1 In i ts or der of d ismissal , t he tr ial court erroneo usly stat ed thatthe pet it ion was f il ed pro se, when, i n fact , i t was f il ed by counsel. This over sighton the part of t he tr ial court , however , does not affect ou r dis po sitio n o f th is a pp ea l. 

# FILED
September 26, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE AT JAC KSON
MICHA EL D. DA

VIS, ) ) Petitioner, ) C. C. A . NO. 02C01-9 706-CR-00222 ) vs. ) SHELBY COUNTY ) STA TE OF TENN ESSEE, ) No. P-18080 ) Respondent. )
O R D E R

This matter is before the Court upo n the state's moti on to affirm the judgment of the tr ial court i n this case by order rather

than formal opinion . Rule 20, Rules of the Cour

t of Criminal Appeals. The record in this appeal was fil ed on June 25, 1997 , and the p etit ione r ha s al read y fi led hisbri ef.

This is an appeal from the trial court's dis missal of the peti tioner's peti tion for post-conviction relief. The petitioner was originally indicted for first degree murder in September 1990. The peti tioner subseq uently pled guilty to second degr

ee murder on February 8, 1991, and recei ved a sentenceof twenty- five year s as a RangeII offender. No appeal was taken.

On February

12, 1997, the petit ioner filed a pet ition for post- convicti on relief alleg ing that he di d not enter the pl ea knowing ly and voluntarily . Specificall y, the petitioner, r

elying upon Woods v. State , 928 S.W .2d 52 (Tenn. Crim. App. 1 996), claimed that his guilty plea is constitutionally invalid because counsel f ailed to explain the differences between the sentencingranges and app arently t he petitioner d id not qualify abov

e Range I. Finding that the petition w as barred by

the statute of li mitation, the tria l court dis missed the pet ition witho ut a hea ring. 12 Having reviewed the state's motion in light of the entire record on appe al, we find that themotion is well-taken. A petition for post-convic tion relief must

be filed within oneyear of the final action of the hig hest state appell ate court to w hich an appeal is taken or, if no appeal is ta ken, withi n one year of the date on whic h the judgment became final. T.C.A. § 40-30-202(a) . The trial court lacks jurisdict ion to hear a pet ition filed beyond that

date unless one of three limited ex ceptions apply . T.C.A. § 40- 30- 202(b).
In the present case, the petiti oner allege s that his cas e falls under T.C. A. § 40-30-202(b) (1): the cl aim in the petit ion is based upo n a final ruli ng of an appellate court establi shing a constitutional r ight that was not recog nized as ex isting at the time of judgment and w hich requi res retroac tive appli cation. The petit ioner argu es that Woods established a constitution al right applicable to his case. According to the petitione r's argument, Woods provides that a criminal defenda nt may not knowingly and voluntarily enter a plea of g uilt if he or s he is not informed of the differences betw een the ranges of punishment.
The petitioner's position is

without mer it for sever al reasons. The statutory exception relied upon by the petitioner

requires that the ruli ng come from the highest stat e appellate cour t. T.C.A. § 40- 30-202(b)(1) . The Woods opinion w as rendered by a panel of this Co urt, whi ch is not the hi ghest appell ate court in t his state. Accordingl y, this ex

ception to the s tatute of limitati on does not apply , and the petiti on, therefore, is ti me barred.

Moreover , Woods did not create a constitutiona l right not previously recognized . Citing State v. M ahler , 735 S.W.2d 226 (Tenn. 1987), this C ourt noted that a criminal d efendant "could leg itimately enter a plea ag reement wit hin the rangeof punishment prov ided by law , even if he di d not have a s ufficient prior record to warrant the higher c lassificatio n within the range." 928S.W.2d at 54. The petitioner conten ds that Woods held counsel w ould be ineffective for failing t o explain t he classificat ions2 Th e p etitio ne r ple d g uilty to a C las s A felo ny, a s a Ra ng e II o ffe nd er , wh ich ca rrie s a po ss ible sentence oftwent y- fi ve to fort y y ears. T.C.A. § 40-35- 112. The pet it ioner 's t wenty -fi ve y ear sent ence, the re fo re , cle ar ly falls with in th e s tatu tor y lim it, an d is no t illeg al. 3 within t he range. In Mahler , howeve r, our Supreme Court stated t hat “[a]ny error by counsel in not explaining the diff erences between Range I and Range II of fenders did not and could not w

arrant setti ng aside the g uilty pl ea and sentence under the circumstances

of this case. See generally Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 2064, 8 0 L.Ed.2d 674 (1984) .” 735 S.W.2d at 228. In Woods , this Court held, simply, that a defen dant may not knowingly and voluntarily agree to a sentence that exceeds the statutory limit for that particular

offense. 2 Id. at 55. In fact, the Court relied upon well-establi shed case law to note that a cr iminal defendant must beadvised of certain consti tutional ri ghts before he or she can enter a knowing and voluntar y plea of guilt. Id. See Boyk in v. Alabam a , 395 U.S. 238, 89 S.Ct. 1709, 23 L.E d.2d 274 (1969); State v. M ackey , 553 S.W.2d 337 (Tenn. 1977). Woods , therefore, did n ot establish a new

constitutiona l right not previou sly recognized.
Accordingly, having found no error on the part of th e trial court, the state’s motion is granted. It is hereby ORDERED that the judgemen t of the trial court in this matter is affirme d in accordance with Rule 20, Rules of the Cou rt of Criminal Appeals.

Enter, this t he ___ day of September , 1997.

_________________________________ JOE B. JONES, PRESIDING JUDGE

_________________________________ DAVID G. HA

YES, JUDG E

_________________________________ JOE G. RILEY , JUDGE