# FILED
December 31, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON DECEMBER 1997 SESSION

KEITH D. HENDERSON, ) ) APPELLANT, )

) No. 02-C-01-9707-CR-0 0263 ) ) Shelby County v. ) ) Carolyn W. Blackett, Judge ) ) (Post- Convic tion Rel ief) STATE OF TENNESSEE, ) ) APPELLEE. )

FOR THE APPE LLANT: FOR THE APPELLEE: James M. Gulley John Knox Walkup Attorney at Law Attorney General & Repor ter 80 Monroe Avenue 500 Charlotte Avenue Memphis, TN 38103 Nashville, TN 37243-0497 Marvin E. Clements, Jr. Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 William L. Gibbons District Attorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103 Dawn Doran Assistant District A

ttorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103

OPINION FILED:_______________________________

__ AFFIRMED Joe B. Jones, Pre siding Judge2 

## O P I N I O N

The appellant, Keith D. Henderson(petitioner), appeals as of right from a judgment of the trial court dismissing his action for p ost-conv iction relief following an evidentiary hearing. In this court, the petitioner contends his g uilty plea to second degree murder wa s not voluntarily, knowingly, and intelligently entered. He argues the plea is infirm because (1) he was not aware of his constitutional rights or the direct consequences of a guilty plea, (2) neither the trial cour t no r counsel advised him of the n ature of the offense before he entered the plea, and (3) he was not advised of the minimum and maxi mum penalty for the of fense of second degree murder. After a thorough review of the record, t he brief s submitted by the parties, an d the law go verning the is sue presented for review , it is the opinion of this court that the j udgment of the trial court shoul d be affirmed. The petitioner w as charged with murder first degree. He was accused of lying in waitfor the victim, robbing the victim, and shooting the victim in his back while he was ly ing
on the ground with his face to the ground. The victim pleaded for his life before the fatal wound struck him. The petitioner gave a statement to the police. He admitted attempting to rob the victim as w

ell as shooting the vi ctim. Howev er, he st ated he shot the victim when he thought the victim w as reaching for a weapon. The indictmentcharged the defendant with premeditated murder and felony murder . The State of Tennessee had several witnesses who w here prep ared to testify in support of the aforementio ned facts. The petitioner planned to claim self-defense. However, counsel s tated th is would ha ve been difficult as the petitioner shot the v ictim in theback while the vi ctim was lying on the ground. The state did no t seek the imposition of a death sentence or l ife without the possibility

of parole. The only offer of settlement pr ior to trial was

for a life sentence. On the morning the tri al was set to commence, the state and the defendant nego tiated a settlement. Defense counsel insisted on a settlement of twenty-five (25) years. However, the family of the victim w ould notagree to reduce the propose d senten ce lower th an fortyfive (45) years. The petitioner, the petitioner’s parents, and defen se counsel discussedthe state’s offer. Thereafter, the petitioner agr eed to accept t he senten ce. Although the3

p etitioner

was a Range I offender for sentenc ing purposes, he agreed t o be senten ce d within Range II. This was required t o justify the reduction of the fir st degree murder

charge to second degree murder. The petitioner contends his guilty plea to second degree murder was not volun tarily, knowingly, and intelligently e ntered because hewas not aware of his constitutional rig hts
or the direct consequen ce s of a guilty plea. He argues the procedure duri ng the submission hearing did not comply with Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) and State v. Mackey , 553 S.W.2d 337, 339-40 (Tenn. 1977). He argueshe “was not aware of the differences between a range one and range two offender,” and “[he] was ignorant

of the fact that he was accepting a plea offer that required him to be sentenced as a range two multiple offender even t hough he had no prior crimi nal record.”He concedes the trial court advised him of the right to trial b y jury, the rig ht to confront witnesses, and the pr ivilege against self-incrimination. It is an elementary rule of l awthat a guilty plea must be v oluntarily, knowi ngly, and intelligentlyentered to pass constitutional muster. Boykin , 395 U.S. at 243-44, 89 S.Ct. at 1712-13, 23 L.Ed.2d at 279-8 0. If the submission hearing trans cript coupled with the evidence adduced at an evidentiary heari ng establis hes the gu ilty plea wa s not volun tarily, knowingly, and intelligentlyentered, the accused is entitled to have the plea set asi de and the cause remanded to the trial co urt for further proceedings. See Chamberlain v. State , 815 S.W.2d 534, 540-42 (Tenn. Crim. App. 1990), per . app . denied (Tenn. 1991). Boykin did not create a new procedur e or mandate a certain litany of rights. As this court said in Clark v. State :

Boykin simply requires that the transcript of a guil ty pl ea proceeding affirmatively show that “the d efend ant voluntarily and understandingly enter ed his plea of guilty. .

. .” Boykin did not create a “pro cedu ral requirement” that the three co nstitutional rights mentioned in the opi nion must b e explained to the de fendan t and the defend ant wa ive t hese rightsbefore a trial judge can accept a defendant’s guilty plea.

. . . Moreover, th e f ederal courts have been, and are present ly, “unwilling to hol d, as a constitutional req uirement app l icable in habeas corpus cases to st ate proceedings, that a guilty plea requires any precise litany for it s accomplis hm ents. . . .” In short, “[a] c atechism of the constitutional rights that are waived by entry of a guilty plea is not comp elled” by Boykin or the Constitution.4

800 S.W.2d 500, 504 (Tenn. Crim. App.), per . app . denied (Tenn. 1990) (citations omitted). Rule 11(c), Tennessee Rules of Criminal Procedure, and Mackey require that

the trial judge address the accused pe rsonally in opencourt. The trial judge is also required to explain certain informati on and constitutional rig hts to the defendant , and the judge must ascertain whether

the accused understands the informatio n and applicable constitutional rights. The judge must ex plain to the defendant: 1.) The nature of the offense to which the plea is offered; 2.) The mandatory minimum penalty and the maximum penalty prescr ibed by law; 3.) When the defendant appears without counsel, the right to be represented by counsel, and

if indigent , an attorney will be appointed to r

epresent him ; 4.) The right to ple ad not guilty or pers ist in aplea if such a plea has bee n previously entered; 5.) The right to trial by j ury; 6.) The right to the assistance of counsel if the def endant opts for a trial; 7.) The right to confront and cross-examine the state’s witnesses if the defendant opts to go to trial; 8.) The privilege against compulsory self-incrimination if the defendant opts to go to trial; 9.) A plea of guilty wai ves the right to a trial, and only a sentencing heari ng will be conducted; 10.) Questionsmay be asked regard ing the offen se to which the defendant is pleading guilty, the

defendant must answer the questions under oath, and the defend ant’s
answers can later be usedagainst him in a prosecution for perjury or false statement if the answers given to the questions are not truthful; 11.) A different or additional punishment ma y re sult by reason of any prior convictions whic

h may be established after the ent ry of his plea; and 12.) Evidence of any prior convictions may be presen t ed for consideration in determining the appropriate punishment. See Chamberlain , 815 S.W.2d at 538-39. In addition, the trial judge is required to ascertain if there is factual basis for the plea, if the guilty plea is being voluntarily entered, thedefendant’s understanding concerning the entry5

of a pleaof gu ilty, and if the defendant’s w illingness to plead g uilty is the result of discussions

between the district attorney general, or an assistant, and the defendant or the defendant’s attorney before accepting the defendant’s plea. See Chamberlain , 815 S.W.2d at 539. In this case, the petit ioner entered the guilty plea to avoid a life sentence. His attorney test if ied “the probability o f him getting a life sentence w as great -- it w

as real great.”The petitioner admitted he discussed his senten cing options with his retained counsel prior to the da te he entered the plea; and his attorney discussed the evidence which would be introduced at a t rial with him. His attorney advised him there was

sufficient evidence to convict hi m of murder first degree. The petitioner candidly admi tted he knew he was plea d ing g uilty to murder in the second degree, a

lesser included offense. He unders tood the agreed se ntence wa s fortyfive (45) years, and he was aware he w ould have to serve thi rty-five percent ( 35%) of the sentence. His attorney testifie d he explained to the

petitioner he was a Range I offender and he was going to be sentenced as a Range II offender. Moreover, the assistant district attorney general statedat the beginningof the submission hearing: “ Our recommendation is that he re ceive a sentence of 45 years as a Range 2 multiple offende r. This would be byconsent.” Neither the defendant nor his att orney objected or otherw ise commented when t his statement was made. The attorney stated “everything was by consent.” He further stated the petitioner underst ood the reduction from first degr ee murder to second degree murder and the terms of the p lea agreement. While the petitioner was be ing questi oned by the trial judge at the submission hearing, the following

colloquy occurred : [ TH E COURT:] Is it your understanding that you’r e pleading guilty to the offense of murder in the second de gree, to 45 years as a Range 2 offender? [HENDERSON]: Yes. Q. Now, other than that amou nt of time has there been any other promises or threats made in order to get you to enter this plea of g uilty? A. No. Q. And do you understandthat as Range 2 offender that you do not become eligible for parol e until you’ve ser ved at least6 35 percent of your sentence ? That doesn’t mean you’ll be released or that you become el igible at that time. A. Yes. Q. And with that in mind do you still want to go forward onthis plea of g uilty? A. Yes. Q. Do your further understand that if you had gone to trialand if you had been found guilty as charg ed in the indictment, you could have received a sentenc e of life imprisonment, or you could have been found guilty of some lesser included offense, like you’re pleading guilt y to here, and could have received a sentence down to a day in jail, or you coul d have been found not g u ilty and received n o punishment at all? Do you understand all of that? A. Yes. Q. And with that in mind you still desire to go forward on this plea of g uilty? A. Yes.
This court concludes the evi dence accredited by the trial court establi shes the petitioner voluntari ly, k nowingly, a nd intelligently ent ered the plea of guilty to the lesser included offense. The peti

tioner under

stood the ter

ms of the plea agreement. He had discussed the sentencing options w ith his attorney prior

to entering the plea. The petitioner is not entitled to relief on the g round the trial court failed to advise him of the minimum and maximum punishment for second degree murder. First, this was an agreed sentence. Second, this req uirement is n ot constitutionally mandated. W hat is mandated is that the defendant be told of the sentence he will serve. Here, the defendant
was told he would receive a s entence of forty-five (45) y ears. See Blankenship v. State , 858 S.W.2d 897, 905 (Tenn. 1993). Only consti tutional issues

may be litigated in an action forpost-conviction rel ief. Tenn. Code Ann. § 40-30-203

. This court has previously held
a petitioner is not entitl ed to relief for the precise reason advanc ed by the petitioner. See Dexter Johnson v. State , Hamilton County No. 03-C-01-9503-CR-00 088 (Tenn. Crim. App ., Knoxville, February 6, 1996); Cedr ic D. Mitche ll v. State , Shelby County No. 65 (Tenn. Crim. App., Jackson, Apri l 10, 1991), per . app . denied (Tenn. September 9, 1991). The sentenc e was not illegal because the petitioner agreed to be sentenced as a Range II offender when in fact he was a Range I offender. State v. Mahler , 735 S.W.2d7

226, 227 (Tenn. 1987); State v. Terry , 755 S.W.2d 854, 855 (Tenn. Crim. App. 1988). See Hicks v. State , 945 S.W.2d 706 (Tenn. 1997). Since the guilty plea passes constitutional muster, the entry of the guilty plea had the effect of waiving the Range I - Range II i ssue. Id

.

_____________ ______________________ ________

_ JOE B. JONES, PRESIDIN G JUDGE

CONCUR:

______________________________________ JERRY L. SMITH, JU DGE

______________________________________ CURWOOD WITT, JUDGE