         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE


              MARCELLUS HAZELITT v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Davidson County
                        No. 2002-A-502 Seth W. Norman, Judge



                  No. M2003-02542-CCA-R3-CO - Filed November 18, 2004


This matter is before the Court upon the State’s motion to dismiss the appellant’s appeal, or in the
alternative, affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20,
Rules of the Court of Criminal Appeals. The appellant filed a motion for correction or reduction of
sentence that the trial court denied without benefit of a hearing. After reviewing the record in this
case, we find the State’s motion to affirm the judgment of the trial court by memorandum has merit.
Accordingly, the motion is granted and the appeal is affirmed pursuant to Rule 20, Rules of the Court
of Criminal Appeals.


      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Affirmed.

JERRY L. SMITH , J., delivered the opinion of the court, in which DAVID H. WELLES, and THOMAS T.
WOODALL, JJ., joined.

Marcellus Hazelitt, pro se, Nashville, Tennessee.

Paul G. Summers, Attorney General & Reporter; Elizabeth Bingham Marney, Assistant Attorney
General, for the appellee, State of Tennessee.


                                  MEMORANDUM OPINION

        From the record, it appears that the appellant pled guilty to one count of aggravated burglary,
one count of attempted aggravated robbery and one count of aggravated assault. As part of his plea
agreement, the appellant agreed to serve five years for each count consecutively to one another as
a Range I Standard Offender. The judgments were filed on March 19, 2003. On July 3, 2003, within
120 days of the judgments being entered, the appellant filed a motion to correct or reduce his
sentence based upon Rules 35 and 32(c) of the Tennessee Rules of Criminal Procedure. In this
motion, the appellant argued that these sentences should have been ordered to run concurrently. The
trial court denied the appellant’s motion based upon authority which states that consecutive
sentencing is subject to plea negotiations. The trial court went on to state that the appellant entered
his plea agreement knowingly and voluntarily and that plea agreement indicated the consecutive
service of sentences.

                                               Analysis

        Rule 35 of the Tennessee Rules of Criminal Procedure states,“The trial court may reduce a
sentence upon application filed within 120 days after the date the sentence is imposed or probation
is revoked.” The standard of review when reviewing Rule 35 rulings is the “abuse of discretion”
standard. The appellant did file his motion within the 120 days. However, we do not find that the
trial court abused its discretion in this instance. As the trial court stated in its order, the appellant
agreed to his plea agreement which included that the sentences would run consecutively. This court
has held that consecutive sentencing is subject to plea negotiations. See State v. Matthew Stalcup,
No. E2003-00481-CCA-R3-CD, 2004 WL 875265, at *11 (Tenn. Crim. App. at Knoxville, April
23, 2004); State v. Benjamin Christopher Ashworth, No. 03C01-9902-CC-00065, 1996 WL 804060,
at *3-4 (Tenn. Crim. App. at Knoxville, Oct. 6, 1999); State v. Houston Grady Chapman, No.
01C01-9808-CC-00354, 1998 WL 855441 at *1 (Tenn. Crim. App. at Nashville, Dec. 11, 1998);
Patrick Williams v. State, No. 01C01-9506-CR-00190, 1996 WL 233982, at * 4-5 (Tenn. Crim. App.
at Nashville, May 9, 1996).

                                              Conclusion

       For the foregoing reasons the State’s motion to affirm, pursuant to Rule 20, Rules of the
Court of Criminal Appeals in GRANTED. This judgment of the trial court is AFFIRMED.


                                                        ___________________________________
                                                        JERRY L. SMITH, JUDGE




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