Supreme Court'S Recent Opinion In Hicks v. State, 945 S.W.2D 706 (Tenn. 1997), We Find

• Court: Court of Criminal Appeals of Tennessee
• Decided: May 28, 1993
• Docket: 01-9801-CC-00027
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED ROBERT OGBURN, ) ) August 7, 1998 C.C.A. NO. 01C01-9801-CC-00027 Appellant, ) (Nos. 31683, 31850, and 31851 Below) ) Cecil W. Crowson VS. ) MONTGOMERY COUNTYCourt Clerk Appellate ) The Hon. Robert W. Wedemeyer STATE OF TENNESSEE, ) ) (Denial of Petition for Post-Conviction ) Relief and/or Sentence Clarification) Appellee. ) AFFIRMED PURSUANT TO RULE 20

ORDER

This matter is before the Court upon the state’s motion requesting that the

judgment in the above-styled cause be affirmed pursuant to Rule 20, Tennessee Court of

Criminal Appeals Rules. Upon reviewing the record and the pleadings in this case, we find

that it is an appropriate matter for affirmance under Rule 20.

From the record, it appears that on May 28, 1993, the petitioner pled guilty

to one count of selling a schedule II controlled substance and two counts of aggravated

burglary. As part of the agreement, he was sentenced as a Range II, multiple offender, to

10 years on each count, for an effective 20 year sentence with a 35% release eligibility

date. Subsequently, on July 16, 1993, the petitioner filed a pro se motion for reduction of

sentence. Although counsel was appointed, the petitioner filed several pro se pleadings,

including two amended petitions for post-conviction relief. It appears that a hearing was

held on December 9, 1997, however, as pointed out by the state, the transcript is not

included in the record on appeal. On February 10, 1997, the trial court entered an order

denying the petition for post-conviction relief and further ordering that the petitioner’s “total

effective sentence in case numbers 31683, 31850 and 31851 should be no more than

twenty (20) years. It is and was the intent of this Court to give Petitioner an effective

sentence of twenty (20) years as a standard Range I offender who has a 30% R.E.D. date.”

On appeal, the only issue raised is whether the trial court erred in giving a

Range II sentence after finding the petitioner to be a Range I offender. Based on our

Supreme Court’s recent opinion in Hicks v. State, 945 S.W.2d 706 (Tenn. 1997), we find

this issue to be without merit. In Hicks, the Court held that “a knowing and voluntary guilty

plea waives any irregularity as to offender classification or release eligibility.” Id. at 709. IT IS, THEREFORE, ORDERED that the state’s motion to affirm the

judgment of the trial court under Rule 20, Tennessee Court of Criminal Appeals Rules, is

granted, and the appeal is dismissed. It appearing that the petitioner is indigent, costs of

these proceedings are taxed to the state.

_____________________________ THOMAS T. WOODALL, JUDGE

CONCUR:

_____________________________ JOHN H. PEAY, JUDGE

_____________________________ JERRY L. SMITH, JUDGE