             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE                 FILED
                          JUNE 1998 SESSION
                                                          January 26, 1999

                                                        Cecil W. Crowson
STEVE E. TODD,              )                          Appellate Court Clerk
                            )
             Appellant,     )    No. 01C01-9612-CR-00503
                            )
                            )    Davidson County
v.                          )
                            )    Honorable Seth Norman, Judge
                            )
STATE OF TENNESSEE,         )    (Post-Conviction)
                            )
             Appellee.      )


For the Appellant:               For the Appellee:

Thomas A. Potter                 John Knox Walkup
100 Thompson Lane                Attorney General of Tennessee
Nashville, TN 37211                     and
                                 Lisa A. Naylor
                                 Assistant Attorney General of Tennessee
                                 425 Fifth Avenue North
                                 Nashville, TN 37243-0493

                                 Victor S. Johnson, III
                                 District Attorney General
                                         and
                                 Lila Statom
                                 Assistant District Attorney General
                                 Washington Square, Suite 500
                                 222 2nd Avenue North
                                 Nashville, TN 37201-1649




OPINION FILED:____________________


JUDGMENT VACATED; REMANDED

Joseph M. Tipton
Judge
                                       OPINION



              The petitioner, Steve E. Todd, appeals as of right from the Davidson

County Criminal Court’s denial of post-conviction relief. The petitioner was charged

with six counts of rape of a child and seven counts of aggravated sexual battery.

Pursuant to a plea agreement, he pled guilty to two counts of rape of a child and

received a sentence of twenty-three years for each count to be served concurrently in

the custody of the Department of Correction. He now contends that (1) his sentence is

illegal, (2) his plea was not knowingly, understandingly and voluntarily given, and (3) he

received the ineffective assistance of counsel. Because the trial court’s order denying

the petition for post-conviction relief is incomplete, we remand the case to the trial court

for the entry of a new order consistent with this opinion.



              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



                                             2
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 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.



                                              3
              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.



               The trial court stated that it normally reads from the judgment form rather

than trying to remember sentences. The judgment forms in the present case reflect

that in the sentencing box, two items are checked: (1) the box that says “Standard 30%

Range 1” and (2) the box that says “Child Rapist.” The transcript from the guilty plea

hearing reflects that the trial court explained to the petitioner his rights to a jury trial, to

counsel, to appeal, to proof beyond a reasonable doubt, to confrontation, cross-



                                                4
examination and silence, and the petitioner agreed to waive these rights. It reflects that

the petitioner said he understood that he was charged with six counts of rape of a child

and seven counts of aggravated sexual battery carrying sentences of fifteen to twenty-

five years and eight to twelve years, respectively.



               At the guilty plea hearing, the petitioner said that he signed the guilty plea

petition freely and voluntarily after thoroughly discussing the petition with his trial

attorney. The state recommended a twenty-three year sentence on each count to run

concurrently. When questioned by the trial court, the petitioner said that this was his

understanding of the plea agreement. In pronouncing the judgment, the trial court said,

“It’s the judgment of the Court in each count that you be sentenced to the Department

of Correction for a period of twenty-three years as a range one standard offender at

thirty percent. Those sentences will run concurrent, one with the other.”



               The guilty plea petition is a preprinted form with certain items filled in by

hand. In the portion of the petition calling for the range of punishment, the following is

handwritten:

               6 counts Rape of A Child; 7 Counts Aggravated Sexual Battery
               - Rape of Child 15-25 years plus fine up $50,000 each count.
               T.C.A. 39-13-522. Aggravated Sexual Battery 8-12 years plus
               fine up to $25,000 each count. T.C.A. 39-13-504[.]

In the part setting forth the plea agreement, the following is handwritten:

               Guilty - Counts 1 & 9 - 23 years each count concurrent. No
               fine. Recommendation Special Needs prison. Credit for jail
               time.

The guilty plea petition contains the petitioner’s signature.



               The trial court filed a written opinion denying the petition for post-

conviction relief. The trial court’s opinion states as follows:

               The petitioner herein has filed a Petition for Post Conviction
               Relief. The main thrust of his complaint is aimed at the parole
               system for the state. He specifically states that his plea was


                                              5
                 not knowingly and intelligently entered, and that his counsel
                 was ineffective.

                 ....

                 The Court has examined the proof on this case as well as the
                 authorities that have been submitted. The Court is of the
                 opinion that the complaint of the petitioner is almost on all
                 fours with Wilson v. State [citation omitted]. There is a total
                 lack of evidence under the holdings of Baxter v. Rose and
                 Strickland v. Washington [citations omitted]. There is nothing
                 in this record that would indicate that counsel for the defendant
                 at the time of the plea acted in any other than a highly
                 professional manner.

                 The petitioner has raised a question that continually appears
                 in these matters. He complains that the Court and his attorney
                 did not properly advise him about his effective release date.
                 This Court, quite frankly, does not believe that there is a Judge
                 in this state, at any level, that could explain this date to a
                 defendant at the time that a plea was entered. This fact was
                 emphasized in Howell v. State [citation omitted]. This Court
                 would not presume to tell the Board of Pardons and Paroles
                 how to operate [its] business.

                 The Petition for Post Conviction Relief is denied.



                 Initially, we note that the burden was on the petitioner in the trial court to

prove that his allegations entitle him to relief beyond a reasonable doubt. T.C.A. § 40-

30-210(f). On appeal, we are bound by the trial court’s findings unless we conclude

that the evidence preponderates against those findings. Black v. State, 794 S.W.2d

752, 755 (Tenn. Crim. App. 1990). However, the Post-Conviction Procedure Act

mandates that the trial court enter an order or written memorandum detailing all

grounds presented by the petitioner and its findings of fact and conclusions of law with

regard to each ground. T.C.A. § 40-30-211(b). The purpose of this requirement is to

facilitate appellate review. State v. Swanson, 680 S.W.2d 487, 489 (Tenn. Crim. App.

1984). Because the trial court failed to address all of the petitioner’s grounds and

because we cannot glean from the record the trial court’s findings of fact and

conclusions of law, we must remand the case to the trial court for a more complete

written order.




                                                 6
              The petitioner’s first ground for relief is that his sentence is illegal because

it is in direct contravention of statutory provisions regarding sentencing. See State v.

Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978). Specifically, he argues that he was

sentenced as a Range I, standard offender to serve thirty percent of his sentence, but

T.C.A. § 39-13-523(b) and (c) contemplates that a child rapist “shall be required to

serve the entire sentence imposed by the trial court undiminished by any sentence

reduction credits” and without eligibility for parole. The trial court’s written order denying

the post-conviction petition does not address the petitioner’s argument. Instead, the

order simply states that “[t]he main thrust of [the petitioner’s] complaint is aimed at the

parole system for the state.” We view the petitioner’s complaint not to be with the state

parole system but rather with a sentence that he believes he is statutorily ineligible to

receive. The trial court’s order does not address the merits of the petitioner’s claim.

Under these circumstances, we have no findings or conclusions to review. Thus, we

must remand the case to the trial court for a more complete order.



              In his next argument, the petitioner contends that his plea was not

knowing or voluntary because he thought he was receiving a standard, Range I

sentence at thirty percent, but he was actually statutorily ineligible for such a sentence.

In its order, the trial court makes no finding that the petitioner’s plea was knowing and

voluntary. Again, it is imperative that the trial court make findings of fact and

conclusions of law on all issues raised by the petitioner in order for us to review the

denial of the petition.



              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 post-

conviction 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



                                              7
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.



              The trial court’s order states that the case is on all fours with Wilson v.

State, that there is “a total lack of evidence under the holdings” of Baxter v. Rose and

Strickland v. Washington, and that nothing in the record indicates that the petitioner’s

attorney was anything other than highly professional. The problem with the trial court’s

order is that we cannot glean from it the trial court’s findings of fact with respect to the

testimony it accredited on material points. 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

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.



              In consideration of the foregoing and the record as a whole, we are of the

opinion that the trial court’s findings and conclusions denying the petition for post-

conviction relief are incomplete, and we cannot perform a meaningful appellate review.

Therefore, the judgment is vacated and the case is remanded to the trial court for the

entry of an order consistent with this opinion.



                                                  ________________________________
                                                  Joseph M. Tipton, Judge




                                              8
CONCUR:


_________________________
John H. Peay, Judge



_________________________
David G. Hayes, Judge




                            9
