        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                 Assigned on Briefs February 23, 2010

       STATE OF TENNESSEE v. DANIEL HENDERSON JONES
                Appeal from the Criminal Court for Sullivan County
      Nos. S52,468; S53,126; and S53,127 Robert H. Montgomery, Jr., Judge


                  No. E2009-00182-CCA-R3-CD - Filed July 16, 2010




The Defendant, Daniel Henderson Jones, appeals as of right from the Sullivan County
Criminal Court’s denial of his motions to withdraw guilty pleas and for reduction of
sentences following his negotiated guilty pleas in case number S52,468 to one count of
aggravated assault, a Class C felony; in case number S53,126 to one count of possession of
.5 grams of cocaine for sale, a Class B felony; one count of possession of drug paraphernalia,
a Class A misdemeanor; one count of maintaining a dwelling where drugs are sold or used,
a Class D felony; and in case number S53,127 to possession of cocaine for sale, a Class C
felony. He received a total effective sentence of twenty years as a Range I, standard
offender. On appeal, the Defendant argues that the trial court erred in denying his motions
and that his sentences were imposed absent the trial court making required findings relative
to enhancement and mitigating factors. Following our review, we affirm the judgments of
the trial court.

    Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are
                                     Affirmed.

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and N ORMA M CG EE O GLE, J., joined.

Daniel Henderson Jones, Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Attorney General and Reporter; Rachel West Harmon, Assistant Attorney
General; H. Greeley Welles, Jr., District Attorney General; and Kent Chitwood, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                         OPINION

       The record reflects that the Sullivan County grand jury charged the Defendant by
presentment or indictment in three separate cases as follows:


 Case Number S52,468                            Aggravated Rape

 Case Number S53,126 (count one)                Possession of .5 grams or more of Cocaine
                                                for Sale or Delivery

 Case Number S53,126 (count two)                Possession of Drug Paraphernalia

 Case Number S53,126 (count four)               Maintaining a Dwelling where Drugs are
                                                Used or Sold

 Case Number S53,127                            Possession of .5 grams of Cocaine for Sale
                                                or Delivery

On October 13, 2008, the Defendant entered guilty pleas to all counts as charged in the
instruments, except he entered a guilty plea to aggravated assault in exchange for a dismissal
of the aggravated rape charge in case number S52,468. The trial court entered judgments
reflecting the following agreed sentences:


 Case Number S52,468            Aggravated Assault             4 years

 Case Number S53,126            Possession of .5 grams of      12 years
                                Cocaine for Sale

                                Possession of Drug             Eleven months and twenty-
                                Paraphernalia                  nine days

                                Maintaining a Dwelling         2 years
                                Where Drugs are Sold or
                                Used

 Case Number S53,127            Possession of Cocaine for      4 years
                                Sale

Also pursuant to the plea agreement, the sentences in case number S53,126 were ordered to
be served concurrently with one another but consecutively to the other cases, which were also
ordered to be served consecutively, resulting in a total effective sentence of twenty years.



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        On December 10, 2008, the Defendant filed a pro se motion for modification or
reduction of his sentences, see Tenn. R. Crim. P. 35, alleging that the sentences were
imposed without appropriate findings concerning mitigating and enhancement factors and
that the sentences should not have been imposed consecutively. On December 22, 2008, the
Defendant filed a pro se motion to withdraw his guilty pleas in case numbers S52,468;
S53,124; S53,126; and S53,127. See Tenn. R. Crim. P. 32(f). On January 8, 2009, the trial
court summarily dismissed the motions as they related to case number S53,124 because that
case involved a conviction following a jury trial in which the motion for new trial was still
pending. On January 29, 2009, the trial court denied the motion to withdraw guilty pleas
related to the remaining cases because it was untimely filed. However, the trial court granted
the Defendant a hearing on his motion for reduction of sentence related to case numbers
S52,468; S53,126; and S53,127.

       Following two separate appointments of counsel, the Defendant ultimately waived
representation and elected to proceed pro se at the Rule 35 motion hearing. At the hearing
held on August 14, 2009, the Defendant presented no proof but relied upon his pro se
pleadings. On November 12, 2009, the trial court denied the Rule 35 motion by written order
finding that the Defendant had failed to present any proof upon which to base a modification
or reduction of sentence. This timely appeal followed.

        On appeal, the Defendant argues that the trial court erred in denying his motions for
withdrawal of his guilty pleas and reduction of sentence. The crux of his argument is that
the trial court failed to make appropriate findings to justify the imposition of sentences
beyond the statutory minimum and that he should not have received consecutive sentences
from his guilty pleas. The State responds that the Defendant cannot challenge agreed to
sentences arising from a knowing and voluntary guilty plea through a Rule 35 motion and
that the motion to withdraw his guilty pleas was untimely filed; therefore, the trial court
correctly denied both motions. Following our review, we agree with the State and affirm the
orders of the trial court.

                                          Analysis

        As an initial matter, the pro se Defendant does not make any argument regarding the
timeliness of the filing of his motion to withdraw his guilty pleas. Instead, he makes various
vague allegations in his brief that he understood he was to receive a mitigated sentence and
that the trial court failed to undergo the proper colloquy during his guilty plea hearing as a
basis for his contention that he should be allowed to withdraw his pleas. We note that the
transcript of the guilty plea hearing is absent from the record. Furthermore, the guilty plea
acceptance form belies the Defendant’s claim that he was to receive any “mitigated” sentence
because it clearly outlines the length of the agreed sentences as well as the range of

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punishment as ultimately reflected in the judgments. Nevertheless, a motion for withdrawal
of a guilty plea must be filed before a judgment becomes final. Tenn. R. Crim. P. 32(f)(2).
Thus, the Defendant should have filed his motion no later than November 17, 2009, in order
to afford jurisdiction for the trial court’s consideration of the motion.1 Therefore, the trial
court properly denied the motion to withdraw because it was untimely.

        Concerning the motion for reduction or modification of sentences, Rule 35(a) of the
Tennessee Rules of Criminal Procedure provides that a defendant may petition the trial court
for a reduction of sentence within one hundred and twenty days of the entry of judgment or
the revocation of probation. Rule 35 allows for the modification of a sentence when
appropriate in the interest of justice. State v. Hodges, 815 S.W.2d 151, 154 (Tenn. 1991).
When a defendant seeks to modify a sentence entered pursuant to a guilty plea, a motion
should be granted when post-sentencing developments arise that should be addressed in the
interest of justice. State v. McDonald, 893 S.W.2d 945, 947 (Tenn. Crim. App. 1994).
Alternatively, a motion for reduction of sentence may be dismissed summarily without a
hearing if no developments have arisen requiring redress by the sentencing court. Tenn. R.
Crim. P. 35(c). Our standard of review on appeal is whether the trial court abused its
discretion in denying a defendant’s motion for reduction of sentence. State v. Irick, 861
S.W.2d 375, 376 (Tenn. Crim. App. 1993), perm. app. denied (Tenn. 1995).

        The Defendant sought reduction of his sentences based upon his allegation that the
trial court did not make appropriate findings to impose sentences beyond the statutory
minimum and that the trial court did not have the authority to order consecutive sentences.
However, the sentences were imposed pursuant to a plea agreement, and, based upon the
record before this court, all elements of the sentencing decision were agreed to by the parties
and not open to consideration by the trial court. As previously stated, a motion to reduce
sentence should be granted when, in the interest of justice, post-sentencing facts arise
warranting a reconsideration of a defendant’s sentence. McDonald, 893 S.W.2d at 947. It
is apparent from this record that no new developments have occurred in the Defendant’s
case. For these reasons, we conclude that the trial court did not abuse its discretion in
denying the Defendant’s motion for reduction of sentence. Accordingly, the orders of the




        1
           We note that the record reflects some confusion in the entry dates of the judgments. Case numbers
S52,468; S53,127; and counts one and four of S53,126 all reflect entry dates of October 17, 2008. However,
the judgment for count two of case number S53,126 was not entered until January 12, 2009. In consideration
of this discrepancy in filing dates, the motion to withdraw the guilty plea in count two, the only misdemeanor
case, was not untimely. However, the sentence in this count was ordered to be served concurrently with the
felony sentences. Accordingly, even assuming the trial court had granted relief concerning this count, the
relief would have had no effect upon the actual sentence to be served.

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trial court denying the Defendant’s motions to withdraw his guilty pleas and to reduce his
sentences are affirmed.

                                      CONCLUSION

       In consideration of the foregoing and the record as a whole, the judgments of the trial
court are affirmed.




                                                   D. KELLY THOMAS, JR., JUDGE




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