         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                     February 8, 2005 Session

        JEROME WILLIAM DEVEREAUX v. STATE OF TENNESSEE

                      Appeal from the Circuit Court for Jefferson County
                              No. 18,683 O. Duane Slone, Judge



                       No. E2004-01891-CCA-R3-PC Filed June 8. 2005



JOSEPH M. TIPTON , J., dissenting.

        I respectfully disagree with the result reached in the majority opinion. I believe that the
petitioner’s decision to plead guilty to the twelve-year sentence instead of the 7.2-year sentence
resulted from inadequate advice.

        First, I question the trial court’s finding that no evidence existed that sex offenders are not
awarded parole. Without objection, the petitioner testified that his DOC prison counselor told him
“that they don’t give parole to sex offenders” and that his completion of the twenty-four month “sex
program,” see T.C.A. § 41-21-235, would not matter. The petitioner also testified that he spoke with
an institutional parole officer who said, “Your chances are slim to none to get parole.”

         My concern relates to counsel’s apparent lack of research and investigation relevant to his
advice in this case. As an example, counsel testified that he originally planned to proceed to trial
in the Knox County prosecution because venue was in Jefferson County and he wanted jeopardy to
attach. However, a modicum of research discloses that the issue of improper venue does not bar
retrial in the appropriate jurisdiction. See State v. Hutcherson, 790 S.W.2d 532, 534-35 (Tenn.
1990); State v. William David Summer, No. 51, Morgan County (Tenn. Crim. App. Feb. 22, 1991).

        Also, once the issue became whether the 7.2-year sentence at eighty-five percent or the
twelve-year sentence at thirty percent was the better choice for the petitioner, whose primary concern
was his length of confinement, it was incumbent upon counsel to provide competent advice based
upon adequate preparation relative to the ramifications of each sentence on the timing of the
petitioner’s release. I note that the trial court found that counsel told the petitioner that he was
confident he could bring proof forward for parole and that there was a “strong possibility of release,”
albeit no guarantees. It also found that counsel testified he would have a positive opinion by “the
statutory required professional” that petitioner “would not be likely to commit further sex offenses.”
The problem to me, though, is that counsel had no basis to support these comments that were
supposedly to aid the petitioner in determining which plea offer to take.
        Counsel said he was aware of the petitioner’s counseling with Diana McCoy, but he failed
to talk with Dr. McCoy about the petitioner’s potential risk of reoffending. He said it was his
“anticipation” that she would say the petitioner did not possess such a likelihood. I view this as
guesswork. He also said that he discussed with the petitioner that at the first opportunity, he would
present all of the evidence he could muster on the petitioner’s behalf before the board of paroles for
an early release. However, none of this has any bearing on the petitioner’s being paroled absent the
approved certificate by a psychiatrist or licensed psychologist designated as a health service provider
by the DOC or the board of paroles that, to a reasonable medical certainty, the petitioner does not
pose the likelihood of committing sexual assaults upon release from confinement pursuant to T.C.A.
§ 40-35-503(c).

         Research would have shown counsel that this court recognized that the thirty percent release
eligibility date does not actually reflect release eligibility for sex offenders under T.C.A. § 40-35-
503(c). See, e.g., State v. Lorenzo Puente Salazar, No. 02C01-9105-CR-0098, Shelby County, slip
op. at 8 (Tenn. Crim. App. Jan. 15, 1992) (stating that trial court’s telling sex offender with twenty-
five-year sentence that he would be eligible for release after seven and one-half years was incorrect
because, under T.C.A. § 40-35-503(c), “the statutory release eligibility date . . . does not apply to
aggravated rape convictions in the same way it does to other felonies”); see also Ricky Rutledge v.
State, No. 01C01-9706-CC-00201, Bedford County (Tenn. Crim. App. July 2, 1998), app. denied
(Tenn. Mar. 1, 1999) (surmising that sex offender’s claim that he would not be released from prison
until serving eighteen of his twenty-five-year sentence resulted from the requirements of T.C.A. §
40-35-503(c)). I believe counsel should have sought to determine from DOC personnel any
significant distinctions between the two options presented to the petitioner. In this regard, I note that
in Clessie T. Jaco, Jr. v. State, No. M2001-02150-CCA-R3-PC, Maury County (Tenn. Crim. App.
Aug. 14, 2002), aff’d 120 S.W.3d 828 (Tenn. Dec. 5, 2003), the trial court found “based on the
exhibits and testimony in [the] proceeding, that the Board of Probation and Parole has not released
any sex offender after serving only thirty percent of his sentence unless an appropriate professional
has rendered an opinion essentially saying that it is physically impossible for the inmate to commit
a future sexual offense.” Slip op. at 2. Appellate court records reflect that Jaco’s post-conviction
hearing occurred before the petitioner’s guilty plea was entered in the present case. I believe this
shows that sufficient resources were available from which counsel could have discovered that a thirty
percent release eligibility date for the petitioner was wholly unrealistic.

        I also note that this court viewed as deficient performance an attorney’s giving the erroneous
advice to a sex offender that the offender held “the keys to the jail in his pocket” given the existence
of T.C.A. § 40-35-503(c). Alan Dale Bailey v. State, No. M2001-01018-CCA-R3-PC, Coffee
County (Tenn. Crim. App. Feb. 8, 2002), appeal dismissed (Tenn. July 11, 2002). Given the reality
regarding parole for sex offenders, I consider counsel’s discussion in this case of various credits that
could be earned to reduce the time of confinement and noting its contingency upon the petitioner’s
completing programs and maintaining good behavior to be simply misleading. I seriously doubt that
the petitioner would have opted for the twelve-year sentence if he had known that his chances for
parole were “slim and none” or was contingent upon his being physically incapable of committing
another sex offense. Under the particular circumstances of this case, prejudice has not been shown


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by proving that the petitioner would have gone to trial but by proving he would have accepted the
7.2-year sentence. I would vacate the petitioner’s conviction.


                                                     ____________________________________
                                                     JOSEPH M. TIPTON, JUDGE




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