         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                               Assigned on Briefs May 15, 2001

                  LLOYD PAUL HILL v. STATE OF TENNESSEE

            Post-Conviction Appeal from the Criminal Court for Putnam County
                         No. 96-0546   Leon C. Burns, Jr., Judge



                     No. M2000-01428-CCA-R3-PC - Filed August 30, 2001


On September 25, 1998, the petitioner entered best interest pleas to four counts of child rape. For
these offenses he received concurrent sixteen year sentences. According to the announced plea the
convictions arising out of Pickett and Overton Counties were set to be served at thirty percent while
the Putnam County convictions were at one hundred percent with the potential to be reduced to
eighty-five percent. Within the statute of limitations the petitioner filed a post-conviction petition
alleging that his plea was not knowingly and voluntarily entered concerning the consequences
thereof. Subsequently, the trial court conducted a hearing and later denied the relief sought in the
petition. It is from that denial that the petitioner brings the present appeal continuing to maintain that
his plea was not knowingly and voluntarily entered. After reviewing the record and applicable
caselaw, we find that the sentences imposed are illegal and, therefore, reverse and remand the matter.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Reversed and
                                        Remanded.

JERRY L. SMITH, J., delivered the opinion of the court, in which NORMA MC GEE OGLE and JOHN
EVERETT WILLIAMS, JJ., joined.

Harvey Douglas Thomas, Algood, Tennessee, for appellant. Lloyd Paul Hill.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General;
Bill Gibson, District Attorney General; and Ben Fann, Assistant District Attorney, for appellee, State
of Tennessee.
                                                         OPINION

                                                  Factual Background

        As above-noted, the petitioner entered best interest guilty pleas to four counts of child rape
involving two victims and arising from three different counties.1 For these crimes he received four
concurrent sixteen year sentences. The announced agreement in court was that his convictions based
upon crimes in Pickett and Overton Counties would be served as a Range I offender “at 30 percent.”
The announcement further provided that the Putnam County sentences were to be served at “100
percent [but could] be reduced to 85 percent by credits under [Tennessee Code Annotated §] 41-21-
236.”2 The latter is also reflected in the plea agreement/waiver form which denotes the petitioner’s
punishment as “sixteen years at 100% with 15% for credits to serve ....” Additionally, our review of
the “Sentence Reform Act of 1989" portion of the respective judgments for the Pickett and Overton
County offenses shows that both “Standard 30% Range I” and “Child Rapist” were marked. On the
judgment forms for the Putnam County offenses, only “Child Rapist” has been marked.
        Turning to the post-conviction hearing, the petitioner provided the initial testimony.
According to this witness he had believed that his sixteen year sentences out of Putnam County were
to be served at “100 percent with a possible fifteen percent reduction.” He added that he had
believed that he was receiving “the same sentence for 30 percent in Pickett County and Overton
County.” However, he and his attorney averred that the Department of Corrections had slated all of
these sentences to be served at one hundred percent, and the petitioner explained that he had not been
“receiving any time for good time.” In addition, the petitioner stated that the removal of an Indiana
detainer3 had been another condition of his plea, yet the detainer remained in place at the time of the
post-conviction evidentiary hearing. The petitioner averred that the removal of the detainer had been
“the clincher” in his decision to accept the plea agreement. Nevertheless, he acknowledged that no
mention had been made of this condition in the plea agreement form. He also admitted that when
asked by the trial court prior to accepting his plea if anyone had promised him “anything other than
this agreement,” his reply had been “no, sir.” However, he explained that he had believed the
dismissal of the detainer warrant to have been part of the agreement and had received assurance,
upon asking in open court, that it would be done.
        Because the trial court had described the aforementioned percentages for service as a matter
“to take up with the Department of Corrections,” the testimony of defense attorney Doug Thomas
and prosecutor Ben Fann focused on the detainer. In essence, Thomas stated that Fann had assured
him that the detainer would be removed, and he had taken Fann at his word. Thomas added that he
had advised his client to trust Fann and that this assurance had ultimately resulted in the petitioner’s

         1
             At the time of the plea, four additional child sex offense charges were nollied.

         2
             This statute provides a d etailed discussion of senten ce reduction cred its.

         3
           A detainer notice was made an exhibit to the record and indicates that Indiana currently has pending m atters
against the petitioner related to two child molestation charges. The transcript states that these involve either a violation
of probation or of parole. Oddly, the detainer notice provides that it went into effect o n Octob er 8, 199 8. This w ould
have been after the date of the petitioner’s plea.

                                                              -2-
acceptance of the plea. The petitioner’s attorney believed that the local district attorney’s office
could negotiate with the Indiana authorities and secure the removal as aid to a fellow prosecutor in
Tennessee. However, though Fann had believed that Indiana would choose to dismiss the detainer
warrant because of the length of the petitioner’s sentence here in Tennessee, this prosecutor asserted
that the he had not promised the removal of the detainer4. He acknowledged that he had agreed to
contact the appropriate Indiana authorities suggesting the dismissal and had done so. Nevertheless,
Indiana did not elect to follow his recommendation. Fann also stated that he had believed that the
desire for the dismissal had been connected to the petitioner’s hope for a furlough but not related to
the plea agreement. In addition, this witness claimed “that any attorney knows that none of us can
call some other state and tell them they have to release a hold that they have on somebody for a
violation of probation.”
         At the conclusion of the proof, the trial court denied the petition. In doing so, the trial court
did not consider the allegation relative to the service of the petitioner’s sentences at one hundred
percent without any reduction in time for good time credits. With respect to the detainer issue, the
trial court did not find credible the petitioner’s testimony that the promised removal thereof was “the
clincher” for his accepting the plea. To support this conclusion, the trial court noted “that little
reference was made to [the detainer] prior to and very little emphasis was placed on it at the time of
the plea.” The trial court further averred that if the removal of such had been the key to the
agreement, then the petitioner likely would not have proceeded with pleading guilty upon learning
in court at the time of the plea that the detainer had not already been removed as he had understood.
Beyond this the trial court observed that the petitioner had been facing numerous class A felony
charges for which the starting point of sentencing considerations would have been twenty years, yet
the petitioner’s entire sentence by virtue of this plea was sixteen years.
         Subsequently, the trial court filed a order regarding the petition. Therein the trial judge
asserted that he had ordered neither the service of the Putnam County sentences at eighty-five
percent nor the removal of the detainer. He further observed that the plea form made no mention of
the detainer though it did aver that no promises had been made other than those evidenced on the
form. The trial court also concluded from the testimony and a letter introduced at the hearing that
the discussion of the detainer had related to the possibility of a furlough and not to the plea. Having
made these findings, the trial judge concluded that no basis for relief existed and denied the petition.

                                    Post-Conviction Standard of Review

        In analyzing the issues raised, we first note that an individual bringing a post-conviction
petition bears the burden of proving the allegations asserted in the petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-210(f). Moreover, the trial court's findings of fact “are
conclusive on appeal unless the evidence preponderates against the judgment.” Tidwell v. State, 922
S.W.2d 497, 500 (Tenn. 1996); see also Campbell v. State, 904 S.W.2d 594, 596 (Tenn. 1995).




         4
         Fann contended that comments he had made at the time of the plea seeming ly assuring that the deta iner wo uld
be removed have been misinterpreted.

                                                         -3-
                         Unfulfilled Plea Agreement - Detainer Still in Effect

       Within his appeal the petitioner argues that the State has left unfulfilled the agreement it
made with the petitioner because the above-referenced detainer remains in place. He, therefore,
contends that his due process rights were violated because his plea was not knowingly and
voluntarily entered. He further avers that the situation has resulted from prosecutorial misconduct.
       In support of his claim, the petitioner quoted5 the following proposition:
       [A] plea of guilty by one fully aware of the direct consequences, including the actual
       value of any commitments made to him by the court, prosecutor, or his own counsel,
       must stand unless induced by threats (or promises to discontinue improper
       harassment), misrepresentation (including unfulfilled or unfulfillable promises), or
       perhaps by promises that are by their very nature improper as having no proper
       relationship to the prosecutor’s business (e.g. bribes).

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Brady v. United States, 397 U.S.
742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970)); see also State v. Wilson, 31 S.W.3d 189,
195 (Tenn. 2000). He then asserts that the non-removal of the Indiana detainer constituted an
unfulfilled promise.
        However, after reviewing the record, we conclude that the evidence does not preponderate
against the trial court’s rejection of this claim. For example, the plea form does not mention this
allegedly critical element of the agreement though it includes such factors as the State’s commitment
to recommend that the petitioner be placed in a special needs facility. Furthermore, the trial court
noted that the agreed upon sentence of sixteen years was, indeed, favorable in comparison to what
the petitioner might face on conviction without an agreement. We, therefore, determine that this
portion of the petitioner’s argument lacks merit.
        The same is true regarding the petitioner’s allegation of prosecutorial misconduct. Well-
settled Tennessee precedent provides that the test to be applied by the appellate court in reviewing
allegations of prosecutorial misconduct is "whether such conduct could have affected the verdict to
the prejudice of the defendant." State v. Smith, 803 S.W.2d 709, 710 (Tenn. Crim. App. 1990)
(citing Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App.1976)). Having determined that the
detainer was not a promised portion of the plea, we see no misconduct on the part of the prosecutor
nor do we find that the verdict would have been changed if such misconduct had occurred. For
example, as above-noted, the trial court concluded that the petitioner would have pled guilty anyway
because he had been assured of receiving concurrent sixteen year sentences instead of facing the risk
of serving considerably longer time resulting from a sentencing hearing. The evidence does not
preponderate against this conclusion; thus, this claim does not merit relief.




         5
          We caution petitioner’s counsel to take greater care in his appellate briefs as he provided no citation to a
volume of South Western Reporter for Blankenship and misiden tified the case quoted th erein as Bradley v. United
States.

                                                         -4-
                      Unfulfilled Plea Agreement – Sentences Set to Serve at
                     One Hundred Percent with No Potential Reduction in Time

        The petitioner also asserts that his plea was not knowingly and voluntarily entered and,
therefore, his due process rights were violated because his Putnam County sentences have been set
to serve at one hundred percent instead of eighty-five percent. He avers that this represents an
unfulfilled promise. Additionally, he again alleges prosecutorial misconduct. However, we need not
directly address either of these concerns since a related issue not addressed by either of the parties,
requires reversal of the petitioner’s convictions: all four of his sentences are illegal.6
        Effective July 1, 1992, Tennessee Code Annotated §39-13-523 stated:
        Notwithstanding any other provision of law to the contrary, ... a child rapist ... shall
        be required to serve the entire sentence imposed by the court undiminished by any
        sentence reduction credits such person may be eligible for or earn. A ... child rapist
        shall be permitted to earn any credits for which such person is eligible and such
        credits may be used for the purpose of increased privileges, reduced security
        classification, or for any other purpose than the reduction of the sentence imposed by
        the court.
Tenn. Code Ann. § 39-13-523 (Supp. 1992).
        In 1995, however, the Tennessee General Assembly adopted Tennessee Code Annotated
Section 40-35-501(h)(2)(i)(1) and (2) which provides:
        (i)(1) There shall be no release eligibility for a person committing an offense, on or
        after July 1, 1995, that is enumerated in subdivision (2). Such person shall serve one
        hundred percent (100%) of the sentence imposed by the court less sentence credits
        earned and retained. However, no sentence reduction credits authorized by § 41-21-
        236, or any other provision of law, shall operate to reduce the sentence imposed by
        the court by more than fifteen percent (15%).
                (2)      The offenses to which the provisions of subdivision (1) apply are:
                         (A)     Murder in the first degree;
                         (B)     Murder in the second degree;
                         (C)     Especially aggravated kidnapping;
                         (D)     Aggravated kidnapping;
                         (E)     Especially aggravated robbery;
                         (F)     Aggravated rape;
                         (G)     Rape;
                         (H)     Aggravated sexual battery;
                         (I)     Rape of a child; (Emphasis supplied)




         6
             While the petitioner does not specifically address his Pickett County an d Over ton Cou nty con victions in
relation to this issue, an illegal senten ce may be noted at anytim e. See, e.g., State v. Mahler, 735 S.W.2d 226, 228 (Tenn.
1987) ; State v. Burkhart, 566 S.W.2d 871, 87 3 (Tenn. 1978).

                                                            -5-
        One reading the above might reasonably conclude that even a person convicted of rape of a
child committed after July 1, 1995, is eligible for up to 15% reduction credits authorized by § 41-21-
236. However, the very next subdivision of § 40-35-501, subdivision (3) provides:
               Nothing in this subsection shall be construed as affecting, amending
               or altering the provisions of § 39-13-523, which requires child rapists
               and multiple rapists to serve the entire sentence imposed by the court
               undiminished by any sentence reduction credits.

        Subdivision (3) is a specific subdivision which deals exclusively with child rapists and
multiple rapists and it controls over the provisions of subdivisions (1) and (2) which appear to
authorize up to 15% reduction credits for a number of offenders including child rapists.7 See, Strader
v. United Family Life Ins. Co., 218 Tenn. 411, 403 S.W.2d 765 (1966); Byrd v. Bradley, 913 S.W.2d
181, 183 (Tenn. App. 1995); Brockner v. Estes, 698 S.W.2d 637 (Tenn. App. 1985); State v. Lowe,
661 S.W.2d 701, 703 (Tenn. Crim. App. 1983); State v. Nelson, 577 S.W.2d 465, 466 (Tenn. Crim.
App. 1978). (All holding that where one statute conflicts with another, or where portions of a single
statute conflict, the more specific provisions control over the general provisions).
        From our review of the indictments, we conclude that each of the four offenses at issue here
occurred after July 1, 1992.8 Furthermore, all four of the petitioner’s convictions arise from
indictments citing the offense violated as being Tennessee Code Annotated § 39-13-522, the caption
of which is “Rape of a Child.” See Tenn. Code Ann. § 39-13-522. As above-referenced, our code
clearly states that a child rapist is to serve his or her sentence day for day.
        With these facts in mind, we turn to the agreement at the time of the plea and the respective
judgment forms. As aforementioned, the prosecutor stated and the trial court affirmed that the
petitioner’s sentences arising out of Pickett and Overton County were to be “at 30 percent.” As
aforementioned, the “Sentence Reform Act of 1989" portion of these documents has both “Standard
30% Range I” and “Child Rapist” marked.9 Turning to the Putnam County offenses, the prosecutor
recommended and the trial court accepted sentences “at 100 percent” which could “be reduced to
85 percent by credits under [Tennessee Code Annotated §] 41-21-236.” The plea agreement form
provided relative to the Putnam County cases states that the petitioner’s punishment was to be
concurrent sentences of “sixteen (16) years at 100% with 15% for credits to serve ....” Although
“Child Rapist” alone is indicated on the judgments for these offenses thereby warranting a 100%
service of sentence, the transcript of the guilty plea hearing showing the petitioner was to receive up



         7
           W e cannot phathom why the General A ssembly includ ed child rape in its list of felonies in subdivision (2)
subject to 15% reduction credits, only to exclude in the v ery next subd ivision, child rape from any sentence c redits.

         8
          The ch arging in strumen ts reveal that th e Pickett Co unty offense a llegedly o ccurred in “the late [s]pring of
1993;” the Overton County offense allegedly occurred “during a period of time from the spring of 1994 to the fall of
1995;” and the Putnam County offenses allegedly occurred “on or about January, 1996" and “on or abou t April, 199 6.”

         9
           In some instances the record might reflect that such was a clerical error to be corrected under T ennessee Rule
of Criminal Pr ocedu re 36. Ho wever, th at clearly is no t the situation h ere as evid enced b y the gu ilty plea subm ission
hearing transcript.

                                                             -6-
to a fifteen percent reduction controls. See, e.g., State v. Moore, 814 S.W.2d 381, 383 (Tenn. Crim.
App. 1991).
         These sentences allowing a reduction in the time to be served for child rape are in
contravention of statutory law. This Court has previously held that when a recommendation includes
an illegal sentence, “on remand the trial court must reject the recommended sentence. At that stage,
proceedings on the guilty plea shall be governed by Rule 11(e)(2) or 11(e)(4) of the Tennessee Rules
of Criminal Procedure.” Dixon v. State, 934 S.W.2d 69, 73 (Tenn. Crim. App.1996).

                                           Conclusion

        For the foregoing reasons we determine that all of the sentences recommended by the State
for child rape are illegal. Accordingly, the case is REVERSED AND REMANDED for action
consistent with the above-guidelines.


                                                      ___________________________________
                                                      JERRY L. SMITH, JUDGE




                                                -7-
