Assigned on Briefs June 25, 2014
Appeal from the Criminal Court for Shelby County No. 1201529 W. Mark Ward, Judge
Robert L. Sirianni, Jr., Winter Park, Florida, for the appellant, Edward Porreca.
Herbert H. Slatery, III, Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Amy P. Weirich, District Attorney General; Megan King and Jennifer Nichols, Assistant District Attorneys General, for the appellee, the State of Tennessee.
Thomas T. Woodall, J., delivered the opinion of the Court, in which Robert W. Wedemeyer and D. Kelly Thomas, Jr., JJ., joined.
THOMAS T. WOODALL, PRESIDING JUDGE
In his appellate brief on page 1, Petitioner asserts that the "Statement of the Issue Presented" is as follows:
When an unconstitutional condition of probation is attached to a plea agreement and becomes a central point of consideration in the negotiation between the parties, does that agreement remain valid when the parties failed to determine the legality of the unconstitutional and unreasonable condition of probation?
In the argument section of his brief, Petitioner provides more specificity as to the issue(s) raised on appeal by dividing the argument into two sections set forth as follows:
I. THE PLEA AGREEMENT IS UNENFORCEABLE BECAUSE IT IS CONTRARY TO PUBLIC POLICY AND BASED PRIMARILY ON AN UNCONSTITUTIONAL CONDITION OF PROBATION
II. THE SPECIAL CONDITION IMPOSED ON PETITIONER-APPELLANT REQUIRING HIM TO LEAVE THE STATE FAILS TO SERVE THE PRIMARY PURPOSE OF REHABILITATION AND IS UNCONSTITUTIONAL EXILE
The state argues that Issue I as it relates to "public policy" is waived on appeal because Petitioner did not present in the trial court any argument that the challenged "exile" condition of probation violated public policy. We agree. See Tommy Lee Clark v. State, No. W2009-01613-CCA-R3-PC, 2010 WL 1610532 at *2-3 (Tenn. Crim. App. Apr. 21, 2010) (Because the petitioner's issues on appeal involved completely new and different allegations from those contained in his pro se or amended petitions, the issues were waived). See also State v. Alder, 71 S.W.3d 299, 303 (Tenn. Crim. App. 2001) (Appellant is bound by the evidentiary theory set forth at trial and may not change theories on appeal.); Tenn. R. App. P. 36(a).
Accordingly, we will not address Petitioner's argument that the special condition of probation violates public policy because that issue is waived. Thus, we do not hold in this case that a special condition of "exile" does violate the public policy of Tennessee or that a special condition of "exile" does not violate the public policy of Tennessee.
We will address Petitioner's second sub-issue, that the "exile from Tennessee" condition of probation in his case is unconstitutional and that the special condition "fails to serve the primary purpose of rehabilitation." The "unconstitutional" assertion in Issue I is included in Issue II. We will confine our summary of the facts to the evidence related to this issue.
Petitioner was charged by the Shelby County Grand Jury with rape. Subsequently, Petitioner entered into a negotiated plea agreement with the State wherein he pled guilty as charged and received a sentence of eight years. Pursuant to the plea agreement the sentence was ordered to be served on split-confinement pursuant to T.C.A. § 40-35-306(a), comprised of one year of incarceration in the Shelby County workhouse followed by seven years of probation. The only additional "special conditions" listed in the judgment of conviction was that Petitioner would be on community supervision for life and would have to register with the sex offender registry. The probation order specified that the only "special conditions" of probation were:
-immediately upon release make arrangements to move to New York and transfer probation
-Sex Offender Registry & Community Supervision for Life
The "special conditions" in the probation order were handwritten and we have quoted them verbatim. The words "exile" or "banishment" from Tennessee are not mentioned in the judgment of conviction or the probation order. There is no other language in either document which could be interpreted that as a special condition for probation, Petitioner could not return to Tennessee.
Likewise, a review of the transcript of the guilty plea hearing reveals that mandatory "banishment" or "exile" from Tennessee, or other such wording is not mentioned. Furthermore, neither the petition to accept guilty plea nor the order granting the petition to accept guilty plea mentions any conditions of probation other than seven years of probation following one year of incarceration.
From our review of the appellate record before us, the first time that "exile from Tennessee" is alluded to as a special condition of probation is in Petitioner's "Petition for Relief from Conviction and Sentence." The disposition of that pleading is the subject of this appeal. The petition was filed July 31, 2013, almost a year after the negotiated guilty plea was entered on August 3, 2012.
II. Post-Conviction Hearing
At the post-conviction hearing, trial counsel testified as follows concerning the condition of probation that required Petitioner to move to New York and transfer his probation to New York:
When we were having those negotiations, me and [the Prosecutor], about what would be an appropriate settlement, [Petitioner] came to me and said would it help if I offered to move in with my brother to New York? I immediately said, yeah, I got a feeling that would help a lot. Okay, well talk to her about that. So I went and met with [the Prosecutor] and said how would it [affect] our negotiations if he was willing to move? And she also immediately said I think that would help us negotiate this case. I think that we could work that into a probation condition.
The way it came about, the offer that is, the day that we met and talked about and finalized what the offer might be, she said that she wasn't prepared to reduce the case to, quite frankly, you know the natural leap would be sexual battery or something like that, she wasn't willing to go that far. She said, so she looked at me and said, well what about pleading as charged and getting probation? And I said rape carries probation. She goes, well I'm not talking about full probation but certainly some combination of the two. She said what is the most jail time you can do and still get probation? And I said, I think with my understanding of the law you can get up to a year in jail and then get the rest of it probated. She said and that is my offer.
And she said, you go do the research and you make sure that that's still appropriate, that you can do it that way, and my offer will be eight years, with one year in jail, seven years probation as a condition of his probation, the part of the probation, that he would move to New York with his brother.
Trial counsel testified that it was Petitioner's idea to move in with his brother. He did not recall Petitioner asking that his charge be reduced to a misdemeanor in exchange for his move to New York. Trial counsel noted that the word "exile" was never used. Trial counsel said, "It was an agreement that part of his probation would be that he would move out of state."
Trial counsel testified that during plea negotiations, Petitioner asked what would happen if the job that Petitioner's brother was going to obtain for Petitioner became unavailable. Trial counsel then told Petitioner, "well then find somewhere else you want to go that's out of state. If you want to go live with your sister or you want to go live somewhere else, find it and I'll tell [the Prosecutor] so that before the plea is executed we know where you want to go."
Trial counsel noted that he felt comfortable that Petitioner's probation conditions could be altered to another state. He said that part of the plea was that Petitioner leave Tennessee. Trial counsel also noted that Petitioner could not be held in violation of his probation if New York did not accept Petitioner into its probation program.
Michelle Hill, an employee with the Tennessee Board of Probation and Parole, testified that the probation order read: "Immediately upon release make arrangements to move to New York and transfer probation." She completed a transfer request to have Petitioner's case transferred to the State of New York. Ms. Hill testified that Petitioner never indicated that he had any trouble with going to New York. She said that approval of Petitioner's transfer request was received from the State of New York on September 16, 2013. Ms. Hill testified that Petitioner was required to report immediately upon release to "Rochester Metro Area Office, 350 South Avenue, Rochester, New York." Ms. Hill indicated ...