            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                             June 2000 Session

                    STEVE BARKER v. STATE OF TENNESSEE

                         Appeal from the Circuit Court for Dyer County
                           No. C96-198    J. Steven Stafford, Judge



                         No. W1999-00544-CCA-R3-PC - August 4, 2000


Petitioner appeals the denial of his petition for post-conviction relief. Prior to entering a guilty plea
in the instant case, the petitioner had been sentenced to twelve years for other state convictions and
a consecutive 105 months on federal charges. Petitioner entered a plea of guilty to the current
charges, which included six counts of theft over $1,000 and one count of burglary, Class D felonies,
and nineteen counts of aggravated burglary, Class C felonies. Pursuant to a negotiated agreement,
the petitioner received an effective sentence of eighteen years as a Range I, standard offender. The
agreement provided that this sentence would be served concurrently with both his prior state and
federal sentences. The petitioner now claims that, but for counsel’s ineffective assistance, he would
not have pled guilty. Following a review of the record, we find trial counsel was not ineffective and
affirm the judgment of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ALAN E. GLENN, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JOE G.
RILEY, JJ., joined.

Thomas E. Weakley, Dyersburg, Tennessee, for the appellant, Steve Barker.

Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General;
and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.


                                              OPINION


                                PROCEDURAL BACKGROUND

        Prior to pleading guilty in the instant case, petitioner had received an effective twelve-year
sentence for other state convictions and a consecutive 105-month sentence for a federal conviction.
Pursuant to a negotiated plea agreement, the defendant pled guilty in Dyer County to six counts of
theft over $1,000 and one count of burglary, Class D felonies, and nineteen counts of aggravated
burglary, Class C felonies. He received an effective eighteen-year sentence as a Range I standard
offender. The agreement provided that this sentence was to be served concurrently with the prior
state and federal sentences.

        The petitioner now appeals the trial court's denial of post-conviction relief. He claims that
due to Tennessee Department of Correction (TDOC) calculations, the plea agreement has been
effectively invalidated. He contends that his trial counsel was ineffective in failing to learn of
TDOC's method of calculation. He claims that if he had been properly informed of the potential for
an extended period of incarceration, beyond that received under his prior state and federal
convictions, he would not have pled guilty. We affirm the judgment of the trial court.


                                    STANDARD OF REVIEW

       This court reviews a claim of ineffective assistance of counsel under the standards of Baxter
v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). The petitioner has the burden to prove that (1) the attorney’s
performance was deficient, and (2) the deficient performance resulted in prejudice to the defendant
so as to deprive him of a fair trial. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Goad v. State,
938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State,
789 S.W.2d 898, 899 (Tenn. 1990). The test in Tennessee to determine whether counsel provided
effective assistance is whether his performance was within the range of competence demanded of
attorneys in criminal cases. Baxter, 523 S.W.2d at 936. The petitioner must overcome the
presumption that counsel’s conduct falls within the wide range of acceptable professional assistance.
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; State v. Burns, 6 S.W.3d 453, 462 (Tenn. 1999).

        In Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), the Supreme Court
applied the two-part Strickland standard to ineffective assistance of counsel claims arising out of a
guilty plea. The Court in Hill modified the prejudice requirement by requiring a defendant to show
that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty
and would have insisted on going to trial. 474 U.S. at 59, 106 S. Ct. at 370; Hicks v. State, 983
S.W.2d 240, 246 (Tenn. Crim. App.), perm. app. denied (Tenn. 1998).


                                            ANALYSIS

        The petitioner contends his trial counsel was ineffective because he failed to ensure the plea
agreement would be carried out as the parties intended. Since the eighteen-year sentence ran
concurrently with the prior state and federal sentences, he claims the goal of the plea agreement was
to ensure he would spend no further time in confinement on the current charges. However, he claims
that TDOC bases his parole eligibility on the longest sentence he has in its system, which is eighteen
years and not twelve years. Furthermore, petitioner claims federal authorities will not give him
credit for time served until he is released from state custody and moved to a federal prison.
Therefore, petitioner claims he now faces a potential of six additional years of incarceration above

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that intended. Thus, he contends trial counsel should have confirmed with TDOC that his sentence
would operate as the parties intended, and further claims he would not have pled guilty had he been
informed he could face additional incarceration.

        The trial court found the defendant’s trial counsel rendered effective representation. The trial
court noted it was without jurisdiction to address potential problems relating to serving the federal
sentence. Furthermore, it held the defendant failed to show his state parole possibilities would
actually be based upon eighteen years. The trial court also noted the petitioner had not established
that he cannot receive federal credit until he is in federal custody. In summary, the trial court noted
that the petitioner’s arguments were merely speculative. We agree with the trial court’s findings.

       This court has held that erroneous parole eligibility advice by counsel may give rise to a
claim of ineffective assistance of counsel. Walton v. State, 966 S.W.2d 54, 55 (Tenn Crim. App.
1997). However, unlike Walton, in the instant case, petitioner conceded trial counsel did not advise
him he would be paroled within any specified period of time.

        We conclude that petitioner received the exact sentences agreed upon, namely, twelve years
(prior state sentences) plus a consecutive 105 months (prior federal sentence) with the instant
eighteen-year sentence to run concurrently with both prior sentences. If petitioner feels aggrieved
by the TDOC method of calculation of parole eligibility, the proper remedy is through the
Administrative Procedures Act. See Brigham v. Lack, 755 S.W.2d 469, 471 (Tenn. Crim. App.
1988); Tray D. Turner v. State, No. 03C01-9902-CR-00088, 1999 WL 1081331, at *1 (Tenn. Crim.
App., Knoxville, Dec. 1, 1999). As noted by the trial court, we will not speculate as to when federal
authorities will take custody of petitioner, nor will we speculate as to how federal authorities will
at some point in the future calculate credits toward its sentence. If petitioner feels aggrieved by the
action taken or not taken by federal authorities, we assume he can seek relief in the appropriate
federal forum. For these reasons, we conclude that petitioner has not established ineffective
assistance of counsel, nor has he established that his plea was unknowing.

        We also observe that petitioner was indicted on nineteen counts of aggravated burglary (Class
C felonies), one count of theft over $10,000 (Class C felony), five counts of theft over $1,000 (Class
D felonies), and one count of burglary (Class D felony). The transcript of the guilty plea reveals that
the petitioner had “confessed to all these burglaries” and was at least a Range II offender facing six
to ten years for each aggravated burglary, six to ten years for theft over $10,000, four to eight years
for burglary, and four to eight years for each theft over $1,000. Furthermore, he faced the very real
possibility of consecutive sentencing based upon his extensive prior criminal history. See Tenn.
Code Ann. § 40-35-115(b)(2). Furthermore, the petitioner had just been sentenced to twelve years
plus 105 months in other courts. Under these circumstances, counsel’s ability to negotiate Range
I sentences of eighteen-years concurrent with the prior sentences does not constitute ineffective
assistance of counsel.


                                          CONCLUSION


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        Based upon our review of the record, we conclude that the defendant’s trial counsel rendered
effective assistance during the plea negotiations and guilty plea proceeding. We further conclude
that petitioner’s guilty plea was knowingly and voluntarily entered. Thus, the judgment of the trial
court is affirmed.




                                                      _____________________________________
                                                      ALAN E. GLENN, JUDGE




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