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State v. Hearing

Court of Criminal Appeals of Tennessee, Knoxville

May 6, 2015

STATE OF TENNESSEE
v.
DAVID WAYNE HEARING

Session Date: March 25, 2015

Direct Appeal from the Criminal Court for Greene County No. 05CR193 John F. Dugger, Jr., Judge

Joseph O. McAfee, Greeneville, Tennessee, for the appellant, David Wayne Hearing.

Herbert H. Slatery III, Attorney General and Reporter; John H. Bledsoe, Senior Counsel; C. Berkeley Bell, District Attorney General; and Connie G. Trobaugh, Assistant District Attorney General, for the Appellee, State of Tennessee.

Norma McGee Ogle, J., delivered the opinion of the court, in which John Everett Williams and Robert L. Holloway, Jr., JJ., joined.

OPINION

NORMA MCGEE OGLE, JUDGE

I. Factual Background

In 2005, the appellant pled guilty in the Greene County Criminal Court to two counts of first degree felony murder. According to the appellant's Negotiate Plea Agreement form, he received sentences of "life with possibility of parole." The judgments of conviction show that the appellant received concurrent "Life" sentences with "51" written on the blank line beside "Years."

The appellant filed a motion to withdraw his guilty pleas, alleging, in pertinent part, that they were unknowing and involuntary because trial counsel told him that he would be eligible for parole in twelve to fifteen years. David Wayne Hearing v. State, E2007-00778-CCA-R3-PC, 2008 WL 481781, at *8 (Tenn. Crim. App. at Knoxville, Feb. 22, 2008), perm. to appeal denied, (Tenn. 2008). At a hearing on the motion, counsel testified that he told the appellant that the appellant would have to serve fifty-one years before becoming eligible for parole and that he never told the appellant that the appellant could be eligible for parole in twelve to fifteen years. Id. at *2. The trial court accredited counsel's testimony, and this court affirmed the trial court's denial of the appellant's motion to withdraw his guilty pleas. Id. at *9. The appellant then filed a petition for post-conviction relief. Relevant to this appeal, he claimed that counsel was ineffective at the evidentiary hearing on the motion to withdraw his guilty pleas for failing to introduce into evidence the Negotiated Plea Agreement form to support his claim that he thought he would be eligible for parole after serving thirty percent of his sentence. David Hearing v. State, No. E2009-02430-CCA-R3-PC, 2010 WL 3837535, at *9 (Tenn. Crim. App. at Knoxville, Oct. 4, 2010), perm. to appeal denied, (Tenn. 2011). He also claimed that his guilty pleas were unknowing and involuntary because counsel erroneously told him that he would serve fifty-one years at thirty percent. Id. at *10. However, this court again affirmed the lower court's denial of relief. Id.

On March 3, 2014, the appellant filed a pro se motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1, alleging that he "pled guilty on September 2, 2005, with the bargained for element of release/eligibility (parole)" but that "[t]he bargained for element is not authorized by statute and thus is an illegal sentence." The appellant attached his Negotiated Plea Agreement form and one page from the transcript of his guilty plea hearing to his motion. The trial court appointed counsel and ordered that the State respond to the appellant's motion. In its response, the State argued that the trial court should dismiss the motion without a hearing because the issue had been previously raised and determined and because the appellant's judgments of conviction showed that he pled guilty to two counts of first degree murder and received life sentences. The State attached the entire plea hearing transcript and the judgments to its response. Subsequently, the trial court entered an order denying the motion, finding that the issue had been litigated previously and that, in any event, the appellant's sentences were not illegal because, although the phrase "life with parole" was inaccurate, the trial court explained to the appellant at the plea hearing that he was receiving a life sentence.

II. Analysis

The appellant maintains that he received illegal sentences for his first degree murder convictions because his Negotiated Plea Agreement form states that his sentences were for "life with the possibility of parole" and because the box for "Life, " as opposed to the box for "Life w/out Parole, " was checked on his judgment forms, which "[b]y implication . . . amount[s] to a Sentence of Life with the possibility of parole." He also contends that when the State filed a response to his motion to correct an illegal sentence, a hearing on the motion became mandatory. The State argues that the trial court properly denied the motion without a hearing. We agree with the State.

Historically, "two distinct procedural avenues [were] available to collaterally attack a final judgment in a criminal case B habeas corpus and post-conviction petitions." Hickman v. State, 153 S.W.3d 16, 19 (Tenn. 2004); see also State v. Donald Terrell, No. W2014-00340-CCA-R3-CO, 2014 WL 6883706, at *2 (Tenn. Crim. App. at Jackson, Dec. 8, 2014). However, effective July 1, 2013, the Tennessee Rules of Criminal Procedure were amended by the addition of Rule 36.1, which provides:

(a) Either the defendant or the state may, at any time, seek the correction of an illegal sentence by filing a motion to correct an illegal sentence in the trial court in which the judgment of conviction was entered. For purposes of this rule, an illegal sentence is one that is not authorized by ...

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