### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON August 2000 Session
State of Tennessee v. Bruce C. Reliford
Writ of Certiorari from the Criminal Court for Shelby County for Correction of Illegal Sentence Nos. 93-06433-34, 93-06437-38, Fred Axley, Judge

No. W1999-00826-CCA-R3-CD - Decided October 2, 2000

This direct appeal follows dismissal of the ap pellant’s motion at the trial level for a “Correction/Reduction” of his sentences. The appellant is c

urre ntly serving an effective sentence of life without parol

e after pleading guilty in 1995 to the offenses of first degree m

urder, two counts of aggravated robbery and one count of aggravated assault. He

argues that his sentences are illegal andare subject to correction because (1) his life sentence is in direct contravention of statutory authority and (2) his negotiated plea agreement with the State is incapable of specific performance. The indictment alleg

es that these

offenses occurred on December 24, 1992. On this date, life without the possibility of

parole was not an available sentencing option for first degree murder. Alt hough
we find that appellate review of a “Motion for Correction or Reduction” of a s entence is not available, as of right, underTenn. R. App. P. 3(b) , nonetheless, we hold that review is

available under the common law wri

tof certiorari. U

pon review of the

presented issues , we conclude that the trial court was without

authority to impose a sentence of life without the possibility of parole for first degree murder. This conv

iction and sentenc

e is vacated. Be

cause the appel

lant’ s ple a agreement encompassed

all of his convictio

ns and resulting s

entences, we fi

nd it necessary

upon vacating hi

s first degree murde

r conviction to als

o vacate his

convictions and sentences for aggravated robbery and aggravated assault. This case is remanded to the trial court for further proceedings. Tenn. Code Ann. § 27-8-101; Judgment of the Criminal Court is reversed; sentences vacated and rem

anded.

D AVID G. H AYES , J., delivered the opinion of the court, in whichJ AMES C URWOOD W ITT , J R ., J. and J OHN E VERETT W ILLI AMS , J., joined. Randall B. Tolley, Memphis, Tennessee, for the appellant, Bruce Reliford.

Paul G. Summers, Attorney General and Reporter, Michae l Moore, Solicitor Genera l, Kim R. Helper, Assistant Attorney General, William L. Gibbons,

District Attorney General, and Edgar A. Peterson, Assistant District Attorney General, for the appellee, State of Tennesse e.-2- OPINION

On February

6, 1995, the appell

ant, Bruce C. Reliford, entered, pursuant to a negotiated plea agreement, guilty pleas

to two counts of aggravated robbery, one c ount of aggravated assault, and
one count of first degree murder. The indictment recites that these offenses occurred on December 24, 1992. The negotiated plea agreement provided t hat the appellant would receive concurrent sentences of twelve years for each count of aggravated robbery, six y ears for aggravated assault, and
a sentence of life without the possibi lity of paro le for first degree murder. The agreement further prov id edthat the appellant's state sentences would be served concurrently with a federal sentence in case CR93-20107M, USDC, W.D.TN. The trial court accepted the plea agreement and imposed the bargained

for sentences.

On July 23, 1999, the appellant filed a "Motion for Correction/Reduction of Sen tence," alleging th at the Shelby County Criminal Court imposed illegal sentences. Specifically , t he appellan t complained:
(1) No notice of enhancement for sentencing as a multiple, persis tent, or career offender was provided by the State; (2) The appellant's pleas were involuntar y a s the State cannot fulfill its end of the plea bargain that his

sentences be se

rved concurre

ntly with an o utstanding federal sentence.
The trial court denied the motion on the basis that it was withoutjurisdiction to entertain the motion pursuant to Tenn. R. Crim. P. 35(b) (reduction of sentence may only be granted if application filed 120 days after sentence imposed). The court further f ound the sentences to be legal as entere d pursuant t o a valid gui lty plea agreemen t. The appel lant now ap peals the t rial court's ruling. Analysis

Init ial ly, we note that the appellant's "Motion for Correction/Reduction of Sentence" is not
a proper means by

which to in voke this court's review by means of a direct appea l. See generally Tenn. R. App. P. 3(b); see, e.g. , State v. Guil l ermo Matias Juan , No. 03C01-9812-CR-004433 (Tenn. Cr im. App. at Knoxville, Aug. 25, 1999), perm. to appeal denied , (Tenn. Jan. 31, 2000)

. Notwithstanding this procedural ba r to a ppellate review, the appellant is not without a course of relief. In State v. Leath

, 977 S.W.2d 132, 135 (Tenn. Crim. App. 1998), a panel of this cou rt held that, where no appeal of

right to this court exists to provide a party an avenue of relief, a party may seek the "common

law writ of certi

orari." The co

mmon law writ may be granted . . . in all cases where an inferior tribunal . . . has exceeded the jurisdiction conferred, or is acting illegally, when, in the judg ment of the court,

there is n o ot her p lai n, s peed y, or adeq uat e rem edy.1 The appellant’s argument appears t

o suggest th

at his sentence for first degree murder is improper because the State failed to g

ive him “te

n (10) days [noti

ce] prior to being sentenced to Life without Parole.” I n view of our holding, we find it unnec essary to add ress this conten tion.
-3- Leath , 977 S.W.2d at 135 (quoting Tenn. Code Ann. § 27-8-101). Accordingly, the prope r procedure for the appellant to seek

review of the trialcourt's disposition in this case would have been by the
common law writ of certiorari. Id . Writing on behalf of this court, Judge Woodall recognized that this court, in the interest of justice, has the a

uthority to

treat an improperly filed appeal as a petition for writ of certiorari. Leath , 977 S.W. 2d at 135. M oreover, it is fundame ntal that a trial judge may correct an illegal sentence at any time, even if it has

become final. State v. Burkhart , 566 S.W.2d 871 (Tenn. 1978). L

ogicdictates that some avenue of appeal lies from an adverse ruling of the trial court. Thus, consid

ering the posture of the case presently before this court, we ele ct to treat the appeal as a petit

ion for writ of ce

rtiorari and we p

roceed to deter

mine the matter on t

he merits.
A. Notice of Intent to Seek Enhanced Sentences

The appellant first co ntends that h is sentences are illegal due to the State's failure to file a Notice of Enhancement ten days prior to trial as required by Tenn. R. Crim. P. 12.3. See also Tenn. Code Ann. § 40-35-202 (notice to seek punishment as multiple, persistent or career offender). The appellant was sentenced as a range I offender for his convict ions o f aggravated robbery a nd aggravated

assault. Thus, with

regard to these

conviction s, this is a non-issue. We find the sentences imposed for these offenses valid. Notwithstanding the legality of his sentences for aggrava ted robbery

and aggrava

ted assault,
we conclude that the sentence of life without parole imposed for his convic tion of first

degree murder is illegal. 1 “[A] judgment imposed by a trial court in direct contravention of expres s statutor y provisions regarding sentencing is illegal and is subject to being set aside at any time, even if it has become final.” Statev. Mahler , 735 S.W. 2d 226, 228 (Tenn. 1987 ) (citing Burkhart , 566 S.W.2d at 871). The instant offenses were committed on December 24, 1992. Prior to 1993, th e only punishments

av ailable for a person convicted of first degree murder were life imprisonment and death. See State v. Cauthern , 967 S.W.2d 726, 735 (Tenn. 1998) (citing Tenn. Code Ann. § 39-13- 202(b)(1991)). Sentencing is jur isdictional and must

be executedin compliance with the applicable legislative mandates. See McConnell v. State, 12 S.W.3d 795, 798 (Tenn. 2000). Thus, eve n if the sentence was the sentence bargained for in the plea agreement, th e trial court lacked the statutory authority to impose a sentence, i. e. , life witho ut the possibility of parole, that deviated from the penalties proscribed by law. McConnell , 12 S.W.3d at 795, 799-800. The State concedes that the sentence of lifewithout t he possibi lity of parole is illegal. Accordingly, th e appellant 's conviction
a nd sentence for first degree murder is vacated and remanded to the tria l court for further proceedings.-4- B. Concurrent Nature of State and Federal Sentences

Fin all y, the appellant asserts that his guilty pleas were notknowingly and voluntarily entere d. Spe cif ica lly, he contends that h e has not receiv

ed t he benefit of his b

argained for

concurrent stat

e andfederal senten

ces. In suppo

rt of his positio

n, the appellant re

lies upon this court

's opinion in Derrick E. Mean s v. State , No. 02C01-9707-CR-00248 (Tenn. Crim. App. at Jackson, Aug. 13, 1998) ( per curiam ) (guilty pleas not knowingly e ntered where plea ag reement provided for concurrent state and federal sentences to be served in federal custody ).

Init ial ly, we note that an attack on a voidable conviction must be brought in a post-conviction proceeding. See Tenn. Code A nn . § 40-30-203. In the present case, the applicable statute of limitations for seeki

ng post-c onviction review ha

s exp ired. See Tenn. Code Ann. § 40-30-202. Moreover, in addition to the expiration of the statute of limitations period, the facts presently before this court are distinguishable from those before this court in Derrick E. Mean s v. State . In Derrick E. Means v. State , Defendant Means entered guilty pleas pursuant to a neg otiated plea agreement which provided that all of Defendant Means' sentences would b e serv ed concurrently with one another and concurrent

ly with a prior federal sentence. Derrick E. Means v. State , No. 02C01-9707- CR-00248. The agreement fur the r pr ovi ded tha t th e sen ten ces w ere t o be ser ved in f eder al c ust ody. I d

. Fede ral aut hor iti es s ubs equ ent ly re fus ed t o acc ept Defe nda nt M eans int o fed eral cus tod y t o c ommence service of his sentences, thereby resulting in the service of c onsecutive and not concurrent sentences. Id . In the pres ent case, neither the neg otiated plea ag

reement nor the j udgment forms reflect that the ap pellant's sta te s ent ence s ar e to be s erve d in fede ral cus tod y. Moreover, Tenn. R. Crim. P. 32 provides for concurrent service of state and federal sentences if explicitly ordered by the trial court. The appellant has not presented any evidence establishing that he has not received the bargained for sentence or that the bargained for sentence has not been fulfilled. Thus, this issue is without merit.
Conclusion Finding tha t th e tr ial cou rt w as w ith out sta tut ory a uthority to impose the bargained for sentence of life without the possibility of parole for the appellant's conviction of first degree murder,
we vacate theconviction and sentence for first degree murder. Moreover, since the appellant’s plea bargain agreement en

compassed not only

the charge of first degree murder but also the charg es for aggravated

robbery and aggravated a ssault, we are unable to separate the individual convictions/sentences impo sed un der the plea agreement in fashioning appropriate relief. Acco rdi ngly, we must vacate all convictions and remand to the trial court. On remand, the trial court may impose a sentence

that is mutually agr

eeable to the State and the appellant, so long as the sentence is available under the applicable law. If an agree ment is not re ached, the a ppellant may withdraw his guilty pleas and procee d to trial on t he original charges. See, e.g. , McConnell , 12 S.W.2d at 800.

___________________________________ DAVID G. HAYES, JUDGE