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Fish v. State

Court of Criminal Appeals of Tennessee, Knoxville

June 27, 2019


          Session March 26, 2019

          Appeal from the Circuit Court for Blount County Nos. C-25826, C-11246 David Reed Duggan, Judge

         Petitioner, Steven Douglas Fish, appeals the habeas corpus court's dismissal of his petition for habeas corpus relief. We conclude that Petitioner is not entitled to habeas corpus relief because Petitioner's judgment is not void and that Petitioner is not entitled to post-conviction relief because his petition was filed outside of the statute of limitations period. Accordingly, we affirm the judgment of the habeas corpus court.

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

          Andy Long, Maryville, Tennessee, for the appellant, Steven D. Fish.

          Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant Attorney General; Mike L. Flynn, District Attorney General; and Tracy Jenkins, Assistant District Attorney General, for the appellee, State of Tennessee.

          Timothy L. Easter, J., delivered the opinion of the court, in which Norma McGee Ogle, J., joined and Camille R. McMullen, J., concurred in results only.



         A Blount County Grand Jury indicted Petitioner for aggravated sexual battery on August 31, 1998. Petitioner negotiated a best interest plea agreement pursuant to North Carolina v. Alford, 400 U.S. 25 (1970) whereby he would plead guilty to attempted rape of a child in exchange for an eight-year split confinement sentence. Petitioner's sentence specifically required him to serve thirty days in incarceration before serving the remainder of the sentence on probation. The State amended the indictment to allege attempted rape of a child, and on March 10, 1999, the trial court entered a judgment document memorializing Petitioner's plea. Neither the written plea agreement nor the March 10th judgment document mentions community supervision for life as a condition of the conviction. In August of 2001, the trial court revoked Petitioner's probation and ordered him to serve his sentence in incarceration. Petitioner appealed the revocation of his probation, but this Court affirmed the trial court's revocation. State v. Steven D. Fish, No. E2001-02200-CCA-R3-CD, 2002 WL 31249915, at *6 (Tenn. Crim. App. Oct. 8, 2002) perm. app. denied (Tenn. Feb. 3, 2003).

         On September 19, 2003, the Tennessee Department of Correction (TDOC) sent a letter to the trial court and pointed out that the March 10th judgment document did not indicate that Petitioner was subject to community supervision for life pursuant to Tennessee Code Annotated section 39-13-524. Nearly five years later, on May 1, 2008, the trial court entered an amended judgment reflecting that Petitioner was to receive community supervision for life. Almost ten years after that, on April 9, 2018, Petitioner filed a petition for a writ of habeas corpus, alleging that his judgment of conviction was void on its face and that his sentence was illegal.

         Petitioner testified at the hearing on his petition for a writ of habeas corpus. Petitioner claimed that, at the time of his plea, he was not aware that he would be subject to community supervision for life. Petitioner was scheduled to be released from TDOC custody on May 21, 2008, and he claimed that he was not made aware at that time of the amendment of the judgment in this case. Upon his release, Petitioner was informed that he had forty-eight hours to report to probation, even though he believed that his sentence had expired. Petitioner went to the probation office on the next day to "figure out" the issue, and he met with the same probation officer that had initiated his revocation. According to Petitioner, the probation officer said, "[Y]ou've been sentenced to supervision for life, the judge changed your agreement." The probation officer provided Petitioner with papers to sign for his supervision. Petitioner looked at her and said, "No." After some back and forth between Petitioner and the probation officer, she asked Petitioner, "[A]re you refusing to sign [the supervision paperwork]?" "I guess I'm refusing to sign it," said Petitioner. Petitioner remembered her saying, "[Y]ou're not in compliance, I'm going to take your refusal to sign to the magistrate[, ] and I'm going to have you arrested and charged with violation of supervision for life for not being in compliance." Fearing a return to prison, Petitioner signed the supervision paperwork.

         Petitioner admitted on cross-examination that he did not speak to a lawyer about his supervision for life around the time that he had the conversation with the probation officer. In fact, Petitioner admitted that he did not speak to a lawyer about the situation until 2018, when Petitioner incurred new charges.

         After hearing Petitioner's testimony and argument from both parties, the habeas corpus court found that Petitioner was aware of the requirement to participate in community supervision for life in his amended judgment and that the Petitioner had acquiesced to the supervision for approximately ten years. Accordingly, the habeas corpus court dismissed Petitioner's habeas corpus petition. In response to Petitioner's alternative argument that he should receive post-conviction relief, the trial ...

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