State v. Odell Ray ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
AUGUST SESSION, 1997
FILED
ODELL RAY, JR., ) October 1, 1997
) No. 02C01-9607-CR-00234
Appellant ) Cecil Crowson, Jr.
) SHELBY COUNTY Appellate C ourt Clerk
vs. )
) Hon. ARTHUR T. BENNETT, Judge
STATE OF TENNESSEE, )
) (Post-Conviction)
Appellee )
For the Appellant: For the Appellee:
MELANIE E. TAYLOR CHARLES W. BURSON
50 North Front Street Attorney General and Reporter
Suite 1150
Memphis, TN 38103 KAREN M. YACUZZO
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
WILLIAM GIBBONS
District Attorney General
DAVID SHAPIRO and
JENNIFER NICHOLS
Asst. District Attorneys General
Criminal Justice Complex
Suite 301
Memphis, TN 38103
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, Odell Ray, Jr., was indicted by a Shelby County Grand Jury
for the April 30, 1993, premeditated murder of Willie Hicks. On the second day
of the appellant's scheduled trial, he entered a guilty plea to a reduced charge of
second degree murder. Pursuant to his plea agreement, the appellant was
sentenced to forty-five years in the Department of Correction, with a thirty-five
percent release eligibility date, as a range II offender. 1 On June 16, 1994, the
appellant filed a pro se petition for post-conviction relief, this petition was later
amended on February 23, 1995, with the assistance of counsel. The appellant's
petition alleges that his trial counsel was ineffective and that the trial court
imposed an illegal sentence, i.e., the sentence imposed was outside the
applicable sentencing range. In reference to his ineffective assistance of
counsel claim, the appellant contends that (1) counsel failed to confer with him
concerning matters of defense; (2) counsel failed to conduct appropriate
investigations and discovery; (3) counsel failed to inform the defendant that he
was pleading outside his range; and (4) counsel failed to submit any motions on
the defendant's behalf. The post-conviction court, after conducting an evidentiary
hearing, denied the appellant relief. The appellant now appeals this denial.
The testimony at the evidentiary hearing revealed that defense counsel
met with the appellant on four or five occasions, each lasting between thirty and
forty-five minutes. All of the State's witnesses and the majority of potential
defense witnesses were interviewed. No discovery motions were filed because
the State permitted an open examination of their case file. Trial counsel testified
that he examined the entire file "page for page, paper for paper." Testimony at
1
Thus, the appellant, who qualified as a range I offender, pled guilty as a range II offender
(thirty-five percent release eligibility) to a range III, sentencing range of forty-five years. The
sentencing range for a range II offender of a class A felony is twenty-five to forty years; the
sentencing range for a range III offender is forty to sixty years. Tenn. Code Ann. § 40-35-
112(b)(1) (1990).
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the evidentiary hearing revealed that, had the trial proceeded, at least four
witnesses would have testified that they observed the appellant shoot the victim
approximately nine times at point blank range. Trial counsel stated that the
State's initial settlement offer was twenty years; the appellant rejected this offer.
However, after the first day of his scheduled trial, the appellant indicated that he
wanted to pursue a guilty plea. At this point, trial counsel attempted to
renegotiate the initial twenty year offer, which was rejected by the State with a
counter-offer of forty-five years as a range II offender. The appellant indicated
that he would accept the State's offer of forty-five years. Counsel informed the
appellant that, as a consequence of accepting the State's final offer of forty-five
years as a range II offender, he would be accepting a sentence five years
outside the range.
In denying relief, the post-conviction court accredited the testimony of the
appellant's trial counsel and concluded that the appellant had failed to show
either that "counsel's representation fell below the range required in [Baxter v.
Rose, 523 S.W.2d 930, 936 (Tenn. 1975)]," or that counsel committed "errors
that prejudiced [the appellant] such as to deprive him of a fair trial with a reliable
result." Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068
(1984). The court further found that both defense counsel and the court
"painstakingly and scrupulously advised [the appellant] of his rights and the
Range to which he was pleading." The court concluded that the forty-five year
sentence, although outside the applicable range, i.e., forty years, was,
nonetheless, valid.
When this court undertakes review of a lower court's decision on a petition
for post-conviction relief, the lower court's findings of fact are given the weight of
a jury verdict and are conclusive on appeal absent a finding that the evidence
preponderates against the judgment. Clenny v. State, 576 S.W.2d 12, 14 (Tenn.
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Crim. App. 1978), cert. denied, 441 U.S. 947, 99 S.Ct. 2170 (1979). In this
regard, we conclude that the proof does not preponderate against the findings of
the post-conviction court that trial counsel's performance was not deficient.
Accordingly, the appellant's assertion of ineffective assistance is without merit.
Although this court has been divided as to whether "a sentence within
one range coupled with a release eligibility of another range is legal," we find the
recent decision of our supreme court in State v. Hicks, 945 S.W.2d 706 (Tenn.
1997), dispositive of this very issue. In Hicks, the court held that such a
sentence is valid "when imposed as a result of a plea bargain agreement
entered voluntarily and knowingly."2 Id. The court added that, "where the parties
negotiate in good faith and there are no allegations of fraud or misfeasance, the
parties are precluded from attacking on appeal the agreed range imposed by the
trial court." Id. at 708. Thus, the appellant's knowing and voluntary guilty plea,
absent any evidence of fraud or bad faith on behalf of the State, waived any right
of the appellant to later challenge the legality of the sentence imposed by the
trial court. Accordingly, we find no error of law mandating reversal of the court's
judgment. The post-conviction court's denial of the appellant's petition for post-
conviction relief is affirmed.
2
The defendant, Hicks, was indicted for first degree murder but ultimately pled guilty as a
range I o ffende r to voluntar y mans laughter, a class C felony. As p art of the p lea agree men t,
Hicks was sentenced to a term of imprisonment of ten years. At the time Hicks was sentenced,
the maximum sentence for a range I offender of a class C felony was six years.
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DAVID G. HAYES, Judge
CONCUR:
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JERRY L. SMITH, Judge
________________________________
THOMAS T. W OODALL, Judge
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