# FILED

March 5, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE OCTOBER 1997 SESSION

STATE OF TENNESSEE, ) No. 01C01-9612-CC-00538 ) Appellee ) ) ROBERTSON COUNTY V. ) ) HON. JOHN H. GASAWAY, III, RALPH CEDRIC ALLEN, ) JUDGE ) Appellant. ) (Sentencing) ) ) For the Appellant: For the Appellee: Michael R. Jones John Knox Walkup District Public Defender Attorney General and Repor ter 110 Sixth Avenue, West Springfield, TN 37172 Elizabeth B. Marney Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493 John Wesley Carney, Jr. District Attorney General Dent Morris Assistant District A

ttorney 500 South Main Street Springfield, TN 37172

OPINION FILED: ___________________

AFFIRMED WILLIAM M. BARKER, JUDGE1 Although t here are confl icti ng dates in t he record, t he judgment refl ects that the sentence was entered on October 6, 1995. Rel ying upon t hat date, the appell ant’s motion was timely filed withi n the 120 da ys as spe cified by the ru le. See Tenn . R. Crim . P. 35(b).

2 After appel lant fi led his pro semotion, he recei ved appointe d counsel and fi led a support ing me mo rand um to cla rify the legal g roun ds an d rele vant a utho rity. 2 OPINION The appellant, Ralph Cedric Allen, appeals as of right t he Robertson County Circuit Court’s deni al of his motion for reduction of sentenc e. He contends that the trial court erred in u pholding his fourteen (14) y ear sentence for a Class B felony

. We affirm the judgment of the trial court. In 1994, the appellant was indicted for possession of cocaine with intent to sell, possession of cocaine with intent to deliver, and pos session of a firearm. The indictment did not specify th e amount of cocaine found in appellant’s po ssession. However, followi ng plea negotiations, the appellant pled guilty to the charge of possession of over .5 gr ams of cocaine with intent to sell, a Class B felony. The remaining two charges were dismissed and the trial court sentenced appellant as a Range II multiple offender to fourteen ( 14) years in the Department of Correction. The sentence was ordered to r un consecutively to a previous sentence. On February 2, 1996, the appel lant filed a pro se motion for reduction of sentence pursuant to Tennessee Rules of Criminal Procedure 35(b). 1 In that motion, he asserted that he pled guil ty to and was sentenced for a Class B felony, but that h e was indict ed for a C lass C fel ony. 2 He petitioned the trial court to reduce his sentence to a term within the rang e for a Class C offense. The trial court conducted a hearing and overruled appellant’s motion. The appellant relies upon State v. Hilliard , 906 S.W.2d 466 (Tenn. Crim. App. 1995), to argue that he wa s improperly sentenced for a Class B felony. In Hilliard , this Court held that an indictment c harging a cocaine offense under Tennessee Code3 Tennessee Code Annotated secti on 39-17-417(c)( 1),(2) ( Supp. 1994), pr ohibit s the manufac ture, sale, delivery, or possession of a controlled substanc e. It specifies that possession of over 0.5 grams of cocai ne is a Class B felony whi le possession o f less than 0.5 grams is a Class C felony.

4 W e review th e trial court’s d ecision u nder an abuse of discre tion stand ard. See State v. Irick , 861 S.W .2d 375, 376 (Tenn. Crim . App. 1993). 3 Annotated section 39-17-417 3 must specify a quantity of 0.5 grams or more to alleg e a Class B felony. See id. at 470. Although the indictment in Hilliard did not specify the quantity of cocaine, nev ertheless, the defendant was co nvicted by a jury and sentenced for a Class B felonious possession. See id. at 467. Based upon the omission in the indictment, w e held that the defendant could only be sentenced for the lesser Class C felony

. See id. at 470. Subsequ ent case

s have fo llowed

the rati onale of Hilliard

. See State v. Eric Sherrod Sanders , No. 02C01-9503-CC-00060 ( Tenn. Crim. App. at Jackson, November 15, 1995); State v. Roger D. Pul ley , No. 01C01-9501-CC-00013 ( Tenn. Crim. App. at Nashvil le, September 20, 1995). In appell ant’s case, because the indictment did not specify th at the amount of cocaine was 0.5 g rams or more, he contends that the trial cour t erred in sentencing hi m for a Class B felony. At the hearing on appellant’ s motion, the trial court c onsidered both Hilliard and Pulley . However, the court distinguished those cases because they both involved jury verdicts. The trial court agreed that if the appell ant had been convicted of the drug offense by a jury, then he w ould have been sentenced for a Cl ass C felony. The trial court, however, dis

tinguished appellant’s c ase because the appellant pled g uilty with full knowledge that he w ould be sentenced for the Class B felony of possessing eight (8) grams of cocaine. The trial court, therefore, overruled the motion to reduce appellant’s sentence. 4 Since the trial court’s ruling, we have had the opportunity to address appellant’s issue in a similar cas

e. See State v. Jabbaul Pettus , No. 01C01-9602-CC-00056 (Tenn. Crim. App. at Nashv ille, January 30, 1997), perm. app. granted (Tenn. Sept. 22, 1997). In Pettus , the defendant pled guilty to the possession of cocaine with intent5 We note that our supreme court r ecently reiter ated that

“a knowing and vol untary gui lty plea waives any irregularity as to offender classificati on or release eligibilit y.” See Stat e v. Hi cks , 945 S.W.2d 706, 709 (Tenn. 1997 ). 4 to sell and received an e ight (8) year sente nce to be served in community corrections. See slip op. at 2. The defendant, thereafter, violated community cor rections and was resentenced by the trial court to ten (10) year

s for the cocaine offense. See slip op. at 3. On appeal, he relied upon Hilliard , claiming that the ten (10) year sentence was illegal because the indi ctment failed to specify the coca ine quantity and because t he length of his sentence excee ded the range for a Class C felony. See id. In Pettus , we distinguished Hilliard because, unlike the sentence i n Hilliard , Pettus’ sentence resulted from a v oluntary and knowing

guilty plea. Sli p op. at 4. Concluding that Pettus’ g uilty plea waiv ed any non-jurisdicti onal and procedural defects and any constitutional infirmities, we determi ned that the rule in Hilliard did not apply to Pettus’ sentence for the Class B felony. See id. 5 We continue to follow the rationale in Pettus . In appellant’s case, the record reflects that the appellant know ingly and voluntar

ily entered a guilt

y plea to possession of over .5 grams of cocaine w ith intent to sell, a Cl ass B felony. At the guil ty plea hearing, the trial cour

t asked appellant if he understood that he was about to plead guilty to a Class B felony as a Range II offender. The appellant responded affirmatively. The trial

court questioned the appell ant under Rule 11 of the Tennessee Rules of Criminal Procedur e as follows: THE COURT: Do you understand if I accept your guilty plea you will have a Class B Felony

on your record? We’ve already discussed that, but I want to be sure y

ou understand in the future when y ou are released if you commit any other cr imes and are convicted it ’s almost certain that a record of this convict ion would be used agains t you in the future; do you understand that? THE DEFEND

ANT: Yes, sir. THE COURT: Mr. Allen, i s your guilty p lea a voluntary plea? THE DEFEND

ANT: Yes, sir.6 The distri ct attorney lat er brought t

o the court’ s attenti on that t he charge was possession f or resale. 5 THE COURT: Is it based on the fact that on or about September 3, 1994, you did posse ss with inte nt to sell cocaine i n Roberts on Count y, Tennessee, in some amount over 0.5 grams? Appellant asked to confer with his counsel, after whi ch he was again asked: THE COURT: Are you in fact guilty of what y

ou are pleading guilty

to? THE DEFEND

ANT: Yes, sir. The trial court a ccepted the ap pellant’s plea and found him guilty of possessin g over .5 gram s of coca ine with in tent to se ll, a Class B felony. 6 Under those circumstances, we find that the appellant und erstood the nature and ramifications of his guilty plea. The petition for w aiver of jury tri al and request for acceptance of guilty plea, signed by the appellant, listed the offense as “Possessi on Sch II Res ale” and i ndicate d that th e senten ce would be at Range II , between twelve (12) and twenty (20)

years. On that form, the tr ial court made a notation that the charge was possessi on of eight 8 grams of cocaine. Moreover, on two se parate occasions during the plea hearing, the trial cour

t specified the range of punishment for the Class B felony. Furthermore, prior to the guilty plea hearing , the State provided appella nt with a packet of discovery mater ials. Those documents included a forensic report from the Tennessee Bureau of Investigation crime lab reflectin g that the confiscated substance was a cocaine base in the amount of 8.0 grams. In light of that evidence, there is no question that the appellant was fully aware he was pleading guil

ty to a Class B felony.As we stated in Pettus , “the petitioner, with full knowledge of his ri ghts, voluntarily took the benefits of the plea bargai n. In accepting those benefits, . . . he waived any irregularit y or defect in the proceedings . . .” See slip op. at 4 (quoti ng Wallen v. State , 863 S.W.2d 34, 38 (Tenn. 1993)). See also State v. Griffin , 914 S.W.2d 564, 567 (Tenn. Crim. App. 1995).6 We conclude that the appellant entered a knowi ng and voluntary g uilty plea to a Class B felony. The sentence he received was w

ithin the authorized ter

m of confinement for a Class B felony and was within the stat utory range for a Rang e II offender. See Tenn. Code Ann. §40-35-111(b)(2) (1990); Tenn. Code Ann. §40-35- 112(b)(2) (1990). Accordingly, we affirm the order of the trial court denying appellant’s motion for reduction of sentence.

___________________________ William M. Barker, Judge

CONCUR:

__________________________ Joe B. Jones, Pre siding Judge

__________________________ Joe G. Riley, Judge