Supreme Court'S Recent Opinion In Hicks v. State, 945 S.W.2D 706 (Tenn. 1997), We Find ( 1993 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
ROBERT OGBURN, )
) August 7, 1998
C.C.A. NO. 01C01-9801-CC-00027
Appellant, ) (Nos. 31683, 31850, and 31851 Below)
) Cecil W. Crowson
VS. ) MONTGOMERY COUNTYCourt Clerk
Appellate
) The Hon. Robert W. Wedemeyer
STATE OF TENNESSEE, )
) (Denial of Petition for Post-Conviction
) Relief and/or Sentence Clarification)
Appellee. ) AFFIRMED PURSUANT TO RULE 20
ORDER
This matter is before the Court upon the state’s motion requesting that the
judgment in the above-styled cause be affirmed pursuant to Rule 20, Tennessee Court of
Criminal Appeals Rules. Upon reviewing the record and the pleadings in this case, we find
that it is an appropriate matter for affirmance under Rule 20.
From the record, it appears that on May 28, 1993, the petitioner pled guilty
to one count of selling a schedule II controlled substance and two counts of aggravated
burglary. As part of the agreement, he was sentenced as a Range II, multiple offender, to
10 years on each count, for an effective 20 year sentence with a 35% release eligibility
date. Subsequently, on July 16, 1993, the petitioner filed a pro se motion for reduction of
sentence. Although counsel was appointed, the petitioner filed several pro se pleadings,
including two amended petitions for post-conviction relief. It appears that a hearing was
held on December 9, 1997, however, as pointed out by the state, the transcript is not
included in the record on appeal. On February 10, 1997, the trial court entered an order
denying the petition for post-conviction relief and further ordering that the petitioner’s “total
effective sentence in case numbers 31683, 31850 and 31851 should be no more than
twenty (20) years. It is and was the intent of this Court to give Petitioner an effective
sentence of twenty (20) years as a standard Range I offender who has a 30% R.E.D. date.”
On appeal, the only issue raised is whether the trial court erred in giving a
Range II sentence after finding the petitioner to be a Range I offender. Based on our
Supreme Court’s recent opinion in Hicks v. State, 945 S.W.2d 706 (Tenn. 1997), we find
this issue to be without merit. In Hicks, the Court held that “a knowing and voluntary guilty
plea waives any irregularity as to offender classification or release eligibility.” Id. at 709.
 IT IS, THEREFORE, ORDERED that the state’s motion to affirm the
judgment of the trial court under Rule 20, Tennessee Court of Criminal Appeals Rules, is
granted, and the appeal is dismissed. It appearing that the petitioner is indigent, costs of
these proceedings are taxed to the state.
_____________________________
THOMAS T. WOODALL, JUDGE
CONCUR:
_____________________________
JOHN H. PEAY, JUDGE
_____________________________
JERRY L. SMITH, JUDGE