IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
October 2, 2013 Session
JOSE RODRIGUEZ A.K.A. ALEX LOPEZ v. STATE OF TENNESSEE
Appeal by Permission from the Court of Criminal Appeals
Criminal Court for Davidson County
No. 4345 Seth Norman, Judge
No. M2011-01485-SC-R11-PC - Filed April 4, 2014
The petitioner, a Mexican citizen, entered a guilty plea to the misdemeanor charge of
patronizing prostitution and was granted judicial diversion. After successfully completing
his diversion, the petitioner’s criminal record was expunged. More than three years after the
entry of his plea, the petitioner filed a petition for post-conviction relief alleging that trial
counsel failed to advise him of the potential immigration consequences of his guilty plea as
required by Padilla v. Kentucky, 559 U.S. 356 (2010). The trial court dismissed the petition
as time-barred. The Court of Criminal Appeals held that a petitioner whose record has been
expunged may not obtain post-conviction relief and affirmed the trial court’s summary
dismissal of the petition. We granted the petitioner permission to appeal. Following our
review, we conclude that a guilty plea expunged after successful completion of judicial
diversion is not a conviction subject to collateral review under the Post-Conviction Procedure
Act. We therefore affirm the judgment of the Court of Criminal Appeals.
Tenn. R. App. P. 11; Judgment of the Court of Criminal Appeals Affirmed
J ANICE M. H OLDER, J., delivered the opinion of the Court, in which G ARY R. W ADE, C.J., and
C ORNELIA A. C LARK, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.
Robert E. Cooper, Jr., Attorney General and Reporter; Joseph F. Whalen, Solicitor General;
James E. Gaylord, Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Dan Hamm, Assistant District Attorney General, for the State of Tennessee.
Sean Lewis, Nashville, Tennessee, for the petitioner, Jose Rodriguez.
Elliott Ozment, Tricia R. Herzfeld, and R. Andrew Free, Nashville, Tennessee, for the amici
curiae, Tennessee Law Professors and the National Immigration Project of the National
Lawyers Guild.
OPINION
I. Facts and Procedural History
On August 15, 2007, Jose Rodriguez was charged with patronizing prostitution in
violation of Tennessee Code Annotated section 39-13-514 (Supp. 2008) and retained counsel
to represent him. Mr. Rodriguez entered a guilty plea to the misdemeanor charge on
September 20, 2007, and was placed on judicial diversion pursuant to Tennessee Code
Annotated section 40-35-313 (2013). After Mr. Rodriguez successfully completed his
probation, he was discharged from judicial diversion, and his case was dismissed. An order
of expungement of Mr. Rodriguez’s criminal record was entered in January 2010.
On March 31, 2010, the United States Supreme Court released Padilla v. Kentucky,
559 U.S. 356 (2010), holding that the Sixth Amendment to the United States Constitution
requires counsel to inform non-citizen clients of the immigration consequences of a guilty
plea. Mr. Rodriguez again retained counsel and filed a post-conviction petition on March
31, 2011, alleging that he is entitled to relief under Padilla and that the post-conviction
statute’s one-year statute of limitations should be tolled. See Tenn. Code Ann.
§ 40-30-102(a) (2012). Among the allegations contained in the petition, Mr. Rodriguez
claimed that trial counsel knew he was a Mexican citizen and was therefore ineffective in
failing to inform him of the immigration consequences of his guilty plea.1 He further claimed
that as a result of the ineffective assistance of counsel, his guilty plea was not knowingly,
intelligently, and voluntarily entered. Mr. Rodriguez maintains that he would not have
pleaded guilty had he been informed of the immigration consequences of his plea.
The trial court reviewed the post-conviction petition and concluded that the petition
was time-barred. Mr. Rodriguez appealed, and the Court of Criminal Appeals affirmed,
holding that a petitioner whose record has been expunged may not seek post-conviction
relief. We granted Mr. Rodriguez permission to appeal.
II. Analysis
As an issue of first impression, we consider whether the Post-Conviction Procedure
Act (“Post-Conviction Act”), Tenn. Code Ann. §§ 40-30-101 to -122 (2012 & Supp. 2013),
may be used to collaterally attack a guilty plea that has been expunged after successful
completion of judicial diversion. This inquiry requires us to construe both the Post-
Conviction Act and the judicial diversion statute, Tenn. Code Ann. § 40-35-313. Statutory
1
We assume for the purposes of this opinion that Mr. Rodriguez’s misdemeanor guilty plea subjects
him to immigration consequences.
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construction presents a question of law that we review de novo with no presumption of
correctness. Wlodarz v. State, 361 S.W.3d 490, 496 (Tenn. 2012); State v. Tait, 114 S.W.3d
518, 521 (Tenn. 2003).
When we interpret a statute, we must ascertain and give full effect to the General
Assembly’s intent. Walker v. Sunrise Pontiac-GMC Truck, Inc., 249 S.W.3d 301, 309
(Tenn. 2008). Our primary concern is to carry out this intent without unduly expanding or
restricting the language of the statute beyond the legislature’s intended scope. Shorts v.
Bartholomew, 278 S.W.3d 268, 274 (Tenn. 2009). Furthermore, “[w]e presume that every
word in a statute has meaning and purpose and should be given full effect if so doing does
not violate the legislature’s obvious intent.” State v. Casper, 297 S.W.3d 676, 683 (Tenn.
2009).
When the statutory language is clear and unambiguous, we apply the plain meaning
of the statute. Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004). When
the language is ambiguous, however, we look to the “broader statutory scheme, the history
of the legislation, or other sources to discern its meaning.” Casper, 297 S.W.3d at 683. In
doing so, we must also presume that the General Assembly was aware of the state of the law
at the time it enacted the statute at issue. Id.
A. Post-Conviction Act
In Tennessee, a post-conviction action is commenced by filing a petition “with the
clerk of the court in which the conviction occurred.” Tenn. Code Ann. § 40-30-104(a). The
petitioner is entitled to relief only when his “conviction or sentence 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. The Post-Conviction Act
therefore “presupposes the existence of a conviction for a criminal offense.” Baker v. State,
417 S.W.3d 428, 438 (Tenn. 2013) (emphasis added). Because the Post-Conviction Act does
not define the term “conviction,” however, we must determine what constitutes a conviction
for purposes of the Post-Conviction Act.
Tennessee, like most jurisdictions, recognizes two distinct meanings of the term
“conviction.” State v. Vasser, 870 S.W.2d 543, 545 (Tenn. Crim. App. 1993). A conviction
in the “general sense” is the establishment of guilt by a guilty plea or a verdict independent
of sentence and judgment. Vasser, 870 S.W.2d at 546; see also Daughenbaugh v. State, 805
N.W.2d 591, 597 (Iowa 2011) (defining “conviction” in the “general or popular sense” as
“the establishment of guilt independent of judgment and sentence”). In contrast, a conviction
in its “technical” sense requires a formal adjudication by a court and the entry of a judgment
of conviction. Vasser, 870 S.W.2d at 545-46; see also Daughenbaugh, 805 N.W.2d at 597
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(“[W]hen the term ‘conviction’ is used in its technical [or] legal sense, it requires a formal
adjudication by the court and the formal entry of a judgment of conviction.”); Vasquez v.
Courtney, 537 P.2d 536, 537 (Or. 1975) (“The . . . more technical meaning [of ‘conviction’]
refers to the final judgment entered on a plea or verdict of guilt.”). The applicable meaning
of conviction depends on the context or procedural setting in which the term is used. Vasser,
870 S.W.2d at 546.
To determine whether “conviction” in Tennessee Code Annotated section 40-30-103
refers to the general or technical meaning of the term, we must read section 103 in pari
materia with the remaining provisions of the Post-Conviction Act. See Mandela v.
Campbell, 978 S.W.2d 531, 534 (Tenn. 1998) (stating that statutes relating to the same
subject or having a common purpose must be read in pari materia); Montgomery v. Kali
Orexi, LLC, 303 S.W.3d 281, 286 (Tenn. Ct. App. 2009) (reading in pari materia separate
provisions within a single statute). Tennessee Code Annotated section 40-30-102(a), for
example, provides that a petition for post-conviction relief must be filed “within one year of
the date on which the judgment became final.”2 Similarly, Tennessee Code Annotated
section 40-30-104(c) limits the petition to claims for relief from “the judgment or judgments
entered in a single trial or proceeding.” Likewise, Tennessee Code Annotated section
40-30-106(a) requires the trial judge to conduct a preliminary examination of the petition
together “with all the files, records, transcripts, and correspondence relating to the judgment
under attack” and determine whether the petition states a colorable claim. Finally, Tennessee
2
Tennessee Code Annotated section 40-30-102(b) provides the following three exceptions to the
one-year statute of limitations for post-conviction claims:
(1) The 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;
(2) The claim in the petition is based upon new scientific evidence establishing that the
petitioner is actually innocent of the offense or offenses for which the petitioner was
convicted; or
(3) The claim asserted in the petition seeks relief from a sentence that was enhanced because
of a previous conviction and the conviction in the case in which the claim is asserted was
not a guilty plea with an agreed sentence, and the previous conviction has subsequently been
held to be invalid, in which case the petition must be filed within one (1) year of the finality
of the ruling holding the previous conviction to be invalid.
Tenn. Code Ann. § 40-30-102(b).
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Code Annotated section 40-30-111(a) provides that if the trial judge determines that the
“judgment” is void or voidable, the court “shall vacate and set aside the judgment.”
Based on these repeated references to the terms “judgment” or “judgments,” we
conclude that the Post-Conviction Act requires the entry of a judgment. See Tenn. Code
Ann. §§ 40-30-102(a), -104(c), -106(a), -111(a). In Tennessee, a judgment is frequently
referred to as a “judgment of conviction.” See Tenn R. Crim. P. 32(e). A judgment of
conviction is signed by the trial court, entered by the clerk, and includes the plea, the verdict
or findings, and the adjudication and sentence. Tenn. R. Crim. P. 32(e)(2).3
It is the judgment of conviction that gives legal consequence to a finding of guilt. See,
e.g., Vasser, 870 S.W.2d at 545 (explaining that in the technical sense, the judgment of
conviction “provides the legal authority for the executive branch of government to
incarcerate a person who is sentenced to confinement”); Tenn. Code Ann. § 40-20-101
(stating that “[a]fter a verdict against the defendant . . . the court shall pronounce judgment”).
Clearly, a judgment of conviction obtained in violation of the state or federal constitution is
the “wrong or evil” that the Post-Conviction Act seeks to remedy, and relief from the
judgment of conviction is the purpose sought to be accomplished in its enactment. See State
v. Edmondson, 231 S.W.3d 925, 927 (Tenn. 2007).
After reviewing the provisions of the Post-Conviction Act, we conclude that the
General Assembly used the term “conviction” in its technical sense and that an adjudication
by the court and the formal entry of a judgment are required.
We must next determine whether Mr. Rodriguez’s guilty plea, which was entered as
part of his judicial diversion and was expunged following satisfactory completion of his
judicial diversion, constitutes a “conviction” within the meaning of the Post-Conviction Act.
B. Judicial Diversion
Tennessee Code Annotated section 40-35-313, commonly referred to as judicial
diversion, is “legislative largess” whereby a “qualified defendant”4 enters a guilty or nolo
3
This Court specifically used the term “judgment of conviction” when adopting the Tennessee Rules
of Post-Conviction Procedure to supplement the remedies and procedures set out in the Post-Conviction Act.
See Tenn. Sup. Ct. R. 28, § 9(C).
4
A “qualified defendant” is a defendant who:
(a) Is found guilty of or pleads guilty or nolo contendere to the offense for which deferral
(continued...)
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contendere plea or is found guilty of an offense without the entry of a judgment of guilty.
State v. Schindler, 986 S.W.2d 209, 211 (Tenn. 1999); see also Tenn. Code Ann.
§ 40-35-313(a)(1)(A), (B). The plea or verdict is held in abeyance and further proceedings
are deferred under reasonable conditions during a probationary period established by the trial
court. Tenn. Code Ann. § 40-35-313(a)(1)(A). Judicial diversion may be ordered only with
the defendant’s consent. Id.
If the defendant violates the conditions of judicial diversion, the trial court may “enter
an adjudication of guilt and proceed as otherwise provided.” Tenn. Code Ann.
§ 40-35-313(a)(2). If the defendant successfully completes his period of diversion, however,
the trial court discharges the defendant and dismisses the proceedings without court
adjudication of guilt or the entry of a judgment of guilt. Tenn. Code Ann. § 40-35-313(a)(2).
Judicial diversion stands in stark contrast to traditional criminal proceedings and by
its plain language permits a qualified defendant a second chance without the stigma of a
conviction. Tennessee Code Annotated section 40-35-313(a)(2) specifically provides that
the discharge and dismissal “shall not be deemed a conviction for purposes of
disqualifications or disabilities imposed by law upon conviction of a crime or for any other
purpose, except as provided in subsections (b) and (c).5 The defendant may also apply to the
trial court for expunction from “all official records . . . [any] recordation relating to the
person’s arrest, indictment or information, trial, finding of guilty and dismissal and
discharge.” Tenn. Code Ann. § 40-35-313(b).6 The effect of the expunction order “is to
4
(...continued)
of further proceedings is sought; (b) Is not seeking deferral of further proceedings for any
offense committed by any elected or appointed person in the executive, legislative, or
judicial branch of the state or any political subdivision of the state, which offense was
committed in the person’s official capacity or involved the duties of the person’s office; (c)
Is not seeking deferral of further proceedings for a sexual offense, a violation of § 71-6-117
or § 71-6-119, driving under the influence of an intoxicant as prohibited by § 55-10-401, or
a Class A or B felony; (d) Has not previously been convicted of a felony or a Class A
misdemeanor for which a sentence of confinement is served; and (e) Has not previously
been granted judicial diversion under this chapter or pretrial diversion.
Tenn. Code Ann. § 40-35-313(a)(1)(B)(i)(a)-(e).
5
Subsection (b) authorizes the use of the expunged records when the person assumes the role of
plaintiff in a civil action based on the same transaction or occurrence as the criminal record. Tenn. Code
Ann. § 40-35-313(b). Subsection (c) authorizes the use of guilty verdicts or pleas in specified felony offenses
for the purpose of impeaching a witness in a civil action. Tenn. Code Ann. § 40-35-313(c).
6
Tennessee Code Annotated section 40-35-313(b) currently provides that the records of a person
(continued...)
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restore the person, in the contemplation of the law, to the status the person occupied before
such arrest or indictment or information.” Schindler, 985 S.W.2d at 211 (quoting Tenn. Code
Ann. § 40-35-313(b)). A defendant whose record has been expunged following judicial
diversion cannot be charged “under any provision of any law” with perjury or giving a false
statement by failing to acknowledge the arrest, indictment, or information. Tenn. Code Ann.
§ 40-35-313(b).
Much of our judicial diversion case law comes from the Court of Criminal Appeals.
These decisions provide insight into the intermediate appellate court’s interpretation of
section 40-35-313 and are instructive in our review.
In State v. Tolbert, for example, the Court of Criminal Appeals considered whether
evidence of an expunged guilty plea could be used to attack the credibility of a witness under
Tennessee Rule of Evidence 609, which governs the impeachment of witnesses convicted
of a crime. No. E1999-02326-CCA-R3-CD, 2000 WL 1172344, *2-4 (Tenn. Crim. App.
Aug. 18, 2000). The intermediate appellate court explained that the witness, who entered a
guilty plea to extortion but was granted judicial diversion, had not been convicted of any
crime. Id. at *4. Based on the language of the judicial diversion statute, the court concluded
that when a defendant is granted judicial diversion, there is no “conviction” within the
meaning of Rule 609. Id.; see also State v. Peters, No. W2011-00680-CCA-R3-CD, 2012
WL 1656737, *5-6 (Tenn. Crim. App. May 9, 2012).
In State v. Norris, the Court of Criminal Appeals concluded that an appellant who had
been granted judicial diversion has no appeal as of right under Rule 3(c) of the Tennessee
Rules of Appellate Procedure. 47 S.W.3d 457, 461-63 (Tenn. Crim. App. 2000). The
intermediate appellate court explained that an appeal as of right stems from a judgment of
conviction and that a defendant’s guilty plea tendered prior to a grant of judicial diversion
does not become a judgment of conviction unless the defendant violates the conditions of his
diversion. Id. at 462. The defendant who accepts diversion has a “self-determined chance
to emerge from the process without a conviction on his or her record.” Id. at 463.7
6
(...continued)
dismissed and discharged for a sexual offense defined in Tennessee Code Annotated section 40-39-202 will
not be expunged.
7
Rule 3 of the Tennessee Rules of Appellate Procedure was amended after Norris to allow a
defendant to appeal from an order denying a request for expunction. Tenn. R. App. P. 3(b). This
amendment, however, did not affect the Norris holding that a defendant has no appeal as of right when
judicial diversion has been granted.
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Although the judicial diversion statute has a component of guilt that could be
characterized as a conviction in the general sense, the statute forecloses the entry of a
judgment of conviction unless the defendant violates the terms of his diversion. See
Schindler, 986 S.W.2d at 211; see also Tenn. Code Ann. §§ 40-35-313(a)(1)(A), (B),
-313(a)(2). The plain language of the judicial diversion statute indicates that the General
Assembly contemplated the same technical or legal meaning of the term “conviction” that
it used in the Post-Conviction Act. For these reasons, we conclude that a guilty plea
expunged following successful completion of judicial diversion is not a conviction within
the meaning of the Post-Conviction Act.
We may also presume that the General Assembly, as author of both the judicial
diversion statute and the Post-Conviction Act, was aware of the state of the law when it
enacted and subsequently amended both statutes.8 See Casper, 297 S.W.3d at 683. If the
General Assembly intended the Post-Conviction Act to encompass judicial diversion, it could
have specifically included it in the Post-Conviction Act.
III. Conclusion
We conclude that the Post-Conviction Act provides an avenue of relief from a
conviction that has resulted in a judgment of conviction. Mr. Rodriguez entered a guilty plea
that was expunged following his successful completion of judicial diversion. In his post-
conviction petition, Mr. Rodriguez claimed that as a result of the ineffective assistance of
counsel, his expunged guilty plea was not knowingly, intelligently, and voluntarily entered.
Because no judgment of conviction was entered, Mr. Rodriguez’s claims are not cognizable
under the Post-Conviction Act. We therefore affirm the judgment of the Court of Criminal
Appeals. Costs of this appeal are taxed to Jose Rodriguez a/k/a Alex Lopez, for which
execution may issue if necessary.
JANICE M. HOLDER, JUSTICE
8
Tennessee Code Annotated section 40-35-313 was enacted in 1989 and was subsequently amended
in 1990, 1995, 1996, 1997, 1999, 2000, 2002, 2003, 2004, 2006, 2007, 2011, and 2012. See Tenn. Code
Ann. § 40-35-313 (History). The General Assembly originally enacted the Post-Conviction Act in 1967. See
Act of May 25, 1967, ch. 310, 1967 Tenn. Pub. Acts 801. The current version of the Post-Conviction Act
was enacted in 1995, with subsequent amendments to sections -102, -105, -106, and -111. See generally
Tenn. Code Ann. §§ 40-30-101 to -122.
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