Assigned on Briefs November 04, 2014.
Appeal from the Circuit Court for Madison County No. C13358 Roy B. Morgan, Jr., Judge.
Joshua B. Dougan, Jackson, Tennessee, for the appellant, William Newson.
Herbert H. Slatery, III, Attorney General and Reporter; David H. Findley, Senior Counsel; Jerry Woodall, District Attorney General; and Matthew Floyd, Assistant District Attorney General, for the appellee, State of Tennessee.
Thomas T. Woodall, P.J., delivered the opinion of the Court, in which Alan E. Glenn and Robert L. Holloway, Jr., JJ., joined.
THOMAS T. WOODALL, PRESIDING JUDGE.
The transcript of the guilty plea submission hearing was not introduced at the post-conviction hearing and was not included in the record on appeal. Also, the judgment of the DUI conviction is not in the record. The guilty plea agreement was the only exhibit entered at the post-conviction hearing. Therefore, we rely on the guilty plea agreement, the testimony presented at the post-conviction hearing, the trial court's findings at the post-conviction hearing, and trial court's order denying post-conviction relief for the relevant facts.
Petitioner testified that he met with trial counsel, and they discussed the charges against him of DUI and driving on a suspended license. They met and prepared for the case and then proceeded to trial. The result was an acquittal on the suspended license charge and a hung jury on the DUI charge. Petitioner testified that he and trial counsel then prepared for a second trial on the DUI charge. On the day of the second trial, Petitioner decided to enter a plea of guilty to DUI. When asked why he accepted the plea agreement, Petitioner testified:
Because I was told that it was gonna be ran [sic] in [sic] concurrent with my parole, and after I do 48 hours in jail, that I was gonna be released on 11/29 probation suspended. The 11/29 was suspended and the rest was gonna be on probation, and then I was gonna have a parole officer and a probation officer.
Petitioner completed a "Request for Acceptance of Plea of Guilty and Petition to Waive Trial by Jury and to Waive Appeal" form. The "Other Conditions" portion of the agreement contained the following handwritten notation: "1 year loss of license, concurrent [with] parole violation [and] violation of order of protection." Petitioner testified that he was "under the impression, " based on trial counsel's assertions, that he had an additional twelve hours to serve of the forty-eight hour sentence for DUI, and he would then be released on probation. However, he was instead sent to the West Tennessee State Penitentiary. Petitioner testified that he would not have entered the plea agreement if he had known that he would be sent back to the Department of Correction after serving the remainder of the forty-eight hour period of incarceration. Petitioner claimed that at the guilty plea acceptance hearing he asked "all kinds of questions" to make sure that he would "be released in 48 hours." He said: "See, I didn't know if I could be on parole and be on probation at the same time, and I asked Your Honor and I asked my lawyer, and the understanding that I received is that I could be on parole and probation at the same time."
On cross-examination, Petitioner agreed that at the time of the plea agreement he was already in custody for violating his parole in another case and for violating an order of protection. He admitted that the parole violation resulted from the order of protection charge, but he asserted that he had not been found guilty of the charge. Petitioner claimed that the parole violation was also based on the DUI charge. However, Petitioner admitted that the plea agreement form specified that his DUI sentence would run concurrent with his parole violation on a thirty-year sentence and therefore, the plea agreement form showed that Petitioner's parole violation sentence had already begun prior to the plea to DUI. Petitioner asserted that he was informed that he could simultaneously be on probation and parole. Petitioner denied that trial counsel told him that trial counsel had no control over the parole board's decision with regard to Petitioner's existing sentence.
Trial counsel testified that after Petitioner's first trial that ended in a hung jury for the DUI charge, he later learned that the jury was hung 10-2 for conviction. At the time, Petitioner was already in custody for a pending parole violation on a thirty-year sentence for multiple aggravated robbery convictions and for violating an order of ...