            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE             FILED
                           APRIL 1998 SESSION
                                                           June 1, 1998

                                                     Cecil W. Crowson
DAVID M. FARMER,                   *                Appellate Court Clerk
                                         C.C.A. # 01C01-9707-CR-00243

             Appellant,            *     DAVIDSON COUNTY

VS.                                *     Hon. Seth Norman, Judge

STATE OF TENNESSEE,                *     (Post-Conviction)

             Appellee.             *




For Appellant:                     For Appellee:

G. Kline Preston, IV               John Knox Walkup
Attorney                           Attorney General and Reporter
Washington Square Two, Suite 416
222 Second Avenue North            Clinton J. Morgan
Nashville, TN 37201                Counsel for the State
                                   425 Fifth Avenue North, Second Floor
                                   Cordell Hull Building
                                   Nashville, TN 37243-0493

                                   James W. Milam
                                   Assistant District Attorney General
                                   Washington Square, Suite 500
                                   222 Second Avenue North
                                   Nashville, TN 37201




OPINION FILED:__________________________




AFFIRMED




GARY R. WADE, JUDGE
                                       OPINION

              The petitioner, David M. Farmer, appeals from the trial court's denial of

his petition for post-conviction relief. The issues presented for review are whether

the original sentence violated the due process rights of the petitioner, whether the

plea agreement violated the terms of Rule 11(e)(3) of the Tennessee Rules of

Criminal Procedure, and whether the original, conditional sentence of six years,

which was later increased to ten years, qualified as an unlawful, indeterminate

sentence.



              We affirm the judgment of the trial court.



              On February 23, 1995, the petitioner entered a plea of guilt to selling

less than .5 gram of a Schedule II controlled substance, cocaine, a Class C felony.

As a part of the plea agreement, the petitioner received a $2,000.00 fine and a

Range II, six-year sentence. As a part of the plea bargain, the petitioner agreed to

report on March 10, 1995, or else a ten-year sentence would result. Prior to

approval by the trial court, the petitioner specifically accepted the condition of timely

reporting to the authorities. On March 17, 1995, the trial court entered a sentence of

ten years upon acknowledgment by the petitioner of his failure to timely report.



              On April 22, 1995, the petitioner filed a pro se petition for post-

conviction relief alleging a double jeopardy violation, ineffective assistance of

counsel, and, by subsequent amendment with the assistance of counsel, the

additional grounds now presented for our review. At the evidentiary hearing, the

proof was limited to the record of the guilty plea and the amended judgment. It was

stipulated that the petitioner failed to report on March 10, 1995, as required by the

plea agreement.


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              In response, the state takes the position that the petitioner failed to

make the terms of the plea agreement, critical to the issues brought in this appeal, a

part of the appellate record. Secondly, the state contends that because the

petitioner knowingly and voluntarily accepted the terms of the plea agreement,

including the condition of timely reporting, that he is responsible for any error which

might have resulted in the ten-year sentence. Tenn. R. App. P. 36(a). Finally, the

state asserts that the petitioner was clearly afforded due process and that the

petitioner has otherwise failed to allege a ground upon which the sentence could be

declared void or voidable. Tenn. Code Ann. § 40-30-105 (repealed 1995).



              While counsel for the petitioner has made creative arguments, the

failure to include the plea agreement in the record is fatal to this appeal. The due

process argument, the insistence that the state failed to comply with Rule 11 of the

Tennessee Rules of Criminal Procedure, and the argument that the statute requires

courts to "impose a specific sentence length for each offense" depends in great

measure upon the content of the plea agreement. See Tenn. Code Ann. § 40-35-

211.



              The trial court made the following specific finding of fact:

              The court explained to the petitioner that if he failed to
              report at the proper time to serve the sentence, the
              sentence would be ten years at thirty-five percent. The
              petitioner accepted the amendment before entering his
              plea. The defendant did fail to appear and the court did
              place the ten-year sentence into effect.

              The petitioner cannot be heard to now complain of a
              sentence that he agreed to.



              In State v. Hodges, 815 S.W.2d 151 (Tenn. 1991), our supreme court

held as follows:


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             Aside from any agreement which may exist between the
             State and a defendant in reference to the entry of a guilty
             plea, the ultimate decision to accept or reject any such
             plea is to be made by the trial court and, if so accepted
             and received by the court, the final determination on the
             extent of the punishment to be meted out is the province
             of the trial court.

815 S.W.2d at 155.



             The holding in Boykin v. Alabama, 395 U.S. 238 (1969), requires only

that the record affirmatively show that the defendant voluntarily and knowingly

entered his guilty plea. Here, the record demonstrates that the plea was "a

voluntary and intelligent choice among the alternative courses of action open to the

defendant." North Carolina v. Alford, 400 U.S. 25 (1970). Because the petitioner

stipulated that he failed to meet the condition that would have established his term

at six years rather than ten and because the content of the plea is not otherwise a

part of the record, the judgment must be affirmed.



                                         ________________________________
                                         Gary R. Wade, Judge

CONCUR:



_____________________________
Thomas T. W oodall, Judge



_____________________________
L. T. Lafferty, Judge




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