        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs June 18, 2013

            STATE OF TENNESSEE v. JIMMY RAY MASSEY, JR.

                   Appeal from the Circuit Court for Bedford County
                           No. 17372    Lee Russell, Judge


                 No. M2013-00362-CCA-R3-CD - Filed August 1, 2013


The defendant, Jimmy Ray Massey, Jr., pled guilty in the Bedford County Circuit Court to
felony failure to appear, a Class E felony, and was sentenced by the trial court as a career
offender to six years at 60% in the Department of Correction. On appeal, he argues that his
guilty plea was involuntary and that the trial court imposed an excessive sentence. Following
our review, we affirm the judgment of the trial court.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

A LAN E. G LENN, J., delivered the opinion of the Court, in which N ORMA M CG EE O GLE and
D. K ELLY T HOMAS, J R., JJ., joined.

Christopher P. Westmoreland, Shelbyville, Tennessee, for the appellant, Jimmy Ray Massey,
Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy E. Wilber, Assistant Attorney
General; Charles Crawford, District Attorney General; and Richard Cawley, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                            FACTS

         On February 13, 2012, the Bedford County Grand Jury indicted the defendant on two
counts of domestic assault, kidnapping, leaving the scene of an accident that involved
damage over $400, reckless endangerment, DUI, felony evading arrest, and felony failure to
appear. On June 18, 2012, after the victim failed to appear for the defendant’s scheduled
trial, the State nolle prosequied all but the last count of the indictment. On that same day, the
defendant entered an open guilty plea to the felony failure to appear count.
        At the subsequent sentencing hearing, the State introduced the defendant’s
presentence report, which revealed a substantial criminal history, including “twelve different
sets of felony convictions.” The State also introduced certified copies of the judgments of
conviction. In sentencing the defendant, the trial court noted that there were “many, many
more” felony convictions than twelve but that because some were “clustered on particular
days,” it was counting only twelve sets of convictions. The trial court found that the
defendant was a career offender based on his numerous prior convictions and sentenced him
to six years, the maximum Range III sentence for a defendant convicted of a Class E felony.
Because the defendant committed the instant offense while on parole from another felony,
the court ordered that his sentence be served consecutively to his other sentences. Thereafter,
the defendant filed a timely appeal to this court in which he argues that his guilty plea was
involuntary and that the trial court imposed an excessive sentence.

                                         ANALYSIS

                                I. Involuntary Guilty Plea

       The defendant contends that his guilty plea was involuntary and unknowing because
he was under the influence of prescription medication at the time he entered his plea, which
affected his ability to understand the nature and consequences of the plea. The State
responds by arguing that this court does not have jurisdiction on direct appeal to consider this
issue and that the defendant’s proper avenue for relief is through a post-conviction petition.
We agree with the State.

        In Tennessee, the right to appeal a plea of guilty entered in the trial court is limited
to cases that fit within one of the narrow exceptions in Tennessee Rule of Appellate
Procedure 3(b) and Tennessee Rule of Criminal Procedure 37(b). See State v. Wilson, 31
S.W.3d 189, 192 (Tenn. 2000). None of these exceptions apply in the defendant’s case. The
defendant’s appeal does not involve a certified question of law and the alleged error of which
he complains– that his prescription medication prevented him from entering a voluntary and
knowing guilty plea–is not one that is “apparent from the record of the proceedings already
had[.]” Tenn. R. Crim. P. 37(b)(2)(iii). Moreover, as the State points out, the defendant filed
no motion to withdraw his guilty plea in the trial court. As such, the defendant’s proper
avenue for raising his claim that his guilty plea was unknowing and involuntary is through
a petition for post-conviction relief. See Wilson, 31 S.W.3d at 194 (“[T]he proper forum for
asserting that a plea was not knowingly or voluntarily entered in accordance with Boykin [v.
Alabama, 395 U.S. 238 (1969)] is in a post-conviction proceeding.”).




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                                    II. Excessive Sentence

       The defendant also contends that the trial court imposed an excessive sentence that
is contrary to law. Specifically, he argues that the trial court erred by failing to give any
weight to factors in mitigation and by imposing a sentence that “is greater than that deserved
for the offense committed.” The State argues that the trial court had no discretion in
imposing the sentence, which was mandatory as set forth by the legislature. We agree with
the State.

        The defendant does not contest that he had the requisite number of prior convictions
to be classified as a career offender, but instead argues that the trial court erred in setting the
sentence length because it failed to give any weight to mitigating factors or to take into
consideration the sentencing act’s guidelines that the court should impose a sentence that is
the least severe measure necessary and no greater than that deserved for the offense. The
defendant, however, ignores the fact that our sentencing act provides that a defendant who
has been found by the trial court “beyond a reasonable doubt to be a career offender shall
receive the maximum sentence within the applicable Range III.” Tenn. Code Ann. § 40-35-
108(c) (2010) (emphasis added). The Range III sentence for a Class E felony is “not less
than four (4) nor more than six (6) years.” Id. § 40-35-112(c)(5). Thus, the six-year sentence
imposed by the trial court was the mandatory sentence required under the statute. We,
therefore, conclude that the trial court properly sentenced the defendant.

                                        CONCLUSION

       Based on our review, we conclude that we lack jurisdiction in this direct appeal to
consider the issue of whether the defendant’s guilty plea was knowing and voluntary. We
further conclude that the trial court properly imposed the mandatory six-year sentence
required by law. Accordingly, we affirm the judgment of the trial court.




                                                      _________________________________
                                                      ALAN E. GLENN, JUDGE




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