Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs December 11, 2019
from the Criminal Court for Davidson County No. 2005-A-32
Mark J. Fishburn, Judge
Avila-Salazar, Petitioner, appeals the dismissal of what the
post-conviction court determined to be his second petition
for post-conviction relief (the "2018 Petition").
The State concedes that the post-conviction court
"improperly dismissed" the 2018 Petition and asks
this court to remand the case to the post-conviction court
for a ruling on Petitioner's claims "based on the
evidence received at the hearing already afforded." We
hold that the amended judgment of conviction correcting an
illegal sentence in the original judgment by imposing a new,
more punitive sentence that includes community supervision
for life was a separate judgment for the purposes of
Tennessee Code Annotated section 40-30-102, that the 2018
Petition presented an issue that had not been previously
litigated, that the 2018 Petition was the first
post-conviction challenge to the new judgment, and that the
post-conviction court erred in finding the 2018 Petition was
a second petition. We reverse and remand for a determination
on the merits of the claims raised in the 2018 Petition.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Court Reversed and Remanded
B. Russ, Nashville, Tennessee, for the appellant, Alejandro
Herbert H. Slatery III, Attorney General and Reporter;
Nicholas W. Spangler, Senior Assistant Attorney General;
Glenn R. Funk, District Attorney General; and Tammy Meade,
Assistant District Attorney General, for the appellee, State
L. Holloway, Jr., J., delivered the opinion of the court, in
which Robert W. Wedemeyer and Timothy L. Easter, JJ., joined.
L. HOLLOWAY, JR., JUDGE
January 21, 2005, Petitioner was indicted in count one of
Case No. 2005-A-32 for felony murder and in count two for
attempted aggravated rape. On September 6, 2006, Petitioner
pled guilty to second degree murder and attempted aggravated
rape. Pursuant to a negotiated plea agreement, the trial
court sentenced Petitioner out of range to forty years with a
release eligibility of 100 percent for second degree murder
and to a concurrent term of twelve years as a standard
offender for attempted aggravated rape.
2006 Petition for Post-Conviction Relief.
filed a timely Petition for Post-Conviction Relief alleging
that his guilty pleas were not knowingly and intelligently
entered because he received ineffective assistance of
counsel. Following a hearing on March 10, 2008, the
post-conviction court denied the petition. This court
affirmed the denial. Alejandro Avila-Salazar v.
State, No. M2008-02120-CCA-R3-PC, 2009 WL 3029604, at *5
(Tenn. Crim. App. Sept. 22, 2009), perm. app. denied
(Tenn. Feb. 22, 2010).
2014 Petition for Writ of Habeas Corpus.
filed a Petition for Writ of Habeas Corpus "alleging
that his guilty pleas were not knowingly and voluntarily
entered because his sentence violated the jurisdictional
limits of the trial court" and "that the indictment
against him failed to apprise him of the offense that he was
being called to defend." Alejandro Avila-Salazar v.
State, No. M2014-01665-CCA-R3-HC, 2015 WL 739669, at *1
(Tenn. Crim. App. Feb. 20, 2015), no perm. app.
filed. The habeas corpus court found that Petitioner
failed to prove that his judgments were void and summarily
denied the petition. This court affirmed. Id.
2015 Petition for ...