             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE             FILED
                           OCTOBER 1997 SESSION
                                                           March 5, 1998

                                                       Cecil W. Crowson
                                                      Appellate Court Clerk
STATE OF TENNESSEE,               )    No. 01C01-9612-CC-00538
                                  )
      Appellee                    )
                                  )    ROBERTSON COUNTY
V.                                )
                                  )    HON. JOHN H. GASAWAY, III,
RALPH CEDRIC ALLEN,               )    JUDGE
                                  )
      Appellant.                  )    (Sentencing)
                                  )
                                  )


For the Appellant:                     For the Appellee:

Michael R. Jones                       John Knox Walkup
District Public Defender               Attorney General and Reporter
110 Sixth Avenue, West
Springfield, TN 37172                  Elizabeth B. Marney
                                       Assistant Attorney General
                                       425 Fifth Avenue North
                                       Nashville, TN 37243-0493


                                       John Wesley Carney, Jr.
                                       District Attorney General

                                       Dent Morris
                                       Assistant District Attorney
                                       500 South Main Street
                                       Springfield, TN 37172




OPINION FILED: ___________________


AFFIRMED


WILLIAM M. BARKER, JUDGE
                                               OPINION

        The appellant, Ralph Cedric Allen, appeals as of right the Robertson County

Circuit Court’s denial of his motion for reduction of sentence. He contends that the

trial court erred in upholding his fourteen (14) year sentence for a Class B felony.

        We affirm the judgment of the trial court.

        In 1994, the appellant was indicted for possession of cocaine with intent to sell,

possession of cocaine with intent to deliver, and possession of a firearm. The

indictment did not specify the amount of cocaine found in appellant’s possession.

However, following plea negotiations, the appellant pled guilty to the charge of

possession of over .5 grams of cocaine with intent to sell, a Class B felony. The

remaining two charges were dismissed and the trial court sentenced appellant as a

Range II multiple offender to fourteen (14) years in the Department of Correction. The

sentence was ordered to run consecutively to a previous sentence.

        On February 2, 1996, the appellant filed a pro se motion for reduction of

sentence pursuant to Tennessee Rules of Criminal Procedure 35(b).1 In that motion,

he asserted that he pled guilty to and was sentenced for a Class B felony, but that he

was indicted for a Class C felony.2 He petitioned the trial court to reduce his sentence

to a term within the range for a Class C offense. The trial court conducted a hearing

and overruled appellant’s motion.

        The appellant relies upon State v. Hilliard, 906 S.W.2d 466 (Tenn. Crim. App.

1995), to argue that he was improperly sentenced for a Class B felony. In Hilliard, this

Court held that an indictment charging a cocaine offense under Tennessee Code




        1
         Although there are conflicting dates in the record, the judgment reflects that the sentence was
entered on October 6, 1995. Relying upon that date, the appellant’s motion was timely filed within the
120 da ys as spe cified by the ru le. See Tenn . R. Crim . P. 35(b).

        2
         After appellant filed his pro se motion, he received appointed counsel and filed a supporting
me mo rand um to cla rify the legal g roun ds an d rele vant a utho rity.

                                                    2
Annotated section 39-17-4173 must specify a quantity of 0.5 grams or more to allege a

Class B felony. See id. at 470. Although the indictment in Hilliard did not specify the

quantity of cocaine, nevertheless, the defendant was convicted by a jury and

sentenced for a Class B felonious possession. See id. at 467. Based upon the

omission in the indictment, we held that the defendant could only be sentenced for the

lesser Class C felony. See id. at 470.

        Subsequent cases have followed the rationale of Hilliard. See State v. Eric

Sherrod Sanders, No. 02C01-9503-CC-00060 (Tenn. Crim. App. at Jackson,

November 15, 1995); State v. Roger D. Pulley, No. 01C01-9501-CC-00013 (Tenn.

Crim. App. at Nashville, September 20, 1995). In appellant’s case, because the

indictment did not specify that the amount of cocaine was 0.5 grams or more, he

contends that the trial court erred in sentencing him for a Class B felony.

        At the hearing on appellant’s motion, the trial court considered both Hilliard and

Pulley. However, the court distinguished those cases because they both involved jury

verdicts. The trial court agreed that if the appellant had been convicted of the drug

offense by a jury, then he would have been sentenced for a Class C felony. The trial

court, however, distinguished appellant’s case because the appellant pled guilty with

full knowledge that he would be sentenced for the Class B felony of possessing eight

(8) grams of cocaine. The trial court, therefore, overruled the motion to reduce

appellant’s sentence.4

        Since the trial court’s ruling, we have had the opportunity to address appellant’s

issue in a similar case. See State v. Jabbaul Pettus, No. 01C01-9602-CC-00056

(Tenn. Crim. App. at Nashville, January 30, 1997), perm. app. granted (Tenn. Sept.

22, 1997). In Pettus, the defendant pled guilty to the possession of cocaine with intent


        3
         Tennessee Code Annotated section 39-17-417(c)(1),(2) (Supp. 1994), prohibits the
manufac ture, sale, delivery, or possession of a controlled substanc e. It specifies that possession of
over 0.5 grams of cocaine is a Class B felony while possession of less than 0.5 grams is a Class C
felony.

        4
        W e review th e trial court’s d ecision u nder an abuse of discre tion stand ard. See State v. Irick,
861 S.W .2d 375, 376 (Tenn. Crim . App. 1993).

                                                       3
to sell and received an eight (8) year sentence to be served in community corrections.

See slip op. at 2. The defendant, thereafter, violated community corrections and was

resentenced by the trial court to ten (10) years for the cocaine offense. See slip op. at

3. On appeal, he relied upon Hilliard, claiming that the ten (10) year sentence was

illegal because the indictment failed to specify the cocaine quantity and because the

length of his sentence exceeded the range for a Class C felony. See id.

        In Pettus, we distinguished Hilliard because, unlike the sentence in Hilliard,

Pettus’ sentence resulted from a voluntary and knowing guilty plea. Slip op. at 4.

Concluding that Pettus’ guilty plea waived any non-jurisdictional and procedural

defects and any constitutional infirmities, we determined that the rule in Hilliard did not

apply to Pettus’ sentence for the Class B felony. See id.5

        We continue to follow the rationale in Pettus. In appellant’s case, the record

reflects that the appellant knowingly and voluntarily entered a guilty plea to possession

of over .5 grams of cocaine with intent to sell, a Class B felony. At the guilty plea

hearing, the trial court asked appellant if he understood that he was about to plead

guilty to a Class B felony as a Range II offender. The appellant responded

affirmatively. The trial court questioned the appellant under Rule 11 of the Tennessee

Rules of Criminal Procedure as follows:

        THE COURT: Do you understand if I accept your guilty plea you will
        have a Class B Felony on your record? We’ve already discussed that,
        but I want to be sure you understand in the future when you are released
        if you commit any other crimes and are convicted it’s almost certain that
        a record of this conviction would be used against you in the future; do
        you understand that?

        THE DEFENDANT: Yes, sir.

        THE COURT: Mr. Allen, is your guilty plea a voluntary plea?

        THE DEFENDANT: Yes, sir.




        5
         We note that our supreme court recently reiterated that “a knowing and voluntary guilty plea
waives any irregularity as to offender classification or release eligibility.” See State v. Hicks, 945 S.W.2d
706, 709 (Tenn. 1997 ).

                                                      4
          THE COURT: Is it based on the fact that on or about September 3,
          1994, you did possess with intent to sell cocaine in Robertson County,
          Tennessee, in some amount over 0.5 grams?

Appellant asked to confer with his counsel, after which he was again asked:

          THE COURT: Are you in fact guilty of what you are pleading guilty to?

          THE DEFENDANT: Yes, sir.

          The trial court accepted the appellant’s plea and found him guilty of possessing

over .5 grams of cocaine with intent to sell, a Class B felony. 6

          Under those circumstances, we find that the appellant understood the nature

and ramifications of his guilty plea. The petition for waiver of jury trial and request for

acceptance of guilty plea, signed by the appellant, listed the offense as “Possession

Sch II Resale” and indicated that the sentence would be at Range II, between twelve

(12) and twenty (20) years. On that form, the trial court made a notation that the

charge was possession of eight 8 grams of cocaine. Moreover, on two separate

occasions during the plea hearing, the trial court specified the range of punishment for

the Class B felony.

          Furthermore, prior to the guilty plea hearing, the State provided appellant with a

packet of discovery materials. Those documents included a forensic report from the

Tennessee Bureau of Investigation crime lab reflecting that the confiscated substance

was a cocaine base in the amount of 8.0 grams.

          In light of that evidence, there is no question that the appellant was fully aware

he was pleading guilty to a Class B felony. As we stated in Pettus, “the petitioner, with

full knowledge of his rights, voluntarily took the benefits of the plea bargain. In

accepting those benefits, . . . he waived any irregularity or defect in the proceedings

. . .” See slip op. at 4 (quoting Wallen v. State, 863 S.W.2d 34, 38 (Tenn. 1993)). See

also State v. Griffin, 914 S.W.2d 564, 567 (Tenn. Crim. App. 1995).




          6
              The district attorney later brought to the court’s attention that the charge was possession for
resale.

                                                          5
      We conclude that the appellant entered a knowing and voluntary guilty plea to a

Class B felony. The sentence he received was within the authorized term of

confinement for a Class B felony and was within the statutory range for a Range II

offender. See Tenn. Code Ann. §40-35-111(b)(2) (1990); Tenn. Code Ann. §40-35-

112(b)(2) (1990). Accordingly, we affirm the order of the trial court denying appellant’s

motion for reduction of sentence.



                                                ___________________________
                                                William M. Barker, Judge



CONCUR:


__________________________
Joe B. Jones, Presiding Judge


__________________________
Joe G. Riley, Judge




                                            6
