# FILED

May 6, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE DECEMBER 1998 SESSION

JAMES GORDON COONS, III, * C.C.A. No. 01C01-9801-CR-00014 Appellant, * DAVIDSON COUNTY

vs. * Hon. Ann Lacy Joh ns, Judge STATE OF TENN ESSEE, * (Post-Conviction) Appellee. *

For Appellant : For Appellee : John T. Conners, III John Knox Walkup P.O. Box 1451 Attorney General and Repor ter Franklin, TN 37065-1451 425 Fifth Avenue North Nashville, TN 37243-0493 Timothy Behan Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North Nashville, TN 37243-0493 Jon Seaborg Assistant District A

ttorney General Washington Square, Suite 500 222 2nd Avenue North Nashville, TN 37201-1649

OPINION FILED:

AFFIRMED

NORMA MCGEE OGLE, JUD GE2 OPINION

The petitioner, James Gordon Coons, III, appe als the dismissal of his petition for post-conviction relief by the Davidson County Criminal Court. On April 25, 1996, the petitioner pled g uilty in the Davi dson County Criminal C ourt to kidnapping and aggravated assault. Pursuant to a plea agreement, the trial court imposed an effective sentence of six years and one day incar ceration in the Tennessee Department of Correction. In these post-convicti on proceedings, the petition er presen ts the fo llowing issu es for ou r review: 1. Whether his sentence for kidnapping contrav enes Tenn. Code. Ann. § 40-35-211(1) (1997), thereby violating his right to due process pur suant to Article I, Secti on 8 of the Tennessee Constitution and the Four teenth Amendment to the United States Constitution. 2. Whether he was provided adequate notic e of enhanced punishment pursuant to Tenn. Code. Ann. § 40-35- 202(a) (1997), consistent with his right to due process. 3. Whether he knowingly entered his guilty pleas as required by Article 1, Section 8 of the Tennessee Constitution and the Fourteenth Amendment to the United States Constitution. 4. Whether his trial attorney provi ded ineffective assistance, thereby violating

his rights pursuant t

o Article 1, Section 9 of the Tennessee Constitution and the Si xth and Fourteenth Amendments to the United St ates Constitution.
The State, in addition to disputi ng the merits of the petitioner ’s claims, argues for the first time on appeal that this petition for post-convicti on relief is barred by the one year statute of limitations set forth in Tenn. Code Ann. §40-30- 202(a) (1997). Following a rev

iew of the record and the par ties’ briefs, we affirm the j udgment of the post-conviction cour t.3 Factual Background As noted above, this case ar ises from the petitioner’s g uilty pleas to kidnapping and aggrav ated assault. At the guilt y plea hearing, the peti tioner affirmatively stated to the trial court that he had dis cussed his plea agreement w ith his attorney, and that she ha d explained the agreement to him. The petitioner confirmed that she had discussed w ith him investigati ons she might undertake and defenses the petitioner might r aise at a trial. The petiti oner further stated that he was satisf ied with th e represe ntation he had rec eived fro m his atto rney.

In turn, the trial court explained to the petitioner that he was charged with two counts of agg ravated assault, whi ch carried possible sent ences of three to fifteen years incarceration; one count of espe cially aggravated kidnapping, which carried a possible sentenc e of fifteen to sixty years incarceration; and resi sting arrest, which carried a possible sentence of six months incarceration. The trial court then reviewed the propos ed plea agreement with the petitioner, and the petitioner indicated that he understood the pl ea agreement.

The trial court explain ed that the petitioner’s conv ictions could be used in the future to enhance punishment for any future offenses that the petitioner mig ht commit. The court also expl ained the petitioner’s ri ght to a trial, his r ight to present evidence on his own behal f during a trial, his r

ight against self-inc rimination, his right to confront opposing witnes ses, the State’s burden of proof at tr ial, and the petitioner’s right t

o appeal. The court additionall y inquired if the petit ioner had been threatened or offered inducements in re turn for his pleas of guilt. The petitioner indicated that he was pleadi ng guilty of his ow n free will. The trial

court accepted the petitioner’s pleas and, i n accordance with the ple a agreement, entered judgments of conviction on A pril 25, 1996.4 The Davidson County Cr iminal Court Clerk’s

Office received the instant petition for post-conv iction relief on April 28, 1997. Following the appointment of counsel, the petitioner submitted several amended petitions. On November 26, 1997, the post-c onviction court conducted a hearing.

At the hearing, the Petitio ner presented the testimony o f Marion Fordyce, the petitioner

’s trial attorney. Ms. Fordyce testified that, initially, the St ate provided her with the petitioner’s criminal record, which incl uded two prior felony theft convictions and established the petitioner’s status as a Ran ge II offender. Ms. Fordyce additionally

confirmed that the State offered a plea agr eement of three years incarceration.Ms. Fordyce underst ood that, although not a conditi on of the plea agreement, the petitioner would probably ser

ve a sentence of three years in the custody of the Corrections Corporation of America. Ms . Fordyce communicated the State’s plea offer of three years to the petitioner and discuss ed the plea offer with him and his family on numerous oc casions.

Ms. Fordyce testified that, against her advic e, the petitioner insisted upon returning a plea offer of six years and one day. The petitioner believed that the lengthier sentence woul d result in his incarc eration in the Tennessee Department of Correction instead of a facili ty administered by the Corrections Corporati on of America. He believed, c ontrary to Ms. Fordy

ce’s advice, that he w

ould be released earlier if he were inc

arcerated in the Department. Ms. Fordyce expla ined to the petitioner that, in addition to receiving a leng thier sentence, he would be sentenced as a Range II offender and receiv e a higher release elig ibility percentage.

Ms. Fordyce further tes tified that, at her request, the petitioner5 underwent a mental health ev aluation. The Vanderbilt Foren sics Department found the petitioner to be competent. Addi tionally, Ms. Fordy

ce testified that she had no difficulty communicating w ith the petitioner, althoug h the petitioner possessed limited ability to r

ead and write. Moreov er, the petitioner appeared to experience no difficulty understanding her explanations.

Ms. Fordyce conceded that she did not discuss wi th the petitioner Tenn. Code. Ann. § 40-35-211(1), w hich statute mandates specific felony sentences of months or years when a defendant is incarcerated in the Tennes see Department of Correction. She also conc eded that she did not advise t he petitioner that he was entitled to notice of enhanced sentencing. Rather, Ms. For dyce explained to the petitioner that his crimi nal record established his status as a Range II offender.

The Petitioner also testified at the hearing. The petitioner claimed that his attorney did not inform h im of the State’s plea offer of three year s. He asserted that he would have accepte d a three year plea offer had he know n of its existence. He claimed that he was only aware of a plea offer of six years incarceration as a Range I offender. He admitted that he a sked for an extra day in carceration, because he wanted to be incar cerated in the Tennessee Department of Correction in lieu of placement in the custody of the Corrections Corporation of America. He developed this strategy after conversations w

ith his brother, who i s also familiar with the criminal justice sy

stem. However, the pet itioner contended that he was never advised that the addition of one day would result in a Ra nge II sentence and increase his release eligibility percentage. Finally, he testified that, at the time of his guilty plea, he was not aware that a sentence of six years and one day was in contravention of Tenn. Code. Ann. § 40-35-21 1(1).6 At the conclusion of the post-conv iction hearing, the cour t indicated that it had decided all of the is sues raised by the petiti oner with the excepti on of the adequacy of the State’s notic e pursuant to Tenn. Code. Ann. § 40-35- 202(a). Accordingly, in i

ts final order dismissing the petition for post-convi ction relief, the court found that the petitioner w as provided adequate notic e of enhanced sentencing when the State submitted the petitioner’s criminal record to de fense counsel. Moreover, the post-conviction court found that the petitione r waived in his written plea agreem ent any objectio ns concerning no tice of enhan ced sentencin g.

Analysis Initially, regar

dless of whether the petiti oner filed his petition for post

conviction relief w

ithin the applicable statute of limitations, the statute of limi tations does not bar the petitioner’s claim that his sentences ar e illegal. See, e.g, State v. Mahler , 735 S.W.2d 226, 22 8 (Tenn. 1987)(a sentence imposed in direct contravention of express statutory provisi ons is illegal and subj ect to being set aside at any time); Abston v. State , No. 02C01-9807-CR-00212, 1998 WL 906475, at *1 (Tenn. Crim. App. at Jackson, December 30, 1998)(the expi ration of the statute of limitations does not bar the petitioner’s claim that hi s sentences are illegal ). Moreover, the State did no t raise the statute of limitati ons defense before the postconviction court. This court has previously observed that the State may not raise this defense for the first time on appeal

. Rickman v. State , 972 S.W.2d 687, 691 (Tenn. Crim. App. 1997). Accor dingly, we w

ill address the merits of the issues raised by the petitioner.

We first address the petitioner’s contenti on that his sentence viola ted1 The post-convict ion court failed to expli citl y address th is and other issues in i

ts order denying pos t-con viction relief. Nev erthe less , we c onc lude t hat th e rec ord o f the p ost-c onvic tion p roce eding s is adequ ate to effe ctuate a m eaningf ul appellate review. Rickman , 972 S.W.2d at 692. 7 Tenn. Code. Ann. § 40-35-211(1). 1 Tenn. Code. Ann. § 40-35-211(1) provides:

Specific sentences for a felony s hall be for a term of years or months or l

ife , if the defendant is sentenced to the department of correction; or a specific term of years, months, or days if the defendant is sentenced for a felony to any local jai l or workhouse. Speci fic sentences for a misdemeanor are for a specific n umber of months or days or hour s or any combina

tion the reof. (Emphasis added). In this case, the petitioner was convicted of kidnappin g, a Class C felony, and sentenced to incar ceration in the Department for s ix years and one day. The petitioner contends that this sentence is ill egal pursuant to Tenn. Code. Ann. § 40-35-211(1), because the statute only authoriz es felony sentences in the Department for terms of years or months, not days.

The State contends that the petitioner ’s sentence is determinate and, therefore, le gal. Moreover, citing Hicks v. State , 945 S.W.2d 706 (Tenn. 1997), the State argues that the petiti oner requested a sentence of six years and one day and knowingly and v

oluntarily pled gui lty in return for the di sputed sentence.

A basic rule of s tatutor y const ructio n is to e

xamine the lang uage of a statute and, if unambiguous, apply its ordinary and plai n meaning. Parks v. Tennessee Municipal League Ri sk Management Pool , 974 S.W.2d 677, 679 (Tenn. 1998). If the legislative int ent is expressed in a manner devoid of contradiction and ambiguity, there is no room for interpretations or constr uctions, and courts are not at liberty, on consideration of policy or hardship to depart from the words of the statute. State v. Levandowski , 955 S.W.2d 603, 606 (Tenn. 1997). The language in Tenn. Code. Ann. § 40-35-211(1) is unambiguous. Felony sent ences in the Department8 “shall be for a term of years or months or life.” See, e.g., State v. Campbell , No. 01C01-9110-CC-00286, 1992 WL 98977, at *4 (Tenn. Cr im. App. at Nashville, May 13, 1992)(court affirmed, pursuant t o Tenn. Code. Ann. § 40-35-211, a felony sentence of eight years and six months in the Department of Correction ). Moreover, in contrast to felony sentenc es in the Department, felony s entences in the local workhouse or jail may be for terms of years, months, or days. This court has observed that “[t]he pres ence of words of limitation i n one part of a statute indicates that the absence of such words from other parts in the same statut e is an intentional legislative choice.” Levandowski , 955 S.W.2d at 606. Accordingly, the i mposition of a sentence of six years and one day incarceration in the Department pursuant to a felony conviction violated the plain meaning of Tenn. Code. An n. § 40-35-211(1).

Citing Hicks , 945 S.W.2d at 706, the State nevertheless conte nds that the petitioner could agree, in the context of plea bargaining, to a sentence in contravention of statutory provisions. In Hicks , 945 S.W.2d at 706, a post-conviction case, the petitioner had entered a plea of guilty in return for a Range II sent ence coupled with Range I release eligibility, in contravention of the Sentencing Reform Act of 1989. In upholding the petitioner’s sentence, the court reiterated the principle that “a knowing and v

oluntary guilty

plea waives any irregularity as to offender classification or release eligibility.” Id. at 709.

The court in Hicks found that the legislature i mplicitly adopted prior case law, which hel d that a defendant can waive er roneous range classificat ion as part of a negotiated plea agreement, when it enacted the prov isions of the 1989 Sentencing Reform Act that req uire a person to be sentenced i n accordance with the statute. Id. at 709. In other words, the court held that if a sentence v iolates the provisions of the Sentencing Act, the petitioner’s know ing and voluntary a

greement9 to the sentence precludes a finding of illegality. See, e.g., State v. Chapman , No. 01C01-9808-CC-00354, 1998 WL 855441, at *1 (Tenn. Cr im. App. at Nashville, December 11, 1 998)(applying Hicks in the context of consecutiv e sentencing). See also Farmer v. State , No. 01C01-9707-CR-00243, 1998 WL 276155, at **1-2 (Tenn. Crim. App. at Nashville, June 1, 1998).

Thus, we must determine whether the petitioner knowi ngly and voluntarily pled guilty to kidnapping and aggravated assault in return for a sentence of six years and one day. The petitioner effectively concedes that the trial court complied with the requ irements set forth in Boykin v . Alabama , 395 U.S. 238, 242- 244, 89 S.Ct. 1709, 1712-1713 (1969) , State v. Mackey , 553 S.W.2d 337, 341 (Tenn. 1997), and Tenn. R. Crim. P.11. See also State v. Neal , 810 S.W.2d 131, 135-137 (Tenn. 1991), overruled in part , Blankenship v. State , 858 S.W.2d 897, 902 (Tenn. 1993). However , on appeal, the petitioner conte nds that his attorney failed to advise him concerning the State’s plea offer of three year s incarceration.

On appeal, the burden is upon the pet itioner to demonstrate that the evidence adduced at the post-c onviction hearing pr

eponderates against the judgment entered. Bates v. State , 973 S.W.2d 615, 631 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1997), cert. denied , U.S. , 118 S.Ct. 2067 (1998). Additionally, in reviewing post-conviction proceedings,

[t]his court may not reweigh or reevaluate the evidence or substitute its inferences for those drawn by the postconviction court. M oreover, questions c oncerning the credibility of witnesses and weight and v alue to be given their testimony are for r esolution by the post-conv iction court. Id. (citation omitted). In di smissing the petition for po st-conviction reli ef, the postconviction court clea rly accredited the tes timony of petitioner’s tr ial counsel that she informed the petitioner about the Stat e’s three year plea offer and di scussed the10 plea offer with both the petition er and members of his family on numer ous occasions. Upon reviewing the record, we agree with the post-conviction court’s implicit finding that the petitioner’s guilty pleas “represent[ed] a v oluntary and intelligent choice among the alternative courses of action open to the defendant.” North Carolina v. Alford , 400 U.S. 25, 31, 91 S.Ct. 160, 164 (1970).

Our supreme court in State v. Pettus , No. 01S01-9709-CC-00202, 1999 WL 25544, at *2 (Tenn. at Nashville, Januar y 25, 1999)(pending publi cation at 986 S.W.2d 540), recently observed:

[I]t is commonly known that the plea-bargain process involves a certai n amount of “give and take” s o as to reach a resolution that is acceptable to both the State and the defendant. ... [Therefore,] we have upheld pleabargain agreements and res ultant sentences in cases where the defe ndant has acce pted a senten ce in a range higher than called for by the indicted offense. In this case , the petiti oner attempted to manipulat e the crimin al justice

system, apparently relying upon the advice of his brother. Ignoring the advice of his attorney, he therefore insisted upon a lengthier sentence, a nd the State was more than happy to accommodate him. In the absence of any evidence that t he petitioner was incompetent to enter g uilty pleas, this cour t will not grant r

elief from a knowing and voluntary plea merel y because the petitioner appl ied his knowledge fooli shly.

With respect to the lack of notice of enhanced punishment pursuant to Tenn. Code. Ann. § 40-35-202(a), w e again note that questions concerning the range classification of a defendant may be waived by a know

ing and voluntary g uilty plea. Hicks , 945 S.W.2d at 709. The record supports the tri al court’s findings that the petitioner waiv

ed notice of enhanced punishment pursuant to Tenn. Code. Ann. § 40-35-202(a). Moreov er, this court has prev

iously affirmed a plea agreement11 resulting in a Range II sentence despite the absence of noti ce of enhanced punishment when the defendant and his at torney were awar

e of the State’s intent to seek enhanced punishment, the defendant and his attorney were prov

ided copies of the def endant’ s crimina l record, a nd plea n egotiati ons were co nducted in the con text of enhanced punishment. Crump v. State , 672 S.W.2d 226, 227 (Tenn. Crim. App. 1984). See also State v. Nichols , No. 03C01-9108-CR-00236, 1995 WL 755957, at **6-7 (Tenn. Crim. App. at Knox ville, December 19, 1995) (giving a defendant actual notice of the State’s intent to seek enhanced punishment is sufficient). This issue is also without merit.

The pet itioner n ext conte nds that his attor ney provide d ineff ective assistance in arrangi ng a plea agreement of six years and one day despit e a prior offer of three years. The petitioner must esta blish that his attorney’s performance was below the range of competence demanded of at torneys in criminal cases, Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975), and that the deficient performance was prejudici al. Strickland v. Washington , 466 U.S. 668, 687-697, 104 S.Ct. 2052, 2064-2069 (1984). See also Powers v. State , 942 S.W.2d 551, 557 (Tenn. Code. Ann. 1996). In order to establish prejudice w ith respect to the entry

of a guilty plea, a petitioner must establish a reasonable probability that, but fo r his attorney’s deficient performance, he would not have entered the plea and would have proceeded to trial. Bates , 973 S.W.2d at 631.

The petitioner has failed to carr y his burden on appeal. Onc e again, the record of the post-convi ction proceedings clear ly reflects that the post-conviction court accredited the testi mony of the petitioner’s tri al attorney. Ms. For dyce testified that she advised her cli ent to accept the State’s plea offer of thr ee years and strongly advise

d the petitioner against r equesting a sentence of six years and one12 day.

Finally, with r espect to the petitioner’s c ontention that his attorney possesse d a confl ict of int erest res ulting in i neffe ctive assis tance of counsel, we reject the petitioner’s argument that his refusal to follow his attorney’s advice constituted a conflict of interes t. A defendant’s right to the e ffective assistance of counsel does encompass the rig ht to an attorney “unfettered by a conflicting interest.” State v. Thompson , 768 S.W.2d 239, 24 5 (Tenn. 1989). However, in order t o succes sfully assert a claim of ineffec

tive as sistanc e on the basis of a conflict of interest, a defendant who ente red a guilty plea must establish that there was an actual conflict of interest and the conflict adversely aff ected the voluntary and knowing nature of the g uilty plea. Kirby v. State , No. 03C01-9303-CR-00074, 1994 WL 525086, at **3-4 (Tenn. Crim. App. at Knox ville, September 28, 1994). The petitioner has failed to demonstrate an actual conflict of interest, and the record reflects the petitioner’s k nowing and voluntar

y entry of guilty

pleas.

For the foregoing reasons , we affirm the judgment of the postconviction court.

NORMA MCGEE OGLE, JUD GE

JOHN H. PEAY, JUDG E

JOSEPH M. TIPTON, JUDGE