        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                       March 2, 2010 Session

           STATE OF TENNESSEE v. JAMES ALVIN CASTLEMAN

                             Circuit Court for Carroll County
                                      No. 01CR16728




                  No. W2009-01661-CCA-R3-CD - Filed May 27, 2010




J OHN E VERETT W ILLIAMS, J., dissenting.

       The majority opinion correctly sets out the posture of this case, and I will not restate
it. However, I write to dissent from the majority’s opinion because I feel that the facts of this
case clearly establish that an illegal judgment of conviction was entered against the defendant
and, as such, should not now stand to allow him to be convicted of the very crime that the
Tennessee trial court failed to warn him of. In this case, the blatant fundamental unfairness
is obvious and, in my opinion, clearly rises to the level of a due process violation.

       I believe that the facts here are analogous to the situation which arose in the early
1980s when Tennessee adopted its stronger DUI laws imposing greater penalties based upon
prior convictions. For years prior to the enactment of our current statutes, defendants were
often not represented by counsel and would merely plead guilty to DUI, pay a fine and court
costs, and serve no jail time. With the imposition of the tougher DUI laws, the question
became whether those prior DUI convictions could be used to enhance punishment for later
DUI convictions, when the defendants had been uncounseled and were not warned that the
convictions could later be so used. In State v. McClintock, our supreme court addressed the
issue and embraced the notion that prior uncounseled and unwarned DUIs could not be used
to enhance the punishment of a defendant subsequently convicted of DUI. Additionally, the
court stated that “we need not restate the clear constitutional requirements surrounding
criminal proceedings; however, any court accepting a plea of guilty must make it clear to the
defendant that the resulting judgment of conviction may be used in a subsequent proceeding
to enhance the punishment for subsequent offenses.” State v. McClintock, 732 S.W.2d 268,
273 (Tenn. 1987). Thus, our case law establishes that the defendant in this case had a
constitutional right to be warned of any possible subsequent punishment prior to the
acceptance of his plea.
       Moreover, as noted in the majority’s opinion, our domestic violence statute
specifically states:

       Before the court accepts the guilty plea of a defendant charged with a domestic
       violence offense, it shall inform the defendant that it is a federal offense for a
       person convicted of a domestic violence offense to possess or purchase a
       firearm and that from the moment of conviction for a domestic violence
       offense the defendant will never again be able to lawfully possess or buy a
       firearm of any kind. . . .

T.C.A. § 40-14-109(b). Thus, even absent the constitutional mandate, this defendant was
statutorily entitled to be informed of the consequences of possessing firearms following his
plea. In this case, the State has failed to establish that this was done.

        With regard to the petition for error coram nobis, the majority notes that a “guilty plea
can be set aside after the judgment is final ‘if the plea was not entered voluntarily,
intelligently, and knowingly, or was obtained through the abridgment of any right guaranteed
by the United States or Tennessee Constitutions.’” The trial court in this case found that the
defendant did, in fact, establish this, and I agree. I further disagree with the majority and
conclude that, based on the facts of this case, the defendant established a sufficient due
process violation which would merit tolling the statute of limitations. The language in
Burford cited by the majority that “the statute of limitations under the circumstances of a
particular case ‘may not afford [the defendant] a reasonable opportunity to have the claimed
issue heard and decided,’” seems particularly applicable to the facts of this case. The claim
made by the defendant, that his plea was not entered knowingly based upon his lack of
knowledge, did not arise until his subsequent prosecution for the federal crime. The
defendant took appropriate timely steps once he became aware of the error committed by the
trial court, that being the acceptance of the plea without giving the appropriate warning. In
my opinion, based upon the facts of this case, the petitioner’s interest in being able to enter
a knowing plea does outweigh the State’s interest in finality of judgments and judicial
economy. That the petitioner only received a suspended sentence and that his claim of
“newly discovered evidence” has no bearing on his actual guilt with regard to the domestic
assault charge is irrelevant. The question before us is whether the petitioner entered a
knowing and intelligent plea and whether he has been given a reasonable opportunity to
litigate the issue.

        As an aside, I would also note that the defendant’s post-conviction petition was not
time-barred by the statute of limitations. Though not addressed by the majority based upon
the trial court’s ruling, I conclude that the statute of limitations should have also been tolled
with regard to the post-conviction petition. Based upon the above, I would have concluded

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under Burford that the due process violation established should have afforded the petitioner
relief from the statute of limitations, as he had no prior reasonable opportunity to bring the
claim. I am unable to review the merits of the post-conviction petition, however, as it was
not addressed by the trial court.

        With regard to habeas corpus, aside from the determination regarding compliance with
the procedural requirements, I believe that the defendant also established the requirements
for relief. A defendant is only entitled to relief “when it appears upon the face of the
judgment or the record of the proceedings upon which the judgment is rendered that a court
lacked jurisdiction or authority to sentence a defendant or that the sentence has expired.”
Terrance Lavar Davis v. State, No. M2009-00011-SC-R11-HC (Tenn. May 7, 2010) (citing
Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000)). Additionally, an illegal sentence
qualifies as void and may be set aside through habeas corpus at any time. Summers v. State,
212 S.W.3d 251, 256 (Tenn. 2007). In my opinion, the defendant has established these
requirements based upon the record entered in the domestic assault case. The sentence is
clearly illegal, as it was imposed in direct contravention of the domestic assault statute which
required that the admonitions be given. I would conclude that the trial court lacked authority
to impose the sentence in direct contravention of the statute.

        Based upon the foregoing, I would affirm the decision of the trial court in granting
relief to the defendant.




                                                    _________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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