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Gaye v. State

Court of Criminal Appeals of Tennessee, Knoxville

January 4, 2018

DENNIS RASHEED GAYE
v.
STATE OF TENNESSEE

          Assigned on Briefs December 20, 2017

         Appeal from the Criminal Court for Knox County No. 104332 Bob R. McGee, Judge

         The Petitioner, Dennis Rasheed Gaye, appeals from the Knox County Criminal Court's denial of his petition for post-conviction relief from his 2014 guilty plea to possession with intent to sell 0.5 gram or more of cocaine within 1000 feet of a drug-free childcare zone, for which he is serving an eight-year sentence. The Petitioner contends that the post-conviction court erred by failing to dismiss the indictment because the judgment did not reflect the proper conviction. We affirm the judgment of the post-conviction court.

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

          Dennis Rasheed Gaye, Whiteville, Tennessee, Pro Se.

          Herbert H. Slatery III, Attorney General and Reporter; Jeffery D. Zentner, Assistant Attorney General; Charme Allen, District Attorney General; and Hector Sanchez, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE.

         The Petitioner was indicted for possession with the intent to sell 26 grams or more of cocaine within 1000 feet of a drug-free childcare zone. See T.C.A. §§ 39-17-417(a)(4), (i)(5) (2014), 39-17-432 (2014). Pursuant to a plea agreement, the Petitioner pleaded guilty to possession with the intent to sell 0.5 gram or more of cocaine within 1000 feet of a drug-free childcare zone, a Class B felony. Id. §§ 39-17-417(a)(4), (c)(1) (2014), 39-17-432 (2014). Based upon the plea agreement, the Petitioner was sentenced to eight years' incarceration and ordered to pay a $2000 fine. The Petitioner also pleaded guilty to possession of marijuana and evading arrest, which are not relevant to this appeal.

         The judgment of conviction reflects that the Petitioner was convicted of possession with the intent to sell 26 grams or more of cocaine within 1000 feet of a drug-free childcare zone, a Class B felony. The Petitioner filed a post-conviction petition, alleging that the indictment should be dismissed because the judgment did not reflect the proper conviction offense.

         At the April 19, 2017 post-conviction hearing, the Petitioner recalled the assistant district attorney's discussing the plea agreement with him before the guilty plea hearing. The Petitioner stated that he pleaded guilty to possession with the intent to sell 0.5 gram or more of cocaine, not 26 grams or more. A portion of the guilty plea hearing transcript was received as an exhibit and reflected that the trial court accepted the Petitioner's guilty plea to possession with the intent to sell 0.5 gram or more of cocaine within 1000 feet of a drug-free childcare zone.

         The Petitioner testified that the judgment of conviction reflected the Petitioner was convicted of possession with the intent to sell 26 grams or more of cocaine within 1000 feet of a drug-free childcare zone. The Petitioner acknowledged that possession with intent to sell 26 grams or more of cocaine and possession with the intent to sell 0.5 gram or more of cocaine were both class B felonies.

         The State agreed that the Petitioner pleaded guilty to possession with the intent to sell 0.5 gram or more of cocaine within 1000 feet of a drug-free childcare zone. The State argued that the incorrect amount in the judgment was a clerical error. The post-conviction court agreed and determined that the error did not prejudice the Petitioner. The court ordered correction of the judgment to reflect a conviction for possession with the intent to sell 0.5 gram or more of cocaine within 1000 feet of a drug-free childcare zone, and the court found that dismissing the indictment was not a proper remedy. This appeal followed.

         Post-conviction relief is available "when the conviction or sentence is void or voidable because of the abridgement of any right guaranteed by the Constitution of Tennessee or the Constitution of the United States." T.C.A. § 40-30-103 (2012). A petitioner has the burden of proving his factual allegations by clear and convincing evidence. Id. § 40-30-110(f) (2012). A post-conviction court's findings of fact are binding on appeal, and this court must defer to them "unless the evidence in the record preponderates against those findings." Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); see Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction ...


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