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Salazar v. State

Court of Criminal Appeals of Tennessee, Nashville

May 30, 2017

ALEJANDRO AVILA SALAZAR
v.
STATE OF TENNESSEE

          Assigned on Briefs March 14, 2017

         Appeal from the Circuit Court for Wayne County No. 15677 Russell Parkes, Judge

         The Petitioner, Alejandro Avila Salazar, appeals the dismissal of his petition for writ of habeas corpus by the Wayne County Circuit Court. The Petitioner previously entered guilty pleas to second degree murder and attempted aggravated rape, for which he received an effective sentence of forty years' confinement. On appeal, he argues that he is entitled to withdraw his guilty plea because his sentence for attempted aggravated rape is illegal and was a material, bargained-for element of his plea agreement. Upon review, we affirm the judgment of the habeas corpus court.

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

          Hershell Koger (at hearing and on appeal), Assistant Public Defender, Pulaski, Tennessee, and Brandon E. White (on appeal), for the Petitioner, Alejandro Avila Salazar.

          Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel; and Brent A. Cooper, District Attorney General, for the Appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which NORMA McGee Ogle and Robert W. Wedemeyer, JJ., joined.

          OPINION

          CAMILLE R. McMULLEN, JUDGE

         On January 25, 2005, the Petitioner was indicted by a Davidson County Grand Jury on one count of first degree felony murder and one count of attempted aggravated rape. On September 6, 2006, the Petitioner pled guilty to second degree murder and attempted aggravated rape. Pursuant to the plea agreement, the Petitioner received concurrent sentences of forty years for second degree murder, to be served at one hundred percent, and twelve years for attempted aggravated rape, to be served at thirty percent, for an effective sentence of forty years.

         On June 5, 2015, the Petitioner filed a pro se petition for writ of habeas corpus in the Wayne County Circuit Court, arguing, inter alia, that his conviction for attempted aggravated rape was void because the judgment form did not include the mandatory provision of community supervision for life. Consequently, the Petitioner argued that he should be permitted to withdraw his plea agreement because the absence of community supervision was a material element of the agreement. On August 20, 2015, the State filed a response, acknowledging that the Petitioner's attempted aggravated rape sentence "appears to be illegal and therefore void."

         On May 12, 2016, the habeas corpus court held an evidentiary hearing. After hearing argument from counsel, the court found that "the record has established that the illegal sentence was not a bargained for element of the plea agreement." The habeas corpus court entered a written order on June 8, 2016, dismissing the petition. In its order, the court found that, although the omission of the mandatory community supervision for life rendered the attempted aggravated rape sentence void, "nothing in the record has established that the illegal sentence was a material bargained-for element of the plea agreement, which included a 40-year sentence on a reduced charge of second degree murder." The court ordered the Petitioner's convictions "remain intact, and he is not entitled to withdraw his plea of guilty in this matter." The court also ordered the Petitioner's case transferred to the Davidson County Criminal Court for entry of a corrected judgment in count two and the addition of community supervision for life following the expiration of his sentences. It is from this order that the Petitioner now timely appeals.

         ANALYSIS

         On appeal, the Petitioner argues that the omission of community supervision for life was a material, bargained-for element of his plea agreement. Specifically, the Petitioner contends that he bargained for the ability to live the remainder of his life upon release without any additional punitive restrictions. The State responds that the absence of community supervision for life was not a material element of the Petitioner's plea agreement, and that the Petitioner's argument is not supported by the record.

         "The determination of whether habeas corpus relief should be granted is a question of law." Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007) (citing Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000)). Accordingly, our review is de novo without a presumption of correctness. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007) ...


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