          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON

                             JUNE 1998 SESSION
                                                      FILED
                                                        August 6, 1998

                                                      Cecil Crowson, Jr.
GREGORY TURNER,                        )              Appellate C ourt Clerk
                                       )    NO. 02C01-9707-CC-00238
      Appellant,                       )
                                       )    CROCKETT COUNTY
VS.                                    )
                                       )    HON. DICK JERMAN, JR.,
STATE OF TENNESSEE,                    )    JUDGE
                                       )
      Appellee.                        )    (Post-Conviction)



FOR THE APPELLANT:                          FOR THE APPELLEE:

GREGORY TURNER, pro se                      JOHN KNOX WALKUP
#241929                                     Attorney General and Reporter
Cold Creek Correctional Facility
P.O. Box 1000                               PETER M. COUGHLAN
Henning, TN 38041-1000                      Assistant Attorney General
                                            Cordell Hull Building, 2nd Floor
                                            425 Fifth Avenue North
                                            Nashville, TN 37243-0493

                                            CLAYBURN L. PEEPLES
                                            District Attorney General
                                            110 S. College Street
                                            Trenton, TN 38382




OPINION FILED:



REMANDED FOR FURTHER PROCEEDINGS



JOE G. RILEY,
JUDGE
                                     OPINION



       The petitioner, Gregory Turner, appeals the Crockett County Circuit

Court's dismissal of his petition for post-conviction relief. The petitioner contends

his plea agreement in Crockett County designating concurrent sentencing with

Haywood County was violated when the Haywood County trial court ran the

sentences consecutive. The state concedes error and suggests that the

petitioner be allowed to withdraw the guilty plea in Crockett County. We

REMAND the case for further proceedings due to the lack of a complete record

of the Haywood County proceedings.



                                      FACTS



       The petitioner pled guilty pursuant to a plea agreement to one (1) count of

burglary in Crockett County. As a condition of the plea, he was sentenced to two

(2) years in the Tennessee Department of Correction. The guilty plea transcript

reveals that, upon taking the plea, the trial judge was informed that the Crockett

County sentence was to run concurrent with the Haywood County sentence yet

to be imposed. The trial judge agreed that the sentences would run

concurrently. The Crockett County judgment specifically stated the sentence

was to be served concurrently with his conviction in Haywood County; however,

as previously noted, the Haywood County sentence had not yet been imposed at

the time of the Crockett County plea. We note that both Crockett County and

Haywood County are in the same judicial district, and the same trial judge

handled both proceedings.



       It is alleged that the Haywood County judgment, entered after the Crockett

County judgment, states that its ten (10) year sentence runs “consecutive to any

other sentence he may have.” Although the state concedes the Haywood

County sentence was ordered to run consecutive to the Crockett County



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sentence, the record of the Haywood County proceeding is not before this Court.

The record does contain an uncertified, unsigned copy of an alleged Haywood

County judgment running the sentences consecutively.



       The opinion of this Court in the original appeal of the Haywood County

conviction shows that the Haywood County sentence of ten (10) years resulted

from a jury trial. The conviction was affirmed by this Court. State v. Gregory

Turner, C.C.A. No. 02C01-9508-CC-00212, Haywood County (Tenn. Crim. App.

filed May 24, 1996, at Jackson). Permission to appeal was denied by the

Tennessee Supreme Court on October 28, 1996. Sentencing was not an issue

on appeal.



       It further appears that the petitioner filed a motion with the Haywood

County trial court requesting that court to correct its judgment so that the

sentences would run concurrently as specified in the Crockett County judgment.

The record does not reflect the action of the Haywood County court on this

request. Although we assume the sentence probably remained unchanged, we

are unable to verify this due to the absence of the Haywood County records.



       What is clear from the record is that the petitioner in the present case filed

a petition for post-conviction relief relating to the Crockett County judgment and

alleges concurrent sentencing as specified in the judgment is not being honored.

The trial court dismissed the petition without a hearing, noting that the petitioner

stated no claim upon which relief “may or should” be granted. This appeal

followed.



                               PLEA AGREEMENT



       The defendant pled guilty in Crockett County to one (1) count of burglary,

and, as part of a plea agreement, the two (2) year sentence would run



                                          3
concurrently with a sentence he was to receive in Haywood County. The trial

court in Crockett County, as the first sentencing court, did not have the authority

at that time to make any final determination as to consecutive/concurrent

sentencing in the subsequent Haywood County case. Because the defendant,

the prosecuting attorney and the trial judge agreed that sentencing would be

concurrent, this obviously presents a problem if consecutive sentencing was

subsequently ordered in Haywood County. Ordinarily, the remedy would be to

allow the petitioner to withdraw his guilty plea in Crockett County. See State v.

Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978).



       However, there is no problem if the Haywood County sentence was

concurrent with the Crockett County sentence. Although we assume the

petitioner and the state are probably correct in stating the Haywood County

sentence runs consecutive to the Crockett County sentence, the record before

us does not allow us to determine if this is true. For this reason, a remand is

appropriate.



                                  CONCLUSION



       This case is remanded to the Circuit Court of Crockett County where

counsel shall be appointed. In the event the Haywood County judgment in case

no. 2110 reflects or is amended to reflect concurrent sentencing with the

Crockett County judgment, the Crockett County petition is moot and shall be

dismissed. In the event the Haywood County judgment is not amended to reflect

concurrent sentencing, the petitioner shall be allowed to withdraw his guilty plea

in Crockett County.




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                                _________________________
                                JOE G. RILEY, JUDGE



CONCUR:




_________________________
PAUL G. SUMMERS, JUDGE




_________________________
DAVID H. WELLES, JUDGE




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