IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
TERRY L. HICKS, JR. ) FOR PUBLICATION
)
Appellant ) FILED: APRIL 21, 1997
)
v. ) HON. FRANKLIN MURCHISON,
) Judge
)
STATE OF TENNESSEE
Appellee
)
)
)
MADISON COUNTY
FILED
NO. 02-S-01-9607-CC-00063
April 21, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
FOR THE APPELLANT: FOR THE APPELLEE:
GEORGE MORTON GOOGE JOHN KNOX WALKUP
26th District Public Defender Attorney General and Reporter
PAMELA J. DREWERY MICHAEL E. MOORE
Assistant Public Defender Solicitor General
227 West Baltimore Street
Jackson, Tennessee KAREN M. YACUZZO
Assistant Attorney General
450 James Robertson Parkway
Nashville, Tennessee
JAMES G. WOODALL
District Attorney General
DONALD H. ALLEN
Assistant District Attorney
General
P.O. Box 2825
Jackson, Tennessee
OPINION
AFFIRMED BIRCH, C.J.
Pursuant to a plea bargain agreement, Terry L. Hicks, the
appellant, entered a plea of guilty and was convicted of voluntary
manslaughter, a Class C felony. The Range I punishment for this
offense is three to six years; for Range II offenders, it is six to
fifteen years. The plea agreement provided for a “hybrid”
sentence: that is, Range II incarceration (ten years) coupled with
Range I release eligibility (thirty percent). The trial court
accepted the plea agreement and convicted Hicks of voluntary
manslaughter. Adhering to the terms of the agreement, the trial
court sentenced Hicks to the Department of Correction for ten years
as a Range I standard offender with a release eligibility of thirty
percent.
At issue in this post-conviction case is whether a plea
bargained Range II sentence is valid when coupled with Range I
release eligibility.1 We conclude that such a sentence, when
imposed as a result of a plea bargain agreement entered voluntarily
and knowingly, is valid.2
I
Persons who commit criminal offenses in Tennessee must be
sentenced pursuant to the provisions of the Criminal Sentencing
1
The release eligibility for Range II offenses is normally
thirty-five percent.
2
Hicks alleges that his counsel was ineffective because
counsel allowed Hicks to receive an “illegal” sentence. Because
the sentence is valid, it furnishes no basis from which to find
counsel ineffective.
2
Reform Act of 1989. Tenn. Code Ann. § 40-35-104(a)(1990); State v.
Palmer, 902 S.W.2d 391, 392 (Tenn. 1995).
One basic 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. Owens v. State, 908 S.W.2d 923, 926 (Tenn.
1995); State v. Sliger, 846 S.W.2d 262, 263 (Tenn. 1993). In
construing statutes, we presume that the legislature has knowledge
of its prior enactments and is fully aware of any judicial
constructions of those enactments. Wilson v. Johnson County, 879
S.W.2d 807, 810 (Tenn. 1994); Hamby v. McDaniel, 559 S.W.2d 774,
776 (Tenn. 1977). Thus, although not controlling, we take some
guidance from cases decided under the Criminal Sentencing Reform
Act of 1982.
The 1982 Act provided for two sentencing ranges: Range
I and Range II. Tenn. Code Ann. § 40-35-109 (1982)(repealed).3
Persons serving Range II sentences as either persistent offenders
or for an especially aggravated offense were required to complete
forty percent of the sentence before becoming eligible for release.
Tenn. Code Ann. § 40-35-501(d)(1982)(repealed). Those serving
Range II sentences as persistent offenders whose offense was also
especially aggravated were required to complete fifty percent of
the sentence before becoming eligible for release. Tenn. Code Ann.
§ 40-35-501(e)(1982)(repealed).
3
There was also a provision for an “especially mitigated
offender.” Tenn. Code Ann. § 40-35-108 (1982)(repealed).
3
In 1987, this Court decided State v. Mahler, 735 S.W.2d
226 (Tenn. 1987). Mahler was indicted for first-degree murder.
Ultimately, the parties agreed to a guilty plea to second-degree
murder in exchange for the State’s recommendation of a fifty-year
sentence as a Range II offender. The defendant agreed to the
sentence even though he lacked the criminal history sufficient to
justify sentencing within Range II.
Six months after imposition of the agreed sentence,
Mahler filed a post-conviction petition alleging that the sentence
was invalid and that his counsel was ineffective for failing to
advise him of that fact. In course, we affirmed the sentence,
noting that under the law in effect at that time, the punishment
range for second-degree murder was from ten years to life.4
Because the sentence imposed was clearly within statutory limits,
we held the sentence valid. Mahler, 735 S.W.2d at 227. More
significant, we held that any question as to Mahler’s
classification as a Range II offender or his release eligibility
percentage had been waived by the guilty plea. Id. at 228.
In the year following Mahler, the Court of Criminal
Appeals, in S t a t e v . T e r r y , 7 5 5 S . W . 2 d 8 5 4 ( T e n n . C r i m . A p p . 1 9 8 8 ) ,
addressed the precise question we face today, albeit under the
Criminal Sentencing Reform Act of 1982. Pursuant to a plea bargain
agreement, Terry pleaded guilty to one count of simple kidnapping
and one count of aggravated assault. In return, he received a
Range I sentence of ten years for kidnapping and a consecutive
4
Tenn. Code Ann. § § 39-2-212 & 40-35-109 (1982)(repealed).
4
Range I sentence of five years for aggravated assault. Under the
law at the time, the punishment range for kidnapping was two to ten
years, and a Range I sentence was two to six years.5
After the judgment became final, Terry filed a motion to
correct the “illegal” kidnapping sentence. The Court of Criminal
Appeals upheld the sentence and noted that it was within the
statutory limits for kidnapping. Terry, 755 S.W.2d at 855. The
intermediate court cited Mahler for the proposition that “[a]ny
irregularity as to classification or release eligibility was waived
by the plea of guilty knowingly and voluntarily entered.” Id. at
854.
Similarly, this waiver rule also applies to the State--
the other party to the plea agreement. State v. Watkins, 804
S.W.2d 884, 886 (Tenn. 1991). In Watkins, the State agreed to a
Range I sentence and the dismissal of an habitual criminal count.
After a sentencing hearing, the trial court imposed the maximum
Range I sentence of thirty years. When the defendant appealed the
sentence as excessive, the State contended that the sentence was
appropriate because the defendant was on parole at the time of the
offense and a statutory provision in effect at the time mandated a
Range II sentence.6 We held that the same waiver rule invoked
5
Tenn. Code Ann. § § 39-2-302 & 40-35-109 (1982)(repealed).
6
Tenn. Code Ann. § 40-35-107(3)(b)(1982)(repealed), provided
that a felony committed while the perpetrator was on parole was an
“especially aggravated offense.” Tenn. Code Ann. § 40-37-107(8)
further provided that “[a] defendant who is found by the court
beyond a reasonable doubt to have committed an especially
aggravated offense shall receive a sentence within Range II.”
5
against the defendant in Mahler applied to the State where it
negotiated a plea agreement and thus encouraged the trial court to
set the defendant’s sentence in the “wrong” range:
Mahler stands for the proposition
that an erroneous range
classification can be waived by the
action of the defendant. We
conclude that, proverbially
speaking, what is applicable to the
goose ought to be applied to the
gander.
. . . .
[In another case,] we concluded,
furthermore, that “the state would
waive ‘Range II’ sentencing by
failing to file the required notice,
failing to present proof of the
basis relied on, or deliberately, by
striking a Range II notice in
exchange for a guilty plea.” The
latter procedure . . . “is similar
to allowing a defendant to plead to
a lesser offense, and is a common
tool in plea bargaining.”
Watkins, 804 S.W.2d at 886 (quoting State v. Russell, 800 S.W.2d
169, 172 (Tenn. 1990)). Thus, where the parties negotiate in good
faith and there are no allegations of fraud or misfeasance, the
parties are precluded from attacking on appeal the agreed range
imposed by the trial court.
Since passage of the Criminal Sentencing Reform Act of
1989, the intermediate court has applied the Mahler principal,
i.e., a defendant can waive the range classification as part of a
negotiated guilty plea, to sentences in cases arising under the new
Act.7 That court has divided, however, over whether a sentence
7
State v. Turner, 919 S.W.2d 346, 359 (Tenn. Crim. App. 1995);
McKinley v. State, 910 S.W.2d 465, 467 (Tenn. Crim. App. 1995); see
also Bill R. Dixon, Jr. v. State , No. 02-C-01-9503-CC-00070 (Tenn.
6
within one range coupled with a release eligibility of another
range is legal.
In Joseph Harvey Cutright v. State,8 the defendant was
originally charged with premeditated murder, felony-murder, and
grand larceny. Although the offenses pre-dated the effective date
of the 1989 Act, the defendant was sentenced after the effective
date of the 1989 Act. In return for his plea of guilty to second-
degree murder, the State agreed that the defendant be sentenced
under the 1982 Act to a term of fifty years as a Range II
persistent offender with a release eligibility of forty percent.
In his petition for post-conviction relief, Cutright alleged that
his sentence was “illegal.” A divided panel of the Court of
Criminal Appeals cited Terry and held that any irregularity as to
classification or release eligibility was waived by the plea of
guilty knowingly and voluntarily entered. In the order denying the
application for permission to appeal, we noted that the defendant
had been improperly sentenced under the 1982 Act. Neither the
fifty-year sentence nor the forty percent release eligibility
Crim. App., filed March 20, 1996, at Jackson); George John Callis
v. State, No. 03-C-01-9411-CR-00401 (Tenn. Crim. App., filed Oct.
11, 1995 at Knoxville), perm. to appeal denied April 1, 1996;
Ronald Lature McCray v. State, No. 02-C-01-9412-CC-00277 (Tenn.
Crim. App., filed Sept. 27, 1995, at Jackson); George Cheairs v.
State, No. 02-C-01-9304-CC-00070 (Tenn. Crim. App., filed Oct. 26,
1994, at Jackson); Darnell Gentry v. State, No. 02-C-01-9304-CC-
00052 (Tenn. Crim. App., filed June 29, 1994, at Jackson), perm. to
appeal denied Oct. 3, 1994; Eric Williamson v. State, No. 0-2-C-01-
9305-CR-00096 (Tenn. Crim. App., filed May 11, 1994, at Jackson),
perm. to appeal denied Oct. 10, 1994; Joseph Harvey Cutright v.
State, No. 02-C-01-9108-CC-00175 (Tenn. Crim. App., filed March 25,
1992, at Jackson), perm. to appeal denied August 31, 1992.
8
No. 02-C-01-9108-CC-00175 (Tenn. Crim. App., filed March 25,
1992, at Jackson), perm. to appeal denied August 31, 1992.
7
comported with the provisions of the new Act; therefore, we
declared the sentence a nullity.9
In Darnell Gentry v. State,10 the defendant pleaded guilty
to second-degree murder. He was designated as a Range I offender
for release eligibility purposes but was sentenced outside that
range to forty years. The Court of Criminal Appeals held that
because the sentence was within the permissible statutory limits
(fifteen to sixty years), it was valid. Citing to Terry, the court
held that any irregularity as to classification was waived by the
defendant’s guilty plea. Since Gentry, however, three panels of
the Court of Criminal Appeals have concluded that these “hybrid”
sentences are invalid.11
We note that when the Sentencing Reform Act of 1989 was
passed, State v. Mahler and State v. Terry had been published for
more than a year. Nevertheless, the provisions of the 1989 Act and
the 1982 Act that require a person to be sentenced in accordance
with the statute are identical. Moreover, the statutory procedure
9
According to Hicks, we disapproved of mixing range
classifications and release eligibility percentages in our order
declaring Cutright’s sentence a nullity. However, we think in
Cutright the intermediate court misinterpreted our order. The
judgment was void on its face because it reflected that the
defendant in that case was improperly sentenced under the 1982 Act
and because the sentence included a release eligibility percentage
that does not even exist under the 1989 Act.
10
No. 02-C-01-9304-CC-00052 (Tenn. Crim. App., filed June 29,
1994, at Jackson), perm. to appeal denied Oct. 3, 1994.
11
George Cheairs v. State, No. 02-C-01-9304-CC-00070 (Tenn.
Crim. App., filed Oct. 26, 1994, at Jackson); Ronald Lature McCray
v. State, No. 02-C-01-9412-CC-00277 (Tenn. Crim. App., filed Sept.
27, 1995, at Jackson); Bill R. Dixon, Jr. v. State , No. 02-C-01-
9503-CC-00070 (Tenn. Crim. App., filed March 20, 1996, at Jackson).
8
for imposing an enhanced sentence is also the same under both Acts.
Had the legislature intended for the new Act to be interpreted
differently, it would have been a simple matter to limit a
prosecutor’s use of offender classification and release eligibility
as plea bargaining tools. That the legislature did not evinces its
intent to permit this practice.
We reiterate today that a knowing and voluntary guilty
plea waives any irregularity as to offender classification or
release eligibility. Accordingly and for the reasons stated above,
the judgment of the Court of Criminal Appeals is affirmed.
___________________________________
ADOLPHO A. BIRCH, JR., Chief Justice
CONCUR:
Drowota, Anderson, Reid, JJ.
9