IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JANUARY 1998 SESSION FILED January 30, 1998
Cecil Crowson, Jr. MELVIN CURRIE, ) Appellate C ourt Clerk ) NO. 02C01-9701-CC-00047 Appellant, ) ) HAYWOOD COUNTY VS. ) ) HON. DICK JERMAN, JR., STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
TOM W. CRIDER JOHN KNOX WALKUP District Public Defender Attorney General and Reporter
JOYCE DIANE STOOTS KENNETH W. RUCKER Assistant Public Defender Assistant Attorney General 107 South Court Square Cordell Hull Building, 2nd Floor Trenton, TN 38382-1866 425 Fifth Avenue North Nashville, TN 37243-0493
CLAYBURN L. PEEPLES District Attorney General
LARRY HARDISTER Assistant District Attorney General 110 College Street, Suite 200 Trenton, TN 38382-1841
OPINION FILED:
AFFIRMED
JOE G. RILEY, JUDGE OPINION
The petitioner, Melvin Currie, appeals the order of the Circuit Court of
Haywood County dismissing his petition for post-conviction relief. Petitioner pled
guilty in 1991 to the sale of cocaine and received a sentence of six (6) years with
all time suspended except for time served. In his post-conviction petition, he alleges
that: (1) his guilty plea was not knowing and voluntary; (2) he received an illegal
sentence; and (3) trial counsel was ineffective. Furthermore, he contends that his
guilty plea should be set aside because there was no factual basis to support the
plea. We find no error; therefore, the judgment of the trial court is affirmed.
PROCEDURAL BACKGROUND
Two years subsequent to the entry of his guilty plea to the sale of cocaine,
petitioner filed a pro se petition for writ of habeas corpus, which was summarily
dismissed by the trial court without an evidentiary hearing. This Court reversed that
decision, finding that: (1) the trial court erred in dismissing the petition without
appointing counsel and conducting an evidentiary hearing; and (2) the petition
should have been treated as one for post-conviction relief. Melvin Currie v. State,
C.C.A. No. 02C01-9501-CC-00020, Haywood County (Tenn. Crim. App. filed
September 13, 1995, at Jackson). The case was remanded to the trial court.
Subsequently, the trial court issued an order appointing counsel, and
petitioner filed a petition for post-conviction relief. After a hearing on the petition
was conducted, the trial court dismissed the petition. Petitioner now brings this
appeal.
FACTUAL BACKGROUND
The subject guilty plea arose from a five (5) count indictment charging
petitioner with: (1) illegal sale of a counterfeit controlled substance in Count One;
2 (2) possession with the intent to sell or deliver cocaine in Count Two; (3) sale of
cocaine in Count Three; (4) delivery of cocaine in Count Four; and (5) simple
possession of cocaine in Count Five.1
Petitioner agreed to enter a guilty plea to one count of the sale of cocaine in
exchange for the dismissal of the remaining charges. During the guilty plea
proceedings, defense counsel stated, “[s]ubject to your Honor’s approval Mr. Currie
and the State have agreed that upon his plea of guilty to one count of sale of a
Schedule II controlled substance, to-wit, cocaine, that he will receive a six year
sentence suspended with time served.” (emphasis added). At no time during the
proceedings did anyone specify that the plea was to any specific count number of
the indictment.
The written plea of guilty and waiver of jury trial form listed the offense as one
(1) count of selling a Schedule II controlled substance. This document similarly did
not enumerate the corresponding count number on the indictment.
However, the judgment entered by the trial court indicated that petitioner was
convicted on Count One of the indictment, even though the document named the
offense as the sale of cocaine. The indicted charge in Count One was the sale of
a counterfeit controlled substance, not the sale of cocaine. In other words, the
judgment erroneously specified that petitioner was convicted on Count One of the
indictment, when, in fact, he pled guilty to Count Three.
Petitioner seeks post-conviction relief claiming that there is no factual basis
for a conviction of the sale of cocaine under Count One of the indictment because
the substance sold under Count One was not cocaine. At the hearing on the
petition, the trial court found that petitioner knowingly and voluntarily entered a plea
of guilty to the sale of cocaine and accepted a six (6) year sentence with all time
suspended except for time served. The trial court determined that the entry of
“Count One” on the judgment form was merely a clerical error in that “[t]here [was]
no question in anybody’s mind, including Mr. Currie’s, that he pled guilty to Count
Three.” The court then ordered that the judgment be amended to reflect the proper
1 This count was eventually dismissed as it was barred by the statute of limitations.
3 count.
CLERICAL ERROR
Initially, we must agree with the trial court that this entire matter arose out of
a mere technicality. Although the judgment does state that petitioner was convicted
on Count One of the indictment, the transcript unquestionably shows that petitioner
pled guilty to the sale of cocaine. When there is a conflict between the court
minutes or judgment and the transcript, the transcript controls. State v. Moore, 814
S.W.2d 381, 383 (Tenn. Crim. App. 1991); State v. Davis, 706 S.W.2d 96, 97
(Tenn. Crim. App. 1985). Therefore, we conclude that petitioner pled guilty to Count
Three of the indictment, which charged the sale of cocaine. The trial court properly
ordered the modification of the judgment to correct this clerical error. Clerical errors
may be corrected at any time. See Tenn. R. Crim. P. 36.
VOLUNTARINESS OF GUILTY PLEA
Petitioner claims that his plea of guilty was involuntarily and unknowingly
entered because he did not know that his plea of guilty was not supported by any
facts. To the contrary, attached as an exhibit to the post-conviction hearing is a lab
report which identifies 21.1 grams of white powder as cocaine, which was collected
in connection with the case against petitioner. 2
Furthermore, the trial court found that petitioner’s guilty plea to the sale of
cocaine was knowingly and voluntarily entered. The trial judge's findings of fact on
post-conviction hearings are conclusive on appeal unless the evidence
preponderates otherwise. Butler v. State, 789 S.W.2d 898, 899-900 (Tenn. 1990);
2 Another lab report was also made an exhibit at the hearing which stated that a bag of 13.4 grams of white powder did not contain any controlled substances. It is this report which petitioner refers to as being determinative of his claim that no evidence exists to support the conviction for the sale of cocaine. However, we must conclude that this report is the basis for the initial charge of sale of a counterfeit controlled substance as alleged in Count One of the indictment.
4 Adkins v. State, 911 S.W.2d 334, 354 (Tenn. Crim. App. 1995). The burden of
establishing that the evidence preponderates otherwise is on petitioner. Black v.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JANUARY 1998 SESSION FILED January 30, 1998
Cecil Crowson, Jr. MELVIN CURRIE, ) Appellate C ourt Clerk ) NO. 02C01-9701-CC-00047 Appellant, ) ) HAYWOOD COUNTY VS. ) ) HON. DICK JERMAN, JR., STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
TOM W. CRIDER JOHN KNOX WALKUP District Public Defender Attorney General and Reporter
JOYCE DIANE STOOTS KENNETH W. RUCKER Assistant Public Defender Assistant Attorney General 107 South Court Square Cordell Hull Building, 2nd Floor Trenton, TN 38382-1866 425 Fifth Avenue North Nashville, TN 37243-0493
CLAYBURN L. PEEPLES District Attorney General
LARRY HARDISTER Assistant District Attorney General 110 College Street, Suite 200 Trenton, TN 38382-1841
OPINION FILED:
AFFIRMED
JOE G. RILEY, JUDGE OPINION
The petitioner, Melvin Currie, appeals the order of the Circuit Court of
Haywood County dismissing his petition for post-conviction relief. Petitioner pled
guilty in 1991 to the sale of cocaine and received a sentence of six (6) years with
all time suspended except for time served. In his post-conviction petition, he alleges
that: (1) his guilty plea was not knowing and voluntary; (2) he received an illegal
sentence; and (3) trial counsel was ineffective. Furthermore, he contends that his
guilty plea should be set aside because there was no factual basis to support the
plea. We find no error; therefore, the judgment of the trial court is affirmed.
PROCEDURAL BACKGROUND
Two years subsequent to the entry of his guilty plea to the sale of cocaine,
petitioner filed a pro se petition for writ of habeas corpus, which was summarily
dismissed by the trial court without an evidentiary hearing. This Court reversed that
decision, finding that: (1) the trial court erred in dismissing the petition without
appointing counsel and conducting an evidentiary hearing; and (2) the petition
should have been treated as one for post-conviction relief. Melvin Currie v. State,
C.C.A. No. 02C01-9501-CC-00020, Haywood County (Tenn. Crim. App. filed
September 13, 1995, at Jackson). The case was remanded to the trial court.
Subsequently, the trial court issued an order appointing counsel, and
petitioner filed a petition for post-conviction relief. After a hearing on the petition
was conducted, the trial court dismissed the petition. Petitioner now brings this
appeal.
FACTUAL BACKGROUND
The subject guilty plea arose from a five (5) count indictment charging
petitioner with: (1) illegal sale of a counterfeit controlled substance in Count One;
2 (2) possession with the intent to sell or deliver cocaine in Count Two; (3) sale of
cocaine in Count Three; (4) delivery of cocaine in Count Four; and (5) simple
possession of cocaine in Count Five.1
Petitioner agreed to enter a guilty plea to one count of the sale of cocaine in
exchange for the dismissal of the remaining charges. During the guilty plea
proceedings, defense counsel stated, “[s]ubject to your Honor’s approval Mr. Currie
and the State have agreed that upon his plea of guilty to one count of sale of a
Schedule II controlled substance, to-wit, cocaine, that he will receive a six year
sentence suspended with time served.” (emphasis added). At no time during the
proceedings did anyone specify that the plea was to any specific count number of
the indictment.
The written plea of guilty and waiver of jury trial form listed the offense as one
(1) count of selling a Schedule II controlled substance. This document similarly did
not enumerate the corresponding count number on the indictment.
However, the judgment entered by the trial court indicated that petitioner was
convicted on Count One of the indictment, even though the document named the
offense as the sale of cocaine. The indicted charge in Count One was the sale of
a counterfeit controlled substance, not the sale of cocaine. In other words, the
judgment erroneously specified that petitioner was convicted on Count One of the
indictment, when, in fact, he pled guilty to Count Three.
Petitioner seeks post-conviction relief claiming that there is no factual basis
for a conviction of the sale of cocaine under Count One of the indictment because
the substance sold under Count One was not cocaine. At the hearing on the
petition, the trial court found that petitioner knowingly and voluntarily entered a plea
of guilty to the sale of cocaine and accepted a six (6) year sentence with all time
suspended except for time served. The trial court determined that the entry of
“Count One” on the judgment form was merely a clerical error in that “[t]here [was]
no question in anybody’s mind, including Mr. Currie’s, that he pled guilty to Count
Three.” The court then ordered that the judgment be amended to reflect the proper
1 This count was eventually dismissed as it was barred by the statute of limitations.
3 count.
CLERICAL ERROR
Initially, we must agree with the trial court that this entire matter arose out of
a mere technicality. Although the judgment does state that petitioner was convicted
on Count One of the indictment, the transcript unquestionably shows that petitioner
pled guilty to the sale of cocaine. When there is a conflict between the court
minutes or judgment and the transcript, the transcript controls. State v. Moore, 814
S.W.2d 381, 383 (Tenn. Crim. App. 1991); State v. Davis, 706 S.W.2d 96, 97
(Tenn. Crim. App. 1985). Therefore, we conclude that petitioner pled guilty to Count
Three of the indictment, which charged the sale of cocaine. The trial court properly
ordered the modification of the judgment to correct this clerical error. Clerical errors
may be corrected at any time. See Tenn. R. Crim. P. 36.
VOLUNTARINESS OF GUILTY PLEA
Petitioner claims that his plea of guilty was involuntarily and unknowingly
entered because he did not know that his plea of guilty was not supported by any
facts. To the contrary, attached as an exhibit to the post-conviction hearing is a lab
report which identifies 21.1 grams of white powder as cocaine, which was collected
in connection with the case against petitioner. 2
Furthermore, the trial court found that petitioner’s guilty plea to the sale of
cocaine was knowingly and voluntarily entered. The trial judge's findings of fact on
post-conviction hearings are conclusive on appeal unless the evidence
preponderates otherwise. Butler v. State, 789 S.W.2d 898, 899-900 (Tenn. 1990);
2 Another lab report was also made an exhibit at the hearing which stated that a bag of 13.4 grams of white powder did not contain any controlled substances. It is this report which petitioner refers to as being determinative of his claim that no evidence exists to support the conviction for the sale of cocaine. However, we must conclude that this report is the basis for the initial charge of sale of a counterfeit controlled substance as alleged in Count One of the indictment.
4 Adkins v. State, 911 S.W.2d 334, 354 (Tenn. Crim. App. 1995). The burden of
establishing that the evidence preponderates otherwise is on petitioner. Black v.
State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Petitioner has failed to meet
this burden.
This issue is without merit.
ILLEGAL SENTENCE
Petitioner further asserts that his sentence of six (6) years is illegal because
it falls outside the range of punishment for the sale of a counterfeit controlled
substance. However, as previously discussed, petitioner pled guilty to the sale of
cocaine, not the sale of a counterfeit controlled substance. At the time the offense
was committed, the range of punishment for the sale of cocaine was four (4) to ten
(10) years. Tenn. Code Ann. § 39-6-417(a)(1)(B)(i) (Supp. 1988). Therefore,
because the imposed sentence of six (6) years is within the prescribed range,
petitioner’s sentence is not illegal.
INEFFECTIVE ASSISTANCE OF COUNSEL
Finally, petitioner claims that trial counsel was ineffective in that he did not
ascertain whether there was a factual basis to support the guilty plea. He maintains
that he pled guilty in reliance on his attorney’s erroneous advice. He also insists
that he received ineffective representation in that his attorney allowed him to receive
an illegal sentence.
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. Strickland v.
5 Washington, 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).
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.
During petitioner’s testimony at the post-conviction hearing, the following
exchange took place:
Q. Would you have pled guilty to Count Three that day which is a sale of crack cocaine -- a sale of cocaine if you had been advised that Count One was a counterfeit substance?
A. I probably would have.
Therefore, even if petitioner’s allegations were true,3 he is not entitled to relief.
Because petitioner would have pled guilty anyway, he cannot prove prejudice.
Thus, his ineffective assistance of counsel claim must fail.
CONCLUSION
Based upon the foregoing, the judgment of the trial court is affirmed.
3 We do not, however, concede that petitioner’s allegations are true. As previously discussed, petitioner entered a knowing and voluntary guilty plea to the sale of cocaine and received a sentence within the range permitted by the statute. Furthermore, petitioner has not established that trial counsel’s performance was inadequate or deficient.
6 JOE G. RILEY, JUDGE
CONCUR:
JOE B. JONES, PRESIDING JUDGE
PAUL G. SUMMERS, JUDGE