Bush v. State

428 S.W.3d 1

Derrick Brandon BUSH

v.STATE of Tennessee.

No. M2011–02133–SC–R11–PC.

Supreme Court of Tennessee, at Knoxville.

May 1, 2013 Session in Knoxville.

Jan. 28, 2014.

Branden Bellar, Carthage, Tennessee, for the appellant, Derrick Brandon Bush.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; John H. Bledsoe, Senior Counsel; L. Ray Whitley, District Attorney General; Sallie Wade Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

WILLIAM C. KOCH, JR., J., delivered the opinion of the Court, in which GARY R. WADE, C.J., JANICE M. HOLDER, CORNELIA A. CLARK, and SHARON G. LEE, JJ., joined.

WILLIAM C. KOCH, JR., J.

This appeal concerns the retroactive application of Ward v. State, 315 S.W.3d 461 (Tenn.2010), in which this Court held that trial courts have an affirmative duty, before accepting a guilty plea to a crime carrying a mandatory sentence of community supervision for life, to inform the defendant desiring to plead guilty of the consequence of lifetime supervision. In April 2011, a prisoner, who pleaded guilty to two counts of attempted rape in December 2000, filed a petition for post-conviction relief in the Criminal Court for Sumner County alleging that his guilty pleas were not knowingly or intelligently entered because he had not been informed that he would be subject to lifetime community supervision following his release from prison. The trial court decided that the Post–Conviction Procedure Act's statute of limitations should be tolled on due process grounds and that the prisoner was entitled to post-conviction relief because Ward v. State should be applied retroactively. The Court of Criminal Appeals reversed, finding no grounds for due process tolling and that Ward v. State did not announce a new rule of constitutional law requiring retroactive application. Bush v. State, No. M2011–02133–CCA–R3–PC, 2012 WL 2308280 (Tenn.Crim.App. June 15, 2012). We granted the prisoner's appeal to clarify the standards governing retroactive application of this Court's authoritative interpretations of the Tennessee Constitution and to resolve related issues in the interpretation of the Post–Conviction Procedure Act. In accordance with the retroactivity framework for post-conviction proceedings the Tennessee General Assembly codified in Tenn.Code Ann. § 40–30–122 (2012), we have determined that our holding in Ward v. State does not require retroactive application and, therefore, that the prisoner is not entitled to tolling under Tenn.Code Ann. § 40–30–102(b)(1) (2012). We also hold that the prisoner's case does not warrant due process tolling. Accordingly, we affirm the judgment of the Court of Criminal Appeals.

I.

On December 4, 2000, eighteen-year-old Derrick Brandon Bush pleaded guilty to two counts of attempted rape in the Criminal Court for Sumner County. The written plea agreement reflected Mr. Bush's understanding (1) that each count carried a minimum penalty of three years and a maximum penalty of six years, (2) that, if his plea was accepted by the trial court, the sentence for each count would be four years, (3) that the sentences would be served consecutively, resulting in an effective sentence of eight years, (4) that he would serve one year in the Sumner County jail, and (5) that he would serve the remaining seven years on “state probation.”

During the submission hearing, both the prosecutor and the trial court described Mr. Bush's sentence as “an effective eight-year sentence.” When the trial court asked Mr. Bush, “So what is the effective sentence that you're getting here today?” Mr. Bush answered, “Eight years.” Accepting Mr. Bush's guilty plea, the trial court declared:

[T]he agreed sentence on each of those [counts] will be four years. They will be consecutive to each other for an eight-year sentence, one year in jail, the balance on probation, and I have gone over with you those conditions. You may not appeal from this.

No mention was made during the hearing that, by pleading guilty to attempted rape, Mr. Bush would be subject to community supervision for life in accordance with Tenn.Code Ann. § 39–13–524(a)(3) (2010 & Supp.2013).

Thereafter, the State prepared the judgment documents relating to Mr. Bush's December 4, 2000 guilty pleas and submitted them to the trial court for approval and signature. The line for the signature of Mr. Bush's lawyer was left blank, and the record does not reflect that either Mr. Bush or his attorney participated in preparing the judgments or that they were even aware of their contents. The judgment form for count one, filed on December 11, 2000, stated that Mr. Bush would be placed on “lifetime supervision upon release.”

Mr. Bush did not learn that he had been placed on community supervision for life until sometime after he had been released from custody. He did not immediately challenge this additional restraint after he learned about it.

Years passed, and on July 7, 2010, this Court filed its opinion in Ward v. State, 315 S.W.3d 461 (Tenn.2010). We held in Ward that a sentence to lifetime community supervision “is a direct and punitive consequence of a plea of guilty to the crimes enumerated in Tennessee Code Annotated section 39–13–524(a).” Ward v. State, 315 S.W.3d at 476. We also held that “trial courts have an affirmative duty to ensure that a defendant is informed and aware of the lifetime supervision requirement prior to accepting a guilty plea.” Ward v. State, 315 S.W.3d at 476.

We recognized this duty because it preserves the integrity of plea bargains in Tennessee courts and prevents violations of the constitutional right to due process by ensuring that any plea represents a defendant's voluntary and knowing choice between the essential terms of the plea agreement and a contested trial. Ward v. State, 315 S.W.3d at 476;see also State v. Nagele, 353 S.W.3d 112 (Tenn.2011) (permitting a defendant to withdraw his guilty plea on the grounds of a Ward violation); Calvert v. State, 342 S.W.3d 477 (Tenn.2011) (permitting a defendant to withdraw his guilty plea on the grounds of ineffective assistance of counsel when counsel failed to inform the defendant of lifetime community supervision).

On April 25, 2011, Mr. Bush filed a pro se petition for relief under the Post–Conviction Procedure Act.¹ The Act permits a state prisoner to seek relief from a “conviction or sentence [that] is void or voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn.Code Ann. § 40–30–103.

“Time is of the essence” when pursuing relief under the Post–Conviction Procedure Act. Tenn.Code Ann. § 40–30–102(a). Accordingly, prisoners seeking post-conviction relief must file their petitions within one year from the date on which the judgment of conviction becomes final or from the date of the last state court action on direct appeal. Tenn.Code Ann. § 40–30–102(a).

However, the General Assembly has provided three express exceptions to this statute of limitations. The first of these exceptions permits post-conviction courts to consider an untimely petition for post-conviction relief when

[t]he claim in the petition is based upon a final ruling of an appellate court establishing a constitutional right that was not recognized as existing at the time of trial, if retrospective application of that right is required. The petition must be filed within one (1) year of the ruling of the highest state appellate court or the United States supreme court establishing a constitutional right that was not recognized as existing at the time of trial.

Tenn.Code Ann. § 40–30–102(b)(1). With regard to this exception, Tenn.Code Ann. § 40–30–122 states that “[a] new rule of constitutional criminal law shall not be applied retroactively in a post-conviction proceeding unless the new rule ... requires the observance of fairness safeguards that are implicit in the concept of ordered liberty.” We will return to Tenn.Code Ann. § 40–30–122 later in the opinion.

In his post-conviction petition, Mr. Bush characterized Ward v. State 's holding as a new rule of constitutional criminal law requiring retroactive application. He also asserted that his guilty plea in 2000 was not voluntary or knowing because he was not aware that he would be subject to community supervision for life. In the alternative, Mr. Bush argued that the Post–Conviction Procedure Act's one-year statute of limitations should be tolled on due process grounds.

The post-conviction court held an evidentiary hearing on September 8, 2011. At the conclusion of the hearing, the court found that: (1) “the fact that the defendant was required to be on supervision for life was never, ever revealed to the defendant by his attorney,” (2) “during the submission hearing the fact that he would be on supervision for life was not mentioned,” and (3) “lifetime supervision on release was added [to the judgment], but it is also clear that the defendant never, ever saw this provision.” Based on these findings, the trial court determined that the statute of limitations should be tolled on due process grounds and that Mr. Bush's guilty plea was not voluntary and knowing because“[t]he Defendant was not informed of the mandatory requirement for Community Supervision for Life.”

The State appealed, and the Court of Criminal Appeals reversed the post-conviction court's judgment. Bush v. State, No. M2011–02133–CCA–R3–PC, 2012 WL 2308280, at *11 (Tenn.Crim.App. June 15, 2012). The appellate court concluded that Mr. Bush did not qualify for due process tolling of the statute of limitations. Bush v. State, 2012 WL 2308280, at *9–10.

The Court of Criminal Appeals also determined that our holding in Ward v. State did not require retroactive application even though it announced a new rule of constitutional law. In conducting its retroactivity analysis, the appellate court attempted unsuccessfully to...