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Vowell v. State

Court of Criminal Appeals of Tennessee, Knoxville

December 29, 2016

RICHARD L. VOWELL
v.
STATE OF TENNESSEE

          Assigned on Briefs November 15, 2016

         Appeal from the Circuit Court for Anderson County No. B3C00410 Donald R. Elledge, Judge

         The Petitioner, Richard L. Vowell, appeals from the Anderson County Circuit Court's summary denial of his petition for post-conviction relief. The Petitioner contends that the post-conviction court erred in finding that his petition was untimely filed because the statute of limitations should have been tolled on due process grounds. Following our review, we affirm the judgment of the post-conviction court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Richard L. Vowell, Wartburg, Tennessee, Pro Se (on appeal); and J. Thomas Marshall, Jr., District Public Defender (at hearing), for the appellant, Richard L. Vowell.

          Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel; David S. Clark, District Attorney General; and Anthony Jay Craighead, Assistant District Attorney General, for the appellee, State of Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which Robert H. Montgomery, Jr., and Timothy L. Easter, JJ., joined.

          OPINION

          D. KELLY THOMAS, JR., JUDGE

         FACTUAL BACKGROUND

         On August 11, 2000, the Petitioner pled guilty in the Anderson County Circuit Court to one count of second degree murder and received a thirty-five-year sentence. The judgment form and the plea agreement documents reflected that the Petitioner's sentence was to be served concurrently with his sentence in Knox County Criminal Court case number 67167 and consecutively to his sentence in Knox County Criminal Court case number 65964. There was no mention in the judgment form, in the plea agreement documents, or at the plea submission hearing of the Petitioner having an outstanding federal sentence or how his thirty-five-year sentence would be served in relation to any federal sentence.

         On August 20, 2013, well past the one-year statute of limitations, the Petitioner filed a pro se petition for post-conviction relief. The petition alleged that before the Petitioner pled guilty in Anderson County Circuit Court, he had pled guilty in federal court to an unrelated charge and had received a fifteen-year sentence. The petition further alleged that, at the time he pled guilty in Anderson County Circuit Court, trial counsel had led the Petitioner to believe that his thirty-five-year sentence and his fifteen-year federal sentence would be served concurrently. According to the petition, the Petitioner believed this until April 2013, when he attempted to check on the status of his federal sentence. He was informed that he had actually not begun to serve it, and that it would be imposed consecutively to his thirty-five-year sentence.

         Counsel was appointed to represent the Petitioner, and an evidentiary hearing was held solely to address the timeliness of the petition. At the hearing, a letter dated December 15, 1999, to the Petitioner from the attorney representing him in his Knox County cases was introduced into evidence. In the letter, the attorney informed the Petitioner that the State had proposed a plea agreement that would "be concurrent to [his] federal sentence." A second letter, this one from trial counsel to the Petitioner and dated June 28, 1999, was also introduced. Trial counsel stated in the letter that the prosecutor had "indicated a willingness to allow a second degree murder conviction to be served concurrent with [the Petitioner's] federal charge." The judgment in the Petitioner's federal case was entered on November 15, 1999, and only stated that the Petitioner's sentence was to "run consecutively" to a nine-year state sentence from Blount County Circuit Court that he was "presently serving."

         At the hearing, trial counsel testified that he remembered "there were discussions about" having the Petitioner's federal and state sentences run concurrently and that he thought "the [S]tate was going to try to do that." Trial counsel further testified that he did not think that "the last discussions [he] had with [the Petitioner] indicated that [the sentences] would run concurrent[ly]" because "there was some consternation" on the day of the plea submission hearing and the prosecutor had stated that "it wasn't up to her. [That] [s]he couldn't do anything more than she had done." When asked about the fact that the federal sentence was not included "in any of the plea papers or anything else, " trial counsel explained that he "thought [it] was the best [they] could do" because under state law, sentences were presumed to be concurrent if the trial court is "aware of [the] charge and [the judgment form was] silent."

         Trial counsel testified that the Petitioner "was concerned with the federal time obviously, and it was important to him." Trial counsel stated that he thought the fact that the concurrent nature of the state and federal sentences "wasn't wrapped up in a bow" had "caused [the Petitioner] consternation on the day of the plea." When asked if he ever promised the Petitioner "concurrent time, " trial counsel responded as follows, "I promised to try to get it. I told him that I thought I had it, but then I didn't get it." Trial counsel acknowledged that in April 2013, he sent a letter to the Petitioner, which noted that the Anderson County sentence was concurrent to one of his Knox County sentences and stated that "[h]opefully this [would] dovetail[] with [the ...


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