         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON                 FILED
                           MAY SESSION, 1999               May 12, 1999

                                                       Cecil Crowson, Jr.
                                                      Appellate Court Clerk
EDWARD DRUMMER,                  )   C.C.A. NO. 02C01-9902-CR-00059
                                 )
           Appe llant,           )
                                 )   SHELBY COUNTY
V.                               )
                                 )
                                 )   HON. ARTHUR T. BENNETT, JUDGE
STA TE O F TEN NES SEE ,         )
                                 )
           Appellee.             )   (POST-C ONVIC TION)




FOR THE APPELLANT:                    FOR THE APPELLEE:

EDW ARD DRU MM ER, pro se             PAUL G. SUMMERS
P.O. Box 549 H-A-114                  Attorney General & Reporter
Whiteville, TN 38075
                                      CLINTON J. MORGAN
                                      Assistant Attorney General
                                      2nd Floor, Cordell Hull Building
                                      425 Fifth Avenue North
                                      Nashville, TN 37243

                                      JOH N W. P IERO TTI
                                      District Attorn ey Ge neral

                                      LEE COFFEE
                                      Assistant District Attorney General
                                      Criminal Justice Center, Suite 301
                                      201 Poplar Avenue
                                      Memphis, TN 38103




OPINION FILED ________________________

REVERSED AND REMANDED
THOMAS T. WOODALL, JUDGE




                           -2-
                                   OPINION

              In this cas e, the P etitione r, Edw ard D rumm er, app eals as of right from

the trial court’s dismissal of his petition for post-conviction relief. In his issues

presented for review, the Petitioner, who has filed a pro se brief, argue s first tha t his

trial counsel provided ineffective assistance of counsel by giving erroneous advice

on parole eligibility. In his second issue, Petitioner argues that the Department of

Correction wrongfully altered the judgment entered by the trial cou rt rega rding h is

release eligibility of thirty (30%) percent as a Range I standard offender. For the

reasons stated in this opinion, we reverse the judgment of the trial court and remand

for further proceedings.




              On January 7, 1997, the Shelby County grand jury returned an

indictment charging the Petition er with ag gravate d rape. The indictment alleged that

the offense occurred on October 29, 1994. The office of the Shelb y Cou nty Pu blic

Defender was appointed to represent Petitioner. On September 30, 1997, Petitioner

entered into a neg otiated ple a agree ment. The case was set for trial on the date he

entered his plea, and it was entered after the jury was selected, but prior to any proof

being heard. The negotiated agreement was for Petitioner to plead guilty as charged

to aggrav ated rap e and re ceive a fifteen (15) year sentence in the Department of

Correction as a Range I standard offender with a thirty (30%) percent release

eligibility date. Petitioner entered his plea of guilty and judgment was entered on the

same date in ac cordan ce with th e plea ag reeme nt.




                                            -3-
              On February 2, 1998, Petitioner’s pro se petition for post-conviction

relief was filed in the trial court. In this petition, he alleged that the guilty plea was

involu ntarily entered “without understanding of the nature and consequences of the

plea,” and that he had b een d enied the effe ctive a ssista nce o f coun sel. Pertinen t to

this appeal, Petitioner specifically alleged that when he began confinement in the

Department of Cor rection , he wa s adv ised b y that a genc y that h e had a release

eligibility date of eighty-five (85%) percent rather than thirty (30%) percent. He also

specifically alleged that his trial counsel had failed to advise him that Tennessee

Code Annotated section 40-35-501 required Petitioner to serve one hundred (100%)

percent of the sen tence im posed less sen tence cre dits earne d and re tained, bu t with

a max imum of fifteen (15 %) per cent red uction.




              The trial court appointed private counsel to represent Petitioner in the

post-conviction case.      A ppointe d coun sel filed an am ended petition for p ost-

conviction relief, and an evidentiary hearing was held. Following the hearing, the

trial court dismissed the petition for post-conviction relief and filed its findings of fact

and conclusions of law.




              Subsequently, Petitioner filed a pro se notice of appeal from the trial

court’s dismissal of his pe tition for post-conviction relief. The re is no indication in the

record as to why appointed counsel did not file the notice of appeal on behalf of

Petitioner. There is noth ing to in dicate that Pe titioner k now ingly a nd vo luntarily

waived his right to co unsel in th is appea l.




                                             -4-
              The transcript of the post-conviction evidentiary hearing is not in the

record. Howev er, the transcript of the gu ilty plea hearing, which was made an

exhibit at the evidentiary hearing, is included in the record.




              In its brief, the S tate arg ues th at Petitio ner’s d ispute conc erning his

release eligibility date is an admin istrative matter w hich is not included within the

scope of the Post-Conviction Procedure Act. Moreover, the State, in its brief, points

out that the statute wh ich provides for on e hundred (100%) p ercent service of an

aggravated rape sentence, Tennessee Code Annotated section 40-35-501 (i), applies

only to offense s com mitted on or after July 1, 1995. The State concedes that since

Petition er’s conviction was for an aggravated rape that occurred on October 29,

1994, Petitioner is not subject to the sentencing provisions requiring one hundred

(100%) percent service of a sentence for aggravated rape.




              The query th en turns to why the Department of Correction would treat

this sentence as one covered under the provision of T ennessee Code Annotated

section 40-35-501(i).      Apparently not noticed by Petitioner, his post-conviction

coun sel, the trial cour t, or the Sta te at either th e trial or app ellate level, is the fact

that the judgment entered on September 30, 1997, reflecting the conviction for

aggravated rape, states on its face that the offense was committed on October 29,

1995 rather than October 29, 1994 as alleged in the indictment. We also note from

the transcript of the guilty plea hearing that when the Assistant District Attorney

summarized the fac ts for the court in order to substantiate a basis for the guilty plea,

that he sta ted the offe nse oc curred o n Octo ber 29, 1994.


                                              -5-
              Thus, there appears to be a clerical mistake in the judgment entered on

September 30, 19 97, co rrection of whic h by th e trial co urt mig ht reso lve Pe titioner’s

complaints. Upon rem and, the trial court is to exa mine the disc repancy, an d, if there

is a mistake in the judgment regarding the date of commission of the offense, the

judgment can a nd m ust be correc ted pu rsuan t to Ru le 36, of the Tennessee Rules

of Criminal Procedure.




              Tenn. Sup. C t. R. 28, § 10(a) states that “[a]n appeal from the dismissal

or denial of a post-conviction petition shall be in accordance with the Tennessee

Rules of Appe llate Proce dure. Ru le 18(a) o f the Ten nesse e Rules of Appe llate

Proced ure prov ides the fo llowing:

       A party w ho ha s bee n perm itted to p rocee d in an action in the trial court
       as a poor person (which includes a person who h as bee n perm itted to
       proceed there a s one who is financ ially una ble to obtain a dequa te
       defense in a criminal case) may proceed on appeal as a poor person
       unless, before o r after the ap peal is take n, the trial cou rt finds the p arty
       is not entitled so to proceed, in which event the trial court s hall sta te in
       writing the reason s for such finding.


              In the Post-Conviction Procedure Act, Tennessee Code Annotated

section 40-30-215 states that “[i]ndigency shall be determined an d counse l and court

reporters appointed and reimbursed as now provided for criminal and habeas corpus

cases by c hapter 14, pa rts 2 and 3 of this title.”




              Tennessee Code A nnotated se ction 40-14-205 allows an attorney

appoin ted by the trial court to withdraw as counsel of record upon good cause

shown, but requires the trial court to immediately appoint another attorney in the



                                              -6-
former attorney’s place. Furthermore, Tennessee Code Annotated section 40-14-

203, made applicable to post-conviction cases by Tennessee Code Annotated

section 40-30-2 15, entitles this Petitioner to counsel on the direct appeal from the

denial of this, his first petition for post-conviction relief. In addition, Tennessee Code

Annotated section 40-14-312, also made applicable to post-conviction proceedings

pursuant to Tennessee Code Anno tated s ection 40-30 -215, e ntitles th is Petitioner,

who has a lready b een de clared ind igent by th e trial court, to a transcript o f the

evidentiary hearing concerning the post-conviction petition.




              There is no indication in the record as to why private counsel, who was

appointed by the trial co urt to represent the Petition er in his pe tition for post-

conviction relief, and who filed on behalf of the Petitioner an amended petition and

represented him during the ev identia ry hea ring, is n ot repr esen ting Pe titioner in this

appe al. The re is no indica tion tha t Petition er volu ntarily a nd kn owin gly wa ived h is

right to cou nsel in this a ppeal.




                                       C ONCLUSION




              Accordingly, we reverse the judgment of the trial court and remand for

further hearing s for the trial co urt to appoint counsel to represent Petitioner in the

appeal of the dismissal of his petition for post-co nviction re lief. We further direct that

a transcript of the evidentiary hearing be prepared and included in the record,

assuming that Petitioner desires to pursue his appeal from the trial court’s dismissal

of his post-co nvictio n petitio n. In ad dition, a s state d abo ve, the trial cou rt is to


                                             -7-
conduct a further hearing to determine whether the judgment reflecting the

conviction of aggravated rape must be amended to reflect the correct date of

comm ission of the offense.




                              ____________________________________
                              THOMAS T. WO ODALL, Judge




CONCUR:




___________________________________
JOHN H. PEAY, Judge


___________________________________
JOE G. RILEY, Judge




                                    -8-
