Assigned on Briefs December 2, 2014
Appeal from the Circuit Court for Dyer County No. 10-CR-29 Russell Lee Moore, Jr., Judge
Hal J. Boyd, Tiptonville, Tennessee, for the appellant, Kenneth Ray Jobe.
Herbert H. Slatery, III, Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney General; C. Phillip Bivens, District Attorney General; and Lance E. Webb, Assistant District Attorney General, for the appellee, State of Tennessee.
D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Roger A. Page, JJ., joined.
D. KELLY THOMAS, JR., JUDGE
FACTUAL AND PROCEDURAL BACKGROUND
On February 8, 2010, the Petitioner was indicted on three counts of theft of property valued at $1, 000 or more. See Tenn. Code Ann. § 39-14-103. The indictments resulted from the complaints of three separate victims who claimed that the Petitioner, an automobile mechanic, had sold their vehicles for scrap metal. Each victim had taken a vehicle to the Petitioner to be repaired. After the victims made multiple, futile attempts to find out whether repairs were being made and when the repairs would be completed, it was discovered that the Petitioner had sold the vehicles for scrap metal without the owners' permission.
I. Guilty Plea Submission Hearing
On August 16, 2010, the Petitioner pled guilty as charged in the indictment. The prosecutor stated that because the Petitioner would be classified as a Range III, career offender, he was facing a sentence of twelve years to be served at sixty percent. However, the prosecutor indicated that as part of the plea agreement, the State was offering a ten-year sentence, suspended to time served, in exchange for the Petitioner's paying restitution to each of the victims. The prosecutor had spoken with the victims and told the court that their main concern was receiving restitution for the loss of their vehicles. Both parties indicated that the Petitioner was entering best interest pleas pursuant to North Carolina v. Alford, 400 U.S. 25 (1970) . The trial court asked why the Petitioner was entering the best interest plea, and trial counsel explained that the defense's position was that, because the Petitioner was a mechanic who believed that he had a legal right to sell the abandoned vehicles, the case should have been civil, rather than criminal. Thus, the Petitioner was not willing to admit guilt and instead wished to enter best interest pleas.
The State briefly recounted the following facts underlying the charges against the Petitioner. In December 2009, Matilda Dyson, Amber Barger, and Letitia Prince each brought their vehicles to the Petitioner to be repaired. Subsequently, Ms. Barger and Ms. Prince checked on the status of the vehicle repairs at least once per week. However, "[t]hey were given the run around by the [Petitioner]." Ms. Dyson also inquired about her vehicle, and the Petitioner informed her that the vehicle was actually at a different location. The Petitioner then "took [Ms. Dyson's] mother on a wild goose chase across town trying to lose her." It was eventually discovered that the Petitioner had taken each woman's vehicle to be sold for scrap metal.
The trial court accepted this factual basis and engaged the Petitioner in a plea colloquy. The trial court explained the various rights that the Petitioner was entitled to, and the Petitioner stated that he understood his rights. The Petitioner also indicated that he understood that by pleading guilty, he was waiving each of these rights and stated that he felt it was in his best interest to plead guilty. When asked whether trial counsel had answered all his questions regarding the pending charges and guilty plea, the Petitioner responded affirmatively. The Petitioner also indicated that he was completely satisfied with trial counsel's representation.
The trial court explained that the plea deal subjected the Petitioner to judicial sentencing and told the Petitioner that, as a career offender, without a plea agreement he would receive a mandatory sentence of twelve years at sixty percent. At this point, trial counsel and the prosecutor asked the judge to "waive the forty-five day rule" and instead scheduled the sentencing hearing sixty days out, for October 19, 2010. The trial court instructed the Petitioner to "get that paid" because "[i]f you don't . . . it's a straight twelve year sentence." The Petitioner responded, "I'll get it paid." The specific amount of restitution is not mentioned in the guilty plea hearing transcript nor in the judgment forms or plea agreement documents.
Subsequently, the Petitioner twice failed to appear for his sentencing hearing and was indicted for two felony failure to appear charges. Finally, on January 31, 2012, the trial court held the sentencing hearing and imposed an effective ...