         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs November 20, 2002

                    STEVE E. TODD v. STATE OF TENNESSEE

                Direct Appeal from the Criminal Court for Davidson County
                           No. 93-B-901    Seth Norman, Judge



                      No. M2001-03080-CCA-R3-PC - Filed May 30, 2003


The petitioner, Steve E. Todd, pled guilty in 1994 to two counts of rape of a child, receiving
concurrent twenty-three-year sentences as a Range I offender. He filed a post-conviction petition
in 1995 alleging, inter alia, that at the time of his pleas of guilty he had not understood that his
sentences would be served without the possibility of parole. Counsel, appointed to represent him,
filed an amended petition, which the post-conviction court dismissed following an evidentiary
hearing. This court reversed the dismissal and remanded the matter for additional findings to be
made. Following the remand, the post-conviction court granted the petition, concluding that the
guilty pleas had not been knowing. The State appealed and, following our review, we reverse the
order of the post-conviction court and remand this matter for another evidentiary hearing.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which DAVID H. WELLES and JOE G.
RILEY, JJ., joined.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Bernard F. McEvoy, Assistant District
Attorney General, for the appellant, State of Tennessee.

Thomas H. Potter, Nashville, Tennessee, for the appellee, Steve E. Todd.

                                             OPINION

                                              FACTS

        Because of the lengthy and complicated nature of this matter, we will set out its history, as
detailed in the opinion of this court, released on January 26, 1999, remanding for additional findings
to be made:
        The petitioner testified at the post-conviction hearing that he
believed he was pleading guilty to two counts of rape of a child for
which he would be sentenced as a Range I, standard offender to
twenty-three years for each count to be served concurrently at thirty
percent. He said he believed he would be eligible for parole and
behavior credits, and the opportunity for parole was one of the
reasons why he accepted the plea agreement. He said he also
accepted the plea agreement because he did not want the victim, his
daughter, to have to testify at trial. He said he discussed the
agreement with his trial attorney who explained that he would be
sentenced to twenty-three years to be served at thirty percent. He
admitted that there was no mention in the guilty plea petition, which
he signed, of the possibility for parole, but he also said there was no
indication that he would have to serve his sentence day-for-day.

        On cross-examination, the petitioner said that his trial attorney
never discussed T.C.A. § 39-13-523 with him. He said he did not
read the guilty plea petition because he relied on his attorney's advice.
He said he understood that the sentencing range was fifteen to
twenty-five years, and he admitted that he had confessed to all of the
crimes.

        The petitioner's trial attorney testified that the state offered a
plea agreement of two counts of rape of a child with a sentence of
twenty-three years for each count to be served concurrently. He said
he explained this offer to the petitioner, and he believed he told the
petitioner that he would not get credit toward release because it was
a child rape case. He said the petitioner was unhappy about this fact,
but they discussed it at some length and talked about the possibility
of going to trial. He said the petitioner felt forced to accept the plea
agreement because under no circumstances did the petitioner want his
daughter to have to testify. The attorney said that ordinarily, he
writes on the guilty plea petition whether it is a Range I or Range II
sentence, and he thought it was significant that there was no such
range written on the guilty plea petition in the present case. He said
that although he discussed with the petitioner the fact that he would
get no credit toward his release, he did not go over T.C.A. §
39-13-523 with the petitioner because he did not think it was
necessary.

       The attorney said that when the trial court read the judgment
saying that the petitioner was sentenced as a Range I, standard
offender at thirty percent, he thought that he (the attorney) had simply


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             misinterpreted T.C.A.§ 39-13-523. He said he made no objection to
             the trial court's judgment because it was to his client's benefit. He
             said that after the trial court pronounced the judgment, the petitioner
             asked him what the trial court meant, and the attorney said he told the
             petitioner that he would serve thirty percent of his sentence and then
             be eligible for parole. He said he explained to the petitioner that most
             sex offenders are not granted parole on their first request. He said
             that when the petitioner left the courtroom, he (the attorney) was
             under the impression that the petitioner had received a Range I
             sentence to be served at thirty percent.

                     On cross-examination, the attorney said he told the petitioner
             that his reading of the statute indicated that the petitioner would not
             receive credit for good time or program credits. He said there was a
             note in his file that read, "Note sent day-for-day since July '92[.]" He
             said that although he did not read T.C.A. § 39-13-523 to the
             petitioner, he interpreted the statute for the petitioner. He said that
             the petitioner read or appeared to read the guilty plea petition which
             did not say that the petitioner would serve only thirty percent of his
             sentence.

                     The assistant district attorney general who prosecuted the
             petitioner's case testified that on the judgment form, she checked both
             the box for child rapist and the box for a Range I, standard offender.
             She said that she made a clerical error because only one box can be
             checked and that should have been the child rapist box. She said that
             when she gave the recommended sentence to the judge, it was not for
             a Range I, standard offender at thirty percent.

                     On cross-examination, the prosecutor testified that the
             petitioner received no assurance of parole. She said that when she
             talks to attorneys, it is her practice to tell them that their clients will
             be required to serve the entire sentence. She said that at the time the
             plea agreement was made and signed, the petitioner did not have the
             judgment form but only the guilty plea petition which gave no
             indication that the petitioner would serve only thirty percent of his
             sentence.

Steve E. Todd v. State, No. 01C01-9612-CR-00503, 1999 WL 30678, at **1-2 (Tenn. Crim. App.
Jan. 26, 1999).

      We now will review the proceedings following the remand to the post-conviction court.



                                                -3-
        Although the document is not in the technical record, an “Opinion” of the post-conviction
court, bearing a stamped date of September 9, 1999, is included in the petitioner’s brief. In that
document, the court noted that on the judgment forms for the charges against the petitioner, the
blocks were checked both for “standard 30% Range I” and “child rapist,” which, the court
determined, created a conflict. The opinion concluded:

                      A close reading of the record in this cause raises grave doubt
               concerning the knowledge of the defendant of [Tenn. Code Ann. §
               39-13-523] at the time he entered into this plea agreement. This
               Court is unable to satisfy itself that the defendant entered into this
               plea knowingly.

                       This Court is of the opinion that the petitioner has carried the
               burden of proof required, and that the petition for post conviction
               relief should be granted. Because the court has granted the petition
               on this particular ground, the others will not be addressed.

       This document bears a typed notation indicating that copies were sent to counsel. The first
document in the technical record reflecting an action of the post-conviction court following the
remand is an order, bearing the clerk’s stamp of January 4, 2000, granting the petition for post-
conviction relief:

                      This cause was originally heard by the Court on a Petition for
               Post Conviction Relief. The petition was denied by the Court after a
               hearing. An appeal of the denial resulted in the Criminal Court of
               Appeals remanding the matter for further determination by the Court.

                       The Court has considered the case of State v. Burkhart, 566
               S.W.2d 871 (Tenn[.] 1978) and has carefully studied the judgement
               [sic] form filed in this matter pursuant to the relevant holding in
               Burkhart.

                      The court therefore makes the following findings of fact and
               conclusions of law:

                                      FINDINGS OF FACT

                      The petitioner in this matter was convicted as a [range] one
               standard offender at thirty percent (30%);

                      The petitioner was convicted as a child rapist;




                                                 -4-
                      The applicable statute, T.C.A. Section 39-13-523 requires a
              person convicted as a child rapist “be required to serve the entire
              sentence imposed by the court, undiminished by any sentence
              reduction credit such person may be eligible for or earn;” any credits
              the convicted person is eligible to earn may be used for “any purpose
              other than the reduction of the sentence imposed by the court.”
              T.C.A. Section 39-13-523 (b) “. . . Release eligibility status and
              parole shall not apply to or authorize the release of a multiple or child
              rapist . . . prior to service of the entire sentence imposed by the
              Court.” T.C.A. Section 39-13-523 (c). The Governor and the Board
              of Probation and Parole are estopped from releasing or causing the
              release of a child rapist “prior to the serve of the entire sentence
              imposed by the Court.” T.C.A. Section 39-13-523 (d)[.]

                       The record of this matter reveals the Petitioner’s lack of
              knowledge of the effect of the provisions of T.C.A. section 39-13-523
              as it is applied to his negotiated plea. It is apparent on the record,
              therefore, that the petitioner did not enter into the plea in the matter
              sub judice knowingly;

                      That a plea must be entered into knowingly is well founded.
              Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709;
              State v. Mackey, 553 S.W.2d 337 (Tenn. 1977); State v. Neal, 810
              S.W.2d 131 (Tenn. 1991).

                                  CONCLUSIONS OF LAW

                      The Petitioner did not enter his plea knowing the effect of
              T.C.A. Section 39-13-523 on a sentence of conviction as a child
              rapist. The court holds that the Petitioner in this cause has carried his
              burden of proof in the Petition for Post-Conviction Relief.

                      It is therefore ORDERED, ADJUDGED, and DECREED that
              the Petition for Post-Conviction Relief in this case is granted this
              [illegible] day of December 1999. This cause is returned to the Court
              for such further proceedings as may be necessary. The Petitioner is
              to be returned to the custody of the Davidson County Sheriff’s
              Department so as to be available for further proceedings.

        We note that the order bears the typed date as relief was granted on “this 29th day of
September 1999.” However, handwritten changes were made so that the date was “this [illegible]
day of December 1999.” The order does not bear a clerk’s certificate as to copies being provided
to the parties.


                                                -5-
        On August 13, 2001, the petitioner filed a motion to enforce the order granting post-
conviction relief, the motion reciting that on September 9, 1999, the post-conviction court had “filed
a document entitled ‘Opinion’ in which it reversed its prior ruling and directed petitioner’s counsel
to prepare an order granting post-conviction relief.” Additionally, the petitioner’s motion stated that
on November 15, 1999, the State “filed a motion for leave to present further argument and/or
evidence,” and recited that a hearing was conducted on May 12, 2000, apparently pursuant to the
State’s motion and that the petitioner had requested a transcript of that hearing.

     Subsequently, the post-conviction court filed an opinion bearing the clerk’s stamped date of
November 2, 2001, stating as follows:

                       This is a Petition for Post Conviction Relief that has been
               before this Court for a considerable length of time. It concerns a
               judgment which was originally entered in this cause February 3, 1994.
               Thereafter, the petition for post conviction relief was filed. The
               matter was heard, after lengthy delay, and the Court issued an opinion
               dated July 2, 1998. That matter was appealed and on January 26,
               1999, the Court of Criminal Appeals filed an opinion. That opinion
               required this Court to enter specific findings of fact. After the
               remand order was received, the matter was set for further hearings
               and, on September 9, 1999, the Court issued an opinion, as instructed
               by the Court of Criminal Appeals. In that opinion, this Court
               sustained the Petition for Post Conviction Relief and instructed the
               attorney for the petitioner to prepare an order. This order was
               subsequently prepared and signed by the Court. That order reflects
               that it was filed January 4, 2000. However, the file reflects that in
               November of 1999, the District Attorney General for the 20th Judicial
               District filed an instrument styled: Motion For Leave To Present
               Further Argument And/Or Evidence. In May of 2000, counsel for the
               petitioner filed a motion to dispose of that instrument. In August of
               2001, the petitioner’s attorney filed a motion to enforce the order
               entered in January of 2000.

                        This Court has many cases assigned to it for determination.
                There is no way the Court can keep up with each individual matter.
                The Court must rely on counsel for the State and for the petitioners
                and defendants to tend to their various cases. This Court has looked
                at this matter on this date to try to determine the current status of this
                cause. Regardless of what types of motions have been filed in this
                cause subsequent to the entry of the order in this case, the order has
                been entered. It has been signed by the Judge. No appeal has been
                taken from that order. Therefore, this Court is of the opinion that the
                order filed in January of 2000 is in effect.


                                                   -6-
On November 29, 2001, the State filed a notice of appeal from this opinion.

                                                  ANALYSIS

         The parties disagree as to what the issues are in this matter. The State, as appellant, presents
the single issue of “[w]hether the defendant’s guilty plea was knowing and voluntary.” In addition
to that issue, the petitioner presents as issues whether the post-conviction court exceeded its mandate
on remand and whether the State’s appeal was timely, or, if not, should be waived in the interest of
justice.

        To ascertain whether the State timely appealed the granting of post-conviction relief, we
briefly will review the chronology of this matter, focusing on the motion and orders.

        As we have stated, the brief of the petitioner contains, although the technical record does not,
a copy of what appears to be a September 9, 1999, opinion of the post-conviction court stating that
“[t]his Court is unable to satisfy itself that the defendant entered into this plea knowingly,” and
granting post-conviction relief. Post-conviction counsel for the petitioner was directed to prepare
an order reflecting the court’s determination. On November 15, 1999, the State filed a motion
seeking “to present further argument and/or evidence in support of its position that the Court’s initial
ruling in this matter was correct.” The post-conviction court’s order was then filed on January 4,
2000, concluding that the petitioner’s plea had not been “knowing” and granting post-conviction
relief. At a hearing before the post-conviction court on May 12, 2000, pursuant to the State’s motion
to “present further argument and/or evidence,” the State asked that the court “actually make findings
of fact in more detail and let the case go up and follow the normal channels.” Post-conviction
counsel advised the court that specific findings of fact and conclusions of law had been made, but
the court informed counsel that “[t]he order has not been entered.” The court then directed each
counsel to prepare proposed findings of fact and conclusions of law for the court to review.
Subsequently, on August 13, 2001, post-conviction counsel filed a motion to enforce the court’s
order granting post-conviction relief, reciting that the order prepared by counsel granting such relief
“was executed December 21, 1999,” and filed on January 4, 2000. On November 2, 2001,1 counsel
again appeared before the post-conviction court, apparently, because the State had filed proposed
findings of facts and conclusions of law, which are not included in the record on appeal. Later that
day, the court entered an order, reciting that the court’s order filed on January 4, 2000, was “in
effect” and had not been appealed.

       This court may, "in the interest of justice," waive an untimely filing of a notice of appeal.
See Tenn. R. App. P. 4(a). The petitioner argues on appeal that the time for the State to file its notice
of appeal began to run on September 9, 1999, when the court filed its opinion granting post-
conviction relief and directing that post-conviction counsel “prepare an order to this effect.” This


        1
          Although the transcript of this hearing recites that it occurred on Novem ber 2, 2002, we presume that the
correct date is November 2, 2001.

                                                        -7-
document, which is not included in the record on appeal, although referred to by documents which
are, apparently resulted in the State’s then filing its motion to present additional proof. Although
an order was entered on January 4, 2000, granting post-conviction relief, neither counsel nor the
post-conviction court was aware, as of the May 12, 2000, hearing, that the order had been entered
and we note that the order does not show that copies were sent to counsel. Post-conviction counsel’s
motion of August 13, 2001, seeking enforcement of the order of January 4, 2000, should have put
the State on notice that a prompt determination should be made as to whether there was an order of
the post-conviction court which should be appealed. However, considering the difficulty in
identifying which order of the post-conviction court triggered the period within which the State was
to appeal, as well as the fact that a determination has not been made as to the credibility of the
parties, which was the purpose of our earlier remand, we conclude that, in the interest of justice, we
will treat the State’s appeal as timely.

        To assess the conflicting claims of the parties, we first will review the basis for this matter
being remanded to the post-conviction court after the initial dismissal of the petition. During the
1997 evidentiary hearing, the petitioner testified that his belief as to the sentences he was to receive
would be “two counts, run concurrent, twenty-three years at thirty percent, with a chance for parole.
And that’s what I accepted.” By contrast, the petitioner’s trial counsel testified at the hearing that
he understood “that on a child rape that you don’t get credit toward release.” He said that the
petitioner “was not happy” about this information,” which they discussed “at some length.” He said
that the petitioner’s “attitude at that time was that he just literally was forced to take what the State
was willing to offer, because under no circumstances did he want his little girl to have to face a court
and be examined.”

         In the remand, this court set out the conflict between the testimony of the petitioner and that
of his trial counsel which resulted in the remand:

                        The petitioner also complains that his trial attorney was
                ineffective for failing to explain to him the manner in which he would
                serve his sentence. At the postconviction hearing, the petitioner
                stated that his trial attorney told him he would serve thirty percent of
                his sentence and that this was one of the reasons he accepted the
                agreement. The trial attorney testified to the contrary, stating that he
                did not tell the petitioner before his acceptance of the agreement that
                he would only serve thirty percent. He said that, in fact, it was his
                belief that he told the petitioner he would be ineligible for early
                release because the convictions were for child rape.

                ....

                We cannot discern whether the trial court accredited the testimony of
                the petitioner or his trial attorney. Although it may be possible to infer
                that the trial court accredited the attorney's testimony, one of the main


                                                   -8-
               purposes behind requiring an order with findings of fact and
               conclusions of law is to prevent this very type of speculation on
               appeal. A more detailed order, addressing all of the petitioner's
               claims and containing more detailed findings of fact and conclusions
               of law, is needed.

Todd, 1999 WL 30678, at *4.

        This matter was remanded initially because, other than inferentially as a result of the
dismissal of the petition, we could not determine whether the court had accredited the testimony of
the petitioner or his trial counsel. Following the remand, the post-conviction court granted the relief
sought, concluding that the petitioner’s pleas of guilty were not knowing. Thus, we now have the
reverse of the original situation, for we now cannot determine, other than inferentially because of
the post-conviction court’s reversal of its previous order, whether the post-conviction court
accredited the testimony of the petitioner or his trial counsel. Accordingly, we conclude that this
matter must be reversed and remanded for appropriate findings of fact and conclusions of law.
However, because over five years have passed since the evidentiary hearing in this matter, we cannot
conclude that the post-conviction court could, at this point, make the required findings as to
credibility and other matters. Accordingly, we remand for another evidentiary hearing as to the
petition for post-conviction relief, and direct that the presiding judge of the Davidson County
Criminal Court reassign the matter to another division of court for such hearing and other
proceedings consistent with this opinion.

                                          CONCLUSION

       Based upon the foregoing authorities and reasoning, we reverse the order of the post-
conviction court and remand this matter for proceedings consistent with this opinion.


                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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