          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT JACKSON
                       AUGUST SESSION, 1997

                                                            FILED
ODELL RAY, JR.,            )                                 October 1, 1997
                           )    No. 02C01-9607-CR-00234
      Appellant            )                          Cecil Crowson, Jr.
                           )    SHELBY COUNTY          Appellate C ourt Clerk

vs.                        )
                           )    Hon. ARTHUR T. BENNETT, Judge
STATE OF TENNESSEE,        )
                           )    (Post-Conviction)
      Appellee             )



For the Appellant:              For the Appellee:

MELANIE E. TAYLOR               CHARLES W. BURSON
50 North Front Street           Attorney General and Reporter
Suite 1150
Memphis, TN 38103               KAREN M. YACUZZO
                                Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493


                                WILLIAM GIBBONS
                                District Attorney General

                                DAVID SHAPIRO and
                                JENNIFER NICHOLS
                                Asst. District Attorneys General
                                Criminal Justice Complex
                                Suite 301
                                Memphis, TN 38103



OPINION FILED:


AFFIRMED



David G. Hayes
Judge
                                             OPINION



        The appellant, Odell Ray, Jr., was indicted by a Shelby County Grand Jury

for the April 30, 1993, premeditated murder of Willie Hicks. On the second day

of the appellant's scheduled trial, he entered a guilty plea to a reduced charge of

second degree murder. Pursuant to his plea agreement, the appellant was

sentenced to forty-five years in the Department of Correction, with a thirty-five

percent release eligibility date, as a range II offender. 1 On June 16, 1994, the

appellant filed a pro se petition for post-conviction relief, this petition was later

amended on February 23, 1995, with the assistance of counsel. The appellant's

petition alleges that his trial counsel was ineffective and that the trial court

imposed an illegal sentence, i.e., the sentence imposed was outside the

applicable sentencing range. In reference to his ineffective assistance of

counsel claim, the appellant contends that (1) counsel failed to confer with him

concerning matters of defense; (2) counsel failed to conduct appropriate

investigations and discovery; (3) counsel failed to inform the defendant that he

was pleading outside his range; and (4) counsel failed to submit any motions on

the defendant's behalf. The post-conviction court, after conducting an evidentiary

hearing, denied the appellant relief. The appellant now appeals this denial.



            The testimony at the evidentiary hearing revealed that defense counsel

met with the appellant on four or five occasions, each lasting between thirty and

forty-five minutes. All of the State's witnesses and the majority of potential

defense witnesses were interviewed. No discovery motions were filed because

the State permitted an open examination of their case file. Trial counsel testified

that he examined the entire file "page for page, paper for paper." Testimony at



        1
           Thus, the appellant, who qualified as a range I offender, pled guilty as a range II offender
(thirty-five percent release eligibility) to a range III, sentencing range of forty-five years. The
sentencing range for a range II offender of a class A felony is twenty-five to forty years; the
sentencing range for a range III offender is forty to sixty years. Tenn. Code Ann. § 40-35-
112(b)(1) (1990).

                                                   2
the evidentiary hearing revealed that, had the trial proceeded, at least four

witnesses would have testified that they observed the appellant shoot the victim

approximately nine times at point blank range. Trial counsel stated that the

State's initial settlement offer was twenty years; the appellant rejected this offer.

However, after the first day of his scheduled trial, the appellant indicated that he

wanted to pursue a guilty plea. At this point, trial counsel attempted to

renegotiate the initial twenty year offer, which was rejected by the State with a

counter-offer of forty-five years as a range II offender. The appellant indicated

that he would accept the State's offer of forty-five years. Counsel informed the

appellant that, as a consequence of accepting the State's final offer of forty-five

years as a range II offender, he would be accepting a sentence five years

outside the range.



       In denying relief, the post-conviction court accredited the testimony of the

appellant's trial counsel and concluded that the appellant had failed to show

either that "counsel's representation fell below the range required in [Baxter v.

Rose, 523 S.W.2d 930, 936 (Tenn. 1975)]," or that counsel committed "errors

that prejudiced [the appellant] such as to deprive him of a fair trial with a reliable

result." Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068

(1984). The court further found that both defense counsel and the court

"painstakingly and scrupulously advised [the appellant] of his rights and the

Range to which he was pleading." The court concluded that the forty-five year

sentence, although outside the applicable range, i.e., forty years, was,

nonetheless, valid.



       When this court undertakes review of a lower court's decision on a petition

for post-conviction relief, the lower court's findings of fact are given the weight of

a jury verdict and are conclusive on appeal absent a finding that the evidence

preponderates against the judgment. Clenny v. State, 576 S.W.2d 12, 14 (Tenn.


                                          3
Crim. App. 1978), cert. denied, 441 U.S. 947, 99 S.Ct. 2170 (1979). In this

regard, we conclude that the proof does not preponderate against the findings of

the post-conviction court that trial counsel's performance was not deficient.

Accordingly, the appellant's assertion of ineffective assistance is without merit.



        Although this court has been divided as to whether "a sentence within

one range coupled with a release eligibility of another range is legal," we find the

recent decision of our supreme court in State v. Hicks, 945 S.W.2d 706 (Tenn.

1997), dispositive of this very issue. In Hicks, the court held that such a

sentence is valid "when imposed as a result of a plea bargain agreement

entered voluntarily and knowingly."2 Id. The court added that, "where the parties

negotiate in good faith and there are no allegations of fraud or misfeasance, the

parties are precluded from attacking on appeal the agreed range imposed by the

trial court." Id. at 708. Thus, the appellant's knowing and voluntary guilty plea,

absent any evidence of fraud or bad faith on behalf of the State, waived any right

of the appellant to later challenge the legality of the sentence imposed by the

trial court. Accordingly, we find no error of law mandating reversal of the court's

judgment. The post-conviction court's denial of the appellant's petition for post-

conviction relief is affirmed.




        2
           The defendant, Hicks, was indicted for first degree murder but ultimately pled guilty as a
range I o ffende r to voluntar y mans laughter, a class C felony. As p art of the p lea agree men t,
Hicks was sentenced to a term of imprisonment of ten years. At the time Hicks was sentenced,
the maximum sentence for a range I offender of a class C felony was six years.

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                          ____________________________________
                          DAVID G. HAYES, Judge




CONCUR:



________________________________
JERRY L. SMITH, Judge


________________________________
THOMAS T. W OODALL, Judge




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