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Carr v. State

Court of Criminal Appeals of Tennessee, Nashville

November 21, 2019

DANIEL G. CARR
v.
STATE OF TENNESSEE

          Session May 15, 2019

          Appeal from the Circuit Court for Macon County Nos. 99-CR-93, 99-CR-94, 99-CR-95, Brody Kane, Judge 99-CR-96, 99-CR-97, 99-CR-98

         In this consolidated appeal, the Petitioner, Daniel G. Carr, appeals the Macon County Circuit Court's dismissals of his petitions for post-conviction and habeas corpus relief from his 1999 convictions for rape, attempted rape, aggravated sexual battery, statutory rape, and two counts of sexual battery and his effective ten-year sentence. He contends that the court erred in denying post-conviction relief without holding an evidentiary hearing and that the court erred by denying habeas corpus relief because the court lacked jurisdiction to amend the judgments. Because the Petitioner had completed his term of imprisonment prior to entry of the amended judgments, we agree with the Petitioner, and conclude that the court was without jurisdiction to enter the amended judgments. We reverse and vacate the court's judgment relative to the habeas corpus claim, and we remand this matter with instructions to grant habeas corpus relief. In the event of further review, we also conclude that the court erred in dismissing the Petitioner's post-conviction petition without a hearing, and we remand this case for consideration of whether due process requires tolling the post-conviction statute of limitations and, if so, whether the Petitioner is entitled to post-conviction relief.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Reversed, Vacated, And Remanded

          Jessica Van Dyke, Nashville, Tennessee, for the Petitioner, Daniel G. Carr.

          Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Assistant Attorney General; and Tom P. Thompson, Jr., District Attorney General; and

          Thomas H. Swink, Assistant District Attorney General, for the appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which Norma McGee Ogle, J., joined. Robert H. Montgomery, Jr., J., filed an opinion concurring in part and dissenting in part.

          OPINION

          CAMILLE R. MCMULLEN, JUDGE

         In 1999, the Petitioner pleaded guilty pursuant to a negotiated agreement to rape, attempted rape, statutory rape, aggravated sexual battery, and two counts of sexual battery in exchange for an effective ten-year sentence. The rape, attempted rape, and aggravated sexual battery judgments did not reflect that the community supervision for life (CSL) provision as required by Tennessee Code Annotated section 39-13-524. On September 14, 2006, the court entered an order requiring the entry of corrected judgments to reflect the CSL provision. Amended judgments for all the Petitioner's convictions were entered in October 2006 to reflect CSL.

         On May 22, 2017, the Petitioner filed a pro se petition for post-conviction relief, alleging that the court failed to advise him at the guilty plea hearing that CSL was a consequence of his guilty pleas, that his agreed-upon sentences did not include CSL, and that the judgments were amended in 2006 to include CSL without notice to him and without his knowledge. Although the Petitioner acknowledged that the one-year statute of limitations in which to file a petition for post-conviction relief had expired, he asserted that compelling evidence supported tolling the limitations period. The Petitioner stated that he had served forty-one months in confinement for violating the federal "Sex Offender Registration and Notification Act," that he completed an intensive in-patient, three-year treatment program for sexual offenders, and that he was released from federal custody on July 28, 2016. He stated that when he was in federal custody outside of Tennessee, he did not have access to Tennessee legal materials to research CSL and was prevented from asserting his post-conviction claim. He stated that his federal conviction was "overturned" on October 16, 2016.

         On June 9, 2017, the Petitioner, trial counsel, and the prosecutor appeared in the court on the post-conviction petition. However, the court dismissed the pro se petition because it was untimely and because the Petitioner failed to assert any "allegations related to defective legal representation." After the court denied relief, the Petitioner told the court that when he was in federal custody, he did not have access to Tennessee legal materials or to Tennessee courts and that the federal conviction for which he was serving a sentence was later overturned. He asserted that he did not have a way to present his claim before the statute of limitations expired. He requested the court toll the statute of limitations. The court again denied relief, and when the Petitioner requested clarification of the court's basis for denying relief, the court stated that the Petitioner had not asserted a claim "that would relate [to] ineffective assistance of counsel" and that "[t]his is simply a bare record." The Petitioner informed the court that when the judgments were amended to include CSL, neither he nor trial counsel were provided notice or were present at any court proceeding.

         Subsequently, the Petitioner obtained post-conviction counsel, and on July 7, 2017, counsel filed a motion to reconsider the court's determinations and, alternatively, to hold an evidentiary hearing on the petition. An order resolving the motion is not contained in the appellate record, but the Petitioner filed a notice of appeal relative to the denial of post-conviction relief on July 7, 2017. On November 14, 2017, the court granted the Petitioner's request for an evidentiary hearing for the purpose of determining whether "the statute had been complied with." The hearing was scheduled for February 9, 2018, and the appeal from the post-conviction proceedings was stayed by this court pending the outcome of the February 9, 2018 hearing. However, no transcript of a hearing is contained in the appellate record, and the parties agree on appeal that the court ultimately did not hold a hearing. The court entered an order on February 12, 2018, denying the Petitioner's motion to reconsider the court's post-conviction determinations.

         On September 26, 2017, the Petitioner filed a petition for a writ of habeas corpus, alleging that the judgments were void because the amended judgments reflecting CSL were entered after the expiration of his sentences on June 27, 2006. He stated that upon his release from confinement on June 27, 2006, he registered as a sex offender but that no one had advised him that he was subject to lifetime supervision. He alleged that neither his plea agreement nor his discussions with trial counsel included a reference to CSL. The Petitioner alleged that neither the prosecutor nor the trial judge advised him that he would be supervised for life as a result of entering his guilty pleas. Attached to the petition was an affidavit of a court reporter who unsuccessfully attempted to locate the recording of the Petitioner's guilty plea colloquy. The Petitioner alleged that he was advised of lifetime supervision three months after his release from the Tennessee Department of Correction. He argued that the amended judgments were an attempt by the court to correct illegal judgments ...


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