Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs January 21, 2015
Appeal from the Criminal Court for Sullivan County No. S57499 Robert H. Montgomery, Jr., Judge
L. Dudley Senter, III, Bristol, Tennessee, for the appellant, Everett Spencer Barnette.
Herbert H. Slatery, III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Barry Staubus, District Attorney General; and William B. Harper and Teresa Ann Nelson, Assistant District Attorneys 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 Norma McGee Ogle, JJ., joined.
D. KELLY THOMAS, JR., JUDGE
In June 2010, the Defendant was charged with three counts of rape of a child, three counts of statutory rape by an authority figure, three counts of aggravated statutory rape, four counts of incest, and one count each of especially aggravated sexual exploitation of a minor, sexual exploitation of a minor, and solicitation of a minor. See Tenn. Code Ann. §§ 39-13- 506(c), -13-522, -13-528, -13-532, -15-302, -17-1003, -17-1005. While those charges were pending, the Defendant was taken into federal custody. On December 27, 2011, the Defendant entered a guilty plea in the United States District Court for the Eastern District of Tennessee to one count of interstate transportation of a minor with intent to engage in criminal sexual activity. See 18 U.S.C.A. § 2423(a) (West 2013). The Defendant was sentenced to a term of 264 months to be served in the United States Bureau of Prisons (BOP).
After the resolution of the Defendant's federal case, he was remanded back to state custody to resolve the charges listed above. On September 26, 2013, the Defendant pled nolo contendere to one count of aggravated statutory rape and one count of incest. The State provided the following factual basis for the Defendant's plea agreement:
[B]etween April 12, 2009 and June 2, 2009, the proof would be that the [D]efendant engaged in sexual penetration of [the victim, who, ] at the time, was seventeen years of age and more than ten years younger than the defendant and . . . that during that time [the victim] was [the Defendant's] stepdaughter.
In exchange for his pleas, the Defendant was given an effective six-year sentence to be served concurrently with his federal sentence. The State also agreed not to charge the Defendant with any other offenses regarding the victim or an assault the Defendant was alleged to have committed while he was in the Sullivan County Jail.
At the plea submission hearing, the Defendant testified that he had read and reviewed the plea agreement with trial counsel. The Defendant testified that he had signed the plea agreement and did not have any questions about it. The Defendant also testified that he understood that the trial court did not have any control over his federal sentence. The trial court explained to the Defendant as follows:
Now, let me also mention, too, of course I can't tell the federal judge what to do. I can't tell the Federal Bureau of Prisons  what to do. All I can do is what I have in my court and my intent in my court is to have your sentence be concurrent with your federal sentence. Okay, but it's possible that the federal people, because your case is still on appeal, can make . . . some decision different than that but I don't have any control over them.
When the trial court explained that the Defendant would receive credit "for any time he's already spent in custody, " the Defendant asked if the credit would go toward his federal or state sentence. The trial court explained that the Defendant was receiving "a state sentence" and that federal authorities were "not involved in making any determination about when [he would] have satisfied the six years." At the conclusion of the plea submission hearing, the trial court stated as follows, "this sentence is concurrent with your federal sentence and, of course, ...