             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                                Assigned on Briefs November 7, 2001

                        LONNIE JONES v. STATE OF TENNESSEE

                     Direct Appeal from the Criminal Court for Shelby County
                              No. P-23438    Bernie Weinman, Judge



                      No. W2001-00741-CCA-R3-PC - Filed November 21, 2001


Petitioner appeals from the denial of his petition for post-conviction relief following his guilty plea
to second degree murder for which he received a sentence of 15 years. He contends his guilty plea
was not knowingly and voluntarily entered, and he received ineffective assistance of trial counsel.
The state contends the petition was barred by the statute of limitations. We conclude the petition
was barred by the statute of limitations and is otherwise without merit. We affirm the judgment of
the trial court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which GARY R. WADE, P. J., and THOMAS T.
WOODALL, J., joined.

Charles W. Gilchrist, Jr., Memphis, Tennessee, for the appellant, Lonnie Jones.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Camille McMullen, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                                     OPINION

        On June 6, 1997, petitioner entered a guilty plea to second degree murder for an agreed
sentence of 15 years. The original judgment, contrary to the agreement of the parties, reflected that
the petitioner was a “Standard 30%” offender.1 An amended judgment was entered on July 26, 1999,
correcting the petitioner’s classification to a “Violent 100%” offender as required by statute. See
Tenn. Code Ann. § 40-35-501(i). On June 2, 2000, petitioner filed his petition for post-conviction


         1
          In deference to the trial court, we note the Uniform Judgment Document in effect at the time of the guilty plea
had no provisio n for a violent 100% offender. See Tenn. R. Sup. Ct. 17 (1997). This oversight was corrected when the
rule was amended in Fe bruary 2000. T enn. R . Sup. Ct. 17 (2000).
relief contending his plea was involuntary, and he received ineffective assistance of trial counsel.
After an evidentiary hearing, the trial court denied relief. This appeal followed.


                                    EVIDENTIARY HEARING

         At the evidentiary hearing, petitioner testified that it was his understanding that he was being
sentenced to 15 years at 30% release eligibility. He contended the original judgment reflects the
30% release eligibility, and he signed the judgment. Although he conceded that he signed his
petition for acceptance of guilty plea which expressly reflected “15 years at 85%,” he said that the
form was blank at the time he signed it. He conceded that at the guilty plea submission hearing
Judge Chris Craft expressly advised him that he would not be eligible for parole until serving at least
85% of the sentence. He stated he did not understand what this meant. He contended his first
knowledge of the 85% provision came when he received a copy of the amended judgment. He
testified he would not have pled guilty had he known he would not be eligible for parole until serving
at least 85% of the sentence.

         He further testified his attorney was ineffective in his representation. Specifically, he
testified his counsel did not properly investigate the case, furnished him with little discovery, and
did not interview potential witnesses. He contended the only legal advice he received from his
counsel was to accept the state’s 15-year offer.

       Trial counsel testified he worked with the public defender’s office, had practiced law for
more than 25 years, and had handled dozens of murder cases. He met with the petitioner on at least
six occasions and thoroughly discussed the case with him. The prosecutor’s office provided open
discovery, and counsel was familiar with the various witnesses’ statements.

         Counsel emphatically denied the petitioner signed a blank guilty plea form. Furthermore,
he testified that he explained to the petitioner that he would not be eligible for parole until he served
at least 85% of the sentence, and that information was set forth on the guilty plea form signed by
petitioner. He further testified the original judgment did not have a place for the violent offender
category, and the assistant district attorney general marked the 30% release eligibility date after
petitioner signed the judgment. He testified he advised the petitioner to plead guilty after reviewing
the autopsy report which was inconsistent with petitioner’s version of the homicide.

        The post-conviction court entered extensive findings of fact and conclusions of law. It
accredited counsel’s testimony and discredited petitioner’s testimony. The post-conviction court
relied upon the thorough explanation of the 85% release eligibility date by Judge Craft at the time
of the submission of the guilty plea and concluded the petitioner was aware at the time of his plea
that his release eligibility date would be 85% and not 30%. It further found the petitioner entered
his guilty plea freely and voluntarily. Furthermore, it found trial counsel’s representation was not
in any way deficient. The post-conviction court denied the petition.



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                                       STATUTE OF LIMITATIONS

        The state contends the original judgment was entered in June 1997; therefore, the petition
for post-conviction relief was barred by the statute of limitations since it was filed in June 2000.
Petitioner contends the petition was timely filed since the time for filing was re-triggered when the
amended judgment was filed in July 1999. We agree with the state.

        Unquestionably, this case is governed by a one-year statute of limitations. See Tenn. Code
Ann. § 40-30-202(a). At issue, however, is whether the amended judgment reflecting the 100%
violent offender category re-triggered the statute of limitations.

        Initially, we conclude the amended judgment was properly entered to correct a clerical
mistake pursuant to Tenn. R. Crim. P. 36. Second degree murder is one of the enumerated offenses
for which there is no parole eligibility, except for the possibility of earning certain credits not to
exceed 15% of the sentence. Tenn. Code Ann. § 40-35-501(i)(1), (i)(2)(B). Thus, a sentence at 30%
for second degree murder is illegal and void. Mario Lambert v. Jack Morgan, Warden, No. M1999-
02321-CCA-R3-PC, 2001 WL 881361, at *1 (Tenn. Crim. App. filed August 7, 2001, at Nashville),
perm. to app. pending. An illegal sentence can be corrected at any time, even after it has become
final. State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978). The trial court can correct a judgment
reflecting a lesser release eligibility date when the statute requires 100%. State v. Howard Buchanan,
No. M2000-00878-CCA-R3-CD, 2001 WL 261544, at *5 (Tenn. Crim. App. filed March 16, 2001,
at Nashville), perm. to app. denied (Tenn. September 10, 2001).

         The correction of a judgment pursuant to Rule 36 does not re-trigger the statutory period for
filing a petition for post-conviction relief. Alan Hall v. State, No. E2000-01522-CCA-R3-PC, 2001
WL 543426, at *3 (Tenn. Crim. App. filed May 23, 2001, at Knoxville), perm. to app. pending;
Kenneth J. Hall v. State, No. 03C01- 9609-CR-00342, 1998 WL 208080, at *2 (Tenn. Crim. App.
filed April 15, 1998, at Knoxville). Here, just as in Alan Hall, supra, the guilty plea submission
hearing as well as the written guilty plea agreement clearly reflected that the petitioner would serve
a minimum of 85% of his 15-year sentence. The post-conviction court found that petitioner
understood he was receiving an 85% sentence at the time of the plea. Thus, the trial court properly
amended the judgment to correct the clerical error, and the amended judgment did not extend or re-
trigger the statutory period for the filing of the petition.2

        Although the petition is barred by the statute of limitations, we choose to address the issues
raised by petitioner in the event of further appellate review.

         2
           W e are not holding that a petitioner may never seek relief if the trial court amends a judgment after it has
become final. Generally, a trial court does not have the authority to amend a judgm ent after it has become final. State
v. Pend ergrass, 937 S.W.2d 834, 837 (Tenn. 1996). A judgment beyond the jurisdiction of the court is void. Id. A void
judgment may be attacked at any time by habeas corpus. Arch er v. State, 851 S.W.2d 157, 164 (Tenn. 1993 ). However,
Tenn. R. Crim. P. 36 is an exception to the general rule and authorizes the trial court to correct clerical mistakes even
after a judgm ent has b ecome final. See Pend ergrass, 937 S.W .2d at 837 .

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                            VOLUNTARINESS OF GUILTY PLEA

         Petitioner contends his guilty plea was not knowingly and understandingly entered since he
believed his release eligibility date was 30% rather than 85%. As stated above, the written guilty
plea signed by petitioner and the colloquy at the submission hearing reflect petitioner’s agreement
and understanding of the 85% release eligibility date. The petitioner affirmatively stated at the
submission hearing that he understood this and further agreed he was entering his plea freely and
voluntarily. Furthermore, trial counsel testified he fully advised petitioner of the 85% release
eligibility date, denied telling petitioner he would be eligible for parole after 30% of his sentence,
and denied petitioner signed a blank plea form. Counsel further testified that the petitioner did not
see the 30% entry on the original judgment since it was filled in by the prosecutor after petitioner
signed.

        The trial court accredited the testimony of trial counsel, discredited the testimony of the
petitioner, and found petitioner knowingly entered the guilty plea. The trial judge’s findings of fact
on post-conviction hearings are conclusive on appeal unless the evidence preponderates otherwise.
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). This court may not reweigh or reevaluate the
evidence. Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). Questions concerning the credibility
of witnesses are resolved by the trial court, not this court. Burns, 6 S.W.3d at 461.

       This was a classic case involving credibility of witnesses. The trial court accredited the
testimony of trial counsel and discredited petitioner’s testimony. The evidence does not
preponderate against this finding. This issue is without merit.


                        INEFFECTIVE ASSISTANCE OF COUNSEL

        Finally, petitioner contends he was deprived of the effective assistance of counsel. This court
reviews a claim of ineffective assistance of counsel under the standards of Baxter v. Rose, 523
S.W.2d 930 (Tenn. 1975), and Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984). The petitioner has the burden to prove that (1) the attorney’s performance was
deficient, and (2) the deficient performance resulted in prejudice to the defendant so as to deprive
him of a fair trial. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996); Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State, 789 S.W.2d 898,
899 (Tenn. 1990).

        In Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), the Supreme Court
applied the two-part Strickland standard to ineffective assistance of counsel claims arising out of a
guilty plea. The Court in Hill modified the prejudice requirement by requiring a defendant to show
that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty



                                                 -4-
and would have insisted on going to trial. 474 U.S. at 59, 106 S. Ct. at 370; Hicks v. State, 983
S.W.2d 240, 246 (Tenn. Crim. App. 1998).

         Again, the trial court accredited the testimony of trial counsel and discredited the testimony
of petitioner. The trial court found that the services rendered by trial counsel were within the range
of competency demanded by an attorney in a criminal case. The evidence does not preponderate
against this finding. This issue is without merit.


                                          CONCLUSION

       For these reasons, we affirm the judgment of the trial court.




                                                       ___________________________________
                                                       JOE G. RILEY, JUDGE




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