        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs March 11, 2015

           INES MENDEZ MONREAL v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                   No. 2005-B-1226    Cheryl Blackburn, Judge


                 No. M2014-02036-CCA-R3-PC - Filed April 6, 2015


Petitioner, Ines Mendez Monreal, entered a conditional guilty plea to possession of not
less than ten (10) pounds nor more than seventy (70) pounds of marijuana, a Class D
felony. He was placed on judicial diversion for a period of four years. See Tenn. Code
Ann. § 40-35-313. Almost nine years after entering the plea, he filed a petition for post-
conviction relief, which was summarily dismissed by the post-conviction court. On
appeal, petitioner raises the following issues: (1) whether due process principles require
that he be permitted to pursue his petition for post-conviction relief; (2) whether he was
denied effective assistance of counsel; and (3) whether his plea was knowingly and
voluntarily entered. Following our review, we affirm the judgment of the post-conviction
court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

R OGER A. P AGE, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT,
J R., and C AMILLE R. M CM ULLEN, JJ., joined.

Vanessa Saenz, Nashville, Tennessee, for the appellant, Ines Mendez Monreal

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Victor S. Johnson III, District Attorney General; and Robert McGuire,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                        OPINION

                                         I. Facts

       At the guilty plea submission hearing, petitioner acknowledged his intent to enter a
conditional guilty plea to possession of over ten pounds of marijuana with the intent to
sell or deliver, for which he would be placed on judicial diversion for a period of four
years. The trial court asked, “[D]o you understand that this could affect your ability to
stay in the United States?” Petitioner responded affirmatively. The court continued, “[I]t
could affect you even though you do not get a conviction today. Do you understand
that?” Again, petitioner responded that he understood. The trial court further explained:

             Because you’re on this special probation[,] you do not actually get a
       conviction. Now, if you were to violate your probation, you might. But the
       Homeland Security individuals can still consider this a tentative plea and
       might use it against you even though you have not been convicted. Do you
       understand that’s a possibility?

Petitioner stated, “Yes.”

       The trial court then advised petitioner with regard to his potential sentence
exposure and confirmed that petitioner understood the agreement into which he was
entering. The court explained petitioner’s rights associated with a trial and asked whether
petitioner had been promised anything or threatened into entering the conditional guilty
plea. The trial court questioned petitioner’s attorney, “[H]ave you discussed this with
your client[], and do you think [he] understand[s] what [he’s] doing?” Petitioner’s
counsel answered, “I discussed it with [petitioner].” And on several occasions[,] due to
language barriers[,] I asked if he understood and he indicated that he did. I think he
does.”

       As a factual basis for the guilty plea, the State offered the following facts:

       [T]he State’s proof would be that on February [] 3rd[,] [2005][,] the
       defendants were stopped in a vehicle. And within the vehicle was twenty-
       two pounds of marijuana. In light of these facts, and the defendants’
       pleas[,] the State recommends the previously announced disposition.

Petitioner agreed to the facts underlying his plea.

                                   II. Procedural History

    Petitioner entered his conditional guilty plea on September 8, 2005. He filed this
petition for post-conviction relief almost nine years later on July 25, 2014. Attached to
the petition was an affidavit executed by petitioner setting forth additional facts
surrounding his arrest, trial counsel’s representation of him, and his alleged lack of
understanding of the terms of his guilty plea. The post-conviction court summarily
dismissed his petition. This appeal follows.


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                                        III. Analysis

   In this case, petitioner seeks post-conviction relief based on due process concerns
stemming from what he characterizes as an illegal sentence, ineffective assistance of
counsel, and an allegedly unknowing and involuntary plea.

    In Tennessee, a post-conviction action is commenced by filing a petition “with the
clerk of the court in which the conviction occurred.” Tenn. Code Ann. § 40-30-104(a).
Because the statute does not define “conviction,” our supreme court, in Rodriguez v.
State, 437 S.W.3d 450 (Tenn. 2014), construed the meaning to require “a judgment of
conviction . . . signed by the trial court, entered by the clerk, and includ[ing] the plea, the
verdict or findings, and the adjudication and sentence.” Id. at 454-55 (citing Tenn. R.
Crim. P. 32(e)(2)). The court noted that the statute addressing judicial diversion
“forecloses the entry of a judgment of conviction unless the defendant violates the terms
of his diversion.” Id. at 457. As such, the court concluded that “a guilty plea expunged
following successful completion of judicial diversion is not a conviction within the
meaning of the Post-Conviction Act.” Id. Our supreme court’s conclusion in Rodriguez
is equally applicable in this case:

               We conclude that the Post-Conviction Act provides an avenue of
       relief from a conviction that has resulted in a judgment of conviction.
       [Petitioner] entered a guilty plea that was expunged following his successful
       completion of judicial diversion. In his post-conviction petition, [petitioner]
       claimed that as a result of the ineffective assistance of counsel, his
       expunged guilty plea was not knowingly, intelligently, and voluntarily
       entered. Because no judgment of conviction was entered, [petitioner’s]
       claims are not cognizable under the Post–Conviction Act.

Id. Following our supreme court’s precedent, we conclude that the Post-Conviction Act
bars relief in this case. The record is clear that no judgment of conviction has been
entered. Accordingly, the holding in Rodriguez precludes relief in this case.

                                      CONCLUSION

   Based upon the record as a whole, the briefs of the parties, and the applicable legal
authorities, we affirm the judgment of the post-conviction court.


                                                    _________________________________
                                                    ROGER A. PAGE, JUDGE



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