,” because Petitioner failed to show that his illegal sentence was a
material element of his plea agreement, his convictions remained intact and that “his only
remedy [wa]s the correction of the sentence.” Id. at *2 (citing Summers v. Fortner, 267
S.W.3d 1, 6-7 (Tenn. Crim. App. 2008)). This court determined that the habeas corpus
court properly denied the petition and transferred the case “to the convicting court for
entry of a corrected judgment adding the condition of community supervision for life.”
Id.

      Amended Judgment. As ordered, the Davidson County Criminal Court entered
an amended judgment for attempted aggravated rape. The amended judgment contained
an “X” in the box before “[p]ursuant to [Tennessee] [Code] [Annotated section] 39-13-
                                           -3-
524 [Petitioner] is sentenced to community supervision for life following sentence
expiration.” The amended judgment in the record does not have a stamped filed date, and
the “date of entry” is the same as on the original judgment, September 6, 2006.

       The 2018 Petition. On July 30, 2018, after the trial court entered an amended
judgment sentencing Petitioner to community supervision for life, Petitioner filed the
2018 Petition claiming that he received ineffective assistance of counsel and as a result,
his “[p]leas were entered unknowingly and involuntarily.” The post-conviction court
appointed counsel, who on January 29, 2019, filed an amended petition requesting that
Petitioner’s pleas of guilt be set aside. The amended petition stated that the State “was
prepared to nolle prosequi” the attempted aggravated rape count in an effort to settle the
case, but Petitioner refused and demanded that both convictions be set aside.1

       The State filed a response on April 12, 2019, asking that the 2018 Petition be
dismissed. The response acknowledged that “the mandatory sentence of community
supervision for life is a punitive consequence of a guilty plea” to attempted aggravated
rape and conceded that Petitioner “was not informed of the lifetime supervision
requirement” by the trial court when he entered his pleas. The State recognized that,
based on State v. Ward, trial courts are required to inform defendants of the lifetime
supervision requirement and that the failure to do so requires the conviction to be set
aside “unless the State proves that the error is harmless beyond a reasonable doubt.” 315
S.W.3d 461, 476 (Tenn. 2010). However, the State also noted that the supreme court in
Bush v. State, 428 S.W.3d 1 (Tenn. 2014) determined that the holding in Ward did not
apply retroactively.

       On April 24, 2019, the post-conviction court held a hearing. Post-conviction
counsel announced that the State offered “to dismiss” the attempted aggravated rape
count, but Petitioner did not agree to dismissal of only the attempted aggravated rape
count. Counsel explained:

       The disagreement comes in that [Petitioner], in his pro se petition, has filed
       essentially saying that he believes that his other conviction for second-
       degree murder should also be set aside based on the void nature of [c]ount
       [two], the attempted aggravated rape. I have referenced the specific
       sections and pages in my January 29th filing referencing back to his July
       30th filing that he believes are meritorious, and I was prepared today to
       stand on our pleadings. I don’t believe any evidence is required at this


       1
          Nothing in the record explains how the State would nolle prosequi a final judgment of
conviction.
                                             -4-
       point, and I don’t think any additional arguments need to be made other
       than what has been filed with the [c]ourt.

        The State confirmed that because Petitioner was not advised at the time he pled
guilty that he would be subject to community supervision for life, the State “basically [as]
a courtesy, not a legal requirement” had offered to dismiss the attempted aggravated rape
conviction. However, because Petitioner would only agree to a dismissal of both counts,
the State filed its response and decided to go forward with the hearing. The State claimed
that the two counts were “separate and distinct convictions, and . . . whether or not one is
void has no bearing on whether or not the other one is void, and we would say that -- that
the second-degree murder conviction is valid and should stand.”

       After argument of counsel, the parties submitted the issue to the post-conviction
court to “make a determination as to both counts rather than a one or the other.” No
proof was presented, and the court took the matter under advisement.

       In its June 4, 2019 order, the post-conviction court reasoned:

              Tennessee Code Annotated [section] 40-30-102(c) states that only
       one petition for post-conviction relief may be filed attacking a judgment. If
       a prior petition was resolved on its merits any subsequent petition must be
       summarily dismissed. A petitioner may petition to re-open if “[t]he claim
       in the motion is based upon a final ruling of an appellate court establishing
       a constitutional right that was not recognized as existing at the time of trial,
       if retrospective application of that right is required.” T[enn]. C[ode]
       A[nn]. § 40-30-117 (emphasis in original).

              Ward v. State, 315 S.W. 3d 461 (Tenn. 2010), established that the
       mandatory sentence of community supervision for life is a punitive
       consequence of a guilty plea to the enumerated offenses. The court stated
       that the trial court has an affirmative duty to ensure the defendant is
       informed of this requirement. If the trial court does not inform the
       defendant of this requirement, the conviction must be set aside unless the
       State proves the error is harmless beyond a reasonable doubt. Ward at 476.

              T[ennessee] C[ode] A[nnotated section] 40-30-122 further clarifies
       retroactivity in post-conviction proceedings. This statute states that “[a]
       new rule of constitutional criminal law shall not be applied retroactively in
       a post-conviction proceeding unless the new rule places primary, private
       individual conduct beyond the power of the criminal law-making authority
       to proscribe or requires the observance of fairness safeguards that are
                                            -5-
      implicit in the concept of ordered liberty.” Further, in Bush v. State, 428
      S.W. 3d 1 (Tenn. 2014), the court held that the ruling in Ward did not apply
      retroactively. The Bush court found that the affirmative duty to inform did
      not meet the standards of T[ennessee] C[ode] A[nnotated section] 40-30-
      122, thus retroactivity was not required.

            In this case, Petitioner previously filed a post-conviction petition
      which was denied on its merits. The holding in Ward was announced in
      2010 after Petitioner entered his guilty plea. Based on the holding in Bush,
      the requirement that courts inform defendants about the mandatory
      community supervision for life requirement is not retroactive. . . .

       The post-conviction court found that the 2018 Petition did “not meet one of the
exceptions in T[ennessee] C[ode] A[nnotated section] 40-30-102(b) or [section] 40-30-
117” allowing the filing of a second post-conviction petition. The court dismissed the
2018 Petition, and Petitioner timely appealed.

                                     Analysis

       On appeal, Petitioner claims that his guilty pleas were not entered voluntarily,
knowingly, or intelligently because counsel was ineffective for failing to advise him that
he would be subject to community supervision for life and that the post-conviction court
erred by dismissing the 2018 Petition as a second petition for post-conviction relief. The
State concedes that the post-conviction court “improperly dismissed” the 2018 Petition
and asks this court to remand to the post-conviction court for a ruling on Petitioner’s
claims “based on the evidence received at the hearing already afforded.” We agree that
the 2018 Petition was not a second petition attacking a single judgment under Tennessee
Code Annotated section 40-30-102 and that the post-conviction court erred dismissing
the 2018 Petition on that basis. We also agree that the case needs to be remanded to the
post-conviction court for a ruling on the merits of the ineffective assistance of counsel
claim.

                      Tennessee Code Annotated section 40-30-102

       Tennessee Code Annotated section 40-30-102 provides certain procedural
requirements for filing a petition for post-conviction. Section 40-30-102(a) codifies the
statute of limitations for filing a petition seeking post-conviction relief. Section 40-30-
102(c) limits a petitioner to a single petition attacking a single judgment. Before a claim
can be dismissed for failure to comply with procedural requirements, “due process
requires that potential litigants be provided an opportunity for the presentation of claims
at a meaningful time and in a meaningful manner.” Bush, 428 S.W.3d at 22 (quoting
                                           -6-
Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992)) (“once the legislature provides
prisoners with a method for obtaining post-conviction relief, prisoners must be afforded
an opportunity to seek this relief ‘at a meaningful time and in a meaningful manner”’).

       Tennessee Code Annotated section 40-30-102(c) provides:

       This part contemplates the filing of only one (1) petition for post-conviction
       relief. In no event may more than one (1) petition for post-conviction relief
       be filed attacking a single judgment. If a prior petition has been filed which
       was resolved on the merits by a court of competent jurisdiction, any second
       or subsequent petition shall be summarily dismissed. A petitioner may
       move to reopen a post-conviction proceeding that has been concluded,
       under the limited circumstances set out in § 40-30-117.

       “A ground for relief is previously determined if a court of competent jurisdiction
has ruled on the merits after a full and fair hearing.” T[enn]. C[ode] A[nn]. § 40-30-
106(h).

        A panel of this court recently determined that “[u]pon the entry of an amended
judgment” adding a sentence of community supervision for life, “the one-year statute of
limitations period for post-conviction relief is reset.” Steven Padgett King v. State, No.
M2017-00058-CCA-R3-PC, 2017 WL 3741408, at *1 (Tenn. Crim. App. Aug. 30, 2017),
(no perm. app. filed)(citing Michael Garrett v. State, No. M2008-00046-CCA-R3-HC,
2009 WL 2567730, at *4 (Tenn. Crim. App. Aug. 19, 2009) (citing Manny T. Anderson v.
State, No. M2002-00641-CCA-R3-PC, 2003 WL 2002092, at *4 (Tenn. Crim. App. April
30, 2003) (the one-year post-conviction limitations period runs upon the entry of an
amended judgment modifying the release eligibility date from 30% to 100%))).
Although Steven Padgett King and Manny T. Anderson involved a first petition for post-
conviction relief, the same underlying reasoning allowing a first petition to be filed years
after the original judgment was entered should apply to a second petition, provided the
second petition was a petitioner’s first “opportunity for the presentation of claims at a
meaningful time and in a meaningful manner.” Burford, 845 S.W.2d at 208.

        Petitioner was not sentenced to community supervision for life at the time his first
petition for post-conviction relief was decided. It would be unreasonable to expect
Petitioner to have made the claim he makes in the 2018 Petition—that his guilty pleas
were not entered voluntarily, knowingly, or intelligently because counsel was ineffective
for failing to advise him that he would be subject to community supervision for life—
before he was actually sentenced to community supervision for life, even if he was aware
at an earlier date that his sentence was illegal. Petitioner’s first meaningful opportunity
to seek post-conviction relief on that claim arose when the trial court entered an amended
                                           -7-
judgment sentencing Petitioner to community supervision for life. Because the amended
judgment imposed a new, more punitive sentence, the amended judgment and the original
judgment are not a “single judgment” under Tennessee Code Annotated section 40-30-
102(c).2 Therefore, the 2018 Petition was not a second petition for post-conviction relief
filed attacking a single judgment.

                                 Ineffective Assistance of Counsel

       The jurisdiction of the Court of Criminal Appeals is appellate only and is limited
in scope to review of the final judgments of trial courts in certain specified cases and
proceedings. Tenn. Code Ann. § 16-5-108. We, therefore, remand the matter to the post-
conviction court for a ruling on the merits of the 2018 Petition.

                                             Conclusion

       The judgment of the post-conviction court dismissing the 2018 Petition is
reversed, and the case is remanded.



                                                    ____________________________________
                                                    ROBERT L. HOLLOWAY, JR., JUDGE




        2
          We do not intent to imply that every time a judgment of conviction is amended or corrected that
the new judgment is a separate judgment under Tennessee Code Annotated section 40-30-102(c). For
example, clerical errors can be corrected at any time without creating a new judgment. In this case, a
more punitive sentence including community supervision for life was imposed to correct an illegal, less
punitive sentence in the original judgment.
                                                  -8-
