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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
Assigned on Briefs November 15, 2005 JERRY FAULKNER a/k/a JOSEPH FAULKNER v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County No. P-28323 James C. Beasley, Judge

No. W2004-02354-CCA-R3-HC - Filed December 12, 2005

On January 27, 2004, the Shelby County Criminal Court accepted the guilty pleas of Jerry Faulkner, also known as Joseph Faulkner, the petitioner, on three counts of aggravated robbery and a single count of aggravated rape. The effective 20-year sentence was imposed to run concurrently with another state sentence and "all Federal convictions." On April 13, 2004, the petitioner, who was incarcerated in a federal facility in Memphis, filed a petition in the conviction court for a writ of habeas corpus. Because the petitioner was in federal custody, the habeas corpus court dismissed the petition, and the petitioner appealed. Following our review, we affirm the order of the habeas corpus court. Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed. JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which NORMA MCGEE OGLE and J.C. MCLIN , JJ., joined. Jerry Faulkner a/k/a Joseph Faulkner, Appellant, Pro Se. Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General; and William L. Gibbons, District Attorney General, for the Appellee, State of Tennessee. OPINION This court's opinion on direct appeal of the denial of post-conviction relief describes the history of the petitioner's case prior to the January 27, 2004 guilty pleas, see Joseph T. Faulkner v. State, No. W1999-00223-CCA-R3-PC (Tenn. Crim. App., Jackson, Oct. 17, 2000): On June 30, 1998, the appellant, Joseph T. Faulkner, also known as "Jerry Faulkner," entered guilty pleas to one count of aggravated rape and three counts of aggravated robbery in the Shelby County Criminal Court. The negotiated plea agreement provided that

the appellant would serve an effective twenty-five year sentence to be served concurrently with his federal sentence imposed pursuant to his guilty plea under federal indictment No. CR-97-20098-G. The judgment forms reflect that the appellant's state sentences were "to be served in federal custody." The appellant is currently serving a TDOC sentence at the Hardeman County Correctional Facility, a state facility. He has never been released to federal custody. Relying upon the fact that he remains in state custody, the appellant filed a petition for post-conviction relief alleging that his guilty pleas were not knowingly and voluntarily entered. He argues, in effect, that his bargained for concurrent state and federal sentences have become consecutive by the federal government's refusal to accept him into their custody. The post-conviction court denied the appellant relief, finding that the appellant "has presented no evidence to support [his] allegation" that "the State refused to release him to federal authorities or that federal authorities in fact requested the State to release him to their custody." The court further found that "the State has no authority under the Supremacy Clause of the Federal Constitution to either require federal authorities to take possession of Petitioner or guarantee Petitioner's sentence will be served in federal custody." Id., slip op. at 2 (footnotes omitted). Because, subsequently to the 1998 guilty pleas, "action by federal authorities rendered the plea agreement incapable of enforcement," id., slip op. at 4, this court in the post-conviction appeal determined that the petitioner's pleas were not made knowingly and reversed the convictions, id., slip op. at 4-5. In crafting a remedy, this court adopted language from Derrick E. Means v. State, No. 02C01-9707-CR-00248 (Tenn. Crim. App., Jackson, Aug. 13, 1998) (per curiam): Fashioning relief for the petitioner will take the combined good faith efforts of all involved. The parties are first encouraged to make every effort to fulfill the intent of the plea bargain. Specific performance may, however, be impossible to effectuate. Both defense counsel and the district attorney's office, while taking steps to preserve the integrity of the state sentence, should contact federal authorities and determine whether the federal authorities would be willing to accept the petitioner for his federal sentence. If specific performance is an impossibility, the parties should enter into new plea negotiations taking into account the intentions of the failed plea agreement. The agreement failed through no fault of the petitioner. In our view, plea negotiations and sentencing should -2-

take into account the time the petitioner has served in prison and in the county jail. If these avenues do not provide a satisfactory resolution, the petitioner may be allowed to withdraw his guilty pleas altogether and face trial. Joseph T. Faulkner, slip op. at 5. Apparently, following remand, the parties entered into a second plea agreement, which provided for an effective sentence of 20 years to be served concurrently with another state sentence and with the petitioner's federal sentence. The agreement was approved on January 27, 2004. The petition for habeas corpus relief now under review alleges, inter alia, that the 2004 sentences are illegal because of the concurrent alignment of the state sentences with a prior state sentence. The petitioner claims that he was on parole when he committed the offenses resulting in the convictions now being challenged.1 On appeal, he argues that Tennessee Code Annotated section 40-20-111(b) required that the sentences as imposed in 1998 and again in 2004 must be served consecutively to the sentence for which he was on parole and that the concurrent alignment rendered the new sentences illegal and void. See Tenn. Code Ann.

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