           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE              FILED
                         MAY 1999 SESSION            October 12, 1999

                                                 Cecil Crowson, Jr.
                                               Appellate Court Clerk
RICHARD LEE WALINE,             *    C.C.A. 01C01-9805-CR-00199

      Appellant,                *    DAVIDSON COUNTY

vs.                             *    Hon. Seth Norman, Judge

STATE OF TENNESSEE,             *    (Post-Conviction)

      Appellee.                 *



For Appellant:                       For Appellee:

Thomas H. Potter                     Paul G. Summers
100 Thompson Lane                    Attorney General and Reporter
Nashville, TN 37211                  425 Fifth Avenue North
                                     Nashville, TN 37243-0493

                                     Lucian D. Geise
                                     Assistant Attorney General
                                     Criminal Justice Division
                                     425 Fifth Avenue North
                                     Nashville, TN 37243-0493



OPINION FILED:



AFFIRMED - RULE 20



NORMA MCGEE OGLE, JUDGE
                                               OPINION

                 The petitioner, Richard Lee Waline, appeals the dismissal of his

petition for post-conviction relief by the Davidson County Criminal Court on May 18,

1998. On July 13, 1995, the petitioner pled guilty in the Davidson County Criminal

Court to attempted rape of a child and aggravated sexual battery, the offenses

occurring in 1994. Pursuant to a plea agreement, the trial court imposed

consecutive, Range I sentences of eight years incarceration in the Tennessee

Department of Correction. On May 20, 1996, the petitioner filed the instant petition

for post-conviction relief. The post-conviction court appointed counsel and

conducted an evidentiary hearing prior to denying the petitioner relief. Having

thoroughly reviewed the record and the parties’ briefs, we conclude that this is an

appropriate case for affirmance pursuant to Ct. of Crim. App. Rule 20.



                 On appeal, the petitioner seeks to withdraw his guilty pleas to

attempted rape of a child and aggravated sexual battery. In essence, he asserts

that his guilty pleas were conditioned upon a release eligibility percentage in the

aggravated sexual battery case of thirty percent (30%).1 However, according to the

petitioner, the trial court’s imposition of this release eligibility percentage directly

contravenes Tenn. Code. Ann. § 40-35-501(i) (1995) and thus constitutes an illegal

sentence. Moreover, he asserts that, because he was unaware of the illegality of

his sentence, he did not enter his guilty pleas knowingly and voluntarily.                   Finally, he

contends that his trial counsel was ineffective in failing to advise him concerning the

illegality of his sentence for aggravated sexual battery.



                 Initially, it appears from the record before this court that the petitioner



        1
        At the post-conviction evidentiary hearing, the State stipulated that the plea agreement
provided for a release eligibility percentage of thirty percent (30%) with respect to each conviction.

                                                    2
did not challenge in the post-conviction court the legality of his sentence for

aggravated sexual battery. Of course, an illegal sentence is subject to being set

aside at any time. See, e.g., State v. Mahler, 735 S.W.2d 226, 228 (Tenn.

1987)(citing State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978)); State v.

Watkins, 972 S.W.2d 703, 704-705 (Tenn. Crim. App. 1998). However, the

petitioner’s sentence is not illegal. We conclude in accordance with the State’s

argument that Tenn. Code. Ann. § 40-35-501(i) (1995) is not applicable in the

petitioner’s case, as the statute only applies to offenses committed on or after July

1, 1995. The petitioner’s offenses occurred in 1994. Accordingly, we affirm the

judgment of the post-conviction court pursuant to Ct. of Crim. App. Rule 20.




                                                        Norma McGee Ogle, Judge


CONCUR:




David G. Hayes, Judge




Jerry L. Smith, Judge




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