Jose RODRIGUEZ a.k.a. Alex LOPEZ v. STATE of Tennessee.
Supreme Court of Tennessee, at Nashville.
April 4, 2014.
430 S.W.3d 450
The hearing panel found the following four aggravating circumstances: (1) Mr. Hyman‘s prior disciplinary offenses; (2) Mr. Hyman‘s pattern of misconduct; (3) the number of offenses in the current petition; and (4) Mr. Hyman‘s substantial experience in the practice of law. In mitigation, the hearing panel considered the premature birth of Mr. Hyman‘s daughter during the Korten litigation and the resulting loss of sleep that Mr. Hyman experienced during that time. After a thorough review of “the transcript of the evidence before the hearing panel and its findings and judgment,” we are unable to conclude that the hearing panel‘s consideration of these factors is “arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.”
III. Conclusion
We affirm the judgment of the circuit court and the hearing panel suspending Mr. Hyman from the practice of law for six months. Costs of this appeal are taxed to Roger David Hyman and his surety, for which execution may issue if necessary.
Sean Lewis, Nashville, Tennessee, for the petitioner, Jose Rodriguez.
Elliott Ozment, Tricia R. Herzfeld, and R. Andrew Free, Nashville, Tennessee, for the amici curiae, Tennessee Law Professors and the National Immigration Project of the National Lawyers Guild.
OPINION
JANICE M. HOLDER, J., delivered the opinion of the Court, in which GARY R. WADE, C.J., and CORNELIA A. CLARK, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.
The petitioner, a Mexican citizen, entered a guilty plea to the misdemeanor charge of patronizing prostitution and was granted judicial diversion. After successfully completing his diversion, the petitioner‘s criminal record was expunged. More than three years after the entry of his plea, the petitioner filed a petition for post-conviction relief alleging that trial counsel failed to advise him of the potential immigration consequences of his guilty plea as required by Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). The trial court dismissed the petition as time-barred. The Court of Criminal Appeals held that a petitioner whose record has been expunged may not obtain post-conviction relief and affirmed the trial court‘s summary dismissal of the petition. We granted the petitioner permission to appeal. Following our review, we conclude that a guilty plea expunged after successful completion of judicial diversion is not a conviction subject to collateral review under the Post-Conviction Procedure Act. We therefore affirm the judgment of the Court of Criminal Appeals.
I. Facts and Procedural History
On August 15, 2007, Jose Rodriguez was charged with patronizing prostitution in violation of
On March 31, 2010, the United States Supreme Court released Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), holding that the Sixth Amendment to the United States Constitution requires counsel to inform non-citizen clients of the immigration consequences of a guilty plea. Mr. Rodriguez again retained counsel and filed a post-conviction petition on March 31, 2011, alleging that he is entitled to relief under Padilla and that the post-conviction statute‘s one-year statute of limitations should be tolled. See
The trial court reviewed the post-conviction petition and concluded that the petition was time-barred. Mr. Rodriguez appealed, and the Court of Criminal Appeals affirmed, holding that a petitioner whose record has been expunged may not seek post-conviction relief. We granted Mr. Rodriguez permission to appeal.
II. Analysis
As an issue of first impression, we consider whether the Post-Conviction Procedure Act (“Post-Conviction Act“),
When we interpret a statute, we must ascertain and give full effect to the General Assembly‘s intent. Walker v. Sunrise Pontiac-GMC Truck, Inc., 249 S.W.3d 301, 309 (Tenn. 2008). Our primary concern is to carry out this intent without unduly expanding or restricting the language of the statute beyond the legislature‘s intended scope. Shorts v. Bartholomew, 278 S.W.3d 268, 274 (Tenn. 2009). Furthermore, “[w]e presume that every word in a statute has meaning and purpose and should be given full effect if so doing does not violate the legislature‘s obvious intent.” State v. Casper, 297 S.W.3d 676, 683 (Tenn. 2009).
When the statutory language is clear and unambiguous, we apply the plain meaning of the statute. Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004). When the language is ambiguous, however, we look to the “broader statutory scheme, the history of the legislation, or other sources to discern its meaning.” Casper, 297 S.W.3d at 683. In doing so, we must also presume that the General Assembly was aware of the state of the law at the time it enacted the statute at issue. Id.
A. Post-Conviction Act
In Tennessee, a post-conviction action is commenced by filing a petition “with the clerk of the court in which the conviction occurred.”
Tennessee, like most jurisdictions, recognizes two distinct meanings of the term “conviction.” State v. Vasser, 870 S.W.2d 543, 545 (Tenn. Crim. App. 1993). A conviction in the “general sense” is the establishment of guilt by a guilty plea or a verdict independent of sentence and judgment. Vasser, 870 S.W.2d at 546; see also Daughenbaugh v. State, 805 N.W.2d 591, 597 (Iowa 2011) (defining “conviction” in the “general or popular sense” as “the estab
To determine whether “conviction” in
Based on these repeated references to the terms “judgment” or “judgments,” we conclude that the Post-Conviction Act requires the entry of a judgment. See
It is the judgment of conviction that gives legal consequence to a finding of guilt. See, e.g., Vasser, 870 S.W.2d at 545 (explaining that in the technical sense, the judgment of conviction “provides the legal authority for the executive branch of government to incarcerate a person who is sentenced to confinement“);
After reviewing the provisions of the Post-Conviction Act, we conclude that the General Assembly used the term “conviction” in its technical sense and that an adjudication by the court and the formal entry of a judgment are required.
We must next determine whether Mr. Rodriguez‘s guilty plea, which was entered as part of his judicial diversion and was expunged following satisfactory completion of his judicial diversion, constitutes a “conviction” within the meaning of the Post-Conviction Act.
B. Judicial Diversion
If the defendant violates the conditions of judicial diversion, the trial court may “enter an adjudication of guilt and proceed as otherwise provided.”
Much of our judicial diversion case law comes from the Court of Criminal Appeals. These decisions provide insight into the intermediate appellate court‘s interpretation of section 40-35-313 and are instructive in our review.
In State v. Tolbert, for example, the Court of Criminal Appeals considered whether evidence of an expunged guilty plea could be used to attack the credibility of a witness under Tennessee Rule of Evidence 609, which governs the impeachment of witnesses convicted of a crime. No. E1999-02326-CCA-R3-CD, 2000 WL 1172344, *2-4 (Tenn. Crim. App. Aug. 18, 2000). The intermediate appellate court explained that the witness, who entered a guilty plea to extortion but was granted judicial diversion, had not been convicted of any crime. Id. at *4. Based on the language of the judicial diversion statute, the court concluded that when a defendant is granted judicial diversion, there is no “conviction” within the meaning of Rule 609. Id.; see also State v. Peters, No. W2011-00680-CCA-R3-CD, 2012 WL 1656737, *5-6 (Tenn. Crim. App. May 9, 2012).
In State v. Norris, the Court of Criminal Appeals concluded that an appellant who had been granted judicial diversion has no appeal as of right under Rule 3(c) of the Tennessee Rules of Appellate Procedure. 47 S.W.3d 457, 461-63 (Tenn. Crim. App. 2000). The intermediate appellate court explained that an appeal as of right stems from a judgment of conviction and that a defendant‘s guilty plea tendered prior to a grant of judicial diversion does not become a judgment of conviction unless the defendant violates the conditions of his diversion. Id. at 462. The defendant who accepts diversion has a “self-determined chance to emerge from the process without
Although the judicial diversion statute has a component of guilt that could be characterized as a conviction in the general sense, the statute forecloses the entry of a judgment of conviction unless the defendant violates the terms of his diversion. See Schindler, 986 S.W.2d at 211; see also
We may also presume that the General Assembly, as author of both the judicial diversion statute and the Post-Conviction Act, was aware of the state of the law when it enacted and subsequently amended both statutes.8 See Casper, 297 S.W.3d at 683. If the General Assembly intended the Post-Conviction Act to encompass judicial diversion, it could have specifically included it in the Post-Conviction Act.
III. Conclusion
We conclude that the Post-Conviction Act provides an avenue of relief from a conviction that has resulted in a judgment of conviction. Mr. Rodriguez entered a guilty plea that was expunged following his successful completion of judicial diversion. In his post-conviction petition, Mr. Rodriguez claimed that as a result of the ineffective assistance of counsel, his expunged guilty plea was not knowingly, intelligently, and voluntarily entered. Because no judgment of conviction was entered, Mr. Rodriguez‘s claims are not cognizable under the Post-Conviction Act. We therefore affirm the judgment of the Court of Criminal Appeals. Costs of this appeal are taxed to Jose Rodriguez a/k/a Alex Lopez, for which execution may issue if necessary.
STATE of Tennessee v. Michael W. PARSONS.
No. W2010-02073-CCA-R3CD.
Court of Criminal Appeals of Tennessee, at Jackson.
Dec. 15, 2011.
Assigned on Briefs Sept. 7, 2011. Application for Permission to Appeal Denied by Supreme Court May 23, 2012.