                 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                              AT JACKSON


MICHAEL D. DAVIS,                                  )
                                                   )
        Petitioner,                                ) C. C. A. NO. 02C01-9706-CR-00222
                                                   )
vs.                                                ) SHELBY COUNTY

STATE OF TENNESSEE,
                                                   )
                                                   ) No. P-18080
                                                                                    FILED
                                                   )
        Respondent.                                )                     September 26, 1997

                                                                                    Cecil Crowson, Jr.
                                                                                    Appellate C ourt Clerk
                                                 ORDER



                 This matter is before the Court upon the state's motion to affirm the

judgment of the trial court in this case by order rather than formal opinion. Rule 20,

Rules of the Court of Criminal Appeals. The record in this appeal was filed on June 25,

1997, and the petitioner has already filed his brief.



                 This is an appeal from the trial court's dismissal of the petitioner's petition

for post-conviction relief. The petitioner was originally indicted for first degree murder in

September 1990. The petitioner subsequently pled guilty to second degree murder on

February 8, 1991, and received a sentence of twenty-five years as a Range II offender.

No appeal was taken.



                 On February 12, 1997, the petitioner filed a petition for post-conviction

relief alleging that he did not enter the plea knowingly and voluntarily. Specifically, the

petitioner, relying upon Woods v. State, 928 S.W.2d 52 (Tenn. Crim. App. 1996),

claimed that his guilty plea is constitutionally invalid because counsel failed to explain

the differences between the sentencing ranges and apparently the petitioner did not

qualify above Range I. Finding that the petition was barred by the statute of limitation,

the trial court dismissed the petition without a hearing.1




        1
           In its order of dismissal, the trial court erroneously stated that the petition was filed pro se,
when, in fact, it was filed by counsel. This oversight on the part of the trial court, however, does not affect
our dis positio n of this appeal.
              Having reviewed the state's motion in light of the entire record on appeal,

we find that the motion is well-taken. A petition for post-conviction relief must be filed

within one year of the final action of the highest state appellate court to which an appeal

is taken or, if no appeal is taken, within one year of the date on which the judgment

became final. T.C.A. § 40-30-202(a). The trial court lacks jurisdiction to hear a petition

filed beyond that date unless one of three limited exceptions apply. T.C.A. § 40-30-

202(b).



              In the present case, the petitioner alleges that his case falls under T.C.A.

§ 40-30-202(b)(1): the claim in the petition is based upon a final ruling of an appellate

court establishing a constitutional right that was not recognized as existing at the time of

judgment and which requires retroactive application. The petitioner argues that Woods

established a constitutional right applicable to his case. According to the petitioner's

argument, Woods provides that a criminal defendant may not knowingly and voluntarily

enter a plea of guilt if he or she is not informed of the differences between the ranges of

punishment.



              The petitioner's position is without merit for several reasons. The

statutory exception relied upon by the petitioner requires that the ruling come from the

highest state appellate court. T.C.A. § 40-30-202(b)(1). The Woods opinion was

rendered by a panel of this Court, which is not the highest appellate court in this state.

Accordingly, this exception to the statute of limitation does not apply, and the petition,

therefore, is time barred.



              Moreover, Woods did not create a constitutional right not previously

recognized. Citing State v. Mahler, 735 S.W.2d 226 (Tenn. 1987), this Court noted that

a criminal defendant "could legitimately enter a plea agreement within the range of

punishment provided by law, even if he did not have a sufficient prior record to warrant

the higher classification within the range." 928 S.W.2d at 54. The petitioner contends

that Woods held counsel would be ineffective for failing to explain the classifications



                                             2
within the range. In Mahler, however, our Supreme Court stated that “[a]ny error by

counsel in not explaining the differences between Range I and Range II offenders did

not and could not warrant setting aside the guilty plea and sentence under the

circumstances of this case. See generally Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).” 735 S.W.2d at 228. In Woods, this Court

held, simply, that a defendant may not knowingly and voluntarily agree to a sentence

that exceeds the statutory limit for that particular offense.2 Id. at 55. In fact, the Court

relied upon well-established case law to note that a criminal defendant must be advised

of certain constitutional rights before he or she can enter a knowing and voluntary plea

of guilt. Id. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274

(1969); State v. Mackey, 553 S.W.2d 337 (Tenn. 1977). Woods, therefore, did not

establish a new constitutional right not previously recognized.



                  Accordingly, having found no error on the part of the trial court, the state’s

motion is granted. It is hereby ORDERED that the judgement of the trial court in this

matter is affirmed in accordance with Rule 20, Rules of the Court of Criminal Appeals.



                  Enter, this the ___ day of September, 1997.




                                                        _________________________________
                                                        JOE B. JONES, PRESIDING JUDGE



                                                        _________________________________
                                                        DAVID G. HAYES, JUDGE



                                                        _________________________________
                                                        JOE G. RILEY, JUDGE




         2
            Th e petitio ner ple d guilty to a C lass A felo ny, as a Ra nge II o ffe nder, wh ich carries a poss ible
sentence of twenty-five to forty years. T.C.A. § 40-35-112. The petitioner's twenty-five year sentence,
the refore, clearly falls with in the statu tory lim it, an d is not illegal.

                                                            3
