        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs June 25, 2014

                EDWARD PORRECA v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                       No. 1201529    W. Mark Ward, Judge




                No. W2013-02443-CCA-R3-PC - Filed January 8, 2015


Petitioner, Edward Porecca, filed, through counsel, a “Petition for Relief from Conviction
and Sentence” attacking his conviction for rape. He specifically alleged that the petition was
instituted pursuant to T.C.A. § 40-30-[102] (for post-conviction relief) and pursuant to
T.C.A. § 40-35-308 (for modification, removal, or release from a condition of probation).
The twenty-four (24) page petition, plus exhibits, generally alleged that he was entitled to
relief under T.C.A. § 40-30-308 because an “exile from Tennessee” condition of his
probation is unconstitutional and therefore should be removed. As to grounds for post-
conviction relief, Petitioner asserted that his trial counsel rendered ineffective assistance of
counsel and his guilty plea was not knowingly and voluntarily entered. After an evidentiary
hearing the trial court denied relief and dismissed the petition. On appeal, Petitioner has
abandoned his claim for post-conviction relief by not presenting that as an issue on appeal.
As to the claim that Petitioner is entitled to statutory relief pursuant to T.C.A. § 40-35-308,
we conclude that Petitioner is not entitled to relief. Petitioner has failed to show in this
record that an “exile from Tennessee” condition exists. Accordingly, we affirm the judgment
of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which R OBERT W.
W EDEMEYER and D. K ELLY T HOMAS, J R., JJ., joined.

Robert L. Sirianni, Jr., Winter Park, Florida, for the appellant, Edward Porreca.

Herbert H. Slatery, III, Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Amy P. Weirich, District Attorney General; Megan King and Jennifer Nichols,
Assistant District Attorneys General, for the appellee, the State of Tennessee.
                                         OPINION

      In his appellate brief on page 1, Petitioner asserts that the “Statement of the Issue
Presented” is as follows:

                When an unconstitutional condition of probation is attached to a plea
        agreement and becomes a central point of consideration in the negotiation
        between the parties, does that agreement remain valid when the parties
        failed to determine the legality of the unconstitutional and unreasonable
        condition of probation?

       In the argument section of his brief, Petitioner provides more specificity as to the
issue(s) raised on appeal by dividing the argument into two sections set forth as follows:

        I.     THE PLEA AGREEMENT IS UNENFORCEABLE BECAUSE
               IT IS CONTRARY TO PUBLIC POLICY AND BASED
               PRIMARILY ON AN UNCONSTITUTIONAL CONDITION
               OF PROBATION

        II.    THE SPECIAL CONDITION IMPOSED ON PETITIONER-
               APPELLANT REQUIRING HIM TO LEAVE THE STATE
               FAILS TO SERVE THE PRIMARY PURPOSE OF
               REHABILITATION AND IS UNCONSTITUTIONAL EXILE

       The state argues that Issue I as it relates to “public policy” is waived on appeal
because Petitioner did not present in the trial court any argument that the challenged “exile”
condition of probation violated public policy. We agree. See Tommy Lee Clark v. State, No.
W2009-01613-CCA-R3-PC, 2010 WL 1610532 at *2-3 (Tenn. Crim. App. Apr. 21, 2010)
(Because the petitioner’s issues on appeal involved completely new and different allegations
from those contained in his pro se or amended petitions, the issues were waived). See also
State v. Alder, 71 S.W.3d 299, 303 (Tenn. Crim. App. 2001) (Appellant is bound by the
evidentiary theory set forth at trial and may not change theories on appeal.); Tenn. R. App.
P. 36(a).

       Accordingly, we will not address Petitioner’s argument that the special condition of
probation violates public policy because that issue is waived. Thus, we do not hold in this
case that a special condition of “exile” does violate the public policy of Tennessee or that a
special condition of “exile” does not violate the public policy of Tennessee.




                                             -2-
       We will address Petitioner’s second sub-issue, that the “exile from Tennessee”
condition of probation in his case is unconstitutional and that the special condition “fails to
serve the primary purpose of rehabilitation.” The “unconstitutional” assertion in Issue I is
included in Issue II. We will confine our summary of the facts to the evidence related to this
issue.

I. Background

       Petitioner was charged by the Shelby County Grand Jury with rape. Subsequently,
Petitioner entered into a negotiated plea agreement with the State wherein he pled guilty as
charged and received a sentence of eight years. Pursuant to the plea agreement the sentence
was ordered to be served on split-confinement pursuant to T.C.A. § 40-35-306(a), comprised
of one year of incarceration in the Shelby County workhouse followed by seven years of
probation. The only additional “special conditions” listed in the judgment of conviction was
that Petitioner would be on community supervision for life and would have to register with
the sex offender registry. The probation order specified that the only “special conditions”
of probation were:

        - immediately upon release make arrangements to move to New York and
           transfer probation

        - Sex Offender Registry & Community Supervision for Life

        The “special conditions” in the probation order were handwritten and we have quoted
them verbatim. The words “exile” or “banishment” from Tennessee are not mentioned in the
judgment of conviction or the probation order. There is no other language in either document
which could be interpreted that as a special condition for probation, Petitioner could not
return to Tennessee.

       Likewise, a review of the transcript of the guilty plea hearing reveals that mandatory
“banishment” or “exile” from Tennessee, or other such wording is not mentioned.
Furthermore, neither the petition to accept guilty plea nor the order granting the petition to
accept guilty plea mentions any conditions of probation other than seven years of probation
following one year of incarceration.

       From our review of the appellate record before us, the first time that “exile from
Tennessee” is alluded to as a special condition of probation is in Petitioner’s “Petition for
Relief from Conviction and Sentence.” The disposition of that pleading is the subject of this
appeal. The petition was filed July 31, 2013, almost a year after the negotiated guilty plea
was entered on August 3, 2012.

                                              -3-
II. Post-Conviction Hearing

       At the post-conviction hearing, trial counsel testified as follows concerning the
condition of probation that required Petitioner to move to New York and transfer his
probation to New York:

       When we were having those negotiations, me and [the Prosecutor], about what
       would be an appropriate settlement, [Petitioner] came to me and said would it
       help if I offered to move in with my brother to New York? I immediately said,
       yeah, I got a feeling that would help a lot. Okay, well talk to her about that.
       So I went and met with [the Prosecutor] and said how would it [affect] our
       negotiations if he was willing to move? And she also immediately said I think
       that would help us negotiate this case. I think that we could work that into a
       probation condition.

       The way it came about, the offer that is, the day that we met and talked about
       and finalized what the offer might be, she said that she wasn’t prepared to
       reduce the case to, quite frankly, you know the natural leap would be sexual
       battery or something like that, she wasn’t willing to go that far. She said, so
       she looked at me and said, well what about pleading as charged and getting
       probation? And I said rape carries probation. She goes, well I’m not talking
       about full probation but certainly some combination of the two. She said what
       is the most jail time you can do and still get probation? And I said, I think
       with my understanding of the law you can get up to a year in jail and then get
       the rest of it probated. She said and that is my offer.

       And she said, you go do the research and you make sure that that’s still
       appropriate, that you can do it that way, and my offer will be eight years, with
       one year in jail, seven years probation as a condition of his probation, the part
       of the probation, that he would move to New York with his brother.

        Trial counsel testified that it was Petitioner’s idea to move in with his brother. He did
not recall Petitioner asking that his charge be reduced to a misdemeanor in exchange for his
move to New York. Trial counsel noted that the word “exile” was never used. Trial counsel
said, “It was an agreement that part of his probation would be that he would move out of
state.”




                                               -4-
       Trial counsel testified that during plea negotiations, Petitioner asked what would
happen if the job that Petitioner’s brother was going to obtain for Petitioner became
unavailable. Trial counsel then told Petitioner, “well then find somewhere else you want to
go that’s out of state. If you want to go live with your sister or you want to go live
somewhere else, find it and I’ll tell [the Prosecutor] so that before the plea is executed we
know where you want to go.”

       Trial counsel noted that he felt comfortable that Petitioner’s probation conditions
could be altered to another state. He said that part of the plea was that Petitioner leave
Tennessee. Trial counsel also noted that Petitioner could not be held in violation of his
probation if New York did not accept Petitioner into its probation program.

        Michelle Hill, an employee with the Tennessee Board of Probation and Parole,
testified that the probation order read: “Immediately upon release make arrangements to
move to New York and transfer probation.” She completed a transfer request to have
Petitioner’s case transferred to the State of New York. Ms. Hill testified that Petitioner never
indicated that he had any trouble with going to New York. She said that approval of
Petitioner’s transfer request was received from the State of New York on September 16,
2013. Ms. Hill testified that Petitioner was required to report immediately upon release to
“Rochester Metro Area Office, 350 South Avenue, Rochester, New York.” Ms. Hill
indicated that Petitioner could go to another state even though the probation order
specifically provided for New York. She said that it “would be a problem” if Petitioner
decided not to move.

       Concerning the terms of his plea agreement, Petitioner testified:

       [Trial counsel] told me that that [sic] the prosecutor was willing to plea
       bargain in the case and go down to a probatable offense and I offered to if they
       would go down to a misdemeanor that I was offered to get a work [sic], you
       know, an opportunity to work letter from my brother in New York to move up
       there.

Petitioner testified that there was nothing special about New York and that he would like to
live in other states.

       Petitioner claimed that he was under the assumption that his offer to move would be
“used for a plea down to a misdemeanor offense in good faith and then I would just go on,
move on my way and that would, you know, there wouldn’t - - wouldn’t be in the town with
anybody and just go on.” Petitioner clarified that he gave trial counsel a letter from his
brother because he was hoping to plead to a misdemeanor. He admitted that on the day of

                                              -5-
the guilty plea he knew that he was pleading guilty to a felony. Petitioner testified that trial
counsel had told him that he would be required to leave Memphis but that he could possibly
remain in Tennessee.

        When asked if he would have accepted the plea agreement if he had been “exiled from
the state,” Petitioner replied: “I, I - - I felt if I had more aggressive counsel and adequate
counsel I would have fought this case.” He said that he would have gone to trial. Petitioner
testified that on the day he entered the guilty plea, he knew that leaving Tennessee was part
of his plea agreement. He claimed that he was confused about that provision of the
agreement because prior to the guilty plea hearing, he thought that he would only be required
to leave Memphis. Petitioner testified that he would not have agreed to plead guilty if he
had known that he would be “permanently exiled from the state of Tennessee[.]”

       At the conclusion of the post-conviction hearing, the trial court noted that Petitioner
had “zero credibility” with the court. The trial court held that Petitioner had not met his
burden of proof to set aside his guilty plea and that Petitioner failed to show that the
condition of the guilty plea requiring Petitioner move to New York was unconstitutional.
The trial court noted that it was willing to consider a modification of the condition in a
separate hearing, but only to change the state to which Petitioner could transfer his probation
from Tennessee
.
III. Analysis

       As stated above there is absolutely no provision in the judgment or in the order setting
forth the conditions of probation that Petitioner is “exiled” from Tennessee or otherwise
banned from this state during the period that his sentence is served on probation. The
inclusion of that condition, if intended by the parties, could be ordered by this Court to be
added in an amended judgment or order if that condition had been specifically mentioned and
imposed during the guilty plea hearing in open court. State v. Crowe, 168 S.W.3d 731, 735
n. 1 (Tenn. 2005) (When there is a conflict between the judgments of conviction and the
transcript of the proceedings, the transcript controls). However, we will not apply this rule
to court proceedings held after the guilty plea hearing. In other words, it appears from the
record before us that if the parties intended that a “banishment” or “exile” from Tennessee
should have been included in the conditions of probation, this condition should have been
clearly set forth in the order of probation, the judgment, or specifically stated at the time
Petitioner entered his guilty plea. Fault for any oversight must lie with the State. It is the
responsibility of the district attorney general to “complete and file” the judgment document.
T.C.A. § 40-35-209(e)(1). The probation order was signed by the trial court and by
Petitioner, but was not signed by the prosecutor. As to leaving the State of Tennessee as a
“special condition” of probation, the only written statement on that subject, in its entirety, is

                                               -6-
that “immediately upon release make arrangements to move to New York and transfer
probation.” There is no explicit, or even implicit, requirement that Petitioner is banned from
ever returning to Tennessee during the time he is on probation. During the opening remarks
of the guilty plea hearing, the prosecutor set forth the terms of the negotiated plea agreement
as follows:

        [Prosecutor]:                 He’s pleading guilty to the charged offense and
                                      the State’s recommendation is that he serve
                                      one year at a hundred percent, probation for the
                                      remainder. That his probation be transferred to
                                      New York upon his release where he has
                                      employment with a family member waiting on
                                      him. He’ll be on the sex offender registry for
                                      life, community supervision for life. And for
                                      the record, that offer was made with the
                                      victim’s consent and her family’s consent.

       Other excerpts from the guilty plea transcript show that a mandatory “exile” or
“banishment” from Tennessee was not contemplated by, or presented to, the trial court during
the guilty plea hearing.

        [T HE C OURT]:                Now is this a - - now this is a Memphis,
                                      Tennessee, address; right?

        [P ETITIONER]:                Yes, sir.

        [T HE C OURT]:                I heard something about you going to New
                                      York?

        [P ETITIONER]:                I don’t have an address at New York yet.

        [T HE C OURT]:                Well you have any relative or somebody that
                                      the probation officer can call and say, hey, do
                                      you know where this Mr. Porreca is?

        [P ETITIONER]:                I do have an address that I could put on there
                                      for New York, but it’s my brother’s.

        [T HE C OURT]:                Well, write [your] brother’s address and his
                                      phone number or contact, whatever, so the

                                              -7-
                 probation officer at least [will] have a chance
                 to find you.

[P ETITIONER]:   (Defendant complies.)

                        ***

[T HE C OURT]:   Do you understand you enter this guilty plea
                 today there will be no trial, there’s not going to
                 be any sentencing hearing because you’ve
                 agreed to the sentence and there’s not going to
                 be an appeal in this matter. It’s going to end it
                 with you going on serving this year and having
                 seven years of probation.          Is that your
                 understanding?

[P ETITIONER]:   Yes, sir.

[T HE C OURT]:   Now, as I mentioned before, it carries between
                 eight and twelve years for a range one offender
                 but this is a violent offense. So if you - - it’s to
                 be served at a hundred percent and then if your
                 revocation of your probation, do you
                 understand that?

[P ETITIONER]:   Yes, sir.

[T HE C OURT]:   You also understand that you’re going to have
                 to be on community supervision for life as a
                 result of this?

[P ETITIONER]:   Yes, sir.

[T HE C OURT]:   You’re also going to be on a sexual offender
                 registry as a result of this?

[P ETITIONER]:   Yes, sir.




                         -8-
[T HE C OURT]:   Do you understand that? And you’re still
                 willing to enter this guilty plea in spite of all
                 that?

[P ETITIONER]:   Yes, sir.

[T HE C OURT]:   All right. Did you sign this document here, it’s
                 entitled petition for waiver of trial by jury and
                 request for acceptance of plea of guilty?

[P ETITIONER]:   Yes, sir.

[T HE C OURT]:   And that document contains all those rights
                 that we talked about; is that correct?

[P ETITIONER]:   Yes, sir.

[T HE C OURT]:   And did you feel like you understood them
                 when you read that document?

[P ETITIONER]:   Yes, sir.

[T HE C OURT]:   All right. Are you entering this guilty plea of
                 your own free will?

[P ETITIONER]:   Yes, sir.

[T HE C OURT]:   Anybody forcing you in any way?

[P ETITIONER]:   No, sir.

[T HE C OURT]:   Well, I want you, just to make sure you
                 understand what’s going on, I want you to tell
                 me what are you pleading guilty to.

[P ETITIONER]:   Rape.

[T HE C OURT]:   What’s the sentence you’re agreeing to?




                            -9-
        [P ETITIONER]:               Eight years, one year in jail and seven years
                                     probation.

        [T HE C OURT]:               All right.

        [P ETITIONER]:               Community supervision and sex offender
                                     registry.

        [T HE C OURT]:               All right. Do you have any questions about the
                                     terms of this plea bargain?

        [P ETITIONER]:               No, sir.

        [T HE C OURT]:               Any questions about the legal rights you’re
                                     giving up?

        [P ETITIONER]:               No, sir.

        [T HE C OURT]:               All right, lawyers, do you have any questions?

        [P ROSECUTOR]:               No, sir.

        [D EFENSE C OUNSEL]:         None, your Honor.

        [T HE C OURT]:               All right, you can step down.

       For some reason, the State, for the most part, addressed Petitioner’s second issue on
appeal as an assertion by Petitioner that he entered an unknowing or involuntary guilty plea.
Specifically, at the beginning of its argument on this issue the State asserts in its brief:

                The petitioner argues that his guilty plea violated his constitutional
        right because a condition of his probation required the petitioner to move
        to New York. The issue before this Court, however, is whether the
        petitioner entered a knowing and voluntary guilty plea. He did so. The
        record reflects that the petitioner approached his counsel with the idea of
        moving to New York where his brother could procure a job for him upon
        his release from the workhouse. The petitioner voluntarily and knowingly
        entered a guilty plea wherein he agreed to move to New York to serve the
        entirety of his seven years of probation.



                                             -10-
       The State has attempted to alter Petitioner’s issue for consideration by this Court. As
we set forth above, Petitioner does not argue in this appeal that he is entitled to relief under
post-conviction statutes. In the very last paragraph in its argument the State finally addresses
the precise issue raised by Petitioner: that “exile” or “banishment” from Tennessee should
be removed as a special condition of his probation because it is unconstitutional. The entire
argument by the State on the precise issue addressed in this opinion is as follows:

                The petitioner has cited to cases from other jurisdictions in which
        courts found that banishment from a state or county was an improper
        condition of probation, but his reliance on those cases is misplaced. (Pet’r’s
        Br. 14). Unlike the defendants in those cases, the petitioner in this case
        suggested that a condition of his probation should be that he would move
        to New York. By doing so, and by entering a guilty plea accepting that
        condition of probation, he waived the issue of whether his “banishment”
        from Tennessee was unconstitutional. See Mackey, 553 S.W.2d at 340
        (holding that a Defendant waives several constitutional rights by entering
        a knowing and voluntary guilty plea). Because the Petitioner himself
        suggested transferring his probation to New York in order to facilitate plea
        negotiations with the State, the petitioner waived any due process or
        fundamental right to travel when he entered a knowing and voluntary guilty
        plea. The petitioner has failed to show that he is entitled to post-conviction
        relief.

         The cases referred to by the State, and relied upon by Petitioner, are State ex rel.
Halverson v. Young, 154 N.W.2d 699 (Minn. 1967), Johnson v. State, 672 S.W.2d 621 (Tex.
App. 1984), and McCreary v. State, 582 So.2d 425 (Miss. 1991). Petitioner’s reliance on
these cases is not misplaced. Furthermore, the State’s broad generalization that “unlike the
defendants in those cases, [Petitioner] in this case suggested that a condition of his probation
should be that he move [out of state],” is not entirely accurate. Even a cursory review of the
facts in State ex rel. Halverson v. Young shows that the defendant in that case told the
Minnesota trial judge, just prior to the guilty plea, that he [defendant] had been offered a job
in Nevada, and if probation was granted the defendant would leave for Nevada the next day.
Id., at 700. In fact, a pertinent portion of the guilty plea colloquy between the Minnesota trial
court and the Defendant is set forth in the opinion:

        T HE C OURT:           Are you prepared to tell me here in open court before
                               witnesses, and something that’s going to go on the
                               record, that you are willing to leave Minnesota and
                               never come back here?



                                              -11-
        T HE D EFENDANT:      Yes, sir.

Id.

       In State ex rel. Halverson v. Young, the Minnesota Supreme Court held,

        We must hold, however, that there was no authority to impose, as a
        condition of the stay, that defendant “remain out of the State of Minnesota.”
        We are in accord with the great weight of American decisional law which
        holds that it is beyond the power of a court to impose banishment as a
        condition of probation. The imposition of such a condition is a void and
        separable part of the judgment of conviction. The condition is unauthorized
        by statute, is contrary to public policy, and is repugnant to the underlying
        policy of the probation law, which is to rehabilitate offenders without
        compromising the public safety. 50 Minn. L. Rv. 1146; 45 Minn. L. Rev.
        814.

Id., 154 N.W.2d at 702.

       In Johnson, the defendant was banished from his home county in Texas as a special
condition of probation. The Texas Court of Appeals held,

        However, banishing appellant from the county, particularly when he is
        broke and unemployed is not reasonably related to his rehabilitation, and
        unduly restricts his liberty. See People v. Blakeman, 170 Ca. App. 2d 596,
        339 P.2d 202 (1959).

Id., 672 S.W.2d at 623.

        In McCreary, the defendant was ordered to leave the sentencing state of Mississippi
and not return to Mississippi except for two designated weeks each year to exercise visitation
rights with his children during a period of diversionary probation for up to two years. The
issue on appeal was whether the trial court erred by summarily dismissing the defendant’s
petition for post-conviction relief. The Mississippi Supreme Court held that the trial court
erred, and remanded the case to the trial court for a post-conviction hearing. Id., 582 So.2d
at 428. Arguably in dicta, the supreme court of Mississippi set forth various factors to be
considered when addressing whether a “banishment” condition of probation should be
upheld. Id., 582 So.2d at 427-28. In its conclusion, the court stated,




                                             -12-
               In considering the overall sentence, and the banishment provision in
        particular, we direct the circuit court’s attention to the considerations just
        noted, and to our view that banishment from a large geographical area,
        especially outside of the State, struggles to serve any rehabilitative purpose,
        and implicates serious public policy questions against the dumping of
        convicts on another jurisdiction. See U.S. v. Abushaar, 761 F.2d at 959-60;
        Rutherford v. Blankenship, 468 F. Supp. 1357, 1360-61 (W.D.Va. 1979).

Id.

       Notwithstanding the fact that Petitioner and the State agreed at the hearing on the
modification petition that Petitioner is somehow “exiled” or “banished” from Tennessee
while on probation, the record before us clearly shows that “exile” or “banishment” was not
imposed by the trial court as a special condition of probation at the time of the guilty plea.
Without such a special condition in the record at the time of the guilty plea, there is no
condition of probation to remove under Petitioner’s theory for relief in this proceeding.
Petitioner, as noted above, did not request relief on appeal as to his claims for post-
conviction relief.

        We want to emphasize that our holding in this opinion is that Petitioner is not entitled
to the relief he seeks (removal of an unconstitutional condition of probation) pursuant to
T.C.A. § 40-35-308(a) because the record before us fails to establish that the objected to
special condition of probation was properly imposed. There may or may not be other
evidence that an “exile” or “banishment” special condition of probation was imposed. That
issue, however, would more properly be resolved in an appeal from the trial court if and
when the purported special condition of “exile” is used to affect Petitioner’s ability to remain
on probation.

      Accordingly, the judgment of the trial court dismissing the “Petition for Relief from
Conviction and Sentence” filed by Petitioner is affirmed.


                                            _______________________________________
                                            THOMAS T. WOODALL, PRESIDING JUDGE




                                              -13-
