Wallen v. State

863 S.W.2d 34, 1993 Tenn. LEXIS 336

• Court: Tennessee Supreme Court
• Decided: September 13, 1993
• Status: Published

Opinions

OPINION

REID, Chief Justice.

This ease presents an appeal from the judgment of the Court of Criminal Appeals affirming the trial court's denial of a petition for post-conviction relief. The record supports the judgment of the Court of Criminal Appeals.

In 1975, the petitioner Rickie J. Wallen entered pleas of guilty to 17 charges of forgery, on which he was sentenced to serve 3 to 15 years in the State penitentiary. The effect of these convictions, which later were set aside, on sentences imposed on subsequent convictions, is the basis of the petitioner’s claim for relief.

After serving a portion of the sentences imposed on the 1975 forgery convictions, the petitioner was released on parole. On June 5, 1985, for acts committed while on parole, the petitioner was tried before a jury on a plea of not guilty and found guilty of armed robbery. He was found not guilty of being a habitual criminal. He was given a Range II sentence of 40 years as a persistent offender, based on the 1975 forgery convictions, and as an especially aggravated offender, based on the armed robbery having been committed while he was on parole from the 1975 forgery convictions.

On the same date that he was sentenced on the armed robbery conviction, July 12, 1985, the petitioner entered pleas of guilty to three additional charges of armed robbery. The terms of the plea agreement consisted of the dismissal of habitual criminal charges, and the imposition of three concurrent life sentences enhanced to Range II both as a persistent offender based on the 1975 forgery convictions, and as an especially aggravated offender based on the armed robberies having been committed while the petitioner was on parole for the 1975 forgery convictions. Prior to accepting the petitioner’s pleas of guilty, the trial court scrupulously advised the petitioner of his rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and State v. Mackey, 553 S.W.2d 337 (Tenn.1977). No issue is made as to the validity of these pleas.

This petition for post-conviction relief, filed in 1988, attacks the 1975 convictions of forgery on the ground that the guilty pleas were not knowing and voluntary pursuant to Boy-kin v. Alabama. The petition does not attack the 1985 armed robbery conviction but asserts that the Range II sentence of 40 years should be set aside because the enhanced sentence was based on the 1975 forgery convictions. Likewise, the petition does not attack the convictions for armed robbery on which the petitioner entered pleas of guilty; it does, however, challenge the Range II status of the life sentences on the ground that the pleas were not made knowingly and voluntarily because he was under the “misconception” that the forgery convictions exposed him to habitual criminal charges.

The trial court set aside the 1975 forgery convictions on the finding that the petitioner’s pleas of guilty were not knowing and voluntary pursuant to Boykin v. Alabama, and resentenced the petitioner on the June 1985 armed robbery conviction. The court found that the petitioner’s status as a persistent offender, based on the prior forgery convictions, could not be sustained after the reversal of those convictions. However, the court reaffirmed the petitioner’s status as an especially aggravated offender based on the commission of the offenses, for which he was being sentenced, while on parole from the 1975 forgery convictions. The court found that the Range II sentence of 40 years was appropriate based only on the petitioner’s status as an especially aggravated offender. The trial court refused to vacate the Range II concurrent life sentences imposed upon the petitioner’s pleas of guilty to the charges of armed robbery in July 1985.

The Court of Appeals properly found that the petitioner has been granted all the relief to which he is entitled. The 1975 forgery convictions based on pleas not knowingly and voluntarily entered have been set aside and the persistent offender status with regard to the June 1985 armed robbery conviction has been vacated. The Range II sentence of 40 years based only on the especially aggravated offender status is not illegal and has not been appealed.

The only issue raised by the petitioner is the use of his parole status to enhance the sentences imposed on his pleas of guilty to the three charges of armed robbery. The petitioner claims that committing a crime while on parole is not grounds for the imposition of an enhanced punishment where the convictions subsequently are set aside. The point made by the petitioner is applicable to release on bail but not other forms of release. Section 40-35-107(3) of the 1982 Tennessee Code Annotated provides that an “especially aggravated offense” is:

A felony committed while on any of the following forms of release status if such release is from a prior felony conviction:

(A) Bail, if the defendant is ultimately convicted of such prior felony;

(B) Parole;

(C) Probation;

(D) Work release; or

(E) Any other type of release into the community under the direct or indirect supervision of the department of correction or local governmental authority.

The statute provides that an offense committed while the offender is on bail becomes an especially aggravated offense only if the offender “is ultimately convicted of such prior felony.” That condition is not attached to offenses committed while on parole, probation, work release, or other types of release from incarceration.

The Court of Appeals correctly held that the validity of the 1975 forgery convictions is “totally irrelevant” to the 1985 armed robbery sentences entered on the petitioner’s pleas of guilty. The Court of Criminal Appeals based its decision on State v. Mahler, 735 S.W.2d 226 (1987). In Mahler, the defendant was “in grave danger of receiving the death penalty or, almost at a minimum, a sentence of life imprisonment for murder in the first degree.” Id. at 227. Because of the influence of the victim’s family, the State agreed to a negotiated plea to second degree murder and a Range II sentence of 50 years. The defendant was advised of his constitutional and statutory rights. His plea was “knowingly, voluntarily and intelligently” entered. Id. However, he was not advised there was no statutory basis in his case for imposing a Range II sentence of 50 years. This Court held:

It is generally true, as pointed out in the dissenting opinion, that a judgment imposed by a trial court in direct contravention of express statutory provisions regarding sentencing is illegal and is subject to being set aside at any time, even if it has become final. See State v. Burkhart, 566 S.W.2d 871 (Tenn.1978). In that case, however, the trial judge had ordered a sentence for escape to be served concurrently with a previous sentence in direct contravention of a statute requiring the sentence to be consecutive.

There have been other cases where sentences were imposed which were higher or lower than that authorized by the statute designating the punishment for the erime. In those cases the sentences have been held subject to being later vacated or corrected.

As previously stated, that is not the situation here. The sentence imposed was clearly within statutory limits fixed for the offense of murder in the second degree. In our opinion any question as to the classification of appellant as a Range II offender or as to his release eligibility was waived by the guilty plea. It was not a constitutional error in and of itself and at most rendered the sentence subject to attack on direct review by appeal. Appellant waived any right of appeal in the guilty plea proceedings, and expressly agreed to be sentenced with the classification and parole eligibility imposed.

Id. at 228 (emphasis added) (citations omitted).

Other jurisdictions have held that where a petitioner knowingly and voluntarily pleads guilty to a charge that carries an enhanced punishment, the petitioner waives subsequent collateral attacks on the prior convictions.

In Johnson v. Puckett, 930 F.2d 445 (5th Cir.), cert. denied, — U.S.-, 112 S.Ct. 252, 116 L.Ed.2d 206 (1991), the petitioner appealed the dismissal of a habeas corpus petition. In the challenged sentence, he had pleaded guilty to burglary and was sentenced as a habitual criminal based on two prior convictions. On appeal, the petitioner claimed, among other things, that the lower court erred in denying him an evidentiary hearing on his habeas corpus claim that one of his prior convictions was unconstitutionally obtained. The district court held that he was not entitled to an evidentiary hearing on the alleged unconstitutionality of his prior conviction because he had waived any objection to the use of that conviction when he pleaded guilty.

On appeal, the court noted that before the petitioner pleaded guilty, the trial judge explained that he was charged with being a habitual criminal, identified the prior convictions, asked the petitioner whether he understood the charges of the prior convictions, and advised him of the range of sentencing as a habitual offender. The petitioner did not object to evidence of the prior convictions, and acknowledged the prior convictions.

The court, noting that the petitioner had alleged no facts casting doubt upon the validity of his plea of guilty to the habitual criminal allegations, stated:

[A] habeas corpus petitioner who pleaded guilty to enhancement charges in an habitual offender hearing “waived any complaints he may have had concerning the former offenses which were set out in the enhancement charge.” We deemed the guilty plea, in the context of an habitual offender trial, to be “both the alpha and the omega of our determination.”

Id. at 449 (quoting Zales v. Henderson, 433 F.2d 20, 22, 24 (5th Cir.1970).

In Alvey v. Kentucky, 648 S.W.2d 858 (Ky.1983), the petitioner had pleaded guilty to a “persistent felony offender” charge. At the time of this plea, he did not raise any issue about the validity of the prior conviction. Subsequently, it was found that the record in the prior conviction failed “to comply with federally imposed standards for determining whether they were voluntary.” Id. at 859. The court held that by failing to raise any issue about the validity of his prior pleas at the time he pleaded guilty to being a persistent felony offender, “he waived his right to contest them in any subsequent post-convietion proceeding.” Id. at 860.

In State v. Lane, 642 S.W.2d 935 (Mo.App.1982), the trial court imposed a sentence on a petitioner as a “second offender” even though the prior conviction had been set aside five days earlier. The court stated that “a prior conviction is final if the judgment is affirmed on appeal, if the appeal is dismissed or if no appeal is taken.” Id. at 937. The court found that when the petitioner was tried, his prior conviction was final and was available for use in prosecuting him as a second offender. The Court stated:

Irrespective of the outcome of subsequent appeals and subsequent motions for post-conviction relief, however, the trial court must act in conformity with final dispositions attained at the time and disregard contingencies dependent on proceedings which have not matured. Any other rule, particularly as to post-conviction proceedings in criminal cases, would virtually stalemate the process.... In so holding, we express no opinion as to relief [the petitioner] would otherwise be entitled to receive were the [prior] conviction to be finally reversed, a fact situation beyond the present ease.

Id.

In the case before the Court, the trial court advised the petitioner of his rights and those rights he would waive on a plea of guilty. He was not deceived nor misled. At the post-conviction hearing, the petitioner acknowledged that the pleas were freely and voluntarily entered. They also were, for constitutional purposes on a collateral attack, knowingly entered. The petitioner and his attorney were in the best position to have the most complete knowledge regarding all relevant circumstances, including the petitioner’s prior criminal record. When the pleas were entered in 1985, Boykin had been decided 16 years, Mackey had been decided 8 years, and Rule 11 of the Tennessee Rules of Criminal Procedure had been in effect for 7 years. The petitioner and his attorney reasonably were aware of all relevant facts and rules of law when his pleas of guilty were entered in 1985.

This Court, in the recent case of Blankenship v. State, 858 S.W.2d 897 (1993), discussed in depth the prerequisites of a valid guilty plea. The Court reviewed the federal constitutional requirements of Boykin and the additional requirements of Mackey and Rule 11 as set forth in State v. Neal, 810 S.W.2d 131 (Tenn.1991), Johnson v. State, 834 S.W.2d 922 (Tenn.1992), and other decisions. The Court stated several conclusions in Blankenship:

[T]he core requirement of Boykin is “that no guilty plea be accepted without an affirmative showing that it was intelligent and voluntary,” [Fontaine v. United States, 526 F.2d 514, 516 (6th Cir.1975) ]....

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... “The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” [North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970) ].

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... [A] court charged with determining whether those pleas were “voluntary” and “intelligent” must look to various circumstantial factors, such as the relative intelligence of the defendant; the degree of his familiarity with criminal proceedings; whether he was represented by competent counsel and had the opportunity to confer with counsel about the options available to him; the extent of advice from counsel and the court concerning the charges against him; and the reasons for his decision to plead guilty, including a desire to avoid a greater penalty that might result from a jury trial. Caudill v. Jago, [747 F.2d 1046, 1052 (6th Cir.1984) ].

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Finally, ... the defendant must be aware of the “direct consequences of his guilty plea.” [Brown v. Perini, 718 F.2d 784, 788 (6th Cir.1983) ]; .... It is, therefore, well-recognized that the defendant must be apprised of the sentence that he will be forced to serve as the result of his guilty plea and conviction.

Blankenship v. State, 858 S.W.2d at 904.

Nowhere in this careful review of circumstances necessary to a showing of “knowing” and “voluntary” is there found a requirement that all relevant facts upon which the plea was based be, upon later examination, found to be totally accurate. Undoubtedly, there are many considerations that are relevant to the decision to enter into a negotiated plea, including those discussed in Blankenship. If a sentence could be set aside upon a subsequent showing that all material facts were not as they were apprehended by the defendant, negotiated pleas would lose their usefulness as a means for resolving criminal prosecutions. The State will not be cast in the position of guaranteeing the literal accuracy of the defendant’s understanding of those circumstances relevant to his making that decision.

In this case, the petitioner, with full knowledge of his rights, voluntarily took the benefits of the plea bargain. In accepting those benefits, under the circumstances of this case, he waived any irregularity or defect in the proceedings, including the possibility that the prior convictions used to enhance his punishment might be set aside.

The issues which could have been presented had the armed robbery convictions been based upon a trial rather than pleas of guilty are not before the Court.

The judgment of the Court of Criminal Appeals is affirmed. Costs are adjudged against the petitioner.

DROWOTA and O’BRIEN, JJ., concur. DAUGHTREY and ANDERSON, JJ., dissents.