IN THE SUPREME COURT OF TENNESSEEFILED
AT NASHVILLE
January 25, 1999
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE ) FOR PUBLICATION
)
Appellee ) FILED: JANUARY 25, 1999
)
v. ) MONTGOMERY COUNTY
)
JABBAUL PETTUS ) HON. JOHN H. GASAWAY, Judge
)
Appellant ) NO. 01-S-01-9709-CC-00202
For Appellant: For Appellee:
MICHAEL R. JONES JOHN KNOX WALKUP
Clarksville, TN Attorney General and Reporter
MICHAEL E. MOORE
Solicitor General
LISA A. NAYLOR
Assistant Attorney General
Nashville, TN
JOHN WESLEY CARNEY, JR.
District Attorney General
WILLIAM M. CLOUD, JR.
Assistant District Attorney General
Clarksville, TN
OPINION
AFFIRMED BIRCH, J.
Jabbaul Pettus, the appellant, pleaded guilty to the
unlawful possession of a Schedule II substance (cocaine) with intent
to sell.1 Omitted from the indictment, however, was any reference
to the amount of substance possessed.2 This omission
notwithstanding, the offense was treated as a Class B felony and
Pettus acquiesced in an eight-year sentence to community
corrections--a term well within the range provided for Class B
felonies. While on community corrections for the drug offense,
Pettus committed additional offenses which resulted in his guilty
plea to attempted aggravated robbery. For this new offense, the
trial court imposed a six-year sentence to the Department of
Correction. During the same hearing, the trial court revoked the
community corrections sentence and replaced it with a ten-year term
to the Department of Correction.3 Based on the provisions of Tenn.
1
Tenn. Code Ann. § 39-17-417(a)(4) (Supp. 1994) states: “It is
an offense for a defendant to knowingly . . . [p]ossess a controlled
substance with intent to manufacture, deliver or sell such
controlled substance.”
2
Tenn. Code Ann. § 39-17-417(c)(1) Supp. 1994) states in
pertinent part: “A violation of [Tenn. Code Ann. § 39-17-417(a)]
with respect to: Cocaine is a Class B felony if the amount involved
is point five (.5) grams or more of any substance containing cocaine
and, in addition thereto, may be fined not more than one hundred
thousand dollars ($100,000).”
3
The court has the authority to impose a longer sentence for
violations of community correction sentences pursuant to Tenn. Code
Ann. § 40-36-106(e)(4) (Supp. 1994). Section 40-36-106(e)(4) states
in pertinent part: “The court shall also possess the power to
revoke the sentence imposed . . . and the court may resentence the
defendant to any appropriate sentencing alternative, including
incarceration, for any period of time up to the maximum sentence
provided for the offense committed, less any time actually served in
any community-based alternative to incarceration.”
2
Code Ann. § 40-35-115(b)(6) (Supp. 1994),4 the trial court ordered
the sentences to be consecutively served.
On appeal, Pettus contends that the indictment failed to
specify 0.5 grams or more as the amount of substance possessed and
that the indictment therefore describes a Class C felony.5 Thus, he
insists that a Class B felony sentence was illegally imposed. He
also contends that the imposition of consecutive sentences pursuant
to Tenn. Code Ann. § 40-35-115(b)(6) was erroneous. Because we find
that by entry of the guilty plea, Pettus waived the right to raise
any non-jurisdictional defect in the indictment, we affirm the
judgment of the Court of Criminal Appeals approving the Class B
sentence. Further, we find that a community corrections sentence is
not equivalent to probation, and the trial court consequently erred
in imposing consecutive sentences on this basis. However, we affirm
the judgment of the Court of Criminal Appeals on the sentencing
issue because the record supports the imposition of consecutive
sentences under Tenn. Code Ann. § 40-35-115(b)(2)(Supp. 1994).6
4
Tenn. Code Ann. § 40-35-115(b)(6) states: “The court may
order sentences to run consecutively if the court finds by a
preponderance of the evidence that . . . [t]he defendant is
sentenced for an offense committed while on probation.”
5
Tenn. Code Ann. § 39-17-417(c)(2)(Supp. 1994) states: “Any
other Schedule II controlled substance, including cocaine in an
amount of less than point five (.5) grams, is a Class C felony
. . . .”
6
Tenn. Code Ann. § 40-35-115(b)(2) states: “The court may
order sentences to run consecutively if the court finds by a
preponderance of the evidence that . . . [t]he defendant is an
offender whose record of criminal activity is extensive.”
3
I
The indictment against Pettus for possession of cocaine
with intent to sell provides:
that Jabbaul L. Pettus of
[Montgomery] County, heretofore, to
wit, on or about the 24th day of
August, 1994, and prior to the
finding of this indictment, . . .
unlawfully and knowingly did possess,
with intent to sell, a controlled
substance, to wit: Cocaine . . . in
violation of TCA 39-17-417 and
against the peace and dignity of the
State of Tennessee.
Interestingly enough, Pettus neither claims that his guilty plea to
this indictment was involuntarily entered nor does he seek to set it
aside. Essentially, he contends that he did not agree to the
lengthier sentence for a Class B felony.
The principle is well-settled in Tennessee jurisprudence
that the voluntary entry of an informed and counseled guilty plea
constitutes an admission of all facts necessary to convict and
waives all non-jurisdictional defects and constitutional
irregularities which may have existed prior to the entry of the
guilty plea. See Hicks v. State, 945 S.W.2d 706, 709 (Tenn. 1997);
State v. Wallen, 863 S.W.2d 34, 38-39 (Tenn. 1993). In our thorough
examination of the record, we have been unable to find any
jurisdictional irregularity or defect in the proceedings leading to
the entry of the guilty plea.
4
The cases of Boykin v. Alabama and State v. Mackey are the
landmark constitutional cases for analyses of guilty pleas. Boykin
v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed.2d 274 (1969)
(federal standard); State v. Mackey, 553 S.W.2d 337 (Tenn. 1977)
(state standard). In Boykin, the United States Supreme Court held
that before a trial judge can accept a guilty plea, there must be an
affirmative showing that it was given intelligently and voluntarily.
Id. at 242, 89 S. Ct. at 1711, 23 L. Ed. 2d at 279. In order to
find that the plea was entered “intelligently” or “voluntarily,” the
court must “canvass[] the matter with the accused to make sure he
has a full understanding of what the plea connotes and of its
consequences.” Id. at 244, 89 S. Ct. at 1712, 23 L. Ed. 2d at 280
(emphasis added).
Likewise, in Mackey, this Court held that “the record of
acceptance of a defendant’s plea of guilty must affirmatively
demonstrate that his decision was both voluntary and knowledgeable,
i.e., that he has been made aware of the significant consequences of
such a plea . . . .” 553 S.W.2d at 340. Based upon the foregoing,
we have no hesitation in concluding that Pettus’s guilty plea met
both the federal and state standards and is, therefore, valid.
Thus, the valid plea constitutes an agreement to the lengthier
sentence.
The nature of the plea-bargain process in general, and the
trial court’s order in particular, supports this conclusion. First,
it is commonly known that the plea-bargain process involves a
certain amount of “give and take” so as to reach a resolution that
5
is acceptable to both the State and the defendant. Often, this
process includes exaggeration or understatement of the facts and
circumstances of the offense. Specifically, we have upheld plea-
bargain agreements and resultant sentences in cases where the
defendant has accepted a sentence in a range higher than called for
by the indicted offense. See State v. Mahler, 735 S.W.2d 226, 228
(Tenn. 1987); accord Hicks, 945 S.W.2d at 706.
In Hicks, the defendant entered a guilty plea and was
convicted of voluntary manslaughter, a Class C felony. Id. at 706.
In exchange for the plea, Hicks received a “hybrid” sentence of
Range II incarceration (ten years) coupled with Range I release
eligibility (thirty percent).7 Id. Under the law at the time, the
punishment for Range I was three to six years and for Range II was
six to fifteen years. Id. In a post-conviction petition, Hicks
argued that the sentence he received was invalid. Id. However,
this Court held that a knowing and voluntary guilty plea waives any
irregularity as to offender classification or release eligibility.
Id. at 709.
Likewise, in Wallen, the defendant entered guilty pleas
but later claimed that his sentence was illegal because one of the
convictions used to justify especially aggravated offender status
had, in the interim, been reversed. 863 S.W.2d at 36. We stated:
In this case, the petitioner with
full knowledge of his rights,
voluntarily took the benefits of the
7
The release eligibility for Range II offenses was normally
thirty-five percent.
6
plea bargain. In accepting those
benefits . . . he waived any
irregularity or defect in the
proceedings including the possibility
that the prior convictions used to
enhance his punishment might be set
aside.
Id. at 38-39.
Similarly, in the case under review, Pettus’s plea bargain
included the district attorney general’s promise to forgo
prosecution on several other offenses in exchange for the guilty
plea. Additionally, Pettus was well into service of the sentence
when he raised this issue.
Based on the foregoing discussion, Pettus, with full
knowledge of his rights, voluntarily accepted the plea bargain. By
accepting it, he waived his right to contest any non-jurisdictional
defect in the sentencing process. Accordingly, this issue is
without merit.
II
The second issue concerns Pettus’s contention that the
trial court erred by imposing consecutive sentences which is
governed by Tenn. Code Ann. § 40-35-115 (1997).8 Specifically,
8
A trial court may impose consecutive sentencing if it finds by
a preponderance of the evidence that one or more of the required
statutory criteria exist. Furthermore, the court is required to
determine whether consecutive sentencing is (1) reasonably related
to the severity of the offenses committed; (2) serves to protect
the public from further criminal conduct by the offender; and (3)
consistent with general principles of sentencing. State v.
Wilkerson, 905 S.W.2d 933 (Tenn. 1995).
7
Pettus contends that for purposes of consecutive sentencing under
Tenn. Code Ann. § 40-35-115(b)(6), a community corrections sentence
should not be treated as probation. Pettus contends that the
imposition of consecutive sentences for attempted aggravated robbery
and possession of cocaine, based on the fact that the attempted
aggravated robbery was committed while he was on community
corrections for the drug offense, was erroneous.
When there is a challenge to the length, range, or manner
of service of a sentence, it is the duty of the reviewing court to
conduct a de novo review with a presumption that the determinations
made by the lower court from which the appeal is taken are correct.
Tenn. Code Ann. § 40-35-401(d)(1997). This presumption is
“conditioned upon the affirmative showing in the record that the
trial court considered the sentencing principles and all relevant
facts and circumstances.” State v. Davis, 940 S.W.2d 558, 559
(Tenn. 1997); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
We begin by recognizing that probation and community
corrections sentences are alternatives to incarceration, each of
which includes a suspension of incarceration. See Tenn. Code Ann.
§ 40-35-303(c) (Supp. 1994) (probation); Tenn. Code Ann. § 40-36-
106(e)(1) (Supp. 1994) (community corrections). But that similarity
alone does not allow courts to treat the alternatives as
equivalents, ignoring thereby the natural and ordinary meaning of
the language used in the statute. See Carter v. State, 952 S.W.2d
417, 419 (Tenn. 1997); Tuggle v. Allright Parking Sys., Inc., 922
S.W.2d 105, 107 (Tenn. 1996).
8
To determine whether the legislature intended a community
corrections sentence to be equivalent to a probation sentence, we
must examine the language of the relevant statutes. An elementary
principle of statutory construction requires that we ascertain and
give effect to the legislature’s intent without unduly restricting
or expanding a statute’s coverage beyond its intended scope.
Carter, 952 S.W.2d at 419; Hicks, 945 S.W.2d at 707. Legislative
intent and purpose are to be ascertained primarily from the natural
and ordinary meaning of the language used, without a forced or
subtle construction that would limit or extend the meaning of the
statute. Hawks v. City of Westmoreland, 960 S.W.2d 10, 16 (Tenn.
1997); Carter, 952 S.W.2d at 419. If the legislative intent is
expressed in a manner devoid of contradiction and ambiguity, there
is no room for interpretation or construction, and courts are not at
liberty to depart from the words of the statute. Hawks, 960 S.W.2d
at 16.
A review of the language of the relevant statutes reveals
a clear distinction between community corrections and probation.
For example, the Sentencing Commission Comments to Tenn. Code Ann.
§ 40-35-303(a) state that a court may allow “a defendant sentenced
to community corrections to be placed on probation, including an
offender originally ineligible for probation, after service of one
(1) year on community corrections.” In the same vein, Tenn. Code
Ann. § 40-36-106(f) states, in pertinent part, that a court may
permit “an eligible defendant to participate in a community-based
alternative to incarceration as a condition of probation.”
Similarly, Tenn. Code Ann. § 40-36-106(e)(3)(A) states:
9
The court . . . has the power to
terminate an offender from the
[community corrections] program and
to place the offender on supervised
or unsupervised probation upon a
showing that the offender did abide
by the conditions imposed on the
original sentence and that the
offender’s placement on probation
presents no substantial risk to
public safety . . . .
In reading these provisions together, we find that the
legislature did not intend a community corrections sentence and a
probation sentence to be equivalents for purposes of consecutive
sentencing under Tenn. Code Ann. § 40-35-115(b)(6). The legislature
makes reference to probation and community corrections as distinct
alternatives to incarceration where an offender may initially be
eligible for a community corrections sentence but ineligible for
probation. The clarity of the statutory language prevents undue
expansion of the statute’s coverage beyond its intended scope.
Carter, 952 S.W.2d at 419; Hicks, 945 S.W.2d at 707.9
In the case at hand, we must vacate the consecutive
sentence, which was imposed pursuant to Tenn. Code Ann. § 40-35-
9
We note also that Tenn. R. Crim. P. 32(c)(3) provides for
mandatory consecutive sentences where a subsequent offense is
committed while the defendant is on parole, after the defendant has
been released on bail, or after the defendant has escaped. By its
act of ratifying and approving this rule, we do not think the
legislature has expressed its intent to impose mandatory consecutive
sentences whenever a crime is committed after the defendant has
somehow received the largess of the law after commission of a prior
offense. See Tenn. Code Ann. § 16-3-403 (1994) (stating that court
rules “shall not abridge, enlarge or modify any substantive right”).
This Court is bound by the language employed by the General Assembly
even though, as a practical matter, consecutive sentencing for
persons who commit offenses while on community corrections seems
just as appropriate as consecutive sentencing for persons who commit
offenses while on probation.
10
115(b)(6), because a community corrections sentence is not
equivalent to a probation sentence. However, the record supports
the imposition of a consecutive sentence pursuant to Tenn. Code Ann.
§ 40-35-115(b)(2)(Supp. 1994). Pettus has an extensive criminal
record which dates back to 1992. Prior to the drug offense and
subsequent attempted aggravated robbery charge, Pettus’s criminal
activity included two theft convictions, an unlawful weapons
conviction, a conviction of contributing to the delinquency of a
minor, and a conviction of driving on a revoked or suspended
license. Because we find that Pettus’s record of criminal activity
is extensive, we affirm the imposition of consecutive sentencing
based upon Tenn. Code Ann. § 40-35-115(b)(2).
III
In conclusion, we find that by entry of the guilty plea to
the drug offense, Pettus waived the right to contest the defect
alleged in the indictment. Accordingly, we approve the sentence
imposed by the trial court for the drug offense. We find, also,
that the trial court’s treatment of community corrections and
probation as one and the same for consecutive sentencing purposes
was erroneous. The sentence shall, nevertheless, remain consecutive
because Pettus’s record of criminal activity is extensive.
______________________________
ADOLPHO A. BIRCH, JR., Justice
CONCUR:
Anderson, C.J.
Drowota, Holder, JJ.
Barker, J., not participating
11