# FILED
November 12, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE OCTOBER 1997 SESSION

TERRY PHELPS, ) ) APPELLANT, ) ) No. 01-C-01-9610-CC-0 0451 ) ) Lincoln County v. ) ) Charles Lee, Jud ge ) ) (Post- Convic

tion Rel ief) STATE OF TENNESSEE, ) ) APPELLEE. )

FOR THE APPE LLANT: FOR THE APPELLEE: Terry Phelps, Pro Se John Knox Walkup Unit 2A-127 Turney Center Attorney General & Repor ter Route 1 500 Charlotte Avenue Only, TN Nashville, TN 37243-0497 Elizabeth B. Marney Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 W. Mic hael McCo wn District Attorney General P.O. Box 904 Fayetteville, TN 37334

OPINION FILED:_______________________________

AFFIRMED
Joe B. Jones, Pre siding Judge1 See Terry Phel ps v. State , Lincoln County No. 01-C-01-9201-CC-00011 (Tenn.

Crim. App., Nashville, June 19, 1992). The only grounds raise d were (1) the denial o

f the effect ive assistance of counsel and (2) a constitutional challenge to the guilty pleas entered by the petitioner. 2 

## O P I N I O N

The appellant, Te rry Phelp s (petitio ner), appeal s as of right from a judgment of

the trial court summarily dismi ssing his action to “ Modify, Correct, and/or Set Aside Illegally Impose[d] Sentence.” The trial court dismissed this action because (1) it was barred by the statute of limitations, and (2) the i ssue was waived as it was not raised in a prior action for post-convictionrelief. 1 In this court, the petiti oner pres en ts three issues for review. He contends (1) the trial court had jurisdiction to set aside or correct his illegal sentence, (2) the trial court erroneousl y treated his action

as one for post-convicti on relief and used the statute of limitationsas a bar to granting r elief, and (3) the trial co urt abused its discretion byorderi ng consecutiv e senten cing. Aft er a th orough review of the re cord, t he brief s submitted by

the parties, and the law governing the iss ues presented for review, it is the opinion of this court that the j udgment of the trial court shoul d be affirmed. The petitioner entered pleas of g uilty to burglary first degree, armed robbery, a n d aggravated rape pursuant to a plea bargain agreement. The agreed sentences were ten (10) y ears for b urglary first deg ree and twenty (20) y ears for both armed robbery an d aggravated rape. It was further ag reed that the sentenc e s for burglary first degree and armed robbery would be ser ved concurrently, but the sentence for aggrav ated rape would be served consecutivel y to the sentence for

burglary first deg ree for an effective sentence of thirty (30) year

s. The judgment of the trial cour t was entered June 21, 1985. No direct appeal was taken from the judg ment of the trial court. The trial court correct ly summarily dismi ssed the petitioner’s action. The ac tion was barred by

the statute of limitations. The petition alleges a ground for post -convi ction r

elief. Furthermore, the ground was waiv ed because it was not rai sed and litigated in a priorpostconviction action. Moreover, the re is no allegation contained in the petition which expl ains why the gro und raised in the present action wa s not waived. There i s no clerical error alleged in the petition. The sentences alleged in the petition were proper in all respects,2 This section, which dealt with rescues and escapes, was repealed in 1989. 3 and the petit ioner agre ed to the se sente nces. Fin ally, the petitioner does not predicate his action upon a constitutional issue.In the initial paragr aph of his petition, it states the action is being brought pursuant to Tenn. Code Ann. § 39-5-702 2 and Rule 36, Tennessee Rules of Criminal Procedure. It is a well-established rule of law that a post-convi ction petitioner may not challenge
a ruling of thetrial court ordering multiple sentenc es to be served consecuti vely. See Tenn. Code Ann. § 40-35-401(a); Wooten v. State , 4 77 S. W. 2d 7 67 (Tenn. Crim. App. 1971), cert
. denied (Tenn. 1972); Autry L. Liverman v. Sta t e , Sullivan County N o. 877 (Tenn. Crim.App., Knoxville, Ja nuary 31, 1990), per . app . denied (Tenn., April 2, 1990); Jackie D. Hatley v. State , Greene County No. 299 (T enn . Crim. App., Knoxvi lle, June 7, 1989); State v. Cornell Chr istian , Shelby County

No. 91 (Tenn. Crim. App., Jackson, March 1, 1984).

_________________ _____________________ _____ _ JOE B. JONES, PRESIDIN G JUDGE

CONCUR:

______________________________________ WILLIAM M. BARKER, JUDGE

______________________________________ JOE G. RILEY , JUDGE