         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON

                      STATE OF TENNESSEE v. TAB VIRGIL

                               Criminal Court for Shelby County
                                         No. 04-05409



                  No. W2006-02346-CCA-R3-CD - Filed February 14, 2008



David G. Hayes, J., separate concurring.


       I join with the majority, but write separately for the following reasons.

        This case is but one of many cases from Shelby County in which a defendant has raised
before this court a challenge to the voluntariness of his guilty plea based upon a plea agreement
which provided that the defendant’s state sentences would be served concurrently to the defendant’s
outstanding or pending federal sentence. See e.g., Lucious Allen v. State, No. W2000-02320-CCA-
OT-PC (Tenn. Crim. App. at Jackson, Nov. 2, 2001); Joseph T. Faulkner v. State, No. W1999-
00223-CCA-R3-PC (Tenn. Crim. App. at Jackson, Oct. 17, 2000); State v. Bruce C. Reliford, No.
W1999-00826-CCA-R3-CD (Tenn. Crim. App. at Jackson, Oct. 2, 2000); Derrick E. Means v. State,
No. 02C01-9707-CR-00248 (Tenn. Crim. App. at Jackson, Aug. 13, 1998); Joe Seigle v. Oscar
Mason, No. 03C01-9610-CR-00364 (Tenn. Crim. App. at Knoxville, Oct. 1, 1997). The obvious
dilemma presented by this plea agreement is that the State of Tennessee lacks any authority to
control a federal sentence. The determination by federal authorities as to the manner in which a
federal sentence is to be served in federal custody in conjunction with a state sentence is a federal
matter “which cannot be overridden by a state court provision for concurrent sentencing on a
subsequently-obtained state conviction.” Derrick E. Means v. State, No. 02C01-9707-CR-00248
(Tenn. Crim. App. at Jackson, Aug. 13, 1998)(citations omitted). One United States Court of
Appeals Judge has summarized the problem from the federal perspective as follows:

       State sentencing judges and defense attorneys in state proceedings should be put on
       notice. Federal prison officials are under no obligation to, and may well refuse to,
       follow a recommendation of state sentencing judges that a prisoner be transported to
       a federal facility. Moreover, concurrent sentences imposed by state judges are
       nothing more than recommendations to federal officials. Those officials remain free
       to turn those concurrent sentences into consecutive sentences by refusing to accept
       the state prisoner until completion of the state sentence and refusing to credit the time
       the prisoner spent in state custody.
Del Guzzi v. United States, 980 F.2d 1269, 1272-73 (9th Cir. 1992) (Norris, J., concurring). In all
of the above referenced Shelby County cases, the federal correctional facility refused to accept return
of the defendant until the state sentences had been served; the effect of which resulted in the
defendant’s state negotiated concurrent sentences being transformed into consecutive sentences.

        This, in turn, leads to the underlying issue presented in this appeal, i.e., the voluntariness of
the guilty plea within the context of a negotiated plea agreement. Acknowledging the attachment
of due process rights within the guilty plea proceeding, the United States Supreme Court has
observed:

        [Where] a plea rests in any significant degree on a promise or agreement of the
        prosecutor, so that it can be said to be part of the inducement or consideration, such
        promise must be fulfilled . . . That the breach of agreement was inadvertent does not
        lessen its impact.

Santobello v. New York, 404 U.S. 257, 264, 92 S. Ct. 495, 499 (1971). It is apparent in this case that
the Defendant’s guilty pleas were induced in “significant” degree upon the agreement that his state
and federal sentences would run concurrently. Accordingly, withdrawal of his guilty pleas are
warranted.

       It should be emphasized, in view of the ongoing nature of this issue, that neither the State nor
defense counsel should enter into any plea agreement which contains contingencies within the
agreement or which, by law, cannot be achieved.




                                                        ____________________________________
                                                        DAVID G. HAYES, JUDGE




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