        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE

                  STATE OF TENNESSEE v. JAMES SELLARS

                           Circuit Court for Rutherford County
                           No. F-68083      David Bragg, Judge


                  No. M2013-02380-CCA-R3-PC - Filed June 24, 2014


This matter is before the Court upon the State’s motion to dismiss or in the alternative to
affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules
of the Court of Criminal Appeals. Petitioner, James Sellars, has appealed the lower court’s
order dismissing his petition for post-conviction relief in which he alleged that the trial court
improperly sentenced him as a career offender. Upon a review of the record in this case, we
are persuaded that the trial court was correct in dismissing the petition for post-conviction
relief and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the
Court of Criminal Appeals. Accordingly, the State’s motion is granted, and the judgment of
the trial court is affirmed.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed Pursuant to Rule 20, Rules
of the Court of Criminal Appeals

J ERRY L. S MITH, J., delivered the opinion of the court, in which T HOMAS T. W OODALL and
R OBERT W. W EDEMEYER, JJ., joined.

James Sellars, Pro Se, Clifton, Tennessee.

Robert E. Cooper, Jr., Attorney General & Reporter; Caitlin Smith, Assistant Attorney
General; William Whitesell, District Attorney General; Shawn Puckett, Assistant District
Attorney General, for the Appellee, State of Tennessee.


                              MEMORANDUM OPINION
       According to the petition for post-conviction relief, Petitioner pled guilty to robbery,
a Class C felony, on November 9, 2012, and received a sentence of nine years to be served
at 60% as a Career Offender. Petitioner filed a timely petition for post-conviction relief on


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October 1, 2013, in which he claimed that the trial court improperly sentenced him as a
Career Offender in direct contravention of the Criminal Sentencing Reform Act of 1989. See
T.C.A. § 40-35-101, et seq. As the post-conviction court noted, Petitioner’s “previous one
felony and twenty misdemeanor convictions do not qualify for career offender status under
Tenn[essee] Code Ann[otated section] 40-35-108.”1 However, the post-conviction court
found that Petitioner “agreed to the sentence” and thereby “waived any irregularity in
offender classification,” citing Hicks v. State, 945 S.W.2d 706 (Tenn. 1997). Petitioner
appealed, asserting that his plea was involuntarily entered and that the post-conviction court
erred in not holding his pro se petition to a less stringent standard than that applied to
pleadings drafted by attorneys. The State filed a motion for this Court to affirm the decision
of the post-conviction court pursuant to Rule 20 of the Rules of the Court of Criminal
Appeals.

         Post-conviction relief is available “when the conviction or sentence is void or voidable
because of the abridgment of any right guaranteed by the Constitution of Tennessee or the
Constitution of the United States.” T.C.A. § 40-30-103. A post-conviction court may
dismiss a petition without appointing counsel or holding an evidentiary hearing if it finds that
the petition fails to state a colorable claim for relief. See T.C.A. § 40-30-106. A colorable
claim is defined by Tennessee Supreme Court Rule 28, § 2(h) as “a claim, in a petition for
post-conviction relief, that, if taken as true, in the light most favorable to petitioner, would
entitle petitioner to relief under the Post-Conviction Procedure Act.” While it is generally
true that a petition filed pro se is “held to less stringent standards than formal pleadings
drafted by lawyers,” Swanson v. State, 749 S.W.2d 731, 734 (Tenn. 1988), the petitioner is
still required to include sufficient facts to make out a colorable claim for relief. See T.C.A.
§ 40-30-106(f). The decision of a post-conviction court to summarily dismiss a petition for
post-conviction relief is reviewed de novo as a question of law. See Burnett v. State, 92
S.W.3d 403, 406 (Tenn. 2002).

        In his petition for post-conviction relief, Petitioner alleged that the trial court
improperly sentenced him as a career offender when his prior record did not qualify for such
a classification under Tennessee Code Annotated section 40-35-108. However, “a knowing
and voluntary guilty plea waives any irregularity as to offender classification or release


       1
         Petitioner did not include any part of the record from the trial court for our consideration,
and therefore did not uphold his duty to prepare a complete and accurate record for appeal. See
State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993); State v. Bunch, 646 S.W.2d 158, 160 (Tenn.
1983). Therefore, we are bound by the findings of fact made by the post-conviction court. See
State v. Rolly William Whitford, No. M2009-02525-CCA-R3-CD, 2011 WL 255310, at *3 (Tenn.
Crim. App., at Nashville, Jan. 20, 2011) (“In the absence of a complete record, we must presume
the findings of the trial court are correct.”).

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eligibility.” Hicks, 945 S.W.2d at 709; see also State v. Mahler, 735 S.W.2d 226, 228 (Tenn.
1987). The determination of whether a plea bargained sentence is legal is controlled by the
overall punishment range for the offense. Hoover v. State, 215 S.W.3d 776, 781 (Tenn.
2006). As the Tennessee Supreme Court explained in Hoover, “a plea-bargained sentence
is legal so long as it does not exceed the maximum punishment authorized for the plea
offense.” Id.

        In this case, Petitioner pled guilty to robbery, which is a Class C felony under
Tennessee Code Annotated section 39-13-401(b). The punishment for a Class C felony is
three to fifteen years. T.C.A. § 40-35-111(b)(3). Petitioner’s sentence of nine years falls
squarely within that range and is therefore legal under Hoover and Hicks. Additionally, our
supreme court has held that any question as to offender classification is “not a constitutional
error in and of itself and at most rendered the sentence subject to attack on direct review by
appeal.”2 Mahler, 735 S.W.2d at 228. Therefore, the post-conviction court’s decision to
dismiss the petition for failing to assert a colorable claim was proper.

        Petitioner relies on McConnell v. State, 12 S.W.3d 795 (Tenn. 2000), for the
proposition that a trial court’s authority to impose a sentence is limited to the provisions of
the sentencing statute. See id. at 798 (“Sentencing is jurisdictional and must be executed in
compliance with the 1989 Act”). However, the primary issue in that case was not that the
defendant had been sentenced to an improper range, but that the sentence had been expressed
in terms of the 1982 sentencing statute. See Bland v. Dukes, 97 S.W.3d 133, 135 (Tenn.
Crim. App. 2002). In fact, the McConnell Court stated that its decision did not alter “the
ability of the State and defendants to use offender classification and release eligibility as
subjects of plea bargain negotiations,” citing Hicks and Mahler with approval. 12 S.W.3d
at 798; see Hoover, 215 S.W.3d at 780 (“McConnell did not repudiate the rule announced in
Mahler and subsequently re-affirmed in Hicks.”). Therefore, we agree with the post-
conviction court that Petitioner’s reliance on McConnell is misplaced.

       On appeal, Petitioner asserts that Hicks does not apply because his plea was not
voluntarily entered. However, his petition for post-conviction relief does not include any
factual assertions that would indicate that the voluntariness of Petitioner’s plea was being
challenged. Under the Post-Conviction Procedure Act, “a ground for relief is waived if the
petitioner personally. . . failed to present it for determination in any proceeding before a court
of competent jurisdiction in which the ground could have been presented.” T.C.A § 40-30-
106(g); see also Walsh v. State, 166 S.W.3d 641, 645 (Tenn. 2005) (“Issues not addressed

       2
         Classification as a Career Offender is appealable by either party under Tennessee Code
Annotated section 40-35-108(d). However, we do not know if Petitioner waived his right to a
direct appeal as part of his plea agreement.

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in the post-conviction court will generally not be addressed on appeal.”). The issue of
whether Petitioner’s plea was voluntarily entered, being raised for the first time on appeal,
is thereby waived.

                                       Conclusion
       Rule 20 of the Rules of the Court of Criminal Appeals provides, inter alia:
             The Court, with the concurrence of all judges participating in the case,
             when an opinion would have no precedential value, may affirm the
             judgment or action of the trial court by memorandum opinion rather
             than by formal opinion, when:

              The judgment is rendered or the action taken in a proceeding before the
              trial judge without a jury, and such judgment or action is not a
              determination of guilt, and the evidence does not preponderate against
              the finding of the trial judge. . . and

              No error of law requiring a reversal of the judgment or action is
              apparent on the record.

      We determine that this case meets the criteria of the above-quoted rule and, therefore,
we grant the State’s motion filed under Rule 20. We affirm the judgment of the trial court.




                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




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