          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON

                          JUNE 1998 SESSION         FILED
                                                       July 29, 1998

                                                   Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk
STATE OF TENNESSEE,          )
                             ) C.C.A. No. 02C01-9710-CR-00380
      Appellee,              )
                             ) Shelby County
V.                           )
                             ) Honorable Joseph B. Dailey, Judge
                             )
CEDRIC FRANKLIN,             ) (Writ of Error Coram Nobis)
                             )
      Appellant.             )




FOR THE APPELLANT:              FOR THE APPELLEE:

Cedric Franklin, Pro Se         John Knox Walkup
P.O. Box 1050                   Attorney General & Reporter
Henning, TN 38041
                                Marvin E. Clements, Jr.
                                Assistant Attorney General
                                Criminal Justice Division
                                Cordell Hull Building, 2nd Floor
                                425 Fifth Avenue North
                                Nashville, TN 37243

                                William L. Gibbons
                                District Attorney General

                                James M. Lammey
                                Assistant District Attorney General
                                201 Poplar Avenue, Suite 301
                                Memphis, TN 38103



OPINION FILED: ___________________


AFFIRMED

PAUL G. SUMMERS,
Judge
                                   OPINION



       In January 1994, the appellant pled guilty to second degree murder and

especially aggravated robbery. Pursuant to the terms of a negotiated plea, he

was sentenced to thirty-five years as a Range II offender for second degree

murder and twenty years as a Range I offender for especially aggravated

robbery, to run concurrently. In May 1996, the appellant filed a petition for post-

conviction relief alleging that his thirty-five-year sentence for second degree

murder is void because he does not qualify as a Range II offender. After a

hearing, the trial court dismissed the petition. Thereafter, the appellant filed a

petition for a writ of error coram nobis alleging the same grievance. The trial

court dismissed the petition and this appeal followed. The issue is whether the

trial court erred in dismissing the petition. We find no error and affirm the

judgment of the trial court.



       Pursuant to a negotiated plea, the appellant was sentenced to thirty-five

years as a Range II offender for second degree murder. Second degree murder

is a Class A felony. Tenn. Code Ann. § 39-13-210 (1991). The authorized term

of imprisonment for a Class A felony is not less than fifteen (15) nor more than

sixty (60) years. Tenn. Code Ann. § 40-35-111(b)(1) (1990). The appellant’s

sentence is well within the sentence authorized by the legislature for second

degree murder.



       In his petition for post-conviction relief, the appellant alleged that, because

his criminal record is insufficient to qualify him as a Range II offender, his

sentence is void. A Range II sentence for a Class A felony is not less than

twenty-five (25) nor more than forty (40) years. Tenn. Code Ann. § 40-35-112

(b)(1) (1990). A Range I sentence for a Class A felony is not less than fifteen

(15) nor more than twenty-five years (25). Tenn. Code Ann. § 40-35-112(a)(1).



       The post-conviction court found that the appellant waived any question

about his classification as a Range II offender by voluntarily pleading guilty

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pursuant to a negotiated plea. The court relied on State v. Mahler, 735 S.W.2d

226 (Tenn. 1987). In Mahler, the defendant was indicted for first degree murder.

Pursuant to a negotiated plea of second degree murder, the defendant was

sentenced as a Range II aggravated offender, although his criminal record was

insufficient to classify him as such. The defendant filed a post-conviction petition

alleging that his sentence was illegal because he did not qualify as a Range II

offender. The trial court dismissed the petition and the Court of Criminal Appeals

affirmed. The Tennessee Supreme Court affirmed, stating:

       The sentence imposed was clearly within statutory limits fixed
       for the offense of murder in the second degree. In our opinion
       any question as to the classification of appellant as a Range II
       offender or as to his release eligibility was waived by the guilty
       plea. It was not a constitutional error in and of itself and at
       most rendered the sentence subject to attack on direct review
       by appeal. Appellant waived any right of appeal in the guilty
       plea proceedings, and expressly agreed to be sentenced with
       the classification and parole eligibility imposed. These were
       the only terms which the District Attorney General would even
       consider and, in our opinion, the resulting sentence was clearly
       lenient and in the best interest of appellant.

Id. at 228.



       After the trial court dismissed his petition for post-conviction relief, the

appellant in the present case filed a petition for a writ of coram nobis.

       Prior to 1955 the remedy of error coram nobis was not
       available to individuals who had been convicted of a criminal
       offense. Green v. State, 187 Tenn. 545, 216 S.W.2d 305
       (1948). The remedy was limited in scope to civil proceedings.
       In 1955 the Tennessee General Assembly extended this
       remedy to criminal prosecutions. T.C.A. § 40-26-105.
       However, the relief available was limited to "errors dehors the
       record and to matters that were not or could not have been
       litigated on the trial of the case, on a motion for a new trial, on
       appeal in the nature of a writ of error, on writ of error, or in a
       habeas corpus proceeding," T.C.A. § 40-26-105, or a
       post-conviction proceeding, see Rowe v. State, 498 S.W.2d
       322, 325 (Tenn.1973), or "subsequently or newly discovered
       evidence relating to matters which were litigated at the trial"
       when the trial judge "determines that such evidence may have
       resulted in a different judgment, had it been presented at the
       trial." T.C.A. § 40-26-105. See Cole v. State, 589 S.W.2d 941
       (Tenn. Crim. App. 1979). As can be seen from the foregoing,
       the purpose of this remedy "is to bring to the attention of the
       court some fact unknown to the court, which if known would
       have resulted in a different judgment." State ex rel. Carlson v.
       State, 219 Tenn. 80, 85-86, 407 S.W .2d 165, 167 (1966).

Teague v. State, 772 S.W.2d 915, 920 (Tenn. Crim. App. 1988), rev’d on other

grounds, Owens v. State, 908 S.W.2d 923 (Tenn. 1995).

                                          -3-
       In his petition for coram nobis, the appellant alleged that the trial court’s

amended judgment form which corrected a clerical error on the original judgment

was “newly discovered evidence.” The original judgment reflected that the

appellant was sentenced as a mitigated offender for especially aggravated

robbery. The judgment was amended in August 1994 to show a Range I

classification. The appellant again alleged that his second degree murder

sentence was void because he did not qualify as a Range II offender.



       The trial court dismissed the petition without a hearing. The court found

that the appellant had failed to present newly discovered evidence to merit relief.

The court further found that the issue of whether the appellant’s second degree

murder sentence was void had been previously determined by the post-

conviction court. A defendant may plead to an enhanced punishment range in

order to benefit himself even if he does not qualify for sentencing within the

range. State v. Turner, 919 S.W.2d 346 (Tenn. Crim. App. 1995). The appellant

was indicted for first degree murder. The appellant knew that he faced the

possibility of a life sentence, or maybe the death penalty. By entering guilty

pleas, the appellant reduced his sentence to thirty-five years. Therefore, the

appellant knowingly and voluntarily waived his right to question his sentencing

range when he entered guilty pleas. Because the petitioner’s sentence of thirty-

five years is within the authorized statutory sentence for second degree murder,

his sentence is valid.



       The judgment of the trial court is affirmed.




                                                _____________________________
                                                PAUL G. SUMMERS, Judge


CONCUR:


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___________________________
DAVID H. WELLES, Judge




___________________________
JOE G. RILEY, Judge




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