### FILED June 25, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JANUARY 1999 SESSION

STATE OF TENNESSEE, * No. 03C01-9801-CR-00030 Appellee, * CARTER COU NTY VS. * Honorable Arde n L. Hill, Judge KERRY HUGHES, * (Voluntary manslaughter) Appellant. *

For Appellant : For Appellee : Keith A. Hopson John Knox Walkup Counsel for the Appellant Attorney General and Repor ter 410 Shelby Street Kingsport, TN 37660 Clinton J. Morgan Counsel for the State 425 Fifth Avenue, North Cordell Hull Buildi ng, Second Floor Nashville, TN 37243-0493 Kenneth Baldwin Assistant District A

ttorney General 900 East Elk Avenue Elizabethton, TN 37643

OPINION FILED:__________________
AFFIRMED GARY R. WADE, PRESIDING JUDGE2 OPINION The defendant, Kerry M. Hughes, appeals as of right the trial court's denial of his motion to correct an illegal sentence. The single issue presente d is whether the trial cour

t erred by denying

the motion. We affirm the judgment of the trial court.

The defendant, who was indicted for first degree murder, enter ed into an agreement whereby he entered a best interest plea of guilt to voluntary manslaughter, a Class C felony. See North Carolina v. Alford , 400 U.S. 25 (1970). The punishment for voluntary mans laughter may range from three to fifteen years. Tenn. Code Ann. § 40-35-112. A Rang e I sentence is three to six years. Tenn. Code Ann. § 40-35-112(a)(3) . In 1992, the trial court imposed a sentence of fifteen years coupled with Range I release eligi bility of thirty per cent.
In 1997, the defendant sought relief, claiming the sentence was illegal. At an evidentiary hear

ing, counsel for the defense intr oduced the judgment form and the transcript of the plea submis sion hearing but did not su bmit the written plea agreement. Defense counsel argued that the trial court had f ailed to properly inform the defendant that he was agreeing to a sentence higher than tha t permitted for a Range I offender. While the defendant was present at the evidentiary heari ng, he declined to testify. The defendant's trial counsel did not par ticipate in the proceeding. The trial cour t denied the motion, concluding that the post-convicti on statute of limitations barred c onsideration of the claim and that the transcript established that defendant's plea w as knowing and vol untary.
During the submission hear ing, the defendant had stated under oath that he understood his rig ht to a trial by jury, his right to counsel,his right to confront3 the witnesses, his ri ght of co mpulsor y proce ss, and h is rig ht agai nst sel fincrimination. He assur ed the trial court that his plea was voluntary, that he was not coerced or threatened, and that he had read, signed, and understood the plea agreement. Terms of the plea agreement were disclosed duri ng the hearing, as follows: Trial Court: Are you pleading gui lty rather than go to trial charged with murder in the first degr ee and possibly being found g uilty, and possibly receivi ng a greater sentence than this fifteen years to which you are agreeing ? Defendant: Yes, I am. Trial Court: In other words, this is as a result of plea

bargaining, and wheth er you are guilty or not, you are accepting the fifteen years, is that right ? Defendant: Rather than face the cons

equence s of a lif e sentence or capital punishment, yes sir.

*** Trial Court: ... [T]he Court finds you guilty of Voluntary

Manslaughter and sets y our punishment at fifteen (15) years in the Tenness ee Department of Correction[], as a Standard 30% Range I Offender ... [D]o y ou understand everything that's gone on here today? Defendant: Yes, sir. *** Trial Court: ... Did you sign this form, Waiver of Jury

Trial, Plea of Guilty and Su bmission of the Case to the Court[?] I saw you sign it, did you read it before you si gned it? Defendant: Yes, sir, I did. Trial Court: Let the record show that I saw him sign it,

and -- well, this s hows ... Defendant: And you saw me read it t oo. (Emphasis added).

There was no discussion of the defendant's range nor did the tr ial court inform the defendant that the fifteen-y ear sentence he was agr eeing to exceeded the three- to six -year range set forth by the statute. On the other hand, the transcript indicates that the sentence resulted from a w ritten plea agreement4 which had been approved by the trial court. That agreement is conspicuously absent from the record.

It is the duty of the appellant to prepare a record that conveys a fair, accurate, and complete account of w hat transpired in the tri al court with respec t to the issues that form the basis for the appeal. Because the agreement is not in the record, this issue must be treated as waived. Tenn. R. App. P. 24(b); State v. Miller , 737 S.W.2d 556, 55 8 (Tenn. Crim. App. 1987).

Nevertheless, th e defendan t would not prevail on the merits. Alth ough this court recogniz

es that the post-convicti on statute of limitations wou ld bar any constitutional claims of the defendant, see Compiler's Notes, Tenn. Cod e Ann. § 40-30-201 (1997); Thomas C. Maney, Jr., v . State , No. 03C01-9612-CR-00470 (Tenn. Crim. App., at Knoxville, Oct. 10, 1997), as a general rule, an illegal sentence may be corrected at any time. State v. Burkhart , 566 S.W.2d 871, 873 (Tenn. 1978). Moreover, this

court has held that the post-conviction statute of limitations does not bar consideration of a cl aim that the sentence imposed is i llegal. Kevin Lavell Abston v. State , No. 02C01-9807-CR-00212 (Tenn. Crim. App., at Jackson, Dec. 30, 1998) (c iting State v. Mahler , 735 S.W.2d 226, 228 (Tenn. 1987)); accord James Gordon Coons, III v. State , No. 01C01-9801-CR-00014 ( Tenn. Crim. App., at Nashville, May 6, 1999). Our supreme court has ruled that a hybrid sentence, in which the defendant agrees to a sentence in excess of his or her range, is not il legal so long as the plea is kno wingly and vol untarily made. Hicks v. State , 945 S.W.2d 706 (Tenn. 1997). Claims regarding range classification and release eligibility are considered waived by

a knowing and voluntary plea. Id. at 709; Mahler , 735 S.W.2d at 228.5 In Boykin v . Alabama , 395 U.S. 238 (1969), the United States Supreme Court ruled that defendants shou ld be advised of certain of their constitutional rights

before entering pleas of guil t. Included among those req uired warnings are the ri ght against self-incr imination, the right to c onfront witnesses, and the right to a trial by

jury. Id. at 243. The overr iding Boykin requirement is that the guilty plea must be know ingly and voluntar

ily made. Id. at 242-44. If the proof established that the petitioner was aware of his cons titutional rights, he i s entitled to no relief. Johnson v. State , 834 S.W.2d 922, 926 (Tenn. 1992). "[A] plea is not 'voluntary' if it is the product of '[i]gnorance, incomprehension, coercion, terror, inducements, [or] subtle or bl atant threats ....'" Blankenship v. State , 858 S.W.2d 897, 904 (Ten n. 1993) (quotin g Boykin , 395 U.S. at 242-43). That is,the accused must hav

e a "'ful l unders

tanding of what the plea connotes and of its consequences ." State v. Pettus , 986 S.W.2d 540, 542 (Tenn. 1999) (quoting Boykin , 395 U.S. at 244 (emphasis added i n Pettus )). The record of the plea submission must "affirmatively demonstrate" that the defendant was aw are of the significant consequences of his plea. State v. Mackey , 553 S.W.2d 337, 340 (Tenn. 1977).

In this instance, the transcript demonstrates that the defendant w as informed of and understood his constitutional rights and that the defendant agreed to a fifteen-year sentence for voluntary manslaughter rather than face a trial for first degree murder. Obvious ly, plea negotiations between the defendant and the state had resulted in a plea barg ain agreement. During the proceeding, a wri tten agreement had been approved by defense counsel and signed by the defendant. Although the trial court did not explain that the Range I sentence for voluntary manslaughter was three to six years, that alone does not render the plea involuntary or unknowing. Because the length of sentence was the significant consequence o f6 the plea, the defendant clearly understood the length of his ter m of imprisonment.
Accordingly, w

e affirm the judgment of the trial cour t.

_____________________________ Gary R. Wad e, Presiding Judge
CONCUR:

______________________________ Norma McGee Ogle, Judge

______________________________ John K. Byers, Sen ior Judge