             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                           DECEMBER 1997 SESSION
                                                       FILED
                                                      December 31, 1997
KEITH D. HENDERSON,                )
                                   )                   Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk
                   APPELLANT,      )
                                   )         No. 02-C-01-9707-CR-00263
                                   )
                                   )         Shelby County
v.                                 )
                                   )         Carolyn W. Blackett, Judge
                                   )
                                   )         (Post-Conviction Relief)
STATE OF TENNESSEE,                )
                                   )
                    APPELLEE.      )



FOR THE APPELLANT:                     FOR THE APPELLEE:

James M. Gulley                        John Knox Walkup
Attorney at Law                        Attorney General & Reporter
80 Monroe Avenue                       500 Charlotte Avenue
Memphis, TN 38103                      Nashville, TN 37243-0497

                                       Marvin E. Clements, Jr.
                                       Assistant Attorney General
                                       450 James Robertson Parkway
                                       Nashville, TN 37243-0493

                                       William L. Gibbons
                                       District Attorney General
                                       201 Poplar Avenue, Suite 3-01
                                       Memphis, TN 38103

                                       Dawn Doran
                                       Assistant District Attorney General
                                       201 Poplar Avenue, Suite 3-01
                                       Memphis, TN 38103




OPINION FILED:_________________________________


AFFIRMED


Joe B. Jones, Presiding Judge
                                    OPINION


       The appellant, Keith D. Henderson (petitioner), appeals as of right from a judgment

of the trial court dismissing his action for post-conviction relief following an evidentiary

hearing. In this court, the petitioner contends his guilty plea to second degree murder was

not voluntarily, knowingly, and intelligently entered. He argues the plea is infirm because

(1) he was not aware of his constitutional rights or the direct consequences of a guilty plea,

(2) neither the trial court nor counsel advised him of the nature of the offense before he

entered the plea, and (3) he was not advised of the minimum and maximum penalty for the

offense of second degree murder. After a thorough review of the record, the briefs

submitted by the parties, and the law governing the issue presented for review, it is the

opinion of this court that the judgment of the trial court should be affirmed.

       The petitioner was charged with murder first degree. He was accused of lying in

wait for the victim, robbing the victim, and shooting the victim in his back while he was lying

on the ground with his face to the ground. The victim pleaded for his life before the fatal

wound struck him. The petitioner gave a statement to the police. He admitted attempting

to rob the victim as well as shooting the victim. However, he stated he shot the victim

when he thought the victim was reaching for a weapon. The indictment charged the

defendant with premeditated murder and felony murder. The State of Tennessee had

several witnesses who where prepared to testify in support of the aforementioned facts.

The petitioner planned to claim self-defense. However, counsel stated this would have

been difficult as the petitioner shot the victim in the back while the victim was lying on the

ground.

       The state did not seek the imposition of a death sentence or life without the

possibility of parole. The only offer of settlement prior to trial was for a life sentence. On

the morning the trial was set to commence, the state and the defendant negotiated a

settlement . Defense counsel insisted on a settlement of twenty-five (25) years. However,

the family of the victim would not agree to reduce the proposed sentence lower than forty-

five (45) years. The petitioner, the petitioner’s parents, and defense counsel discussed the

state’s offer. Thereafter, the petitioner agreed to accept the sentence. Although the


                                              2
petitioner was a Range I offender for sentencing purposes, he agreed to be sentenced

within Range II. This was required to justify the reduction of the first degree murder charge

to second degree murder.

       The petitioner contends his guilty plea to second degree murder was not voluntarily,

knowingly, and intelligently entered because he was not aware of his constitutional rights

or the direct consequences of a guilty plea.        He argues the procedure during the

submission hearing did not comply with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709,

23 L.Ed.2d 274 (1969) and State v. Mackey, 553 S.W.2d 337, 339-40 (Tenn. 1977). He

argues he “was not aware of the differences between a range one and range two offender,”

and “[he] was ignorant of the fact that he was accepting a plea offer that required him to

be sentenced as a range two multiple offender even though he had no prior criminal

record.” He concedes the trial court advised him of the right to trial by jury, the right to

confront witnesses, and the privilege against self-incrimination.

       It is an elementary rule of law that a guilty plea must be voluntarily, knowingly, and

intelligently entered to pass constitutional muster. Boykin, 395 U.S. at 243-44, 89 S.Ct. at

1712-13, 23 L.Ed.2d at 279-80. If the submission hearing transcript coupled with the

evidence adduced at an evidentiary hearing establishes the guilty plea was not voluntarily,

knowingly, and intelligently entered, the accused is entitled to have the plea set aside and

the cause remanded to the trial court for further proceedings. See Chamberlain v. State,

815 S.W.2d 534, 540-42 (Tenn. Crim. App. 1990), per. app. denied (Tenn. 1991).

       Boykin did not create a new procedure or mandate a certain litany of rights. As this

court said in Clark v. State:


              Boykin simply requires that the transcript of a guilty plea
              proceeding affirmatively show that “the defendant voluntarily
              and understandingly entered his plea of guilty. . . .” Boykin did
              not create a “procedural requirement” that the three
              constitutional rights mentioned in the opinion must be
              explained to the defendant and the defendant waive these
              rights before a trial judge can accept a defendant’s guilty plea.
              . . . Moreover, the federal courts have been, and are
              presently, “unwilling to hold, as a constitutional requirement
              applicable in habeas corpus cases to state proceedings, that
              a guilty plea requires any precise litany for its
              accomplishments. . . .” In short, “[a] catechism of the
              constitutional rights that are waived by entry of a guilty plea is
              not compelled” by Boykin or the Constitution.



                                              3
800 S.W.2d 500, 504 (Tenn. Crim. App.), per. app. denied (Tenn. 1990) (citations omitted).

        Rule 11(c), Tennessee Rules of Criminal Procedure, and Mackey require that the

trial judge address the accused personally in open court. The trial judge is also required

to explain certain information and constitutional rights to the defendant, and the judge must

ascertain whether the accused understands the information and applicable constitutional

rights. The judge must explain to the defendant:

             1.) The nature of the offense to which the plea is offered;

            2.) The mandatory minimum penalty and the maximum penalty prescribed by law;

             3.) When the defendant appears without counsel, the right to be represented by

counsel, and if indigent, an attorney will be appointed to represent him;

             4.) The right to plead not guilty or persist in a plea if such a plea has been

previously entered;

             5.) The right to trial by jury;

             6.) The right to the assistance of counsel if the defendant opts for a trial;

            7.) The right to confront and cross-examine the state’s witnesses if the defendant

opts to go to trial;

            8.) The privilege against compulsory self-incrimination if the defendant opts to go

to trial;

            9.) A plea of guilty waives the right to a trial, and only a sentencing hearing will be

conducted;

        10.) Questions may be asked regarding the offense to which the defendant is

pleading guilty, the defendant must answer the questions under oath, and the defendant’s

answers can later be used against him in a prosecution for perjury or false statement if the

answers given to the questions are not truthful;

            11.) A different or additional punishment may result by reason of any prior

convictions which may be established after the entry of his plea; and

            12.) Evidence of any prior convictions may be presented for consideration in

determining the appropriate punishment. See Chamberlain, 815 S.W.2d at 538-39.

In addition, the trial judge is required to ascertain if there is factual basis for the plea, if the

guilty plea is being voluntarily entered, the defendant’s understanding concerning the entry



                                                  4
of a plea of guilty, and if the defendant’s willingness to plead guilty is the result of

discussions between the district attorney general, or an assistant, and the defendant or the

defendant’s attorney before accepting the defendant’s plea. See Chamberlain, 815

S.W.2d at 539.

       In this case, the petitioner entered the guilty plea to avoid a life sentence. His

attorney testified “the probability of him getting a life sentence was great -- it was real

great.” The petitioner admitted he discussed his sentencing options with his retained

counsel prior to the date he entered the plea; and his attorney discussed the evidence

which would be introduced at a trial with him. His attorney advised him there was sufficient

evidence to convict him of murder first degree.

       The petitioner candidly admitted he knew he was pleading guilty to murder in the

second degree, a lesser included offense. He understood the agreed sentence was forty-

five (45) years, and he was aware he would have to serve thirty-five percent (35%) of the

sentence. His attorney testified he explained to the petitioner he was a Range I offender

and he was going to be sentenced as a Range II offender. Moreover, the assistant district

attorney general stated at the beginning of the submission hearing: “Our recommendation

is that he receive a sentence of 45 years as a Range 2 multiple offender. This would be

by consent.” Neither the defendant nor his attorney objected or otherwise commented

when this statement was made. The attorney stated “everything was by consent.” He

further stated the petitioner understood the reduction from first degree murder to second

degree murder and the terms of the plea agreement.

       While the petitioner was being questioned by the trial judge at the submission

hearing, the following colloquy occurred:

              [THE COURT:] Is it your understanding that you’re pleading
              guilty to the offense of murder in the second degree, to 45
              years as a Range 2 offender?

              [HENDERSON]: Yes.

              Q. Now, other than that amount of time has there been any
              other promises or threats made in order to get you to enter this
              plea of guilty?

              A. No.

              Q. And do you understand that as Range 2 offender that you
              do not become eligible for parole until you’ve served at least


                                             5
              35 percent of your sentence? That doesn’t mean you’ll be
              released or that you become eligible at that time.

              A. Yes.

              Q. And with that in mind do you still want to go forward on this
              plea of guilty?

              A. Yes.

              Q. Do your further understand that if you had gone to trial and
              if you had been found guilty as charged in the indictment, you
              could have received a sentence of life imprisonment, or you
              could have been found guilty of some lesser included offense,
              like you’re pleading guilty to here, and could have received a
              sentence down to a day in jail, or you could have been found
              not guilty and received no punishment at all? Do you
              understand all of that?

              A. Yes.

              Q. And with that in mind you still desire to go forward on this
              plea of guilty?

              A. Yes.


This court concludes the evidence accredited by the trial court establishes the petitioner

voluntarily, knowingly, and intelligently entered the plea of guilty to the lesser included

offense. The petitioner understood the terms of the plea agreement. He had discussed

the sentencing options with his attorney prior to entering the plea.

       The petitioner is not entitled to relief on the ground the trial court failed to advise him

of the minimum and maximum punishment for second degree murder. First, this was an

agreed sentence. Second, this requirement is not constitutionally mandated. What is

mandated is that the defendant be told of the sentence he will serve. Here, the defendant

was told he would receive a sentence of forty-five (45) years. See Blankenship v. State,

858 S.W.2d 897, 905 (Tenn. 1993). Only constitutional issues may be litigated in an action

for post-conviction relief. Tenn. Code Ann. § 40-30-203. This court has previously held

a petitioner is not entitled to relief for the precise reason advanced by the petitioner. See

Dexter Johnson v. State, Hamilton County No. 03-C-01-9503-CR-00088 (Tenn. Crim. App.,

Knoxville, February 6, 1996); Cedric D. Mitchell v. State, Shelby County No. 65 (Tenn.

Crim. App., Jackson, April 10, 1991), per. app. denied (Tenn. September 9, 1991).

       The sentence was not illegal because the petitioner agreed to be sentenced as a

Range II offender when in fact he was a Range I offender. State v. Mahler, 735 S.W.2d

                                                6
226, 227 (Tenn. 1987); State v. Terry, 755 S.W.2d 854, 855 (Tenn. Crim. App. 1988). See

Hicks v. State, 945 S.W.2d 706 (Tenn. 1997). Since the guilty plea passes constitutional

muster, the entry of the guilty plea had the effect of waiving the Range I - Range II issue.

Id.




                                   ____________________________________________
                                          JOE B. JONES, PRESIDING JUDGE



CONCUR:



______________________________________
       JERRY L. SMITH, JUDGE



______________________________________
       CURWOOD WITT, JUDGE




                                             7
