IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
October 1, 2003 Session
CLESSIE JACO, Jr. v. STATE OF TENNESSEE
Appeal by permission from the Court of Criminal Appeals
Circuit Court for Maury County
No. 9854 Robert L. Jones, Judge
No. M2001-02150-SC-R11-PC - Filed December 5, 2003
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We granted permission to appeal in this post-conviction case to determine whether the Court of
Criminal Appeals erred in holding that Mr. Jaco’s guilty plea was knowingly and voluntarily
entered even though he was not informed of the psychiatric certification mandated by Tennessee
Code Annotated section 40-35-503(c) for sex offenders before release on parole. We hold that
Mr. Jaco’s guilty plea met the standard of knowing and voluntary. A defendant need not be
informed of all criteria that affect his possible release on parole in order for his guilty plea to be
constitutionally sound. Accordingly, the holding of the Court of Criminal Appeals is affirmed.
Tenn. R. App. P. 11; Judgment of the Court of Criminal Appeals Affirmed
FRANK F. DROWOTA , III, C. J., delivered the opinion of the court, in which E. RILEY ANDERSON,
ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.
John S. Colley, III, Columbia, Tennessee, for the appellant, Clessie Jaco, Jr.
Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Kim R.
Helper, Assistant Attorney General; T. Michael Bottoms, District Attorney General; and Larry
Nickell, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural Background
Clessie Jaco was charged with two counts of rape of his thirteen-year-old niece. He
pleaded guilty to two counts of attempted rape. Pursuant to the plea agreement, he received a
six-year sentence on each conviction, which sentences the trial court ordered served
consecutively. The Court of Criminal Appeals affirmed the trial court’s denial of alternative
sentencing and its decision to order consecutive sentences.
Thereafter, Mr. Jaco filed a timely petition for post-conviction relief, alleging that his
plea was not knowingly, intelligently, and voluntarily entered because he was not advised of the
effect of Tennessee Code Annotated section 40-35-503(c) (2003), which provides:
No person convicted of a sex crime shall be released on parole
unless a psychiatrist or licensed psychologist designated as a health
service provider has examined and evaluated such inmate and
certified that, to a reasonable medical certainty, the inmate does not
pose the likelihood of committing sexual assaults upon release
from confinement. The examination and evaluation shall be
provided by psychiatrists or licensed psychologists designated as
health service providers whose services are contracted or funded by
the department of correction or the board of paroles. The board
shall consider any such other evaluation by a psychiatrist or
licensed psychologist designated as a health service provider which
may be provided by the defendant.
Following a hearing, the post-conviction court found that at the time he entered the plea,
Mr. Jaco understood that he would be eligible for parole and possible release after serving thirty
percent of his sentence. Although Mr. Jaco’s former attorney indicated that during the plea
hearing he had advised Mr. Jaco about the implications of Tennessee Code Annotated section 40-
35-503(c), the post-conviction court found that defense counsel probably had not provided this
advice. Furthermore, the post-conviction court found that no sex offender had been released
after serving only thirty percent of a sentence unless a mental health professional had opined that
a future sex offense was physically impossible. Finally, the post-conviction court found that the
trial court had failed to consider this statute when it accepted Mr. Jaco’s plea and had commented
that Mr. Jaco should be eligible for release after serving thirty percent of his sentence.
Nonetheless, the post-conviction court ruled that counsel’s failure and the trial court’s comments
did not affect the validity of his guilty plea. Accordingly, the petition for post-conviction relief
was denied.
Mr. Jaco appealed, and the Court of Criminal Appeals affirmed the denial. We granted
Mr. Jaco’s application for permission to appeal to consider this issue of first impression.
Standard of Review
To prevail upon a claim for post-conviction relief, a petitioner bears the burden of
proving factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f)
(2003); Momon v. State, 18 S.W.3d 152, 156 (Tenn.1999). Where appellate review involves
purely factual issues, this Court will not re-weigh or reevaluate the evidence. Momon, 18
S.W.3d at 156; Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). The trial judge's findings
of fact are afforded the weight of a jury verdict and are conclusive on appeal unless the evidence
preponderates against those findings. Momon, 18 S.W.3d at 156; Henley, 960 S.W.2d at 578-79.
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However, review of a trial court's application of the law to the facts of the case is de novo, with
no presumption of correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). Whether a
guilty plea meets the constitutional standards of voluntary and knowing is a mixed question of
law and fact. See, e.g., United States v. Gray, 152 F.3d 816, 819 (8th Cir. 1998). Mixed
questions of fact and law are reviewed de novo, with a presumption of correctness given only to
the post-conviction court's findings of fact. See, e.g., Fields v. State, 40 S.W.3d 450, 458 (Tenn.
2001).
Analysis
Post-conviction relief may be granted only if a conviction or sentence is void or voidable
because of a violation of a constitutional right. Tenn. Code Ann. § 40-30-103 (2003). The Due
Process Clause of the United States Constitution requires that guilty pleas be knowing and
voluntary. State v. Wilson, 31 S.W.3d 189, 194 (Tenn. 2001). The cases of Boykin v. Alabama
and State v. Mackey are the landmark constitutional cases for analyses of guilty pleas. Boykin v.
Alabama, 395 U.S. 238 (1969) (federal standard); State v. Mackey, 553 S.W.2d 337 (Tenn.
1977) (state standard). In Boykin, the United States Supreme Court held that before a trial judge
can accept a guilty plea, there must be an affirmative showing that it was given intelligently and
voluntarily. 395 U.S. at 242. In order to find that the plea was entered "intelligently" or
"voluntarily," the court must "canvass [ ] the matter with the accused to make sure he has a full
understanding of what the plea connotes and of its consequences." Id. at 244. A plea is
“knowing” if the court informed the accused of his constitutional rights against self-
incrimination, to confront accusers, and to trial by jury. Id. at 243. Likewise, in Mackey, this
Court held that "the record of acceptance of a defendant's plea of guilty must affirmatively
demonstrate that his decision was both voluntary and knowledgeable, i.e., that he has been made
aware of the significant consequences of such a plea. . . ." 553 S.W.2d at 340. Any requirement
in excess of Boykin is not based on the federal or state constitution. State v. Prince, 781 S.W.2d
846, 853 (Tenn. 1989). Therefore, in evaluating the knowing and voluntary nature of a guilty
plea, “[t]he standard was and remains whether the plea represents a voluntary and intelligent
choice among the alternative courses of action open to the defendant.” North Carolina v. Alford,
400 U.S. 25, 31 (1970). The United States Supreme Court has “never held that the United States
Constitution requires the State to furnish a defendant with information about parole eligibility in
order for the defendant’s plea of guilty to be voluntary.” Hill v. Lockhart, 474 U.S. 52, 56
(1985).
Mr. Jaco does not contend that this plea agreement failed to meet the requirements of
Boykin. He was informed of and indicated that he understood the constitutional rights that he
waived by entering the guilty plea. Instead, Mr. Jaco argues that his plea was not knowingly and
voluntarily entered because he was not informed of one of the criteria that guides the
determination of whether he will actually be released upon arriving at his release eligibility date.
As support for this proposition, he relies on Howell v. State, 569 S.W.2d 428 (Tenn.
1978). In Howell, the defendant pleaded guilty to two counts of first degree murder with
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consecutive life sentences. He later challenged the validity of these pleas because his attorney
and the trial court had erroneously advised him that consecutive life sentences would result in an
earlier parole eligibility date than would consecutive thirty-five-year sentences. Id. at 430. After
clarifying the formula for determining parole eligibility for life sentences, this Court granted Mr.
Howell relief because he had “agreed to life sentences under mistaken advice as to their true
effect” on his parole eligibility date. Id. at 435. There are significant differences between this
case and Howell. In Howell, the plea agreement was the direct result of inaccurate information
that resulted in Mr. Howell agreeing to a longer prison term. In contrast, Mr. Jaco was not
advised nor did he agree to a longer prison term on the mistaken belief that a longer term would
result in an earlier release eligibility date. Indeed, had Mr. Jaco refused the plea agreement, he
could have been tried on charges of rape, and if convicted, sentenced to a much lengthier
sentence. See Tenn. Code. Ann. § 39-13-503(b) (classifying rape as a Class B felony) (2003); §
40-35-112(a)(2) (2003) (providing that a Range I sentence for each Class B felony is not less
than eight months nor more than twelve years.)
Unlike the defendant in Howell, Mr. Jaco was not misinformed about his parole
eligibility date. He will in fact become parole eligible after serving thirty percent of his sentence
although he may not actually be released. His release eligibility date is simply the point at which
he will be considered for parole under the applicable standards. “The release eligibility date
provided for in this section is the earliest date an inmate convicted of a felony is eligible for
parole. . . .” Tenn. Code Ann. § 40-35-501(k) (2003). After an inmate becomes parole eligible,
release is not guaranteed. “Release on parole is a privilege, not a right....” Tenn. Code Ann. §
40-35-503(b) (2003). The Criminal Sentencing Reform Act includes the following criteria for
denying release to a parole eligible inmate: 1) if there is substantial risk that the defendant will
not conform to the conditions of the release programs; 2) if the release at that time would
depreciate the seriousness of the crime or promote disrespect of the law; 3) if the release would
have a substantially adverse effect on institutional discipline; or 4) if the inmate’s continued
correctional treatment, medical care, or vocational or other training in the institution will
substantially enhance the inmate’s capacity to lead a law-abiding life at a later release time. Id.
For sex offenders, there is an additional prerequisite which must be satisfied before release on
parole is appropriate – certification by a psychiatrist or licensed psychologist who has examined
and evaluated the inmate that, to a reasonable medical certainty, the inmate does not pose the
likelihood of committing sexual assaults upon release from confinement. Tenn. Code Ann. § 40-
35-503(c) (2003).
In this case, the post-conviction trial court found that no sex offender has been released
after serving only thirty percent of his sentence unless the mental health professional concluded
that a future sex offense was physically impossible. Nonetheless, a Range I standard offender
convicted of a sex crime becomes parole eligible after serving thirty percent of the actual
sentence imposed. Tenn. Code Ann. § 40-35-501(c) (2003). The required evaluation affects the
likelihood of actual release, but it does not affect the release eligibility date. Thus, unlike the
defendant in Howell, Mr. Jaco received accurate information regarding his release eligibility date
prior to entering his plea.
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As grounds for invalidating his plea, Mr. Jaco relies upon the following statement of the
trial court: “I frankly think that the service of a twelve year sentence would be more than this
offense deserves. At the same time I know that it is highly unusual unless he engages in future
misconduct that he would ever serve anything near twelve years. As a standard range one
offender he would not have to serve more than thirty percent of the twelve year sentence of 3.6
years. . . I suspect that weighed heavily on the mind of the attorney general and his staff in
reaching the decision to settle this case as it was settled.” In our view, this statement provides no
basis for invalidating the plea. Mr. Jaco apparently fails to recognize that the trial court made
this statement after the guilty plea had been entered. Therefore, this statement could not have
influenced Mr. Jaco’s decision to plead guilty and did not vitiate the knowing and voluntary
nature of his plea.
Finally, were we to adopt Mr. Jaco’s argument that a guilty plea of a sex offender will be
constitutionally deficient unless the offender is informed of the mandatory psychological
evaluation and certification that is required before release on parole is appropriate, then guilty
pleas to other felony offenses are arguably invalid as well unless the offender is advised of all the
criteria that will affect the offender’s release on parole. We decline to adopt such a rule.
Conclusion
For the foregoing reasons, we conclude that Mr. Jaco’s guilty plea met the
constitutionally required standard of knowing and voluntary. Actual release is a decision left to
the parole board. Mr. Jaco was correctly informed of his release eligibility date. Neither the
federal nor the state constitution requires that he be informed of all possible factors that could
affect the parole board’s decision. Mr. Jaco understood the constitutional rights he waived in
order to accept two consecutive six-year sentences rather than face trial on two rape charges.
Due Process is not offended by such an agreement. It appearing that the petitioner is indigent,
costs of this appeal are assessed against the State of Tennessee.
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FRANK F. DROWOTA, III, CHIEF JUSTICE
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