Post-Conviction Relief Granted Because of Release Eligibility Misinformation

Last year, the Tennessee Court of Criminal Appeals reversed a trial court’s denial of post-conviction relief and allowed the petitioner to withdraw his guilty plea.  Previously, the petitioner’s attorney advised him that he would serve a 15-year sentence at 85% and the trial court told him that his sentences were eligible for an up to fifteen percent reduction.  However, the petitioner’s sentences were actually to be served at 100%, a two year and three month difference.

In determining that counsel was ineffective, the appellate court emphasized the difference between cases where counsel fails to inform the petitioner about release requirements and cases where counsel misinforms the petitioner about such requirements.  Since the petitioner was significantly misinformed about his release eligibility, the court of criminal appeals concluded that his plea was not knowingly and voluntarily entered.  Therefore, it reversed the post-conviction court’s denial of the petition and remanded for the petitioner to withdraw his guilty plea.

Davis v. State, No. E2015-00772-CCA-R3-PC (Tenn. Crim. App. Sept. 9, 2016)

“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).

The Statute of Limitations for Post-Conviction Petitions is One Year

The Tennessee Court of Criminal Appeals affirmed the dismissal of a Shelby County inmate’s petition for post-conviction relief because the inmate failed to timely file his petition or prove an exception to timely filing.  A post-conviction petition must be filed “within one (1) year of the date of the final action of the highest state appellate court to which an appeal is taken or, if no appeal is taken, within one (1) year of the date on which the judgment became final.”  T.C.A. § 40-30-102(a).  The statutory exceptions to the rule are as follows:

(1) The claim in the petition is based upon a final ruling of an appellate court establishing a constitutional right that was not recognized as existing at the time of the trial, if retrospective application of that right is required.  Such petition must be filed within one (1) year of the ruling of the highest state appellate court or the United States [S]upreme [C]ourt establishing a constitutional right that was not recognized as existing at the time of the trial;

(2) The claim in the petition is based upon new scientific evidence establishing that the petitioner is actually innocent of the offense or offenses for which the petitioner was convicted; or

(3) The claim asserted in the petition seeks relief from a sentence that was enhanced because of a previous conviction and such conviction in the case in which the claim is asserted was not a guilty plea with an agreed sentence, and the previous conviction has subsequently been held to be invalid, in which case the petition must be filed within one (1) year of the finality of the ruling holding the previous conviction invalid.

T.C.A. § 40-30-102(b)(1)-(3).  Also, “in very limited circumstances,” due process principles may require tolling of the post-conviction statute of limitations.  Seals v. State, 23 S.W.3d 272 (Tenn. 2000) (due process required tolling the statute of limitations because of mental incompetence).

In the case at hand, the inmate filed a petition nearly three and one-half years after the judgment became final.  Since neither the statutory grounds nor due process principles applied to toll the statute of limitations, the court of criminal appeals affirmed the post-conviction court’s dismissal of the petition.

Britton v. State, No. W2016-01298-CCA-R3-PC (Tenn. Crim. App. Aug. 21, 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)