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State v. Avila-Salazar

Court of Criminal Appeals of Tennessee, Nashville

January 15, 2020

STATE OF TENNESSEE
v.
ALEJANDRO AVILA-SALAZAR

          Assigned on Briefs December 11, 2019

          Appeal from the Criminal Court for Davidson County No. 2005-A-32 Mark J. Fishburn, Judge

         Alejandro 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed and Remanded

          Manuel B. Russ, Nashville, Tennessee, for the appellant, Alejandro Avila-Salazar.

          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 of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which Robert W. Wedemeyer and Timothy L. Easter, JJ., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE

         Procedural History

         Plea and Sentence.

         On 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.

         November 2006 Petition for Post-Conviction Relief.

         Petitioner 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).

         May 2014 Petition for Writ of Habeas Corpus.

         Petitioner 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.

         June 2015 Petition for ...


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