State vs. Michael W. Smith

The petitioner pled guilty in Shelby County Criminal Court to two counts of rape, two counts of aggravated burglary, and five misdemeanor counts. He was sentenced, pursuant to a negotiated plea agreement, to ten years for each of the rape counts; six years for each of the aggravated burglary counts; and eleven months and twenty-nine days for each of the misdemeanor counts, with all sentences to be served concurrently for an effective sentence of ten years. The sequence of the charges was that the petitioner was arrested and charged with a rape, an aggravated burglary, and all of the misdemeanor counts, released on bail, and later arrested for the second rape and aggravated burglary, both of which occurred while he was on bail for the first set of charges. In this petition for post-conviction relief, the petitioner sought to have his guilty pleas set aside on the grounds that his pleas were not voluntarily and knowingly made and he received ineffective assistance of counsel. It is unnecessary to address those issues because it appears from the record that the negotiated plea agreement was in violation of Tennessee Code Annotated Section 40-20-111(b), requiring that a sentence for a felony committed while on bail be served consecutively to the sentence for the initial felony charge. Because we do not know whether the petitioner would have entered his pleas of guilty had he known of the requirement regarding consecutive sentencing, on remand the petitioner must be allowed to withdraw his pleas of guilty as to both of the rape and both of the aggravated burglary charges.