                                                                                        09/05/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs February 12, 2019

            STEVEN PADGETT KING v. STATE OF TENNESSEE

               Appeal from the Circuit Court for Montgomery County
                    No. 40300049        Jill Bartee Ayers, Judge
                     ___________________________________

                           No. M2018-00652-CCA-R3-PC
                       ___________________________________


Petitioner, Steven Padgett King, appeals the dismissal of his petition for post-conviction
relief, in which he sought application of the rule announced in Ward v. State, 315 S.W.3d
461 (Tenn. 2010). We reverse the judgment of the post-conviction court and remand to
the post-conviction court for a new evidentiary hearing to determine whether Petitioner is
entitled to relief pursuant to Ward.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and TIMOTHY L. EASTER, JJ., joined.

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Steven Padgett King.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; John Wesley Carney, Jr., District Attorney General; and Arthur
Beiber, Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

Procedural history

       On January 15, 2004, Petitioner pleaded guilty to especially aggravated
kidnapping and aggravated rape and received an effective 40-year sentence. During the
guilty plea colloquy, the trial court did not inform Defendant that he would be subject to
lifetime community supervision as to the aggravated rape conviction. The judgment form
did not reflect that Defendant was sentenced to lifetime community supervision.
       In May, 2015, Petitioner filed a pro se motion to correct an illegal sentence
pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure. Relying upon the
Tennessee Supreme Court’s decision in Ward v. State, 315 S.W.3d 461, 476 (Tenn.
2010), Petitioner alleged that he did not agree to be sentenced to lifetime community
supervision. Following a hearing on August 19, 2016, the trial court dismissed
Petitioner’s Rule 36.1 motion on the basis that the holding in Ward did not apply
retroactively, as decided in Bush v. State, 428 S.W.3d 1 (Tenn. 2014). The trial court
entered amended judgments to reflect the statutory requirement of lifetime community
supervision. Petitioner did not appeal from the trial court’s dismissal of his Rule 36.1
motion.

       Petitioner subsequently filed a pro se petition for post-conviction relief, alleging
that “his [p]lea agreement was not knowingly nor intelligently entered because the
original judgment has now been amended to include [c]ommunity [s]upervision for life, a
punitive element that he did not agree to when he originally accepted his plea in 2004.”
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. The post-conviction court
dismissed the petition as untimely, and Petitioner appealed. A panel of this court
reversed the post-conviction court’s order dismissing the petition as untimely, concluding
that the one-year statute of limitations was reset by the entry of the amended judgments.
Id. We obtained the procedural history of Petitioner’s Rule 36.1 proceedings from this
opinion. Steven Padgett King, 2017 WL 3741408, at *1, n.1.

       On remand, Petitioner was appointed post-conviction counsel. The record does
not contain an amended post-conviction petition. The post-conviction court conducted a
“status hearing,” at which Petitioner was the only witness to testify. Petitioner testified
that he would be 82 years old when his sentence expired. He testified, “my problem
would be how to deal with community supervision for life on a very limited income, if
any income, and not be violated and sent back to prison again because I was unable to
meet the state’s restrictions on me.” Petitioner testified that he did not know that
community supervision for life would be part of his sentence. He testified, “none of this
was ever discussed with me.”

        In a written order denying relief, the post-conviction court concluded that
Petitioner failed to state a colorable claim for relief. The court noted that the “holding in
State v. Bush [sic] is clear that the Ward case is not retroactive and that no previous
failure to advise a defendant of community supervision for life as a consequence of a plea
will invalidate a prior plea or sentence.” The post-conviction court further concluded that
“all matters raised in the [post-conviction] petition have already been litigated in the
petitioner’s prior motion to correct illegal sentence pursuant to Rule 36.1.”

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Analysis

       In this appeal, Petitioner contends that his trial counsel was ineffective for failing
to inform him of community supervision for life as part of his sentence. The State asserts
that this court may not address the deficiency of counsel because Petitioner raises the
issue for the first time on appeal.

       In his post-conviction petition, Petitioner did not specifically allege that his trial
counsel was ineffective for failing to inform him of the community supervision for life
portion of his sentence. Petitioner cited Calvert v. State, 342 S.W.3d 477 (Tenn. 2011),
in which our supreme court held that trial counsel’s failure to advise the defendant about
the mandatory lifetime community supervision consequence of his guilty plea constituted
deficient performance. The court in Calvert acknowledged that the effectiveness of
counsel is a distinct inquiry:

        We acknowledge that our law provides another avenue for a similarly
        situated defendant to obtain post-conviction relief. As discussed post,
        we have already held that a defendant’s failure to be informed about the
        lifetime community supervision sentence renders a guilty plea
        unknowing and involuntary. See Ward v. State, 315 S.W.3d 461, 477
        (Tenn. 2010). Therefore, applying Ward, a court may alternatively
        determine that a defendant did not enter a knowing and voluntary plea
        because legal counsel failed to advise of lifetime community supervision
        and the trial court failed to cure this omission. In Ward, we did not reach
        the question of ineffective assistance of counsel. Id. at 464 n.1, 477.

Calvert, 342 S.W.3d at 486, n.12.

       In its brief, the State asserts that “[n]either the post-conviction court nor this Court
read the petition to raise an ineffective assistance of counsel claim under the Sixth
Amendment.” However, directly contrary to the State’s assertion, the post-conviction
court’s order states:

        In his petition for post-conviction relief, [Petitioner] argues that he
        received ineffective assistance of counsel and that his guilty plea to the
        aggravated rape charge was unknowing and involuntary because he was
        unaware of the requirements of community supervision for life at the
        time he entered his plea.

       Nevertheless, the post-conviction court dismissed the petition on the basis that
Petitioner failed to state a colorable claim for relief. The basis of this ruling was the
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Tennessee Supreme Court’s holding in Bush that its holding in Ward does not apply
retroactively in post-conviction proceedings. Bush, 428 S.W.3d at 5-6.

       We note that the record in this case indicates that the post-conviction court
interpreted the ruling in Bush too broadly by apparently implying it applies to cases other
than post-conviction proceedings. To be clear, our supreme court’s holding in Bush was
limited to the statutory limits on retroactive application which are found under Tennessee
Code Annotated section 40-30-122 and which are applicable only to post-conviction
proceedings. Our supreme court stated, “In conclusion, we hold that our decision in
Ward v. State does not require retroactive application under Tenn. Code Ann. § 40-30-
122. Therefore, our Ward decision does not toll the post-conviction statute of limitations
under Tenn. Code Ann. § 40-30-102(b)(1). Additionally, Mr. Bush does not qualify for
due process tolling of the post-conviction statute of limitations.” Bush, 428 S.W.3d at 23.

       In Bush, the holding is limited to whether the post-conviction statute of limitations
of one year can be tolled by retroactive application of Ward. In the case sub judice, a
panel of this court has already determined that the petition is timely filed. As such, this
proceeding is not a retroactive application of Ward. Regarding Petitioner’s argument that
his guilty plea was invalid in light of the holding in Ward, Petitioner asserts that his post-
conviction challenge to the voluntariness of his guilty plea “is a fresh consideration, not a
retroactive attempt to revive [sic] a 2004 plea.”

        In Ward, the petitioner was granted post-conviction relief on the grounds that his
plea was not made knowingly, intentionally, and voluntarily because the trial court failed
to inform him that his conviction resulted in a mandatory sentence of community
supervision for life. Ward, 315 S.W.3d at 464. That is the identical situation for which
Petitioner seeks relief. The post-conviction court erred by dismissing the petition for
failure to state a colorable claim. Accordingly, Petitioner is entitled to relief.

                                      CONCLUSION

       Based on the foregoing reasons, the judgment of the post-conviction court is
reversed, and the case is remanded for an evidentiary hearing.

                                    ____________________________________________
                                    THOMAS T. WOODALL, JUDGE




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