Richard Waline v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: October 12, 1999
• Docket: 01C01-9805-CR-00199
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED MAY 1999 SESSION October 12, 1999

Cecil Crowson, Jr. Appellate Court Clerk RICHARD LEE WALINE, * C.C.A. 01C01-9805-CR-00199

Appellant, * DAVIDSON COUNTY

vs. * Hon. Seth Norman, Judge

STATE OF TENNESSEE, * (Post-Conviction)

Appellee. *

For Appellant: For Appellee:

Thomas H. Potter Paul G. Summers 100 Thompson Lane Attorney General and Reporter Nashville, TN 37211 425 Fifth Avenue North Nashville, TN 37243-0493

Lucian D. Geise Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North Nashville, TN 37243-0493

OPINION FILED:

AFFIRMED - RULE 20

NORMA MCGEE OGLE, JUDGE OPINION

The petitioner, Richard Lee Waline, appeals the dismissal of his

petition for post-conviction relief by the Davidson County Criminal Court on May 18,

1998. On July 13, 1995, the petitioner pled guilty in the Davidson County Criminal

Court to attempted rape of a child and aggravated sexual battery, the offenses

occurring in 1994. Pursuant to a plea agreement, the trial court imposed

consecutive, Range I sentences of eight years incarceration in the Tennessee

Department of Correction. On May 20, 1996, the petitioner filed the instant petition

for post-conviction relief. The post-conviction court appointed counsel and

conducted an evidentiary hearing prior to denying the petitioner relief. Having

thoroughly reviewed the record and the parties’ briefs, we conclude that this is an

appropriate case for affirmance pursuant to Ct. of Crim. App. Rule 20.

On appeal, the petitioner seeks to withdraw his guilty pleas to

attempted rape of a child and aggravated sexual battery. In essence, he asserts

that his guilty pleas were conditioned upon a release eligibility percentage in the

aggravated sexual battery case of thirty percent (30%).1 However, according to the

petitioner, the trial court’s imposition of this release eligibility percentage directly

contravenes Tenn. Code. Ann. § 40-35-501(i) (1995) and thus constitutes an illegal

sentence. Moreover, he asserts that, because he was unaware of the illegality of

his sentence, he did not enter his guilty pleas knowingly and voluntarily. Finally, he

contends that his trial counsel was ineffective in failing to advise him concerning the

illegality of his sentence for aggravated sexual battery.

Initially, it appears from the record before this court that the petitioner

1 At the post-conviction evidentiary hearing, the State stipulated that the plea agreement provided for a release eligibility percentage of thirty percent (30%) with respect to each conviction.

2 did not challenge in the post-conviction court the legality of his sentence for

aggravated sexual battery. Of course, an illegal sentence is subject to being set

aside at any time. See, e.g., State v. Mahler, 735 S.W.2d 226, 228 (Tenn.

1987)(citing State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978)); State v.

Watkins, 972 S.W.2d 703, 704-705 (Tenn. Crim. App. 1998). However, the

petitioner’s sentence is not illegal. We conclude in accordance with the State’s

argument that Tenn. Code. Ann. § 40-35-501(i) (1995) is not applicable in the

petitioner’s case, as the statute only applies to offenses committed on or after July

1, 1995. The petitioner’s offenses occurred in 1994. Accordingly, we affirm the

judgment of the post-conviction court pursuant to Ct. of Crim. App. Rule 20.

Norma McGee Ogle, Judge

CONCUR:

David G. Hayes, Judge

Jerry L. Smith, Judge