### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs J une 5, 2002
MARC A. BL AND v. JAMES M . DUKES, WAR DEN
Appeal from the Circuit Court for Lauderdale County No. 5570 Joseph H. Walker, Judge

No. W2002-00579-CCA-R3-CO - Filed August 13, 2002

The petitioner, Marc A. Bland, appeals as of right the Lauderda le County Circuit Court’s dismissal of his petition for habeas corpus relief. He contends that his judgments of conviction are void due to illegal sentences contained therein. We aff irm the trial court’s dismissal of the petition. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which J ER RY L

. S MITH and J AMES C URWOOD W ITT , J R ., JJ., joined. Marc A. Bland, Henning, Tennessee, Pro Se

. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney Gen eral; Elizabeth T. Rice, District Attorney General, for the a ppellee, State of Tennessee.
OPINION

In 1997, the petitioner pled guilty to aggravated robbery, a

Class B felony, in one case and to voluntary manslaughter, a Cl ass C felony, in a se parate case. The Shelby County Criminal Court sentenced him to fifteen year s as a

Range I, standard offender for the aggravated robbery conviction and to fifteen years as a R ange III, persistent offender for the voluntary manslaughter conviction. It ordered him to serve the sentences consecutively in the Department of Correction. In September 1997, the convicting cou rt entered an order correcting the judgments of conviction to reflect concurrent

rather than consecutive sentences. The petitioner contendsthat his se

ntencesare ille gal, and therefore void, because they c ontravene the 1989 Sentencing Reform Act. With regard to the sentence for aggravated robbery, he ar gues that the fifteen-year sentence exceeds the maximum of t welv e years in Range I for a Class B felony. See Tenn. Code Ann. 40-35-112(a)(2). As for the sentence for voluntary mans laughter, he claims that he lacked sufficient prior felony convictions to qualify as a Ra nge III offender. See Tenn. Code Ann. § 40-35-107(a). The state contends that the sente nces ar e not illeg al.-2-

A petition for a writ of habeas corpus may be brought if the judgment is void or the sentence has expired. Archer

v. State , 851 S.W.2d 157, 164 (Tenn. 1993). Howeve r, if the c laimed ille gality renders the judgment or sentence voidable, rather than void, no relief can be granted. Id. at 161. A sentence that directly contravenes a statute is illegal and vo id. S tephenson v. Carlton , 12 S.W.3d 910, 911 (Ten

n. 2000); State v. Burkhart , 566 S.W.2d 871 , 873 (Te nn. 1978) . A sente nce that is illegal, and therefore void, renders the entire judgment of conviction void. In order for the habeas corpus petitioner to preva il, the illegality of the sentence must be apparent from “the fa ce of the judgmentor the record of the proceedings upon which the judgment isrendered.” Stephenson , 28 S.W.3d at 911.

The petitioner contend s that his fifteen-year sentence as a Ra nge I offender exceeds the maximum sentenc e in that r ange for a Class B felony, which is twelve years. See Tenn. Code Ann. § 40-35-112(a)(2). He argues that a lthough he agreed to this sentence in good faith, the trial court lacked jurisdiction to impose an agreed sentence that exc eeded the statutory penalty for his range. The sta te notes that a hybrid sentence may have the length of inca rceration in one ran ge and th e releas e eligibility

percen tage in another. It argues that

as long as the term of years does not exceed the term allowed for the felony class, a defe ndant may lawfully agree to its imposition.

Our supreme co u rt has held that offender classification and rele ase eligibility are nonjurisdictional and legitimate bargaining tools in plea negotiations under the C riminal Sentencing Reform Act of 1989. McConnel l v. State , 12 S.W.3d 795, 798 ( Tenn. 200 0); Hicks v. St ate , 945 S.W.2d 706, 709 (Tenn. 1997). In Hicks , the petitioner pled g uilty to volun tary manslaughter, a Class C felony, and agre

ed to a hyb

rid sente nce involving a Ran ge II le ngthof incarceration of

ten years and a Range I release eligibility percentage of thirty percent. See Tenn. Code Ann. § 40-35- 112(a)(3), -(b)(3). He subsequently petitioned for post-conviction relief, contendingthat his agreed, ten-year sentenc e was in c ontrave ntion of the 1989 Sen

te ncing Act when

coupled with his thir

ty percent releas e eligibil

ity status. The cour

t conclud ed that su ch hybrid

sentences were

permissib le under the 1989 Act an d held that “a knowing and voluntary guilty plea waives any irregularity as to offender classification or release e ligibility.” Id.

The defendant relies upon McConnel l and Statev. Cutwright , No. 02C01-9108-CC-00175, Henderson County (Tenn. Aug. 31, 1992) (order), to argue that an agreed sentence cannot e xceed the maximum se

ntence i n the ran ge that e stablishe s the rele aseeligibility status. In both cases, the petitioners pled guilty and agreed to sentences under the 1982 Sent encing Act, although the 1989 Act had already take n effect. In Cutwright , the petitioner was sentenced to fifty years as a Range II offender w ith a forty percent release eligibility status under the 1982 Act. The supre me cou r t observed that the 1989 Act applied and that the maximum sent ence for a Range II offender unde r the 1989 Act was forty years, as opposed to fifty years under the 1982 Act. Id. at 1. Thus, the court held that the agreed sentence was void and re manded the case to the trial court for correction

of the sentence or withdrawal of the guilty plea. Id. at 2. In Hicks , the supreme court ex plained t hat it did notdi sapprove of the mixing of off ender c lassific ations an d relea se eligibi lity perc entagesin Cutwright

. 945 S.W.2d

at 709 n.9 . Instea

d, it deem

ed the jud

gment facially v oid because the-3-

defendant was sentenced under the 1982 Act and the forty pe rcent r elease eligibility status did not exist under the 1989 Act. Id.

In McConnel l , the petitione r pled gui lty to seco nd degre e murder , a Class A felony , and six counts of robbery wi th a deadly w eapon, a Class B felony. He agreed to a sentenc e of thirty-five years as a Range I offender under the 1982 Sente ncing Act for the murder, to concurrent ten-year sentences for five of the robbery counts, and to a thirty-five year sentence for the sixth robbery count to run consecutively to the murder sentence. T he court hel d that the

trial cou rt’s juri sdiction to sentence the petitioner was limited by the 1989 Sentencing Ac t, w hich sets the peri meter within which the state

and the accused can negotiate. McConnel l , 12 S.W.3d at 798-99. It stated that the thirty-five-year

sentences imposed pursuant to the 1982 Act exceeded the maximum twenty-fiveyear and twelve-year sentenc es for a Range I offender unde r the 1989 Act. Id. at 800. The petitioner relies upon McConnell to argue that the trial court did not have jurisdiction to impose a sentence that exceeded the maximu

m statutor y penalty for his range although he agreed to the sentence. Yet, we note that the McConnell court cited Hicks with approval and affirmed that its decision did not alter “the ability of t h e State and defendants to use offender c lassification and releas e eligibility as subjects of plea bargain negotiations.” Id. at 798. In light of McConnel l ’s affirmation of Hicks , this court has concluded that the plea agreement in McConnel l was nullified because it was expressed in terms of the 1982 Act, not because the number of years was outside the range. Mark E. Oliver

v. State , M1999-02323-CCA-R3-PC, Hickman County, slip op. at 3-4 (Tenn. Crim. App. Dec. 28, 2000), app. denied (Tenn. J uly 9, 2001 ); see also William Boyd v. State , E1999- 021798-CC A-R3-PC, Knox County, slip op. at 4-5 (Tenn. Crim. App. Nov. 6, 2000). In the present case, the petitioner

negotiated his plea agreement using the terms of the 1989 Act, and therefore, the mixing of the length of incarceration and the rele ase eligibility status is permissible under Hicks

. Thus, the petitioner’s judgment reflects a guilty plea and a hybrid sentence, which do not contravene the 1989 Se

ntencing Act.

The petitione

r also co ntends tha

t h is fi fteen-year sentence as a Range III offender for voluntary manslaughter is illegal because he did not have sufficie nt convic tions to qualify as a Range III offende

r. Initia lly, we no te that the

sentenc ing range

for a Range III o ffende

r convic ted of a Cl ass C felony is ten to fifteen years. Tenn Code Ann. § 40-35-112(c)(3). Thus, the judgment on its face does not contravene the statute. As noted above, offender classification is non-jurisdictional and a proper basis for plea negotiations. McConnell , 12 S.W.3d at 798. The petit ioner is n ot entitle d to relief on this issue.

Based upon the foregoing and the record as a whole, we affirm the trial court’s dismissal of the petition for habeas corpus relief.

___________________________________ JOSEPH M. TIPTON, JUDGE