                                                                                          10/06/2017
    IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                     AT KNOXVILLE
                       Assigned on Briefs March 21, 2017

       TYLER JAMES SCHAEFFER v. STATE OF TENNESSEE

                Appeal from the Circuit Court for Sevier County
                    No. 17872-III       Rex H. Ogle, Judge
                   ___________________________________

                         No. E2016-01614-CCA-R3-PC
                    ___________________________________


This case should serve as a cautionary tale for any prosecutor, defense attorney, or
trial court who attempts to negotiate or accept a guilty plea involving concurrent
state and federal sentencing. Petitioner, Tyler James Schaeffer, pled guilty to two
counts of vehicular homicide, two counts of aggravated assault, nine counts of
vehicular assault, and one count of possession of a controlled substance analogue.
He received an effective sentence of forty years to be served concurrently with a
separate 100-year federal sentence. Now, Petitioner appeals the denial of his
petition for post-conviction relief, arguing the post-conviction court erred in
finding that he received effective assistance of counsel due to trial counsel’s
failure to retain a mental health expert, failure to request a change of venue, failure
to properly investigate potential witnesses, and failure to adequately explain
concurrent state and federal sentencing. The State concedes that Petitioner
received ineffective assistance of counsel based on the sentencing issue alone.
Following our review of the record and submissions of the parties, the majority
concludes that Petitioner received ineffective assistance of counsel. Accordingly,
we reverse the judgment of the post-conviction court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS, J., joined. J. ROSS DYER, J., concurred in results only.

Jessica Sisk, Newport, Tennessee, for the appellant, Tyler James Schaeffer.

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson,
Assistant Attorney General; Jimmy B. Dunn, District Attorney General; and Brad
Jones, Assistant District Attorney General, for the appellee, State of Tennessee.
                                         OPINION

                             Factual and Procedural History

       On September 16, 2012, Petitioner drove his vehicle on Highway 441 in
Sevier County, Tennessee. While texting about an impending drug deal, Petitioner
crossed the centerline of the highway and collided head-on with a church van.
The violent crash killed two passengers and injured eleven others. At the time of
the collision, Petitioner possessed a controlled substance, and his blood test results
showed that Petitioner had methylone, methamphetamine, and marijuana
metabolite in his bloodstream while he was driving. A Sevier County Grand Jury
indicted Petitioner with two counts of vehicular homicide by intoxication; two
counts of reckless vehicular homicide; eleven counts of reckless aggravated
assault with a deadly weapon; nine counts of reckless aggravated assault resulting
in serious bodily injury; nine counts of vehicular assault; one count of driving
under the influence; one count of production, manufacture, distribution, or
possession of a controlled substance analogue; and one count of possession of
synthetic derivatives or analogues of methcathinone.

        In March of 2013, a federal grand jury indicted Petitioner with fourteen
counts arising from a string of robberies committed between July 26, 2010, and
September 14, 2012. United States v. Schaeffer, 626 F. App’x 604, 605 (6th Cir.
2015). Petitioner pled guilty to all counts except for four counts of using a firearm
in a crime of violence and one count of using a firearm in furtherance of a drug
trafficking crime. Id. at 606. One of the firearms charges was dropped, and
Petitioner was found guilty by a jury of the remaining counts. Id. On March 3,
2014, Petitioner received a 100-year sentence for his federal convictions.

        On September 2, 2014, Petitioner entered a negotiated plea agreement in
Sevier County Circuit Court. Petitioner pled guilty to two counts of vehicular
homicide, two counts of aggravated assault, nine counts of vehicular assault, and
one count of controlled substance analogue.1 In exchange for his guilty plea,
Petitioner received an effective sentence of 40 years to be served concurrently
with a separate 100-year federal sentence. Petitioner did not file a subsequent
direct appeal.


       1
          The negotiated plea agreement also included one count of aggravated burglary in case
number 18041. However, Petitioner did not challenge that plea in any of his post-conviction
filings and there is no judgment form in the record before this Court. Therefore, any challenge
with regard to the aggravated burglary conviction is waived.
                                               -2-
       A year after entering his guilty plea, Petitioner filed a timely pro se petition
for post-conviction relief, asserting that he involuntarily entered into the plea
agreement without understanding the nature and consequence of the plea and that
he received ineffective assistance of counsel due to counsel’s failure to procure a
mental health expert, failure to request a change of venue, failure to properly
investigate the case, and failure to adequately advise him regarding concurrent
state and federal sentencing. The post-conviction court subsequently appointed
counsel to represent Petitioner, and Petitioner filed an amended petition. His
amended petition only asserts the denial of effective assistance of counsel.

        At the post-conviction hearing, trial counsel testified that he has been the
District Public Defender for the Fourth Judicial District since 1989 and that he was
appointed to represent Petitioner. The testimony of both Petitioner and trial
counsel indicated that prior to Petitioner’s entry of the guilty plea, trial counsel
met with him multiple times over the course of two months. According to trial
counsel’s testimony, Petitioner and trial counsel discussed possible defenses,
sentencing exposure, the status of this case relative to his federal case, and
accident reconstruction. Trial counsel maintained that he went over the discovery
with Petitioner, but Petitioner claimed that while he saw copies of his discovery,
trial counsel did not review it with him. According to Petitioner, trial counsel
“was trying to coerce me into [pleading]” during these meetings, and “he wasn’t
interested in the facts or anything.” When asked to expound, Petitioner stated,
“Because every time he talked to me, he talked to me with a plea offer[.]”

        Petitioner recounted that, during his meetings with trial counsel, Petitioner
told trial counsel about speaking with his mother about five minutes prior to the
collision and stopping at a friend’s house not long before the collision. Petitioner
did not know whether trial counsel ever spoke with the potential witnesses. Trial
counsel could not remember whether Petitioner mentioned potential witnesses to
him, but he stated that it is possible Petitioner mentioned somebody he had been
partying with the night before the collision. Petitioner admitted that he did not
speak with trial counsel regarding undergoing a mental evaluation despite
suffering what Petitioner described as a “pretty severe brain injury.” Trial counsel
did not remember Petitioner ever asking for a mental evaluation, and based on his
interactions with Petitioner, he did not see an obvious need for one.

       As a part of his investigation, trial counsel retained an accident
reconstruction expert who opined this was an obvious case of fault because the
two vehicles hit almost head-on traveling at a rate of sixty miles an hour.
According to trial counsel, had the case proceeded to trial, the accident
reconstruction expert would not have been called as an expert.

                                         -3-
        Petitioner testified that the collision involving Petitioner received a lot of
media attention, and he frequently saw the story on the news while incarcerated.
He claims that when he expressed concerns about this to trial counsel, trial counsel
informed Petitioner that he would look into requesting a change of venue. Trial
counsel admitted that he discussed pursuing a change of venue, but he did not file
a motion because venue is never decided until jury selection. According to
Petitioner, he primarily entered into the plea agreement because he believed that
his state and federal sentences would run concurrently, but his fear that he would
not receive a fair trial in Sevier County also played a role in his decision to plead
guilty.

       Trial counsel admitted that he did not discuss the details of Petitioner’s
federal case with him “to a great extent.” Trial counsel said that he spoke with
Petitioner’s attorney in the federal case and knew what Petitioner’s defense was in
federal court. Trial counsel further asserted that when speaking with Petitioner, he
“discussed that should he go to trial and be convicted, the Court could run his
sentence consecutively to his federal sentence[.]” However, according to
Petitioner, he specifically asked trial counsel if his state sentence was going to run
concurrently with his federal sentence according to his plea agreement, and trial
counsel responded, “[Y]es, it’s going to run concurrent with [your] federal
sentence.” Trial counsel disclosed that because the state proceedings occurred
later in time, he thought that the parties could agree to run the sentences
concurrently. Further, trial counsel stated that he went over the plea forms with
Petitioner, which indicated that the state sentence was to run concurrently with
Petitioner’s federal sentence.

       At the post-conviction hearing, Petitioner blatantly proclaimed, “[Trial
counsel] told me several times that my state sentence was going to run concurrent
with my federal sentence, and in the plea agreement it said in bold print at the
bottom to run concurrent with federal sentence. If it wasn’t running concurrent I
was insisting on going to trial in the case.” The plea agreement signed by
Petitioner, trial counsel, and the District Attorney General was entered into
evidence and conspicuously states in all capitals and bold font, “ALL OF THE
ABOVE TO RUN CONCURRENTLY WITH FEDERAL SENTENCE.”
Petitioner reiterated that he would not have accepted the plea agreement if his state
and federal sentences had not been concurrent. The following exchange took
place between Petitioner and his post-conviction attorney:

       Q.     What did you understand the terms of your state sentence
              were in relation to your federal sentence?


                                         -4-
      A.     To run at the same time, to run concurrent with my federal
             sentence. That was my main reason for taking the plea,
             ma’am.

             ....

      Q.     How, who advised you regarding the concurrent versus
             consecutive sentencing?

      A.     [Trial counsel] and the paper that I signed, the plea agreement
             that I had signed, ma’am.

      Q.     Are you saying here today that if it were running consecutive
             that you would not have pled?

      A.     No, ma’am. I would have took it to trial, ma’am.

       The trial court subsequently asked for clarification regarding whether the
state sentence was running concurrent with the federal sentence, resulting in this
exchange with the attorneys:

      THE COURT: Well, now hold on a minute. His sentence here, is it
        running concurrent with the federal sentence?

      [THE STATE]: My information shows that it is, Your Honor.

      [DEFENSE COUNSEL]: No.

      THE COURT: What?

      [THE STATE]: The TOMIS shows that it’s been running since
         2010, the state sentence has been running since 2010, is the
         information that I have.

      [DEFENSE COUNSEL]: Per the state judgments, Your Honor, it’s
         running concurrent.

      THE COURT: Then what more could we have done?

             ....


                                       -5-
       [DEFENSE COUNSEL]: Per the federal, they are not granting that
          credit, so that’s where we’re at. The state judgments and
          everything reflected it. However, the federal is not giving that
          credit to [Petitioner].

       [THE COURT:] Is that right, General?

       [THE STATE]: That’s my understanding.

        After both parties concluded proof, the post-conviction court denied the
petition for post-conviction relief and, in its final order of dismissal, found that
Petitioner received effective assistance of counsel. The post-conviction court
stated that Petitioner was not entitled to relief on the grounds of trial counsel’s
inadequate advisement regarding concurrent sentencing of the state and federal
sentences, failure to procure a mental health expert, failure to request a change of
venue, or failure to properly investigate the case. With regard to the plea
agreement, the post-conviction court noted that the trial court had “no authority to
require the federal system to run their sentence concurrent to the state sentence.”
With regard to the need for a mental health evaluation, the post-conviction court
found that “no evidence was offered by [Petitioner] that indicates any mental
defect at all” and concluded that “absent some medical proof or very significant
lay proof, there is no basis for the Court to rule [trial counsel] should have sought
a mental evaluation for [Petitioner].” The post-conviction court further stated,
“[Petitioner] completely understood each and every element of the plea agreement
and affirmed it with the Court. [Petitioner’s] sentence [was imposed] precisely
according to his plea agreement. . . . [Petitioner] has buyer’s remorse. He received
exactly what he bargained for in this system.”

       Petitioner’s timely appeal followed.

                                      Analysis

        On appeal, Petitioner asserts trial counsel provided ineffective assistance
due to trial counsel’s failure to retain a mental health expert, failure to request a
change of venue, failure to properly investigate the case by speaking to potential
witnesses identified by Petitioner, and failure to explain the possibility that
Petitioner’s state and federal sentences would not run concurrently. The State
concedes that Petitioner was provided ineffective assistance of counsel based upon
trial counsel’s failure to explain the concurrent sentencing. Following our review
of the record and submissions of the parties, we agree with both parties and
conclude that Petitioner received ineffective assistance of counsel because trial

                                        -6-
counsel did not adequately advise Petitioner about concurrent state and federal
sentencing.

       Post-conviction relief is available for any conviction or sentence that is
“void or voidable because of the abridgment of any right guaranteed by the
Constitution of Tennessee or the Constitution of the United States.” T.C.A. § 40-
30-103. In order to prevail in a claim for post-conviction relief, a petitioner must
prove his or her factual allegations by clear and convincing evidence. T.C.A. §
40-30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). “Evidence is
clear and convincing when there is no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.” Hicks v. State, 983
S.W.2d 240, 245 (Tenn. Crim. App. 1998).

        Both the Sixth Amendment to the Constitution of the United States and
article I, section 9 of the Tennessee Constitution guarantee the right of an accused
to the effective assistance of counsel. See Davidson v. State, 453 S.W.3d 386,
392-93 (Tenn. 2014). In order to sustain a claim of ineffective assistance of
counsel, a petitioner must demonstrate that counsel’s representation fell below the
range of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975). Under the two prong test established by Strickland
v. Washington, 466 U.S. 668, 687 (1984), a petitioner must prove that counsel’s
performance was deficient and that the deficiency prejudiced the defense. See
State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that the
same standard for determining ineffective assistance of counsel applied in federal
cases also applies in Tennessee). Because a petitioner must establish both
elements in order to prevail on a claim of ineffective assistance of counsel, “failure
to prove either deficient performance or resulting prejudice provides a sufficient
basis to deny relief on the claim.” Henley v. State, 960 S.W.2d 572, 580 (Tenn.
1997). “Indeed, a court need not address the components in any particular order or
even address both if the [petitioner] makes an insufficient showing of one
component.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland,
466 U.S. at 697).

       Whether a petitioner has been denied the effective assistance of counsel
presents a mixed question of law and fact. Burns, 6 S.W.3d at 461. This Court
will review the post-conviction court’s findings of fact “under a de novo standard,
accompanied with a presumption that those findings are correct unless the
preponderance of the evidence is otherwise.” Fields v. State, 40 S.W.3d 450, 458
(Tenn. 2001) (citing Tenn. R. App. P. 13(d); Henley, 960 S.W.2d at 578). This
Court will not re-weigh or re-evaluate the evidence presented or substitute our
own inferences for those drawn by the trial court. Id. at 456. Questions
concerning witness credibility, the weight and value to be given to testimony, and
                                         -7-
the factual issues raised by the evidence are to be resolved by the post-conviction
court. Id. However, the post-conviction court’s conclusions of law and
application of the law to the facts are reviewed under a purely de novo standard,
with no presumption of correctness. Id. at 458.

        The test for deficient performance is whether counsel’s acts or omissions
fell below an objective standard of reasonableness under prevailing professional
norms. Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must
evaluate the questionable conduct from the attorney’s perspective at the time,
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982), and “should indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance,” State v. Burns, 6 S.W.3d 453, 462 (Tenn. 1999). This
Court will not use hindsight to second-guess a reasonable trial strategy, even if a
different procedure or strategy might have produced a different result. See Adkins
v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994); Williams v. State, 599
S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). However, this deference to the
tactical decisions of trial counsel is dependent upon a showing that the decisions
were made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528
(Tenn. Crim. App. 1992).

        Even if a petitioner shows that counsel’s representation was deficient, the
petitioner must also satisfy the prejudice prong of the Strickland test in order to
obtain relief. The question is “whether counsel’s deficient performance renders
the result of the trial unreliable or the proceeding fundamentally unfair.” Lockhart
v. Fretwell, 506 U.S. 364, 372 (1993). A petitioner must show that there is a
reasonable probability “sufficient to undermine confidence in the outcome” that,
“but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Burns, 6 S.W.3d at 463 (quoting Strickland, 466 U.S. at 694).
Because Petitioner’s ineffective assistance of counsel claims relate to his guilty
plea, in order to show prejudice he “must prove that counsel performed deficiently
and ‘there is a reasonable probability that, but for counsel’s errors, he would not
have pled guilty and would have insisted on going to trial.’” Grindstaff v. State,
297 S.W.3d 208, 217 (Tenn. 2009) (quoting Hill v. Lockhart, 474 U.S. 52, 59
(1985)). “[A]n error by counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding if the error had no
effect on the judgment.” Hill, 474 U.S. at 58. (quoting Strickland, 466 U.S. at
691).

                    I.       Failure to Retain Expert Witness

      First, Petitioner asserts that trial counsel was ineffective because he did not
procure the services of a mental health expert to aid in the defense of the case in
                                        -8-
light of Petitioner’s claim that he sustained a head injury in the car crash resulting
in his arrest on these charges. Neither the post-conviction court nor this Court can
speculate “as to what the [expert] evidence would have shown and . . . how it
would have benefitted Petitioner.” Brimmer v. State, 29 S.W.3d 497, 512 (Tenn.
Crim. App. 1998) (internal citations omitted). Claims of ineffective assistance of
counsel based on a failure to present evidence, therefore, require proof of what
that evidence would have been and how it would have aided in the defense. Id. In
the absence of such evidence, post-conviction relief is not warranted. William
Darryn Busby v. State, No. M2012-00709-CCA-R3-PC, 2013 WL 5873276, at
*14 (Tenn. Crim. App. Oct. 30, 2013).

       Here, the record is void of evidence as to why Petitioner required a mental
health expert, what such an expert would have said, and how it would have aided
in Petitioner’s defense. Instead, Petitioner testified that he never asked trial
counsel to hire a mental health expert but offered this explanation for why one
should have been retained anyway: “I had suffered a pretty severe brain injury and
I was going through some things mentally, and I mean, that very well should have
and could have happened, a mental evaluation.” The post-conviction court found
“no evidence was offered by [Petitioner] that indicates any mental defect at all,”
and the evidence does not preponderate against this finding. The post-conviction
court went on to conclude that “absent some medical proof or very significant lay
proof, there is no basis for the [c]ourt to rule [trial counsel] should have sought a
mental evaluation for [Petitioner].” We agree with this reasoning. Without proof
as to what the mental health expert would have said and how the expert would
have aided in Petitioner’s defense, the evidence presented at the post-conviction
hearing was inadequate to support Petitioner’s claim.

                  II.       Failure to Request Change of Venue

       Next, Petitioner asserts trial counsel was ineffective for failing to request a
change of venue. A change of venue can be granted upon a showing of undue
excitement or any other cause that is likely to result in an unfair trial. See Tenn. R.
Crim. P. 21. Absent a showing of prejudice, however, the failure to seek a change
of venue alone will not establish ineffective assistance of counsel. Adkins v. State,
911 S.W.2d 334, 337 (Tenn. Crim. App. 1994). Likewise, “allegations of
ineffective assistance of counsel relating to matters of trial strategy or tactics do
not provide a basis for post-conviction relief.” Taylor v. State, 814 S.W.2d 374,
378 (Tenn. Crim. App. 1991).

      In the present matter, Petitioner testified his case received a lot of media
coverage. Because of that, he did not think he would receive a fair trial in Sevier
County and asked trial counsel to seek a change in venue. Petitioner further
                                         -9-
testified the high profile nature of his case is ultimately one reason he accepted the
State’s plea offer. Trial counsel testified he and Petitioner discussed the
possibility of requesting a change of venue, but he was waiting until closer to trial
to file a motion because the trial court typically does not address venue until jury
selection.

       The decision of trial counsel to wait until closer to trial to request a change
of venue was a tactical decision, and Petitioner cannot attack “a sound, but
unsuccessful, tactical decision made during the course of the proceedings.”
Adkins, 911 S.W.2d at 347 (citing State v. Martin, 627 S.W.2d 139, 142 (Tenn.
Crim. App. 1981)). Moreover, Petitioner has not shown he was prejudiced by trial
counsel’s failure to request a change of venue because he has failed to show that,
but for counsel’s failure to request a change of venue, Petitioner would not have
pled guilty.

              III.      Failure to Investigate Potential Witnesses

       Additionally, Petitioner contends trial counsel was ineffective because he
failed to speak with the witnesses named by Petitioner. When a petitioner
contends trial counsel failed to discover, interview, or present witnesses in support
of his defense, Petitioner must call those witnesses to testify at an evidentiary
hearing. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). This is
the only way Petitioner can establish that:

       (a) a material witness existed and the witness could have been
       discovered but for counsel’s neglect in his investigation of the case,
       (b) a known witness was not interviewed, (c) the failure to discover
       or interview a witness inured to his prejudice, or (d) the failure to
       have a known witness present or call the witness to the stand
       resulted in the denial of critical evidence which inured to the
       prejudice of Petitioner.

Id. Even if a petitioner is able to show counsel was deficient in the investigation
of the facts or the calling of a known witness, Petitioner is not entitled to post-
conviction relief unless he produces a material witness at his post-conviction
evidentiary hearing who “could have been found by a reasonable investigation”
and “would have testified favorably in support of his defense if called.” Id. at 758.
Without doing this, Petitioner cannot establish the prejudice requirement of the
two-prong Strickland test. Id.

      Here, Petitioner contends that as part of his investigation trial counsel
should have spoken to a witness at the party he attended the night before the lethal
                                        - 10 -
automobile accident and to his mother, with whom Petitioner spoke via cell phone
shortly before the accident. Petitioner failed to call either of these witnesses at the
post-conviction hearing. Thus, Petitioner has not shown he was prejudiced by trial
counsel’s alleged failure to speak with his mother and friend as part of his
investigation, and we will not speculate as to what those witnesses would have
said if called to testify at trial. See Black, 794 S.W.2d at 757.

               IV.       Concurrent Federal and State Sentences

        Finally, Petitioner argues that trial counsel was ineffective because he failed
to adequately advise Petitioner about the implications of state court judgments
specifying that state and federal sentences are to run concurrently. Petitioner was
told by trial counsel that Petitioner’s state sentence would run concurrently with
his federal sentence. The plea agreement states that the state and federal sentences
are to run concurrently, and each individual judgment form states that the state and
federal sentences are to run concurrently. It is abundantly clear that Petitioner,
trial counsel, the District Attorney General, and the trial court had the intent to run
Petitioner’s state sentence concurrently with his federal sentence. However,
neither trial counsel, the District Attorney, nor the trial court possessed the power
to impose concurrent sentencing on the federal government. See United States v.
Means, No. 97-5316, 1997 WL 584259, at *2 (6th Cir. Sept. 19, 1997). When
trial counsel assured Petitioner that his sentences would be concurrent, he made an
empty promise, and Petitioner did not get what he bargained for. Petitioner’s
plight is that he could end up serving a consecutive sentence because there is no
way to ensure that he will not be taken into federal custody and required to serve
his entire federal sentence upon the completion of his state sentence.

        This Court has found deficient performance when previously presented
with “virtually identical” circumstances. Joseph T. Faulkner v. State, No. W1999-
00223-CCA-R3-PC, 2000 WL 1671470 at *2 (Tenn. Crim. App. Oct. 17, 2000)
(citing Derrick E. Means v. State, No. 02C01-9707-CR-00248, 1998 WL 470447
(Tenn. Crim. App. Aug. 13, 1998), no perm. app. filed), no perm. app. filed. As in
the present case, Faulkner entered a guilty plea pursuant to a negotiated plea
agreement which provided that his state sentences were to be served concurrently
with his federal sentences. Id. at *1. Though Faulkner’s judgments stated that his
sentence was to be served in federal custody, the federal government refused to
accept Faulkner into federal custody. Id. So, like Petitioner, Faulkner was serving
his sentence in state custody. Id. Faulkner argued that his trial counsel was
ineffective for providing erroneous advice, and this Court found his trial counsel
to be ineffective. Id. at *1, *4. Relying on Derrick E. Means and federal
precedent, this Court explicitly stated, “Where a guilty plea is brought about by a
promise that is legally impossible to fulfill, not only has the prosecution failed in
                                         - 11 -
its duty, but defense counsel has rendered incompetent advice by failing to
investigate and determine whether the terms of the plea agreement could be
satisfied before recommending the plea to his or her client.” Id. at *4 (generally
citing Hill v. Lockhart, 474 U.S. 52 (1985), and Derrick E. Means, 1998 WL
470447).

        If trial counsel had carried out his duty to investigate the terms of the plea
agreement, he would have realized that a state court provision requiring federal
and state sentences to run concurrently is not worth the paper on which it is
written. See Taylor v. Sawyer, 284 F.3d 1143, 1150 (9th Cir. 2002) (adopting the
reasoning of Judge Norris’s concurrence in Del Guzzi v. United States, 980 F.2d
1269, 1272-73 (9th Cir. 1992), that “concurrent sentences imposed by state judges
are nothing more than recommendations to federal officials”). Additionally, this
Court has held on multiple occasions that a guilty plea induced by the unfulfillable
promise of concurrent state and federal sentences will not stand.2 See Bernard
Frazier v. State, No.W2013-00187-CCA-R3-PC, 2014 WL 1410285 at *8 (Tenn.
Crim. App. Apr. 10, 2014) (holding that the pleas were not knowingly and
voluntarily entered but finding counsel to be effective), no perm. app. filed; State
v. Virgil, 256 S.W.3d 235, 241-42 (Tenn. Crim. App. 2008) (holding that the pleas
were not knowingly, voluntarily, and understandingly entered); Joseph T.
Faulkner, 2000 WL 1671470 at *3 (holding that the pleas were not knowingly and
voluntarily entered and that defense counsel was ineffective); Derrick E. Means,
1998 WL 470447 at *3-*6 (holding that the pleas were not knowingly entered and
that defense counsel was ineffective). Alas, there is no indication in the record
that trial counsel even attempted to investigate and determine if the conditions of
the plea could be legally satisfied before recommending the plea to Petitioner.
Accordingly, trial counsel’s actions fell below an objective standard of
reasonableness according to the prevailing professional norm, and we find that
trial counsel’s performance was deficient.

       The facts of this case are distinguishable from those in Bernard Frazier
where this Court found that trial counsel’s performance was not deficient. 2014
WL 1410285 at *6. In Bernard Frazier, defense counsel had “‘numerous
conversations’ with federal counsel so he ‘would be more aware of how
sentencing would work with the Feds and here and State Court[.]’” Id. at *4.
However, defense counsel specifically told Frazier “that there was no guarantee
that the time would be run concurrent” and “that how and where he would be

        2
         We think that it is prudent to note that Petitioner did not challenge his pleas on the
grounds of knowledge or voluntariness. As such, the majority refrains from addressing that issue
because this Court may not address an issue for post-conviction relief sua sponte when that issue
has been waived. Grindstaff, 297 S.W.3d at 219 (citing State v. West, 19 S.W.3d 753, 756-57
(Tenn. 2000)).
                                             - 12 -
housed was entirely up to the federal authorities.” Id. Here, the facts do not
indicate that trial counsel had numerous conversations or that trial counsel had
coordinated extensively with federal counsel. Trial counsel merely testified that
he “talked to [Petitioner’s] lawyer” on the federal case. Further, there is no
indication that trial counsel advised Petitioner that there was a possibility that his
sentences would not be concurrent. It is trial counsel’s lack of coordination and
failure to warn his client of the possibility that his sentences would not be
concurrent that lead us to a different conclusion regarding the effectiveness of
counsel in this case.

        The importance of the condition that the state and federal sentences were to
run concurrently is readily gleaned from the fact that the operative words were
written in all capitals and bold font on the plea agreement. Petitioner stated at the
post-conviction hearing that he would have insisted on going to trial if the
sentences were not concurrent. Further, Petitioner stated that the concurrent
sentencing was his “main reason” for taking the plea agreement. It is clear that
trial counsel’s actions directly induced Petitioner’s plea. Based upon these facts,
we conclude that Petitioner was prejudiced in that there is a reasonable probability
that Petitioner would not have pleaded guilty if trial counsel had not errantly told
him that his sentences would run concurrently. We hold that the evidence
preponderates against the trial court’s findings and that Petitioner received
ineffective assistance of counsel.

       This Court has previously outlined the relief available to a petitioner who
has received ineffective assistance of counsel and entered into this type of empty
plea agreement:

              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 steps
       to preserve the integrity of the state sentence, should contact 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
                                        - 13 -
      resolution, the petitioner may be allowed to withdraw his guilty
      pleas altogether and face trial.

Joseph T. Faulkner, 2000 WL 1671470 at *4 (quoting Derrick E. Means, 1998
WL 470447 at *7).

       While not impossible, concurrent state and federal sentencing is tricky or
even illusory absent the proper scenario. See Faulkner v. State, 226 S.W.3d 358,
363-64 (Tenn. 2007) (quoting Erin E. Goffette, Note, Sovereignty in Sentencing:
Concurrent and Consecutive Sentencing of a Defendant Subject to Simultaneous
State and Federal Jurisdiciton, 37 Val. U.L. Rev. 1035, 1057-58 (2003)
(explaining that the two ways to make a state sentence concurrent to a federal
sentence involve a decision by the Federal Bureau of Prisons)). Judge Norris’s
concurrence in Del Guzzi offers the following warning to those who attempt this
feat:

      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
      the 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 State ex rel.
Massey v. Hun, 478 S.E.2d 579, 582 (W. Va. 1996). Likewise, we issue the
following warning: without some sort of written agreement from the federal
government, District Attorney Generals should not make plea offers which
guarantee concurrent state and federal sentencing; defense attorneys should not
agree to plea offers which guarantee concurrent state and federal sentencing; and
trial court judges should not accept plea agreements which guarantee concurrent
state and federal sentencing.




                                      - 14 -
                                  Conclusion

        For the aforementioned reasons, we reverse the judgment of the post-
conviction court and remand this case for proceedings consistent with the avenues
of relief proposed by this Court in Joseph T. Faulkner and Derrick E. Means.


                                        _________________________________
                                        TIMOTHY L. EASTER, JUDGE




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