State v. Cedric Franklin ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JUNE 1998 SESSION FILED
July 29, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 02C01-9710-CR-00380
Appellee, )
) Shelby County
V. )
) Honorable Joseph B. Dailey, Judge
)
CEDRIC FRANKLIN, ) (Writ of Error Coram Nobis)
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
Cedric Franklin, Pro Se John Knox Walkup
P.O. Box 1050 Attorney General & Reporter
Henning, TN 38041
Marvin E. Clements, Jr.
Assistant Attorney General
Criminal Justice Division
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243
William L. Gibbons
District Attorney General
James M. Lammey
Assistant District Attorney General
201 Poplar Avenue, Suite 301
Memphis, TN 38103
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
In January 1994, the appellant pled guilty to second degree murder and
especially aggravated robbery. Pursuant to the terms of a negotiated plea, he
was sentenced to thirty-five years as a Range II offender for second degree
murder and twenty years as a Range I offender for especially aggravated
robbery, to run concurrently. In May 1996, the appellant filed a petition for post-
conviction relief alleging that his thirty-five-year sentence for second degree
murder is void because he does not qualify as a Range II offender. After a
hearing, the trial court dismissed the petition. Thereafter, the appellant filed a
petition for a writ of error coram nobis alleging the same grievance. The trial
court dismissed the petition and this appeal followed. The issue is whether the
trial court erred in dismissing the petition. We find no error and affirm the
judgment of the trial court.
Pursuant to a negotiated plea, the appellant was sentenced to thirty-five
years as a Range II offender for second degree murder. Second degree murder
is a Class A felony. Tenn. Code Ann. § 39-13-210 (1991). The authorized term
of imprisonment for a Class A felony is not less than fifteen (15) nor more than
sixty (60) years. Tenn. Code Ann. § 40-35-111(b)(1) (1990). The appellant’s
sentence is well within the sentence authorized by the legislature for second
degree murder.
In his petition for post-conviction relief, the appellant alleged that, because
his criminal record is insufficient to qualify him as a Range II offender, his
sentence is void. A Range II sentence for a Class A felony is not less than
twenty-five (25) nor more than forty (40) years. Tenn. Code Ann. § 40-35-112(b)(1) (1990). A Range I sentence for a Class A felony is not less than fifteen
(15) nor more than twenty-five years (25). Tenn. Code Ann. § 40-35-112(a)(1).
The post-conviction court found that the appellant waived any question
about his classification as a Range II offender by voluntarily pleading guilty
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pursuant to a negotiated plea. The court relied on State v. Mahler, 735 S.W.2d
226 (Tenn. 1987). In Mahler, the defendant was indicted for first degree murder.
Pursuant to a negotiated plea of second degree murder, the defendant was
sentenced as a Range II aggravated offender, although his criminal record was
insufficient to classify him as such. The defendant filed a post-conviction petition
alleging that his sentence was illegal because he did not qualify as a Range II
offender. The trial court dismissed the petition and the Court of Criminal Appeals
affirmed. The Tennessee Supreme Court affirmed, stating:
The sentence imposed was clearly within statutory limits fixed
for the offense of murder in the second degree. In our opinion
any question as to the classification of appellant as a Range II
offender or as to his release eligibility was waived by the guilty
plea. It was not a constitutional error in and of itself and at
most rendered the sentence subject to attack on direct review
by appeal. Appellant waived any right of appeal in the guilty
plea proceedings, and expressly agreed to be sentenced with
the classification and parole eligibility imposed. These were
the only terms which the District Attorney General would even
consider and, in our opinion, the resulting sentence was clearly
lenient and in the best interest of appellant.
Id. at 228.
After the trial court dismissed his petition for post-conviction relief, the
appellant in the present case filed a petition for a writ of coram nobis.
Prior to 1955 the remedy of error coram nobis was not
available to individuals who had been convicted of a criminal
offense. Green v. State, 187 Tenn. 545, 216 S.W.2d 305(1948). The remedy was limited in scope to civil proceedings.
In 1955 the Tennessee General Assembly extended this
remedy to criminal prosecutions. T.C.A. § 40-26-105.
However, the relief available was limited to "errors dehors the
record and to matters that were not or could not have been
litigated on the trial of the case, on a motion for a new trial, on
appeal in the nature of a writ of error, on writ of error, or in a
habeas corpus proceeding," T.C.A. § 40-26-105, or a
post-conviction proceeding, see Rowe v. State, 498 S.W.2d
322, 325 (Tenn.1973), or "subsequently or newly discovered
evidence relating to matters which were litigated at the trial"
when the trial judge "determines that such evidence may have
resulted in a different judgment, had it been presented at the
trial." T.C.A. § 40-26-105. See Cole v. State, 589 S.W.2d 941(Tenn. Crim. App. 1979). As can be seen from the foregoing,
the purpose of this remedy "is to bring to the attention of the
court some fact unknown to the court, which if known would
have resulted in a different judgment." State ex rel. Carlson v.
State, 219 Tenn. 80, 85-86, 407 S.W .2d 165, 167 (1966).
Teague v. State, 772 S.W.2d 915, 920 (Tenn. Crim. App. 1988), rev’d on other
grounds, Owens v. State, 908 S.W.2d 923 (Tenn. 1995).
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In his petition for coram nobis, the appellant alleged that the trial court’s
amended judgment form which corrected a clerical error on the original judgment
was “newly discovered evidence.” The original judgment reflected that the
appellant was sentenced as a mitigated offender for especially aggravated
robbery. The judgment was amended in August 1994 to show a Range I
classification. The appellant again alleged that his second degree murder
sentence was void because he did not qualify as a Range II offender.
The trial court dismissed the petition without a hearing. The court found
that the appellant had failed to present newly discovered evidence to merit relief.
The court further found that the issue of whether the appellant’s second degree
murder sentence was void had been previously determined by the post-
conviction court. A defendant may plead to an enhanced punishment range in
order to benefit himself even if he does not qualify for sentencing within the
range. State v. Turner, 919 S.W.2d 346 (Tenn. Crim. App. 1995). The appellant
was indicted for first degree murder. The appellant knew that he faced the
possibility of a life sentence, or maybe the death penalty. By entering guilty
pleas, the appellant reduced his sentence to thirty-five years. Therefore, the
appellant knowingly and voluntarily waived his right to question his sentencing
range when he entered guilty pleas. Because the petitioner’s sentence of thirty-
five years is within the authorized statutory sentence for second degree murder,
his sentence is valid.
The judgment of the trial court is affirmed.
_____________________________
PAUL G. SUMMERS, Judge
CONCUR:
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___________________________
DAVID H. WELLES, Judge
___________________________
JOE G. RILEY, Judge
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