Wallen v. State
| Decision Date | 13 September 1993 |
| Citation | 863 S.W.2d 34 |
| Parties | Rickie J. WALLEN, Petitioner-Appellant, v. STATE of Tennessee, Respondent-Appellee. |
| Court | Tennessee Supreme Court |
J. Christopher Booth, Kingsport, for petitioner-appellant.
Charles W. Burson, Atty. Gen. and Reporter, C. Anthony Daughtrey, Asst. Atty. Gen., Nashville, for respondent-appellee.
This case presents an appeal from the judgment of the Court of Criminal Appeals affirming the trial court's denial of a petition for post-conviction relief. The record supports the judgment of the Court of Criminal Appeals.
In 1975, the petitioner Rickie J. Wallen entered pleas of guilty to 17 charges of forgery, on which he was sentenced to serve 3 to 15 years in the State penitentiary. The effect of these convictions, which later were set aside, on sentences imposed on subsequent convictions, is the basis of the petitioner's claim for relief.
After serving a portion of the sentences imposed on the 1975 forgery convictions, the petitioner was released on parole. On June 5, 1985, for acts committed while on parole, the petitioner was tried before a jury on a plea of not guilty and found guilty of armed robbery. He was found not guilty of being a habitual criminal. He was given a Range II sentence of 40 years as a persistent offender, based on the 1975 forgery convictions, and as an especially aggravated offender, based on the armed robbery having been committed while he was on parole from the 1975 forgery convictions.
On the same date that he was sentenced on the armed robbery conviction, July 12, 1985, the petitioner entered pleas of guilty to three additional charges of armed robbery. The terms of the plea agreement consisted of the dismissal of habitual criminal charges, and the imposition of three concurrent life sentences enhanced to Range II both as a persistent offender based on the 1975 forgery convictions, and as an especially aggravated offender based on the armed robberies having been committed while the petitioner was on parole for the 1975 forgery convictions. Prior to accepting the petitioner's pleas of guilty, the trial court scrupulously advised the petitioner of his rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and State v. Mackey, 553 S.W.2d 337 (Tenn.1977). No issue is made as to the validity of these pleas.
This petition for post-conviction relief, filed in 1988, attacks the 1975 convictions of forgery on the ground that the guilty pleas were not knowing and voluntary pursuant to Boykin v. Alabama. The petition does not attack the 1985 armed robbery conviction but asserts that the Range II sentence of 40 years should be set aside because the enhanced sentence was based on the 1975 forgery convictions. Likewise, the petition does not attack the convictions for armed robbery on which the petitioner entered pleas of guilty; it does, however, challenge the Range II status of the life sentences on the ground that the pleas were not made knowingly and voluntarily because he was under the "misconception" that the forgery convictions exposed him to habitual criminal charges.
The trial court set aside the 1975 forgery convictions on the finding that the petitioner's pleas of guilty were not knowing and voluntary pursuant to Boykin v. Alabama, and resentenced the petitioner on the June 1985 armed robbery conviction. The court found that the petitioner's status as a persistent offender, based on the prior forgery convictions, could not be sustained after the reversal of those convictions. However, the court reaffirmed the petitioner's status as an especially aggravated offender based on the commission of the offenses, for which he was being sentenced, while on parole from the 1975 forgery convictions. The court found that the Range II sentence of 40 years was appropriate based only on the petitioner's status as an especially aggravated offender. The trial court refused to vacate the Range II concurrent life sentences imposed upon the petitioner's pleas of guilty to the charges of armed robbery in July 1985.
The Court of Appeals properly found that the petitioner has been granted all the relief to which he is entitled. The 1975 forgery convictions based on pleas not knowingly and voluntarily entered have been set aside and the persistent offender status with regard to the June 1985 armed robbery conviction has been vacated. The Range II sentence of 40 years based only on the especially aggravated offender status is not illegal and has not been appealed.
The only issue raised by the petitioner is the use of his parole status to enhance the sentences imposed on his pleas of guilty to the three charges of armed robbery. The petitioner claims that committing a crime while on parole is not grounds for the imposition of an enhanced punishment where the convictions subsequently are set aside. The point made by the petitioner is applicable to release on bail but not other forms of release. Section 40-35-107(3) of the 1982 Tennessee Code Annotated provides that an "especially aggravated offense" is:
A felony committed while on any of the following forms of release status if such release is from a prior felony conviction:
(A) Bail, if the defendant is ultimately convicted of such prior felony;
(B) Parole;
(C) Probation;
(D) Work release; or
(E) Any other type of release into the community under the direct or indirect supervision of the department of correction or local governmental authority.
The statute provides that an offense committed while the offender is on bail becomes an especially aggravated offense only if the offender "is ultimately convicted of such prior felony." That condition is not attached to offenses committed while on parole, probation, work release, or other types of release from incarceration.
The Court of Appeals correctly held that the validity of the 1975 forgery convictions is "totally irrelevant" to the 1985 armed robbery sentences entered on the petitioner's pleas of guilty. The Court of Criminal Appeals based its decision on State v. Mahler, 735 S.W.2d 226 (1987). In Mahler, the defendant was "in grave danger of receiving the death penalty or, almost at a minimum, a sentence of life imprisonment for murder in the first degree." Id. at 227. Because of the influence of the victim's family, the State agreed to a negotiated plea to second degree murder and a Range II sentence of 50 years. The defendant was advised of his constitutional and statutory rights. His plea was "knowingly, voluntarily and intelligently" entered. Id. However, he was not advised there was no statutory basis in his case for imposing a Range II sentence of 50 years. This Court held:
It is generally true, as pointed out in the dissenting opinion, that a judgment imposed by a trial court in direct contravention of express statutory provisions regarding sentencing is illegal and is subject to being set aside at any time, even if it has become final. See State v. Burkhart, 566 S.W.2d 871 (Tenn.1978). In that case, however, the trial judge had ordered a sentence for escape to be served concurrently with a previous sentence in direct contravention of a statute requiring the sentence to be consecutive.
There have been other cases where sentences were imposed which were higher or lower than that authorized by the statute designating the punishment for the crime. In those cases the sentences have been held subject to being later vacated or corrected.
As previously stated, that is not the situation here. 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 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.
Id. at 228 (emphasis added) (citations omitted).
Other jurisdictions have held that where a petitioner knowingly and voluntarily pleads guilty to a charge that carries an enhanced punishment, the petitioner waives subsequent collateral attacks on the prior convictions.
In Johnson v. Puckett, 930 F.2d 445 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 252, 116 L.Ed.2d 206 (1991), the petitioner appealed the dismissal of a habeas corpus petition. In the challenged sentence, he had pleaded guilty to burglary and was sentenced as a habitual criminal based on two prior convictions. On appeal, the petitioner claimed, among other things, that the lower court erred in denying him an evidentiary hearing on his habeas corpus claim that one of his prior convictions was unconstitutionally obtained. The district court held that he was not entitled to an evidentiary hearing on the alleged unconstitutionality of his prior conviction because he had waived any objection to the use of that conviction when he pleaded guilty.
On appeal, the court noted that before the petitioner pleaded guilty, the trial judge explained that he was charged with being a habitual criminal, identified the prior convictions, asked the petitioner whether he understood the charges of the prior convictions, and advised him of the range of sentencing as a habitual offender. The petitioner did not object to evidence of the prior convictions, and acknowledged the prior convictions.
The court, noting that the petitioner had alleged no facts casting doubt upon the validity of his plea of guilty to the habitual criminal allegations, stated:
[A] habeas corpus petitioner who pleaded guilty to enhancement charges in an habitual offender hearing "waived any complaints he may have had concerning the former offenses which were set out in the enhancement charge." We deemed the guilty plea, in...
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