         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                 September 21, 2004 Session

                 SHAMAIN JOHNSON v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Davidson County
                 No. 2001-C-1740, 2001-B-1165  Cheryl Blackburn, Judge



                   No. M2003-03084-CCA-R3-PC - Filed January 21, 2005


The Appellant, Shamain Johnson, appeals the dismissal of his petition for post-conviction relief.
On appeal, Johnson collaterally challenges his convictions for class B felony possession of cocaine
and two counts of sale of a counterfeit controlled substance, class E felonies. In support of his
arguments, Johnson contends that: (1) his community corrections sentences, resulting from these
convictions, were not statutorily authorized; (2) his plea agreement, with regard to his convictions
for sale of a counterfeit controlled substance, “constitutes a plea to a non-existent offense and is
therefore void;” and (3) his guilty pleas to the offenses were not knowingly or voluntarily entered.
After review, we affirm the dismissal.

                Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH and THOMAS T.
WOODALL, JJ., joined.

Charles E. Walker, Nashville, Tennessee, for the Appellant, Shamain Johnson.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Elizabeth T.
Ryan, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and
Roger Moore, Assistant District Attorney General, for the Appellee, State of Tennessee.

                                             OPINION

                                        Procedural History

        Under the terms of a negotiated plea agreement, the Appellant pled guilty to one count of
class B felony possession of .5 grams or more of cocaine with the intent to sell and to two counts of
class E felony sale of counterfeit controlled substances. As agreed, the Appellant received a ten-year
community corrections sentence, with one year to be served in confinement, for his class B felony
conviction. For his two class E felony convictions, the Appellant received concurrent two-year
community corrections sentences. The class B sentence and the class E sentences were
consecutively imposed, resulting in an effective twelve-year sentence. Several months after the
Appellant’s release from confinement, his community corrections sentences were revoked, and he
was resentenced to an effective thirteen-year Department of Correction sentence. On January 31,
2003, the Appellant filed a petition for post-conviction relief challenging his original pleas of guilty.1
After an evidentiary hearing, the post-conviction court denied relief, and this appeal followed.


                                                  ANALYSIS

       Relief under the Post-Conviction Procedure Act shall be granted when the conviction or
sentence is void or voidable because of an abridgment of any state or federal constitutional right.
The Appellant bears the burden of proving his allegations by clear and convincing evidence. Tenn.
Code. Ann. § 40-30-110(f) (2004). When this court reviews a lower court’s decision for post-
conviction relief, the lower court’s findings are conclusive upon appeal absent a finding that the
evidence preponderates against the judgment. Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996);
Campbell v. State, 906 S.W.2d 594, 596 (Tenn. 1996). When the court reviews factual issues, it may
not reweigh or reevaluate the evidence. Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997).
However, conclusions of law are reviewed under a de novo standard, with no presumption of
correctness. Fields v. State, 960 S.W.2d 450, 458 (Tenn. 2001).

A. Voidable Community Corrections Sentences

        The Appellant argues that his community corrections sentences are illegal and voidable under
Tennessee Code Annotated section 40-35-106(a). If an offender is “convicted of felony offenses in
which the use or possession of a weapon” is involved, the offender is not eligible for community
corrections. Tenn. Code Ann. § 40-35-106(a)(1)(D) (2003). The Appellant contends that because
he was in possession of a weapon during the commission of the three drug offenses, he was ineligible
for community corrections sentencing.

        In support of this argument, the Appellant relies upon State v. Grandberry, 803 S.W.2d 706
(Tenn. Crim. App. 1990); State v. Timothy W. Brown, No. 01-C-01-9211-CC-00343 (Tenn. Crim.
App. at Nashville, June 9, 1994); and State v. Frederick Tennial, No. 02C01-9106-CR-00123 (Tenn.
Crim. App. at Jackson, May 20, 1992) for authority that a defendant is ineligible for sentencing to
community corrections when the offense for which the defendant is being sentenced involved the
use of a weapon.

        First, the holdings in Grandberry, Brown, and Tennial are distinguishable from the case
before us. The issue of weapon possession and eligibility for community corrections sentencing in
each of these three cases was raised on direct appeal from an adverse sentencing decision of the trial
court. On appeal, this court was required to conduct a de novo review of the sentencing proof in the


        1
        The Appellant’s initial guilty pleas were entered on January 31, 2002. On November 2, 2002, the Appellant’s
community corrections sentences were revoked, and he was resentenced.

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same fashion as the trial court. However, the case before us, a post-conviction proceeding, is a
collateral appeal of three convictions and may not be used as a substitute for a direct appeal. The
Appellant’s sentences in this case were agreed sentences. Tenn. R. Crim. P. 11(e)(1). The sentences
in Grandberry, Brown, and Tennial were not agreed sentences.

        It is undisputed that a defendant who is convicted of the crimes of class B felony possession
of cocaine and class E sale of a counterfeit controlled substance may receive community corrections
sentences. A defendant who enters a plea of guilty waives all non-jurisdictional defects and
constitutional infirmities.2 State v. McKinney, 74 S.W.3d 291, 306 (Tenn. 2002); State v. Pettus, 986
S.W.2d 540, 542 (Tenn. 1999). The appellate courts of this state have concluded that offender
classification, a sentencing issue, is a “non-jurisdictional and legitimate bargaining tool[] in plea
negotiations. . . .” Bland v. Dukes, 97 S.W.3d 133, 134 (Tenn. Crim. App. 2002) (citing McConnell
v. State, 12 S.W.3d 795, 798 (Tenn. 2000); Hicks v. State, 945 S.W.2d 706, 709 (Tenn. 1997)). We
find this holding analogous to the issue raised in the present case. Accordingly, we conclude that
the decisions in Grandberry, Brown, and Tennial have no application to this case.

        The proof at the post-conviction hearing, as gleaned from the transcript of the plea
submission hearing, established that although the Appellant was charged with a weapon offense in
addition to multiple drug offenses, the weapon offense arose on a date separate than the drug
charges. In reciting the factual basis of the pleas for the three drug offenses, no reference was made
by the prosecutor of a weapon.3 At the post-conviction hearing, the Appellant testified that he was
not in possession of a weapon at the time he was arrested for the class B felony possession of cocaine
offense. Following this proof, the post-conviction court concluded that, “[i]n this case, Petitioner
was not convicted of any felony offenses involving the use or possession of a weapon.”4 Because
the record supports this finding, this issue is without merit.

B. Plea to a Non-Existent Offense

        With regard to his convictions for sale of a counterfeit controlled substance, the Appellant
contends that his “plea agreement constitutes a plea to a non-existent offense and is therefore void.”
This argument is ill-founded. This contention is premised upon the inserted language of paragraph
22 of the plea agreement document, which is captioned “Petition to Enter Plea of Guilty.”

         2
           A defendant who pleads guilty may appeal the issue of whether or not the trial court had subject matter
jurisdiction because jurisdictional defects are not waived by the plea. In this case, the Davidson County Criminal Court
clearly had subject matter jurisdiction of the three felony offenses and, therefore, had the authority to enter judgments
accordingly.

         3
             The weapon charge, in addition to other felony drug charges, was dismissed as part of the plea agreement.

         4
           This identical issue was previously raised by the Appellant within the context of a habeas corpus proceeding
in which the trial court reached the identical finding and summarily dismissed the habeas petition without a hearing. This
court affirmed the dismissal on appeal. Shamain Johnson v. State, No. M2003-00470-CCA-R3-CO (Tenn. Crim. App.
at Nashville, Jan. 23, 2004). Because the Appellant was not afforded a “full and fair hearing” on his habeas petition, the
issue was not previously determined within the meaning of Tennessee Code Annotated section 40-30-206(f) (2003).

                                                           -3-
       Paragraph twenty-two (22) recites in pertinent part:

               I know that the Court will not ordinarily accept a plea of “GUILTY”
               from anyone who claims to be innocent, and with that in mind, and
               because I make no claim of innocence, I wish to plead “GUILTY”
               and respectfully request the Court to accept my plea as follows: [Set
               out plea bargain agreement with the State.] . . .

               2001-C-1740
               concurrent with < CT.1: Poss. Counterfeit C/S: 2 years suspended,
                                           2 years Community Corrections
               each other     < CT. 2: Poss. Counterfeit C/S: 2 years suspended,
                                           2 years Community Corrections

        Additionally, paragraph six (6) of this document makes reference to the offense being pled
to as follows:

               6. My attorney has told me and I understand that the punishment I
               could receive, including both possible incarceration and/or fine, is:
               [Set out range of punishment for offense(s) charged and pleaded to,
               if different.]

               2001-C-1740:
               CTS. 1-3: Sale Counterfeit Controlled Substance: “E” Felony, (1-6
               years), Max. Fine $3,000.00

        The Appellant contends the denominated crime in paragraph 22, “poss. counterfeit c/s,” does
not exist because our criminal code proscribes only the act of sale of a counterfeit substance, as
opposed to that of possession. Clearly the plea agreement form should correctly reflect the terms of
the plea agreement. Nonetheless, the colloquy at the guilty plea submission hearing between the
defendant and the trial judge in open court as required by Rule 11, Tenn. R. Crim. P., is the primary
measure for determining the voluntariness of the plea and whether judgment upon the plea should
be entered.

        Trial counsel testified at the post-conviction hearing that she discussed the plea agreement
with the Appellant and that he was clearly aware that he was pleading guilty to sale of a counterfeit
controlled substance, a class E felony. Moreover, the transcript of the guilty plea hearing establishes
that the Appellant knowingly and voluntarily entered guilty pleas to two counts of sale of a
counterfeit controlled substance. This is supported by the prosecution’s statement of the facts at the
guilty plea hearing. The assistant district attorney advised the court that the Appellant “sold what
he represented to be two ounces of cocaine for $2,000" to a police informant on February 5, 2001,
and “sold what he represented to be three ounces of cocaine for $2,900" on February 8, 2001. When



                                                 -4-
asked about his plea to the two counts of sale of a counterfeit controlled substance, the Appellant
responded, “Guilty.” The judgment forms properly reflect this plea. Accordingly, we conclude that
the Appellant has failed to prove, by clear and convincing evidence, that his guilty pleas to the sale
of a counterfeit substance were unknowingly and involuntarily entered. This issue is without merit.

C. Knowing, Intelligent, and Voluntary Plea

        Last, the Appellant contends that his guilty plea to class B felony possession of cocaine was
not knowingly and voluntarily entered because he was not aware, at the time, that he was pleading
guilty to a voidable sentence. Moreover, he argues that because the guilty pleas entered in the
counterfeit controlled substances convictions are different from those contained in the plea
agreement, the guilty pleas were unknowingly entered. Because we have concluded that the
Appellant’s sentence for felony possession of cocaine was valid and because the Appellant’s guilty
pleas to sale of a counterfeit controlled substance were knowingly and voluntarily entered, we find
this issue without merit.

                                          CONCLUSION

        Based upon the foregoing, we conclude that the Appellant’s pleas of guilty were entered
voluntarily to valid offenses resulting in statutorily authorized sentences. Accordingly, the dismissal
of the petition for post-conviction relief is affirmed.




                                                               ______________________________
                                                               DAVID G. HAYES, JUDGE




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