Richard Waline v. State ( 1999 )

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
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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.
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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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