David Farmer v. State ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
APRIL 1998 SESSION
June 1, 1998
Cecil W. Crowson
DAVID M. FARMER, * Appellate Court Clerk
C.C.A. # 01C01-9707-CR-00243
Appellant, * DAVIDSON COUNTY
VS. * Hon. Seth Norman, Judge
STATE OF TENNESSEE, * (Post-Conviction)
Appellee. *
For Appellant: For Appellee:
G. Kline Preston, IV John Knox Walkup
Attorney Attorney General and Reporter
Washington Square Two, Suite 416
222 Second Avenue North Clinton J. Morgan
Nashville, TN 37201 Counsel for the State
425 Fifth Avenue North, Second Floor
Cordell Hull Building
Nashville, TN 37243-0493
James W. Milam
Assistant District Attorney General
Washington Square, Suite 500
222 Second Avenue North
Nashville, TN 37201
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The petitioner, David M. Farmer, appeals from the trial court's denial of
his petition for post-conviction relief. The issues presented for review are whether
the original sentence violated the due process rights of the petitioner, whether the
plea agreement violated the terms of Rule 11(e)(3) of the Tennessee Rules of
Criminal Procedure, and whether the original, conditional sentence of six years,
which was later increased to ten years, qualified as an unlawful, indeterminate
sentence.
We affirm the judgment of the trial court.
On February 23, 1995, the petitioner entered a plea of guilt to selling
less than .5 gram of a Schedule II controlled substance, cocaine, a Class C felony.
As a part of the plea agreement, the petitioner received a $2,000.00 fine and a
Range II, six-year sentence. As a part of the plea bargain, the petitioner agreed to
report on March 10, 1995, or else a ten-year sentence would result. Prior to
approval by the trial court, the petitioner specifically accepted the condition of timely
reporting to the authorities. On March 17, 1995, the trial court entered a sentence of
ten years upon acknowledgment by the petitioner of his failure to timely report.
On April 22, 1995, the petitioner filed a pro se petition for post-
conviction relief alleging a double jeopardy violation, ineffective assistance of
counsel, and, by subsequent amendment with the assistance of counsel, the
additional grounds now presented for our review. At the evidentiary hearing, the
proof was limited to the record of the guilty plea and the amended judgment. It was
stipulated that the petitioner failed to report on March 10, 1995, as required by the
plea agreement.
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In response, the state takes the position that the petitioner failed to
make the terms of the plea agreement, critical to the issues brought in this appeal, a
part of the appellate record. Secondly, the state contends that because the
petitioner knowingly and voluntarily accepted the terms of the plea agreement,
including the condition of timely reporting, that he is responsible for any error which
might have resulted in the ten-year sentence. Tenn. R. App. P. 36(a). Finally, the
state asserts that the petitioner was clearly afforded due process and that the
petitioner has otherwise failed to allege a ground upon which the sentence could be
declared void or voidable. Tenn. Code Ann. § 40-30-105 (repealed 1995).
While counsel for the petitioner has made creative arguments, the
failure to include the plea agreement in the record is fatal to this appeal. The due
process argument, the insistence that the state failed to comply with Rule 11 of the
Tennessee Rules of Criminal Procedure, and the argument that the statute requires
courts to "impose a specific sentence length for each offense" depends in great
measure upon the content of the plea agreement. See Tenn. Code Ann. § 40-35-
211.
The trial court made the following specific finding of fact:
The court explained to the petitioner that if he failed to
report at the proper time to serve the sentence, the
sentence would be ten years at thirty-five percent. The
petitioner accepted the amendment before entering his
plea. The defendant did fail to appear and the court did
place the ten-year sentence into effect.
The petitioner cannot be heard to now complain of a
sentence that he agreed to.
In State v. Hodges, 815 S.W.2d 151 (Tenn. 1991), our supreme court
held as follows:
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Aside from any agreement which may exist between the
State and a defendant in reference to the entry of a guilty
plea, the ultimate decision to accept or reject any such
plea is to be made by the trial court and, if so accepted
and received by the court, the final determination on the
extent of the punishment to be meted out is the province
of the trial court.
815 S.W.2d at 155.
The holding in Boykin v. Alabama, 395 U.S. 238 (1969), requires only
that the record affirmatively show that the defendant voluntarily and knowingly
entered his guilty plea. Here, the record demonstrates that the plea was "a
voluntary and intelligent choice among the alternative courses of action open to the
defendant." North Carolina v. Alford, 400 U.S. 25 (1970). Because the petitioner
stipulated that he failed to meet the condition that would have established his term
at six years rather than ten and because the content of the plea is not otherwise a
part of the record, the judgment must be affirmed.
________________________________
Gary R. Wade, Judge
CONCUR:
_____________________________
Thomas T. W oodall, Judge
_____________________________
L. T. Lafferty, Judge
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