Plea at Your Own Risk

The Danger of Plea Agreements Providing for Concurrent Tennessee and Federal Sentences

About 10 years ago, then Judge David G Haynes noticed that there had been “many cases” coming before the Tennessee Court of Criminal Appeals with defendants over which the state had primary jurisdiction[1] challenging “the voluntariness of [their] guilty plea[s] based upon [] plea agreement[s] which provided that the defendant[s’] state sentences would be served concurrently to the defendant[s’] outstanding or pending federal sentence[s].”[2] The trend has unfortunately continued since then.[3] Judge Hayes succinctly stated that the problem with this type of plea agreement “is that the State of Tennessee lacks any authority to control a federal sentence.”[4] Put another way, the “practical problems” of such a plea agreement are “a result of dual sovereignty” in that “[n]either sovereign controls the other’s proceedings.”[5]

Tennessee Rule of Criminal Procedure 32(c)(2)(B) provides that the trial court “shall impose a sentence that is consecutive to any [unserved prior non-Tennessee sentence] unless the [trial] court determines in the exercise of its discretion that good cause exists to run the sentences concurrently and explicitly so orders.” Rule 32(c)(2)(B) makes consecutive sentencing the default rule when addressing unserved prior sentences from another jurisdiction. However, even if the trial court finds that “good cause exists” and explicitly orders the sentences to be served concurrently,[6] the order is not binding on federal prison officials. Instead, “concurrent sentences imposed by state judges are nothing more than recommendations to federal officials” and “[t]hose officials remain free to turn those concurrent sentences into consecutive sentences by refusing to accept the state prisoner until completion of the state sentence and refusing to credit the time the prisoner spent in state custody.”[7]

The fact that there is no way to enforce a plea agreement that provides for a defendant’s Tennessee sentence to be served concurrently to any outstanding or pending federal sentences raises the issue of whether such a guilty plea was knowingly and voluntarily entered. There must be a showing in the trial court that a guilty plea was voluntarily and knowingly entered before it can be accepted.[8] A guilty plea resulting from ignorance, misunderstanding, coercion, inducements, or threats is not voluntary.[9] “If a plea of guilty is based on a misrepresentation, including unfulfilled or unfulfillable promises, then the guilty plea cannot stand.”[10]

To that end, Tennessee Rule of Criminal Procedure 32(f) provides for the withdrawal of a guilty plea. If the motion is made before the sentence is imposed, the trial court may grant the motion “for any fair and just reason.”[11] If the motion is made after sentencing but before the judgment becomes final, the trial court “may set aside the judgment of conviction and permit the defendant to withdraw the plea to correct manifest injustice.”[12] A manifest injustice exists when “the plea was not knowingly, voluntarily, and understandingly entered.”[13] The Tennessee Court of Criminal Appeals has previously held that when the promise of concurrent Tennessee and federal sentences is a direct inducement for the guilty plea, the plea is not knowingly and voluntarily entered and the trial court should grant a motion to withdraw.[14] This is true even when the defendant’s intent to have his Tennessee and federal sentences served concurrently is arrived at through a “misunderstanding” as to the guilty plea’s effect despite the efforts of the trial court and counsel to explain “the ramifications” of the plea with respect to the “place of confinement and concurrent sentences.”[15]

The window to file a Rule 32(f) motion to withdraw a guilty plea is very narrow because “a judgment of conviction entered upon a guilty plea becomes final thirty days after acceptance of the plea agreement and imposition of sentence.”[16] However, a guilty plea that was not knowingly and voluntarily entered can be attacked in a petition for post-conviction relief, and the Tennessee Court of Criminal Appeals has granted such relief in cases where “it is clear that the intent of the state court plea agreement was that the [Tennessee] sentences be served concurrently with the [defendant]’s previously imposed federal sentences.”[17] Still, time is of the essence in seeking post-conviction relief because the right to file a post-conviction petition “shall be extinguished upon the expiration of the [one-year] limitations period.”[18] While a petition filed outside the one-year statute of limitations may present a meritorious claim for post-conviction relief regarding the knowingness and voluntariness of a guilty plea, the Tennessee Court of Criminal Appeals has held that this fact alone will not toll the statute of limitations.[19] Furthermore, a defendant cannot seek state habeas corpus relief because “[v]oluntariness of [guilty] pleas … has no relevance in a habeas corpus proceeding.”[20]

Attorneys should be extremely cautious when attempting to arrange for concurrent state and federal sentencing for their clients. Such sentencing arrangements are not impossible. For example, when the federal government has primary jurisdiction over a defendant and they are already in its custody, then a Tennessee trial court could order concurrent sentences pursuant to Rule 32(c)(2)(B), allowing the defendant’s time spent in federal custody to count toward their state sentence, due to the state’s status as the sovereign with secondary jurisdiction. In situations where the state has primary custody of the defendant, federal prison officials will honor an agreement for concurrent state and federal sentences only when the federal sentencing judge has specifically ordered the federal sentence to run concurrently with the state sentence, even if the state sentence has yet to be imposed.[21] However, if the state has primary jurisdiction over the defendant and the federal judgment is silent as to how the sentences are to be served, federal prison officials will presume the federal sentence is to be served consecutively with the state sentence.[22]

Absent the circumstances listed above, plea agreements that provide for a defendant’s Tennessee sentences to be served concurrently to their outstanding or pending federal sentences are “fraught with peril”[23] in light of the facts that they are unenforceable and that there is an extremely narrow window of opportunity to challenge the knowing and voluntary nature of such pleas. Judge Hayes provided sound advice when he emphasized “that neither the State nor defense counsel should enter into any plea agreement which contains contingencies within the agreement or which, by law, cannot be achieved.”[24] After almost ten years, hopefully his advice will no longer be ignored.

Notes

  1. “Primary jurisdiction belongs to the sovereign that first arrested the defendant.” Rachel A. Mills, Comment, “Too Many Cooks Spoil the Sentence: Fragmentation of Authority in Federal and State Sentencing Schemes,” 41 Seton Hall L. Rev. 1637, 1638 (2011). While a sovereign with secondary jurisdiction can still bring a defendant before it, that sovereign’s “jurisdiction is secondary in terms of priority for trial, sentencing, and incarceration.” Id. Defendants “sever the sentence of the sovereign with primary jurisdiction first.” Id. at 1639.
  2. State v. Virgil, 256 S.W.3d 235, 242 (Tenn. Crim. App. 2008) (Hayes, J., concurring).
  3. See Richard L. Vowell v. State, No. E2016-00374-CCA-R3-PC, 2016 WL 7479144 (Tenn. Crim. App. Dec. 29, 2016); Everett Spencer Barnette v. State, No. E2014-00902-CCA-R3-CD, 2015 WL 636741 (Tenn. Crim. App. Feb. 13, 2015); Bernard Frazier v. State, No. W2013-00187-CCA-R3-PC, 2014 WL 1410285 (Tenn. Crim. App. Apr. 10, 2014); and James L. Crawford v. State, No. E2010-00425-CCA-R3-PC, 2011 WL 1745187 (Tenn. Crim. App. May 9, 2011).
  4. Virgil, 256 S.W.3d at 242.
  5. Frazier, 2014 WL 1410285, at *7 (quoting Derrick E. Means v. State, No. 02C01-9707-CR-00248, 1998 WL 470447, at *5 (Tenn. Crim. App. Aug. 13, 1998)). The use of the term “dual sovereignty” here is something of a misnomer. The dual-sovereignty doctrine refers to “[t]he rule that the federal and state governments may both prosecute someone for a crime, without violating the constitutional protection against double jeopardy, if the person’s act violated both jurisdictions’ laws.” Dual-Sovereignty Doctrine, Black’s Law Dictionary (8th ed. 2004). The problems associated with ordering a state sentence to be served concurrently to an outstanding or pending federal sentence arise regardless of whether the sentences are punishing the same act.
  6. While not addressed in the cases I have reviewed, I have my doubts that a trial court’s mere acceptance of a plea agreement without making a finding that “good cause exists to run the sentences concurrently” would comply with the requirements of Rule 32(c)(2)(B).
  7. Virgil, 256 S.W.3d at 242 (quoting Del Guzzi v. United States, 980 F.2d 1269, 1272-79 (9th Cir. 1992) (Norris, J., concurring)); see also 18 U.S.C.A. § 3584(a) (providing that “[m]ultiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently”); Henry J. Sadowski, “Grid & Bear It,” Champion, Nov. 2007 (detailing “how the Federal Bureau of Prisons computes federal sentences imposed when the defendant is under the primary custodial jurisdiction of state authorities”).
  8. Boykin v. Alabama, 395 U.S. 238, 242 (1969).
  9. Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993).
  10. Frazier, 2014 WL 1410285, at *6 (citing Brady v. United States, 397 U.S. 742, 755 (1970)).
  11. Tenn. R. Crim. P. 32(f)(1).
  12. Tenn. R. Crim. P. 32(f)(2).
  13. State v. Crowe, 168 S.W.3d 731, 742 (Tenn. 2005).
  14. Barnette, 2015 WL 636741, at *5.
  15. Virgil, 256 S.W.3d at 240-41.
  16. State v. Green, 106 S.W.3d 646, 650 (Tenn. 2003).
  17. Frazier, 2014 WL 1410285, at *7 (holding as such and citing similar decisions by the Tennessee Court of Criminal Appeals).
  18. Tenn. Code Ann. § 40-30-102(a) (providing that a petition for post-conviction relief must be filed “within one (1) year of the date of the final action of the highest state appellate court to which an appeal is taken or, if no appeal is taken, within one (1) year of the date on which the judgment became final.”).
  19. Vowell, 2016 WL 7479144, at *3 (holding that trial counsel’s negligence in advising the defendant about the consecutive nature of his Tennessee and federal sentences would not toll the post-conviction statute of limitations without a showing that trial counsel acted in a way “directly adverse” to the defendant’s interest”); Crawford, 2011 WL 1745187, at *3 (holding that the fact that the defendant was unaware that his Tennessee and federal sentences were not being served concurrently was not a ground to toll the statute of limitations because “[m]ere ignorance of a factual or legal basis for seeking post-conviction relief does not require tolling of the statute of limitations”).
  20. Summers v. State, 212 S.W.3d 251, 259 (Tenn. 2007).
  21. See Henry J. Sadowski, “Federal Sentence Computation Applied to the Interaction of Federal and State Sentences,” Champion, April 2014. This was not always the case. Prior to the United States Supreme Court’s decision in Setser v. United States, __ U.S. __, 132 S. Ct. 1463 (2012), the United States Sixth Circuit Court of Appeals had held that the applicable federal sentencing statute did not authorize a federal sentencing judge to order a federal sentence to be served concurrently to a yet to be imposed state sentence. See United States v. Quintero, 157 F.3d 1038 (6th Cir. 1998), abrogated by Setser, 132 S.Ct. at 1463.
  22. Sadowski, supra note 21.
  23. Here I am borrowing the phrase that the Tennessee Court of Criminal Appeals often uses to describe “the practice of raising ineffective assistance of counsel claims on direct appeal.” State v. Blackmon, 78 S.W.3d 322, 328 (Tenn. Crim. App. 2001). Use of the phrase seems appropriate here given the enormous amount of risk to which these types of plea agreements expose criminal defendants and, to a lesser extent, the state.
  24. Virgil, 256 S.W.3d at 243.

Jason Smith JASON R. SMITH is a law clerk to Judge D. Kelly Thomas Jr., of the Tennessee Court of Criminal Appeals. He is a 2009 graduate of the University of Tennessee College of Law. Prior to clerking for Judge Thomas, he was a research attorney at Butler, Vines & Babb PLLC in Knoxville. Follow him on Twitter at @jrs082.

          | TBA Law Blog