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Drummer v. State8/29/2001
Assigned on Briefs August 7, 2001
The Appellant, Edward Drummer, appeals from the dismissal of his petition for post-conviction relief by the Shelby County Criminal Court. In September, 1997, Drummer pled guilty to one count of aggravated rape and was sentenced to fifteen years confinement in the Department of Correction. In 1998, Drummer filed a petition for post-conviction relief challenging the validity of his guilty plea upon grounds of (1) voluntariness and (2) ineffective assistance of counsel. The post- conviction court, finding the claims unsupported, dismissed the petition. On appeal, Drummer contends that he was denied the effective assistance of counsel. After review, we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.
David G. Hayes, J., delivered the opinion of the court, in which Joe G. Riley and Alan E. Glenn, JJ., joined.
OPINION
Procedural Background
This case presents a somewhat protracted procedural history. In November, 1998, the post-conviction court conducted an evidentiary hearing upon the Appellant's claims contained in his February, 1998, petition. Following this hearing, the post-conviction court denied relief and dismissed the petition. A pro se appeal was taken and, after review, this court remanded to the post-conviction court for (1) appointment of counsel, (2) supplementation of the record, and (3) for a "further hearing" to determine the correct date of the commission of the offense. See Drummer v. State, 6 S.W.3d 520 (Tenn. Crim. App. 1999) (holding that indigent inmates who seek review of the denial of their petitions for post-conviction relief are entitled to appointed counsel on appeal). Accordingly, this case is again before this court after apparent compliance with these directives. We emphasize "apparent" as the record does not reflect that a hearing was conducted to correct the discrepancy relating to the date of the offense. Although the Appellant asserts in his brief, "On June 28, 1999, appointed counsel entered an Amended Judgment sheet correcting the date of the commission of crime and showing Petitioner's eligibility as a standard range I offender," no such document is contained in the record.
ANALYSIS
The Appellant's claim of ineffectiveness of counsel and involuntariness of his guilty plea, as set forth in his petition, stem from the following factual allegations:
Petitioner entered a guilty plea for a sentence Fifteen (15) years, as a Standard Offender (Range I, at 30%). See Judgment Document, attached hereto.
Once petitioner entered the Tennessee Department of Correction, he was informed that his guilty plea for fifteen (15) years was in fact, a mandatory 100% and the least amount of time to reduce that 100% would be 15%, resulting in a Release Eligibility Date (R.E.D.), of 85%, assuming petitioner received all his Sentence Reduction Credits allowed by law.
At the November, 1998, evidentiary hearing, the Appellant apparently abandoned pursuit of this claim. Instead, the Appellant focused upon the involuntariness of his guilty plea based upon trial counsel's overstatement of the risk of conviction and ineffectiveness, and the lack of pre-trial investigation:
Q: Well, why did you take the plea?
A: Well, the only reason why I took the plea because she told me herself, she supposed to be my lawyer, that it wasn't nothing she could do for me. You might as well go on and cop out because they're going to find you guilty because it ain't nothing I can do for you. That's the only reason why I went on and pleaded for that plea bar
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