Appellate panel hears dispute over alleged breach of plea agreement and timeliness in Wertman post-conviction appeal

Louis Jenkins, attorney for petitioner, told an appellate panel he represents Mr. Wertman in a post-conviction appeal centered on whether the State breached a plea agreement and whether the petition was filed on time. “The trial court said, as to the timing issue, I think the State agreed at the hearing that they weren’t going to pursue that,” Jenkins told the panel, pointing to the hearing transcript and briefing.

Benjamin Barker, arguing for the State, countered that the petition is untimely and that petitioner did not establish due-process tolling. “This court should dismiss this post-conviction petition because it was untimely and petitioner did not establish that due process tolling was warranted,” Barker said, adding he could find nothing in the transcript to show the State conceded timeliness and stressing that a party cannot create jurisdiction by concession.

The dispute folded together two questions: whether the State’s statements at plea or at the later hearing amounted to a breach of an enforceable promise about parole, and whether any procedural default can be excused by due-process tolling. Jenkins relied in part on appellate authority he described as the Foley decision and argued that an implied covenant of good faith and fair dealing—common in contract law and, he said, recognized by the Tennessee Supreme Court—can apply to plea agreements so long as the rule is narrowly confined to circumstances where the State’s conduct deprives a defendant of the bargained-for benefit.

Judges on the panel pressed both sides on scope. One judge observed that plea negotiations commonly include a release-eligibility date and asked whether adopting Jenkins’s theory would require the State to remain silent at subsequent parole proceedings. Barker answered that the plea here secured an eligibility date at 30 percent but did not guarantee release: “The State agreed that petitioner would be eligible to receive a parole hearing after serving 30% of his sentence. This was not a recommendation that he actually be paroled,” he said.

Both sides disputed whether the record contains any explicit written promise—Jenkins emphasized a letter and testimony he said showed the State acted to prevent parole consideration; Barker said he could find no writing or plea-transcript statement that would reasonably be read as a promise to support parole.

After extended questioning on timeliness, jurisdiction, and the potential scope of a rule applying a duty of good faith to plea agreements, the panel thanked counsel and said it would take the matter under advisement. No decision was announced at the hearing.

The hearing record shows the parties sharply divided on whether the State’s statements at plea or subsequent proceedings can be enforced as part of a bargain and whether the petition’s delay is excused by tolling. The appellate court’s forthcoming opinion will resolve whether the trial court should have been permitted to accept or reject the timeliness argument on the record and whether any breach occurred.