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Delk v. Perry

Court of Criminal Appeals of Tennessee, Jackson

November 30, 2017

ADRIAN DELK
v.
GRADY PERRY, WARDEN

          Assigned on Briefs March 7, 2017

         Appeal from the Circuit Court for Hardeman County No. 2016-CR-105 Joe H. Walker III, Judge

         Petitioner, Adrian Delk, appeals the dismissal of his petition for writ of habeas corpus. On appeal, Petitioner asserts that the State breached the plea agreement by choosing an incorrect range of offense dates for the judgment for solicitation to commit first degree murder; that the State's error resulted in a breach of the plea agreement because it affected Petitioner's sentencing credit; that the Department of Correction was not properly awarding post-judgment sentencing credits; that there was insufficient proof to support the conviction for solicitation; and that Petitioner's indictment for solicitation was void because it was returned prior to the completion of the crime and failed to provide notice. After a review, we affirm the summary dismissal of the petition.

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

          Adrian Delk, Whiteville, Tennessee, Pro Se.

          Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel for the appellee, State of Tennessee.

          Thomas T. Woodall, P.J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert L. Holloway, Jr., JJ., joined.

          OPINION

          THOMAS T. WOODALL, PRESIDING JUDGE.

         Procedural History

         According to the scant record on appeal, Petitioner was indicted in 2013 by the Shelby County Grand Jury for one count of attempted second degree murder and two counts of aggravated assault. The charges stemmed from a knife-attack on the mother of Petitioner's child. See Adrian Delk v. State, No. W2015-01246-CCA-R3-PC, 2016 WL 4189718, at *1-2 (Tenn. Crim. App. Aug. 5, 2016), perm. app. denied (Tenn. Oct. 21, 2016). Three months after the original indictment, the Shelby County Grand Jury returned a second indictment charging Petitioner with solicitation to commit first degree murder based on information that Petitioner attempted to hire someone to kill the mother of his child while he was incarcerated on the original indictment. Id.

         Petitioner pled guilty to aggravated assault and solicitation to commit first degree murder in exchange for sentences of four years and eight years, respectively. The sentences were ordered to be served consecutively, for a total effective sentence of twelve years as a Range I, standard offender. The remaining counts of the indictments were nolle prossed.

         After entering the guilty plea, Petitioner sought post-conviction relief and error coram nobis relief. Id. This Court affirmed the denial of relief but noted that Petitioner argued on appeal that his guilty plea was unknowing and involuntary because the judgment for solicitation to commit first degree murder listed erroneous code sections 39-12-202 and 39-13-210. Id. This Court determined that the typographical errors did not render the pleas involuntary or unknowing but ordered the matter remanded to the trial court for the entry of a corrected judgment to reflect the proper code sections of 39-12-102 and 39-13-202. Id.

         Petitioner filed the petition for writ of habeas corpus at issue in this appeal during the pendency of his post-conviction appeal. The circumlocutory petition raises multiple challenges to his judgments, including but not limited to the following: (1) a complaint that the plea agreement was breached by the State because the State chose an erroneous range of offense dates for Petitioner's judgment for solicitation to commit first degree murder; (2) a complaint that the State's error in determining the offense dates resulted in improper sentencing credits at the Tennessee Department of Correction ("TDOC"); (3) a complaint that TDOC was improperly awarding post-judgment sentencing credits; (4) a challenge to the sufficiency of the evidence on the solicitation charge; and (5) a challenge to the validity of the indictment for ...


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