“This case should serve as a cautionary tale for any prosecutor, defense attorney, or trial court who attempts to negotiate or accept a guilty plea involving concurrent state and federal sentencing.”

So began the Tennessee Court of Criminal Appeals reversal of a post-conviction court.  Post-conviction wins are rare.  Extremely rare, even.  So, when there is a post-conviction win, it typically isn’t on the “standard” post-conviction issues, such as the amount of time the attorney spent counseling the petitioner.  Normally, there has to be a “smoking gun,” black and white type error where counsel messed up.  Even if there is such an error, the facts supporting it have to be proven by clear and convincing evidence and it had to actually prejudice the defendant.  In other words, the error must undermine confidence in the outcome in a way that “renders the result of the trial unreliable or the proceeding fundamentally unfair.”

In this case, there was a smoking gun type error, i.e., the plea agreement guaranteed the petitioner that his state sentence would run concurrently with his federal sentence.  In fact, the bottom of the plea agreement read, “ALL OF THE ABOVE TO RUN CONCURRENTLY WITH FEDERAL SENTENCE.”  The problem here is the State cannot make that agreement.  In other words, the State can’t force the federal government to run the sentencing concurrently.  As the court of criminal appeals put it, “[A] state court provision requiring federal and state sentences to run concurrently is not worth the paper on which it is written.”

Based on the above, the Tennessee Court of Criminal Appeals reversed the post-conviction court’s denial of relief and allowed the petitioner to withdraw his guilty plea.

Schaeffer v. State, E2016-01614-CCA-R3-PC (Tenn. Crim. App. Oct. 6, 2017).

Do not raise ineffective assistance of counsel on direct appeal

The Tennessee Court of Criminal Appeals just denied an inmate’s post-conviction petition based on ineffective assistance of counsel because the issue was previously raised in the inmate’s motion for new trial and on direct appeal.  The court noted that raising ineffective assistance of counsel on direct appeal is “fraught with peril.”  Even if the reasons why counsel was ineffective are different, litigating the issue before post-conviction precludes litigating it during post-conviction.

That isn’t to say that there is never a time to argue ineffective assistance of counsel on direct appeal.  Theoretically, an attorney could be so horrible and the evidence could be so weak that a win is guaranteed on direct appeal.  Imagine an attorney breaking down in front of a jury and saying, “My client really is guilty.  He killed her.  He told me he did it.”  If the evidence against the client was also weak, it wouldn’t make sense to wait in jail for the appeals process to finish before arguing the issue during post-conviction.  However, in reality, this would almost never happen because a trial judge would declare a mistrial.  Thus, there is almost never a good reason to raise ineffective assistance of counsel on direct appeal.

If you’re interested in the Tennessee appeals process, check out this document from the Tennessee Attorney General’s Office.

Kirkwood v. State, No. W2016-00948-CCA-R3-PC (Tenn. Crim. App. Aug. 7, 2017)