The conviction for first degree criminal sexual conduct was subject to a maximum punishment of life imprisonment. T.C.A. § 39-3703(B) (1978); see State v. Washington, 661 S.W.2d 900, 904 (Tenn. Crim. App. 1983). Effective June 5, 1979, the statute was amended to replace the offense of first degree criminal sexual conduct with the offense of aggravated rape.
At the time of Petitioner's first rape offense—1977 [PSR ¶ 33; Doc. 57-1 pp. 2-3], Tennessee defined rape as "the unlawful carnal knowledge of a woman, forcibly and against her will." State v. Washington, 661 S.W.2d 900, 904 (Tenn. Crim. App. 1983) (quoting Tennessee Code Annotated § 39-3701 (1976)). State courts interpreted the provision to require both that the defendant "penetrate the victim by the use of force" and that "the victim have resisted in every way possible."
Although Rule 11(e) of the Tennessee Rules of Criminal Procedure permits guilty plea discussions between the district attorney general and the accused, the district attorney general is not required to engage in plea bargaining, see Weatherford v. Bursey, 429 U.S. 545, 561, 97 S.Ct. 837, 846, 51 L.Ed.2d 30 (1977); State v. Hodges, 815 S.W.2d 151, 155 (Tenn. 1991); Parham v. State, 885 S.W.2d 375, 382 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1994); nor does the accused have a constitutional right to plea negotiations. See Mabry v. Johnson, 467 U.S. 504, 507, 104 S.Ct. 2543, 2545-47, 81 L.Ed.2d 437 (1984); Weatherford, 429 U.S. at 561, 97 S.Ct. at 846; State v. Washington, 661 S.W.2d 900, 904 (Tenn. Crim. App. 1983), cert. denied, 467 U.S. 1208, 104 S.Ct. 2394, 81 L.Ed.2d 351 (1984). Moreover, even though plea negotiations are permitted, "the court shall not participate in any . . . [plea] discussions."
See Mabry v. Johnson, 467 U.S. 504, 507, 104 S.Ct. 2543, 2545-47 (1984); Weatherford, 429 U.S. at 561, 97 S.Ct. at 846; State v. Washington, 661 S.W.2d 900, 904 (Tenn.Crim.App. 1983), cert. denied, 467 U.S. 1208, 104 S.Ct. 2394 (1984). Moreover, even though plea negotiations are permitted, "the court shall not participate in any . . . [plea] discussions."
As a corollary to this rule, the courts have held that an accused does not have a constitutional right to engage in plea bargaining. Mabry v. Johnson, 467 U.S. 504, 507, 104 S.Ct. 2543, 2545-47, 81 L.Ed.2d 437, 442 (1984); Weatherford, 429 U.S. at 561, 97 S.Ct. at 846, 51 L.Ed.2d at 42; State v. Washington, 661 S.W.2d 900, 904 (Tenn. Crim. App. 1983), cert. denied, 467 U.S. 1208, 104 S.Ct. 2394, 81 L.Ed.2d 351 (1984). This rule is predicated upon the theory that plea bargaining is part of the district attorney general's broad charging discretion, namely, if and when a prosecution is to be instituted, the precise character of the offense to charge, and, once instituted, whether the prosecution should be dismissed or the nature of the offense reduced to a lesser included offense.
It is a well-established principle of law that an accused does not have a constitutional right to engage in plea bargaining. Mabry v. Johnson, 467 U.S. 504, 507, 104 S.Ct. 2543, 2545-47, 81 L.Ed.2d 437, 442 (1984); Weatherford v. Bursey, 429 U.S. 545, 561, 97 S.Ct. 837, 846, 51 L.Ed.2d 30, 43 (1977); State v. Washington, 661 S.W.2d 900, 904 (Tenn. Crim. App. 1983), cert. denied, 467 U.S. 1208, 104 S.Ct. 2394, 81 L.Ed.2d 351 (1984).See State v. Cone, 665 S.W.2d at 94.