Case Information

*-677 hundred percent, and twelve ye ar s for attempted aggravated rape, to be served at thirty

S.W.3d 251). This rule, however, is not without exceptions. Summers I , 212 S.W.3d at

CONCLUSION

A prisoner is guaranteed right to habeas corpus relief under article I, section 15

258. The Tennessee Supreme Court explained that "determinative issue is whether

percent, for an effective sentence forty years.

We acknowledge that Petitioner's burden proof in this regard is a substantial Tennessee Constitution. Tenn. Const. art. I, § 15; see T.C.A. §§ 29-21-101 to - plea agreement included an illegal sentence as a material element. If so, the illegal *-645 Based on the above authority, we affirm the judgment of the habeas corpus court.

obstacle, particularly considering that record is "strictly limited to the face the

On June 5, 2015, Petitioner filed a pro se petition for writ of habeas corpus in

130. The grounds upon which a writ habeas corpus may be issued, however, are very

se nt enc e renders guilty plea, including the conviction, invalid." Id. at 259. However,

judgment and record the underlying proceedings," Summers II, 267 S.W.3d at 7, Wayne County Circuit Court, arguing, inter il ia, that h i s convictio n fo r a t t em p t e d

narrow. T ay lo r v . State, 9 95 S .W . 2d 78, 8 3 ( T e n n. 1999). "H abe as co rpu s re li ef is

"[i]f record e s t a bl i s h e s th at t h e il le ga l sen tence w a s not a bar gain ed - fo r el em ent o f t he

which, in this case, includes only guilty plea agreement and the guilty plea hearing.

aggravated rape was void because the judgment form did not include the mandatory

available in Tennessee only when 'it appears upon face the judgment or the record

plea agreement . . . sentence is void, but the conviction remains intact, and the only

See also Summers I, 212 S.W.3d at 262 ("The State bears no burden showing that the

provision of community supervision for life. Consequently, the Petitioner argued that he proceedings upon which the judgment is rendered' that a convicting court was

remedy is correction sentence." Summers v. Fortner, 267 S.W.3d 1, 6-7 (Tenn.

record proceedings upon which the judgment was rendered reveals that [the

without jurisdiction or authority to sentence a de fen dant , or that a defendant's sentence of

should be permitted to withdraw his plea agreement because absence community

Crim. App. 2008) ("Summers II"). In Summers II, this court stated as guidance that

ILLE R. McMULLEN, 111 GE

petitioner's] factual assertions are false. The burden rests with [the petitioner] to prove

supervision was a material element agreement. On August 20, 2015, the State filed

imprisonment or other restraint has expired." Archer v. State, 851 S.W.2d 157, 164

"materiality exists when 'there is a reasonable probability' a change in outcome of

that his allegations are true."). We further acknowledge significant consequences

a response, acknowledging that Petitioner's attempted aggravated rape sentence

(Tenn. 1993). A habeas corpus petition challenges void and not merely voidable proceedings." Id. at 8 (citing Brady v. Maryland, 373 U.S. 83 (1963); United States

imposed on a defendant by addition lifetime supervision after having served his or

judgments. Summers I, 212 S.W.3d at 255 (citing Potts v. State, 833 S.W.2d 60, 62

"appears to be illegal and therefore void."

v. Bagley, 473 U.S. 667, 682 (1985)). The court cautioned, however, that proof of

her entire sentence and that, in other proceedings, trial court's failure to advise a

(Tenn. 1992)). " A void judgment is one in which judgment is facially in val id because

materiality is "strictly limited to face the judgment and the record of the underlying

defendant on lifetime supervision re qui rem ent can rise to the level constitutional

the court lacked jurisdiction or authority to render the judgment or because the

On May 12, 2016, habeas corpus court held an evidentiary hearing. After

proceedings." Summers II, 267 S.W.3d at 7.

error. See Ward v. State, 315 S.W.3d 461, 474-76 (Tenn. 2010) (holding that, in the

defendant's sentence has expired." Taylor, 995 S.W.2d at 83 (citing Dykes v. Compton,

hearing argument from counsel, court found that "the record has established that the

context a knowing and voluntary guilty plea, trial court's failure to advise a

978 S.W.2d 528, 529 (Tenn. 1998); Archer, 851 S.W.2d at 161-64). However, a voidable

illegal sentence was not a bargained for element plea agreement." The habeas

In present case, neither the transcript the guilty plea hearing, the judgment

defendant the community supervision provision is constitutional error and the

judgment "is facially valid and requires proof beyond face the record or judgment

corpus court entered a written order on June 8, 2016, dismissing petition. In its order,

form, nor Petitioner's guilty plea agreement reference the community supervision for

judgment must be set aside unless State proves that the error was harmless beyond a

to establish its invalidity." Summers 1, 212 S.W.3d at 256 (citing Dykes, 978 S.W.2d at court found that, although the omission the mandatory community supervision for

life requirement. Indeed, the entire record is completely silent as to community

reasonable doubt). However, we cannot conclude, in light limited record in this

529). Thus, "[i]n all cases where a petitioner must introduce proof beyond record to

life rendered attempted aggravated rape sentence void, "nothing in the record has

supervision. Relying on this court's opinions in Joe Ross v. State and Michael Shane

appeal and Petitioner's burden proof, that the absence of community supervision

establish invalidity his conviction, then that conviction by definition is merely

established that illegal sentence was a material bargained -for element the plea

Benson v. State, Petitioner contends that, notwithstanding this silence, "it is more

was a material element Petitioner's agreement. Although the Petitioner argues that

voidable, and a Tennessee court cannot issue writ habeas corpus under such

agreement, which included a 40 -year sentence on a reduced charge second degree

likely than not that [the Petitioner] bargained for a sentence that did not include

he "bargained for ability to live the remainder his life upon release . . . as a free

circumstances." State v. Ritchie, 20 S.W.3d 624, 633 (T enn . 2000). Moreover, it is the

murder." The court ordered Petitioner's convictions "remain intact, and he is not

community supervision for life." See Joe Ross v. State, No. W2013-02555-CCA-R3-HC,

man," there is no support for this claim in record, and this court has held that "[t]he

entitled to withdraw his plea of guilty in this matter." The court also ordered the

petitioner's burden to demonstrate, by a preponderance evidence, that the judgment

2014 WL 3954060 (Tenn. Crim. App. Aug. 13, 2014); see also Michael Shane Benson v. *-376 petitioner's subjective expectations are irrelevant, and, correspondingly, his testimony

Petitioner's case transferred to the Davidson County Criminal Court for entry a

is void or that confinement is illegal. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn.

State, No. E2011-00786-CCA-R3-HC, 2011 WL 6813185 (Tenn. Crim. App. Dec. 22,

that illegal sentence was a bargained -for el eme nt his plea agreement is irrelevant."

corrected judgment in count two and the addition community supervision for life

2000). If this burden is met, Petitioner is entitled to immediate release. State v.

2011). Quoting Joe Ross, Petitioner argues that "silence in the record should not be

Summers II, 267 S.W.3d at 7.

Warren, 740 S.W.2d 427, 428 (T enn . Crim. App. 1986) (citing Ussery v. Avery, 432

following expiration his sentences. It is from this order that the Petitioner now

interpreted, as State seems to suggest, as proof that the omission the community

supervision condition from judgment was not a material bargained -for element." Joe

S.W.2d 656, 658 (T enn . 1968)).

timely appeals.

Rather, guilty plea hearing transcript reflects that the disposition the

Ros s, 2 0 14 W L 39 54 06 0, at *6. However, a s w e a ls o n ot e d in Joe Ro ss , " [t ] he

Petitioner's first degree felony murder charge, which ca rr i e d a man dato ry s e n t en c e o f li fe

Here, Petitioner entered a guilty plea to one count attempted aggravated

determination materiality i s fact specific and will vary from case to case." Id.

ANALYSIS

or life without parole, was more likely material element his plea agreement.

rape and, pursuant to Tennessee Code Annotated section 39-13-524(a) (2006), was

Indeed, the overwhelming majority the guilty plea hearing was spent on the

required to submit to community supervision for life as part of his sentence. However, O n appeal, Petitioner argues that the omission community super vision for

Similar to instant case, in Joe Ross, the judgment form also did not include

Petitioner's plea to lesser charge second degree murder, and his plea to attempted j u d g me n t form for attempted aggravated rape did not impose the mandated

life was a material, bargained -for element his plea agreement. Specifically, the

community supervision for life with respect to an aggravated rape conviction. Id. at *1. *-250 aggravated rape was not mentioned until very end the hearing when the trial court

community supervision for life. This court has repeatedly held that "failure to include the

Petitioner contends that he bargained for ability to live the remainder his life upon

Accordingly, this court held that judgment was facially void. Id. However, unlike *-236 had to inform parties that the Petitioner had an additional charge to resolve. *-226 community supervision for life provisions" results i n an illegal sentence. State v. release witho ut any additional punitive restrictions. The State responds that absence Petitioner, Ross was summarily denied an evidentiary hearing by the habeas corpus

Accordingly, Petitioner has n o t presented any proof from the record that there is a *-212 Bronson, 172 S . W . 3d 600, 601-602 (Tenn. Crim. App. 2005). As such, the State is i n community supervision for life was not a material element of Petitioner's plea

court, and, therefore, this court reversed summary denial and remanded Ross's case to *-208 "reasonable probability" that the proceedings would have been different had the *-198 agreement that the sentence is illegal and that the judgment is, therefore, facially void. agreement, and that Petitioner's argument i s not supported by the record. habeas corpus court for the requisite hearing to determine "whether the i l l e ga l

attempted aggravated rape s e n t en c e been legal. Thus, although Petitioner's attempted *-184 Because Petitioner's attempted aggravated rape sentence is illegal, the inquiry then

sentence was a material bargained -for element a plea agreement with State." Id. at *-179 aggravated rape sentence is void, his only remedy is correction the sentence. S e e *-169 "The determination whether habeas corpus relief should be granted i s a question *-168 becomes one fashioning the appropriate remedy.

*7. Here, Petitioner received an evidentiary hearing, and the habeas corpus court *-165 I d . at 7. The trial court properly denied Petitioner's habeas corpus petition and *-155 o f law." Faulkner v. State, 2 26 S.W. 3d 358 , 3 6 1 (T en n. 2 00 7 ) ( ci t in g H ar t v. St ate , 2 1 *-154 det ermi ned a ft e r th e he ari ng t ha t t h e Pe tit io ner "ha[d ] not car ried his b u r d e n o f s h o w in g *-151 transferred case to the convicting court for entry a corrected judg ment adding t he *-141 S.W.3d 901, 903 (Tenn. 2000)). A cc o r di n g ly , our review is de novo without a As a general rule, when a plea agreement includes an illegal sentence, a petitioner *-139 that absence o f the community supervision component was a material component o f *-135 condition community supervision for life.

presumption cor rect ness . Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007) is entitled to wi thdr aw guilty plea. Summers I, 212 S.W.3d at 258 (citing McLaney v. plea bargain." The habeas corpus court concluded, and we agree, that the material *-113 Bell, 59 S.W.3d 90, 94-95 (Tenn. 2001), overruled on other grounds by Su mmer s I, 212 *-112 ("Summers 1") (citing State v. Livingston, 197 S.W.3d 710, 712 (Tenn. 2006)).

element o f Petitioner's g ui l t y plea was the total effective sentence forty years.

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6

5

05/30/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Brief's March 14, ^[2017]

ALEJANDRO AVILA SALAZAR v. STATE OF TENNESSEE

Appeal from the Circuit Court for Wayne County

No. ^[15677] Russell Parkes, Judge

No. M2016-01336-CCA-R3-HC

Th e Petitioner, A l e j a n d r o Avila Sal azar, ap pe al s the d i sm i s sa l of h i s p et i ti on for writ of

habeas corpus by the Wayne County Circuit Court. The Petitioner previously entered

guilty pleas to second d e gr e e murder and attempted aggravated rape, for w h ic h he

received an effective sentence of forty years' confinement. On appeal, he argues that he

is entitled to withdraw his guilty plea because his sentence for attempted aggravated rape

is illegal and was a material, bargained -for element of his plea agreement. Upon review,

we affirm the judgment of the habeas corpus court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which NORMA MCGEE

OGLE and ROBERT W. WEDEMEYER, JJ., joined.

Hershell K o ge r (at hearing and on appeal), Assistant Public Defender, Pulaski,

Tennessee, and Brandon E . White (on appeal), for the Petitioner, Alejandro Avila

Salazar.

He rbe rt H . Sl at er y I II , Attor ney Gen eral a n d R eporter; Clark B. Thornton, Senior

Counsel; and Brent A. Cooper, District Attorney General, for the Appellee, State of

Tennessee.

OPINION

On January 25, 2005, the Petitioner was indicted by a Davidson County Grand

Jury on one count of first degree felony murder and one count of attempted aggravated

rape. On September 6, 2006, the Petitioner pled guilty to second degree murd er and

at tem pted ag gr av ate d r a p e . Pur suant t o th e pl ea agree ment, Petit ioner r e ce i v e d

concurrent sentences forty years for sec ond de gree murder, to be served at one