         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                     Assigned on Briefs at Jackson, October 1, 2002

  STATE OF TENNESSEE v. NICOLE BEAUDION a/k/a NIKKI NAPIER

                    Appeal from the Criminal Court for Davidson County
                        No. 2000-B-806    Cheryl Blackburn, Judge



                  No. M2001-01560-CCA-R3-CD - Filed December 13, 2002


The defendant, Nicole Beaudion, also known as Nikki Jo Napier, appeals pursuant to Tennessee Rule
of Criminal Procedure 35(b). After pleading guilty to facilitation of especially aggravated robbery,
a Class B felony, and agreeing to accept a fifteen-year sentence to be served in the Department of
Correction with a 30 percent release eligibility date, the defendant filed a timely Rule 35(b) motion
to reduce her sentence to ten years. The trial court denied this motion, and the propriety of this
action is now challenged on appeal.

              Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which DAVID H. WELLES and
ALAN E. GLENN, JJ., joined.

Kirk Vandivort, Charlotte, Tennessee, for the Appellant, Nicole Beaudion a/k/a Nikki Napier.

Paul G. Summers, Attorney General & Reporter; Braden H. Boucek, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Grady A. Moore, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                            OPINION

                 The defendant and her co-defendants were charged with first-degree murder,
especially aggravated robbery, and several counts of aggravated robbery in connection with activities
that took place at a Harding Road Waffle House on July 16, 1999. The defendant and the state
entered into a plea agreement. The defendant, otherwise a Range I offender, agreed to plead guilty
to facilitation of especially aggravated robbery and to accept an “out-of-range” sentence of fifteen
years, which is within Range II. She would serve this sentence as a Range I, standard offender for
purposes of release eligibility. The state agreed to dismiss the remaining charges against the
defendant. On February 1, 2001, the trial court accepted the plea and imposed the agreed-upon
conviction and sentence.
                On or about April 11, 2001, the defendant, pro se, filed a Tennessee Rule of Criminal
Procedure 35(b) motion to reduce the sentence. In the motion, the defendant alleged that a female
co-defendant, whose culpability and actions in committing the conviction offense were similar to
the defendant’s, received a Range I sentence of ten years. The defendant alleged that the prosecutor
told her that the two women would receive the same sentence. After the prosecutor changed his
mind, her attorney, she alleged in her motion, “used her youth and inexperience to have her accept
a plea that was unjust and unfair to the [defendant].”

               The defendant further stated in her Rule 35(b) motion that she and the co-defendant
had remained in the back seat of the vehicle when their companions entered the Waffle House. She
and the female co-defendant were unaware of the impending robbery and shooting. She alleged that
her plea was coerced by her attorney. She stated she was 20 years of age at the time of the crime
and had been confined in jail for two years prior to the submission of the plea. She stated that she
has concerns about the custody and welfare of her six-year-old son. She requested the trial court to
reduce her sentence to ten years.

               On May 31, 2001, the trial court entered an order denying the motion. The court
explained that, because the defendant moved for a sentence reduction after she was sentenced
pursuant to a plea and sentencing agreement, she was required to demonstrate that her agreed
sentence was unjust or unfair because of unforeseen post-sentencing developments. The court found
no unforeseen developments. It found that her concerns about her son “reasonably predate her
decision to enter her plea.” Accordingly, the court held that no reduction in the sentence was
warranted.

              In the present case, the defendant entered into a plea agreement pursuant to Tennessee
Rule of Criminal Procedure 11(e)(1)(C), which provides:

                       (e) Plea Agreement Procedure.

                        (1) In General. The district attorney general and the attorney
               for the defendant or the defendant when acting pro se may engage in
               discussions with a view toward reaching an agreement that, upon the
               entering of a plea of guilty or nolo contendere to a charged offense or
               to a lesser or related offense, the district attorney general will do any
               of the following:

                        ...

                       (C) agree that a specific sentence is the appropriate disposition
               of the case.




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               After the plea was approved and the defendant was sentenced, she moved to reduce
the sentence pursuant to Tennessee Rule of Criminal Procedure 35(b), which provides:

               (b) Reduction of Sentence. The trial court may reduce a sentence
               upon application filed within 120 days after the date the sentence is
               imposed or probation is revoked. No extensions shall be allowed on
               the time limitation. No other actions shall toll the running of this
               time limitation. A motion for reduction of sentence under this rule
               may be denied by the trial judge without a hearing. If the application
               is denied, the defendant may appeal but the defendant shall not be
               entitled to release on bond unless the defendant is already under bond.
               If the sentence is modified, the state may appeal as otherwise
               provided by law. A modification can only be as to any sentence the
               court could have originally imposed.

               Appellate review of Rule 35(b) rulings is governed by the abuse of discretion
standard. State v. Irick, 861 S.W.2d 375, 376 (Tenn. Crim. App. 1993).

                In denying the motion, the trial court relied upon State v. McDonald, 893 S.W.2d 945
(Tenn. Crim. App. 1994). In McDonald, this court stated that “‘the scope of Rule 35(b) is limited
in those cases in which the defendant has pleaded guilty by agreement with the state, in exchange
for a specific sentence.’” Id. at 947 (citation omitted). The McDonald court noted that an
“alteration of a defendant's sentence is generally prohibited if it violates the plea agreement entered
into under Rule 11(e)(1)(C).” Id.; see Tenn. R. Crim. P. 11(e)(1)(C). However, the McDonald court
declined to hold that a defendant who pleaded guilty pursuant to Rule 11(e)(1)(C) thereby waived
a proceeding pursuant to Rule 35(b). McDonald, 893 S.W.2d at 947. “For example,” the court said,
“a situation may arise where unforeseen, post-sentencing developments would permit modification
of a sentence in the interest of justice.” Id.; see also State v. Frank Tate, No.
W1999-01068-CCA-R3-CD (Tenn. Crim. App., Jackson, June 20, 2000).

                The McDonald strictures on utilizing Rule 35(b) apply in the present case; the
defendant was sentenced pursuant to a Rule 11(e)(1)(C) plea agreement. After reviewing the
defendant’s Rule 35(b) motion and the trial court’s May 31, 2001 order, we find no abuse of
discretion; we discern no post-sentencing developments that should be addressed in the interest of
justice. We are aware that the defendant alleged that her plea was coerced, but we are also aware
that she could have – and perhaps has – addressed an involuntary plea via a petition for post-
conviction relief. See Tenn. Code Ann. § 40-30-201 through 222 (1997); see generally, e.g., Powers
v. State, 942 S.W.2d 551 (Tenn. Crim. App. 1996).

              We hold there was no abuse of discretion in denying the defendant’s Rule 35(b)
motion, and we affirm the lower court’s action.




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      ___________________________________
      JAMES CURWOOD WITT, JR., JUDGE




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