         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs June 6, 2006

               STATE OF TENNESSEE v. MARK EDWARD ELLIS

                 Direct Appeal from the Circuit Court for Hardeman County
                         No. 05-01-0121 J. Weber McCraw, Judge



                  No. W2006-00241-CCA-R3-CD - Filed September 5, 2006


The defendant, Mark Edward Ellis, pled guilty to felony escape, a Class E felony. In exchange for
his guilty plea, the defendant was sentenced to one year as a standard offender, which was to run
consecutive to his prior sentences. On appeal, the defendant argues that the circuit court erred by
denying his request for suspension of this sentence. Following our review of the parties’ briefs and
applicable law, we affirm the circuit court’s judgment.

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

J.C. MCLIN , J., delivered the opinion of the court, in which DAVID H. WELLES, J., joined, and GARY
R. WADE, P.J., not participating.

David S. Stockton, Assistant Public Defender, Somerville, Tennessee, for the appellant, Mark
Edward Ellis.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General;
Elizabeth Rice, District Attorney General; and Joe Van Dyke, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                            OPINION

         On December 17, 2006, the defendant signed and executed a written plea agreement in which
he agreed to enter a plea of guilty to felony escape in return for a recommended sentence of one year
at thirty percent. The factual basis underlying the guilty plea, as recited by the prosecutor at the
defendant’s guilty plea hearing, is as follows:

       [H]ad this matter gone to trial, the State would have introduced proof that on or about
       the 15th of July of 2005 the defendant herein, Mr. Ellis, was incarcerated in one of
       the correctional facilities here in Hardeman County, that he was transported to the
       doctor for medical care and that while he was in the custody of the correctional
       officers and at that doctor’s office, he did escape from them through the false ceiling
        in one of the rooms where he was receiving treatment, that he was later captured and
        returned to incarceration.

Following the plea colloquy, the trial court sentenced the defendant to one year consecutive to the
defendant’s other sentences he was currently serving. At this time, the defendant requested the court
suspend the one year sentence; whereupon, the court summarily denied this request.

        On appeal, the defendant argues that the trial court abused its discretion by failing to grant
him a suspended sentence without consideration of his candidacy for such a sentence. In rebuttal,
the state argues that the defendant entered into a plea agreement which provided for both the length
and manner of service of his sentence. Therefore, the state submits that the defendant has no right
to appeal, and this court must dismiss. The state relies on Tennessee Rules of Criminal Procedure
37(b)(2) and Tennessee Rules of Appellate Procedure 3(b)(2) as authority for its argument.

        Upon review, we are persuaded by the state’s argument. A criminal defendant who has
entered a plea of guilty or nolo contendre only has the right to appeal: (1) a certified question of law
dispositive of the action that was explicitly reserved at the time of the guilty plea, (2) a sentence that
was not the subject of a plea agreement, or (3) an issue not waived as a matter of law by a plea of
guilty or nolo contendre that is apparent from the record. See Tenn. R. App. P. 3(b)(2); Tenn. R.
Crim. P. 37(b)(2). Furthermore, a defendant who enters a knowing and voluntary guilty plea waives
all non-jurisdictional defects and constitutional infirmities. See State v. McKinney, 74 S.W.3d 291,
306 (Tenn. 2002); State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999).

         In State v. McKissack, 917 S.W.2d 714 (Tenn. Crim. App. 1995), this court was presented
with the issue of whether a defendant who pled guilty pursuant to a negotiated plea agreement had
the right to appeal his sentence. After review, this court concluded that the defendant did not have
a right to appeal his sentence because (1) he did not comply with Rule 37 of the Tennessee Rules of
Criminal Procedure and Rule 3 of the Tennessee Rules of Appellate Procedure, and (2) he was
sentenced pursuant to the terms of a plea agreement to which he voluntarily pled guilty. See id. at
715-16.

        Similarly, in the instant case, the record reflects that the defendant signed and accepted the
written plea agreement, which specifically recommended that the defendant be sentenced to one year
to be served as a Range I offender.1 Then, following the plea colloquy, the trial court accepted the
defendant’s guilty plea and ordered the defendant to serve the recommended sentence. Therefore,
the sentence the defendant seeks to appeal was the subject of the negotiated plea agreement. Further,
appeal of this sentencing issue does not fall within any other exception provided for in Tennessee
Rules of Appellate Procedure 3(b)(2) and Tennessee Rules of Criminal Procedure 37(b)(2).
Therefore, we conclude that the defendant has waived his right to appeal his sentence after entering
a valid plea of guilty and being sentenced pursuant to the terms of a negotiated plea agreement.
Accordingly, this appeal is dismissed.


        1
            The plea agreement also noted that the range of punishment for felony escape was one to six years.

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      ___________________________________
      J.C. McLIN, JUDGE




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