           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                        OCTOBER 1999 SESSION
                                                         FILED
                                                         December 16, 1999

                                                      Cecil Crowson, Jr.
STATE OF TENNESSEE,        )                        Appellate Court Clerk
                           )     C.C.A. No. W1999-01696-CCA-R3-CD
     Appellee,             )
                           )     Shelby County
v.                         )
                           )     Honorable Bernie Weinman, Judge
MARCUS MABON,              )
                           )     (Motion for Correction/Reduction of Sentence)
     Appellant.            )




FOR THE APPELLANT:               FOR THE APPELLEE:
RANDALL B. TOLLEY                PAUL G. SUMMERS
242 Poplar Avenue                Attorney General & Reporter
Memphis, TN 38103
                                 PATRICIA C. KUSSMANN
                                 Assistant Attorney General
                                 425 Fifth Avenue North
                                 Nashville, TN 37243-0493

                                 WILLIAM L. GIBBONS
                                 District Attorney General

                                 JOHN W. CAMPBELL
                                 Assistant District Attorney General
                                 201 Poplar Avenue, Suite 301
                                 Memphis, TN 38103-1947




OPINION FILED: ____________________________________

AFFIRMED

ALAN E. GLENN, JUDGE
                                       OPINION



       The defendant, Marcus Mabon, entered a guilty plea in the Shelby County Criminal
Court on July 2, 1992, to the offense of second degree murder. Pursuant to the negotiated

plea agreement, he was sentenced to fifty years in the Department of Correction as a

Range III, persistent offender.        On March 31, 1999, he filed a motion for
correction/reduction of sentence, alleging that he had not been advised, prior to the entry

of the guilty plea, that he was being sentenced as a Range III offender. The trial court

denied this motion, ruling that, pursuant to Tenn. R. Crim. P. 35(b), it was untimely
because it had not been filed within 120 days of the entry of the judgment. The defendant

filed a timely appeal of the denial. Based upon our review of the record, we affirm the

judgment of the trial court.


                                          FACTS

       On May 14, 1992, the defendant was indicted by the Shelby County Grand Jury for
the offenses of murder in the perpetration of a robbery and first degree murder, both in

violation of Tennessee Code Annotated § 39-12-202. On July 2, 1992, he executed a

negotiated plea agreement form, which was entered with the court that day. That

agreement contains the following:

                           NEGOTIATED PLEA AGREEMENT

              It is stipulated and agreed between the State of Tennessee
              and the defendant, Marcus Mabon, that, upon the defendant’s
              plea of guilty to the offense [of] Murder 2nd degree, a
              presentence hearing is waived and the State recommends that
              the defendant be sentenced, within Range III, to confinement
              for 50 YEARS,          MONTHS,          DAYS, to be served
              (CONCURRENTLY) (CONSECUTIVELY) with                        and to
              pay a fine of $______ (underlined portions in original indicating
              handwritten additions to printed form).



       This form further states that “[i]t is further stipulated and agreed that: . . . 5. The

defendant is a Persistent Offender, Range III.” Following these provisions, the form bears

the signature of the defendant, his two counsel, and the assistant district attorney general

representing the State of Tennessee. In addition, on that day, the defendant and his
counsel executed a “Petition for Waiver of Trial by Jury and Request for Acceptance of

Plea of Guilty.” The trial court then entered its order, granting the defendant’s petition, as

well as the judgment, which specifically states that the defendant was sentenced as a
“Persistent 45% Range 3" offender to fifty years. The judgment was signed by the trial

judge, an assistant district attorney general, and both counsel representing the defendant.


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         According to the defendant’s motion, the denial of which is the basis for this appeal,

the defendant filed a petition for post-conviction relief in 1997, alleging that he had received

an illegal sentence. This petition was dismissed for being “outside the Statute of
Limitations.” Apparently, there was no appeal of that dismissal, which, according to the

defendant, occurred on February 3, 1997. On March 31, 1999, the defendant filed a

“Motion for Correction/Reduction of Sentence,” pursuant to Rule 35(b), Tenn. R. Crim. P.,
as well as Tennessee common law, seeking a “correction, reduction, or modification of the

sentence originally imposed by the Court.” After the State of Tennessee responded to the

motion, the trial court dismissed it without a hearing. The defendant timely appealed that
dismissal. We will now consider the authorities and arguments set out in the defendant’s

brief.

                                           ANALYSIS
         The defendant argues that his sentence should be altered pursuant to Rule 35(b),

Tenn. R. Crim. P., which allows a trial court to alter a sentence under limited

circumstances:
                Reduction of Sentence. The trial court may reduce a sentence
                upon application filed within 120 days after the date the
                sentence is imposed or probation is revoked. No extensions
                shall be allowed on the time limitation. No other actions shall
                toll the running of this time limitation. A motion for reduction of
                sentence under this rule may be denied by the trial judge
                without a hearing.



         The defendant’s sole basis for seeking relief pursuant to Rule 35(b) is that the State

of Tennessee did not comply with Tennessee Code Annotated § 40-35-202(a), which

states that the district attorney general “shall” file a statement not less than ten days before


the trial or acceptance of a guilty plea that the “defendant should be sentenced as a

multiple, persistent or career offender.” If the notice is filed later than ten days prior to the
trial or acceptance of plea of guilty, Rule 12.3, Tenn. R. Crim. P., provides that the trial

court shall grant a “reasonable continuance of the trial,” upon defense motion. In this

matter, the defendant does not claim that any such motion was filed or that he presented

an objection to the guilty plea until 1997, in his petition for post-conviction relief.


         Assuming that a timely motion to modify a sentence is filed, pursuant to Rule 35(b),

the trial court can grant relief upon a finding that the sentence should be reduced “in the
interest of justice.” State v. Hodges, 815 S.W. 2d 151, 154 (Tenn. 1991). However, a plea

agreement pursuant to Tenn. R. Crim. P. 11(e)(1)(C), as occurred in this case, should not


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be modified in the absence of “unforeseen, post-sentencing developments.” State v.

McDonald, 893 S.W.2d 945, 947 (Tenn. Crim. App.), perm. app. denied (Tenn. 1994).



       In this matter, there is no claim that “unforeseen, post-sentencing developments”

had occurred, only that the State of Tennessee had not complied with Rule 12.3 by giving

ten days notice that it considered the defendant to be a persistent offender. Obviously, the
State’s failure to timely provide the “notice” is not a “post-sentencing development” for

which the trial court could have provided relief, as allowed by Rule 35(e). However, a

consideration of that issue is moot because a Rule 35(b) motion was not filed within 120
days after imposition of the sentence. The Comments to this rule unequivocally state that

such a motion must be filed within the 120-day period:

              The motion to modify must be filed within 120 days of the date
              of the trial court’s’s imposition of sentence. This time period
              may not be extended or tolled. Unlike the federal rule which
              also allows a modification after appeal, the 120 days run
              immediately after the sentence is imposed by the trial judge
              and not from the mandate of the appellate court.

Tenn. R. Crim. P. 35(b) Advisory Commission Comments.



       In spite of the defendant’s references to case law and common law as entitling him

to the relief which he seeks, there is no basis upon which he can seek relief. The




defendant, through counsel, entered into a negotiated plea agreement with the State of

Tennessee, which provided, following his plea of guilty, that he was to be sentenced as a

Range III offender to a fifty-year sentence. Rule 11(e)(1)(C), Tenn. R. Crim. P., specifically
allows the parties to “[a]gree that a specific sentence is the appropriate disposition of the

case.” That is exactly what occurred here. The possible range of punishment for second

degree murder, to which the defendant entered a plea of guilty, was fifteen to sixty years.
Tenn. Code Ann. § § 39-13-210, 40-35-112. The fifty-year sentence imposed upon the

defendant following his plea of guilty was within this range and, therefore, was not illegal.

Finally, the defendant’s claim must fail because our laws do not permit a defendant who

has entered a plea of guilty to the charges against him to return to court years later
because the State of Tennessee allegedly did not comply with certain statutory

requirements prior to the guilty plea:

              The sentence imposed was clearly within statutory limits fixed
              for the offense of murder in the second degree. In our opinion
              any question as to the classification of appellant as a Range II

                                              4
              offender or as to his release eligibility was waived by the guilty
              plea. It was not a constitutional error in and of itself and at
              most rendered the sentence subject to attack on direct review
              by appeal. Appellant waived any right of appeal in the guilty
              plea proceedings, and expressly agreed to be sentenced with
              the classification and parole eligibility imposed. These were the
              only terms which the District Attorney General would even
              consider and, in our opinion, the resulting sentence was clearly
              lenient and in the best interest of appellant.

State v. Mahler, 735 S.W.2d 226, 228 (Tenn. 1987).



       This holding was reaffirmed in Hicks v. State, 945 S.W.2d 706, 709 (Tenn. 1997),

wherein the court stated that “[w]e reiterate today that a knowing and voluntary guilty plea
waives any irregularity as to offender classification or release eligibility.” Thus, we apply

the holdings in Mahler and Hicks to hold that, by his plea of guilty, the defendant waived

any claims which he may have had with regard to the failure of the State of Tennessee to
provide timely notice he was considered to be a Range III offender.




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                                     CONCLUSION

      Based upon the authorities and reasoning set out herein, we affirm the order of the

trial court denying the defendant’s motion for correction or reduction of his sentence.




                                         _____________________________________
                                         ALAN E. GLENN, JUDGE



CONCUR:




__________________________________
JOHN H. PEAY, JUDGE




___________________________________
NORMA M. OGLE, JUDGE




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