1 IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE

MICHAEL O’NEAL MCCON NELL, ) FOR PUBLICA TION ) Appellant, ) FILED : February 14, 2000 ) v. ) LAWRENCE CIRCUIT ) STATE OF TENNESSEE, ) HON. WILLIAM B. CAIN ) Appellee. ) NO. M1997-00163-SC-R11-PC
For the Appellant For the Appellee Charles W. Holt Paul G. Summers Lawrenceburg, Tennessee Attorney General & Repor ter Nashville, Tennessee Gordon W. Smith Assistant Attorney Gener al Nashville, Tennessee Ellen H. Pollack Assistant Attorney Gener al Nashville, Tennessee



### OPINI ON

COURT OF CRIMINAL APPE ALS REVERSED BARKER, J. INTRODUCTION

We granted the appeal in this case to decide whether the sentences imposed by



# FILED
February 14, 2000 Cecil Crowson, Jr. Appellate Cou rt Clerk1 Unde r the 198 2 Act, the m axim um Ran ge I te rm of im priso nm ent fo r both robb ery by u se of a dea dly weapon and se cond d egree m urder w as 35 yea rs. See Tenn. Code Ann. §§ 3 9-2-2 12, 39-2-501 (1982); Tenn. Code Ann. § 40 -35-109 ( Supp. 1983) . By contrast, unde r the 1989 Act,the maximum Range I sentence for r obbery by u se of a d eadly wea pon is twe lve years. See Tenn . Code A nn. §§ 40 -35-118 , - 111(b)(2), -112(a)(2) (1997). The maximum Range I sentence for seconddegree murder i s twenty-five years. See id. §§ 40-35-118, -111(b)(1), -112(a)(1). 2 the trial co urt pursuant to a plea barg ain agreement that exceeded pr ovisions of the Criminal Sentencing Reform Act of 1989 are illegal. We have examined the record and considered the arguments of the parties as well asapplicab le law. We conclude that the sentences imposed were outside the trial co urt’ s jurisdiction and were therefore illegal. Accordin gly, we vacate appellant’s sentences and remand this case to the trial court for proceedings consistent w ith this opinion.

BACKGROUND
Appellant, Michael O’Neal McConnell, was indicted on one count of fir st degree murder and six counts of robbery by use of a deadly weapon for offenses occu rring in January 1989. On November 20, 1990, after the State filed notice that it was seeking the death penalty, appellant entered p l eas of g uilty pursuant to a plea bargain agreement. The agreement provided that ap p ellant would plead gui lty as a Range I offender to th e following: (1) second degreemurder, for which he would be sentenced to thirty-five years; (2) five counts of robbery by use of a d eadly weap on, for wh ich he woul d receive f ive tenyear sentences to beserved concurrently with the second degree murder sentence; and (3) one count of robbery by use of a deadly weapon, for wh ich he would be sentenced to thirty-fi ve years tobe served consecutiv ely to the second degree murder sentence. The trial court sentenced appellant acco rding to the agreement for an effective sentence of seventy years. The se n tencing calculations w ere based on the Criminal Sent encing Reform Act of 1982 (“1982 Act”) and not the Criminal Sentencing R ef orm Ac t of 1989 (“1989 Act”). 1

On November 2, 1993, appellant filed a petition for pos t-conviction relie

f alleging that the trial court had no jurisdiction to enter thirty-five year sentences for second degree murder or robbery by use of

a deadly weapon. The trial court denied appell ant’s petition. The Court of Criminal Appea l s affirmed the lower court’s judgment and concluded that2 The Post-Conviction Procedure Act pr ovides tha

t an appe llant h as “the burden of proving t he allegat ions of fact by clear and co nvincing e vidence .” Tenn . Code A nn. § 40- 31-210 (1997). T his Act, however, governs petitions for post-convi ction rel ief fi led after May 10, 1 995, and motion s filed after th at date to reopen peti tions for post-convi ction rel ief that were co ncluded prior to May 10, 1 995. See id. § 40-30-201 Compiler’s Notes.Appellant filedpetit ions for post-convi ction rel ief on November 2, 1993 an d November 5, 1993, and it

is from the t rial co urt’s deni al of the se petit ions that appellant

soug ht pe rm issio n to a ppe al. Thus, the former “pr

eponderance of the evidence” st andard is appl icable i n this case. 3 the same effective sentence could hav e been imposed under either the 1982 A ct or the 1989 Act. We granted appellant’s applicati on for permission to appeal to deter mine whether his sentences are illegal.

DISCUSSION

In this post-convicti on proceeding, appellant has the burden of proving the allegations

in his petition b

y a preponderance of the evidence. See King v. State , 989 S.W.2d 319, 323 (Tenn. 1999). 2 The factual findings of the trial court are concl usive on appeal unless the evidence pr eponderates against the judg ment. See id.
Appellant’s sole argument on appeal is that the trial court was w ithoutjurisdiction under the 1989 Act to ent er thirty-five y ear sentences for a Range I offender on convictions

of second degree murder and robbery by use of a deadly weapon. We agree. The 1989 Act provides that “ any person sentenced on or after November 1, 1989, for an offense committed between July 1,1982 and November 1, 1989, shall be sentenced under the p rovisionsof [the Act].” Tenn. Code Ann. § 40-35-117(b) (1997 ) (emphasis added). The offenses with which appell ant is charged occurred in January 1989 and
were followed by sentencing in 1990. Thus, the1989 Act applied in this cas e. Pursuant to the 1989 Act, a Range I sentence for second degree murder, a Class A felony, cannot be less than 15 nor more than 2 5 years. See id. §§ 40-35-118, -35-111(b)(1 ), -35- 112(a)(1). Als o pursuant to the 1989 Act, a Range I sentence for robbery by use of a deadly weapon, a Class B felony , must be between 8 and 12 year s. See id. §§ 40-35- 118, -35-111(b)(2), -35-112(a)(2).

The sentences that the trial cou rt actually imposed, how ever, de viated from the provi sions of the 1989 Act. On five counts of r obbery by use of a deadly weapon , th e court’s sentence of 10 years per count complied with the 1989 Act.Thus, the sentences4

on these counts are not in disput e. On the charge of second degr ee murder and the
rem ai ning charge of robbery by use of a deadly weapon, the l ength of the sentences imposed by the trial cour t exceeded that which i s provided for by the 1989 Act.

The State contends that the trig gering provision of the 1989 Act is not jurisdictional, thus permitting the trial court to depart fro m the mandates of the 1989 Act. But see Archer v. State , 851 S.W.2d 157, 16 3 (Tenn. 1993); Henderson v. State ex rel. Lance , 419 S.W.2d 176, 178-79 (Tenn. 1967). In support of its argument, the State relies heavily
on our decisi on in Hicks v. State , 945 S.W.2d 706 (Tenn. 1997). In Hicks , the Court refused to overturn a plea bargain se ntence that provided for a Range II i ncarceration with a Range I release eligibility. See id. at 706. The Court concluded that the agreed range could not

be attacked on appeal where the prosecution and defendant negoti ated in good faith and without fraud. See id. at 708.

The 1989 Act did not provide for coupl ing di fferent incarceration and release eligibility ranges, but we had prev iously approved of

such a practice under the 1982 Act. See State v. Mahler , 735 S.W.2d 226, 227-28 (Tenn. 1987). We concluded in Hicks that the legislature’s failur

e to limit theuse of offender classification and rel ease eligibility as plea bargaining tools evinced the legislature ’s intent to permit the practic e. See Hicks , 945 S.W.2d at 709. We did not, however, condone departures from the maximum and minimum sentencing guideli nes imposed by the 1989 Act.

Our decision in M ahler

is i llustrative of the disti nction between the use of plea bargaining tools and sentencing. Pur suant to aplea bargain agreement, the accused in Mahler pleaded guilty to murder in the second degree as a Rang e II aggravated offender
even th ough his prior crimi nal record did not justify a Range II classificati on. See 73 5 S.W.2d at 227-28. In affirming the sentence, we noted that the sentence actually entered
was within the statutory limits fixed for a Range II offender. See id. at 228. According to the Court, “a judgment

imposed by a trial court in direct contravention of express statutory provi sions regarding sentencing is illegal and is s ubject to being set aside at a ny time , even if it has become final.” Id. We also observed that, when courts did i mp os e sentences higher or lower than the statutorily authorized punishment, the se ntences were3 In Henderson , the defenda nt agreed to plead guil ty to a charge of armed robbery committed whi le he was on parole. Pursuant to the plea a greem ent, the defendant accepted a concurre nt sentence whi ch was entered by the trial cour t. A statute,however, requi red the trial court to i mpose consecutive sentenci ng for crimes com mitte d by a d efen dan t on p arole . W e con clud ed th at the trial co urt ha d no j urisd iction to ac t in contraventi on of the sent enc ing st atute , thus warr antin g the issua nce of a w rit of habeas corpus to rel ease the defendant fr

om his guilt

y plea. See Henderson , 419 S.W .2d at 178 -79; see also Arche r v. State , 851 S.W .2d 157, 163 (Tenn. 1993 ). 5 to be vacated or correct ed. See id.

Our decision today in no

way alters the abi lity of theState and defendants to use offenderclassification and release eligibi lity as subjects of plea bargain negotiations. These element s of plea bargainin g have been and still are properly characterized as nonjurisdictional. However, we d o maintain the disti nction between the subjects of plea bargaining and the leng th of a sentence.
Sentencing is jurisdictional and must be executed in compliance with the 1989 Ac t. OurCon stitution grants the Leg islature the power to de fine the limits of a trial cour t’ s jurisdiction. Tenn. Const. art. VI, § 8 (“The jurisdiction of the Circuit, Chancery and other Inferior Courts, shall be as now establis hed by law, until changed by the Legislature.”). Conseque ntly, a trial court’s jurisdict ion with reg ard to sen tencing is limited b y Legislati ve enactments. Compare Henderson v. State ex rel. Lance , 419 S.W.2d 176 (Tenn. 1967). 3 The General Assembly, in 1989, enacted a comprehensive sentencing plan, the Criminal Sentencing Reform Act of 1989. The 1989Act provides that “any person sentenced on
or after November 1, 1989, for an offense c ommi tted between July 1, 1982 and November

1, 1989, shall be sentenced under the prov isions of [the Act].” Tenn. Code A nn. § 40-35-117(b) (1997) (emphas is added). Thus, the jurisdi ction of a trial court t o sentence defendants is limited to pr ovisions of the 1989 Act.

Previousdecisions have recognized this principle when examining se n tences entered pursuant to a pl ea bargain agreem ent but in excess o f the relevant ra nge classification. In State v. Cutright , No. 02C01-9108-CC-00175 (Tenn. Mar. 25, 1992), an unreported decision of this Court, we exami ned a factual scenario identical to thatnow before us. After the effective date of the 198 9 A ct, the defendant agreed to a plea bargain agreement that would impos e a sentence under the 1982 Act, ev en though the term exceeded the 1989 Act’s sentenci ng guideli nes. We concluded that because the4 In approvi ng the use of off ender classifi cation and r elease eli gibil ity

as plea bargai ning tool s in Hicks , we disti nguished Cutright on the grounds t hat the Cutright sentence “was voi d on its f ace because it ref lected that the defendant . . . was improperly sentenced unde r the 1982 Act.” Hicks , 945 S.W.2d at 709 n.9.
5 Reliance by the intermediate court on ou r dec ision in Cutright is not mispl aced even though Cutright is not a publi shed opinion of this C ourt. We have previously noted that “[u]npublished intermediate court opinions have persuasive force.” See Allstate Ins. C o. v. W atts , 811 S.W .2d 883, 886 n.2 (Tenn. 1991 ). W hile not control ling aut hority , unpubli shed decisions of this Cour t are enti

tled to at least t he sam e respe ct.
6 It app ears that a cour t has perm itted a plea b arga in sen tenc e tha t was in excess of the pen alty imposed by sta tute in only one rep orted ca se. See State v. Terry , 755 S.W.2d 854 (Tenn. Crim . App. 1988). This case, however, preceded our deci sion in Cutright which expli citl y refus ed to permit such a senten ce to stand.
7 In fact, the 1989 Act cont emplates that i ts provi sions wil l govern pl ea bargain agr eements. The 1989 Act permits a court

to impose a plea ba rgain sente nce without a specifi c sentencing hearing or presentence report. See Tenn. Code Ann. § 40-35-203( b), -205(d)(1997). I f the Legi slature also wanted to per mit the State and defendants t o contract out

of the 1989 Act

altoget her, it

could have done so. It di d not

. Cons equen tly, plea barga in senten ces rem ain subje ct to the se ntencing provisions of the 198 9 Act. 6 plea bargain agreement exceeded the maxi mum sentence available under th e 1989 Act, the sentence was “a nulli ty and cannot bewaived.”4 The intermediate court then rel ied
on Cutright

to set aside sentences in ex cess ofthe 1989 Act, but entered pursuant to a plea bargain agreement. 5 See, e.g. , Dixon v. State , 934 S.W.2d 69, 73 (Tenn. Crim. App. 1996); Woods v. State , 928 S.W.2d 52, 54 (T enn. Crim. App. 1996). 6

The State, despite the constituti onal mandate concerni ng j urisdiction, previ ous court decisions, and the text of the 1989 Act, nevertheless cont end s that the sentence is valid. According to the State, the sentence is legal because it is what the appellant bargained for and because a similar res ult could be reached by appl ying the 1989

Ac t. These arguments, however, ignore that to affirm the sentence imposed below is to render ineffective the sentencing pr ovisions of the 1989 Act.

While it is true that a plea bar gai n agreem ent is contractual, see State v. Howington , 907 S.W.2d 403, 407 (Tenn. 199 5), contract principles extend only so far, accord State v. Brown , 928 S.W.2d 453, 456 (Tenn. Crim. App. 1996) (“[ A] judgment of conviction is not a contract, and pri nciples of contract law do not apply.”). The 1989 Act establishesthe outer limits withi n which the State and a defendant ar e free to negotiate, and the courts are bound to respect those limits. 7 If we accepted the State’s ar gument that the 1989 Act is not juri sdiction al, we could easily be left w ith the logical corollary

to the matter befo re us: a plea bargained sentence less than the stat utory mini mum. Sentences beneath the minimum provided for by statute, however, hav e been8 The 1989 Act was clear ly applic able w hen appe llant p leade d guilt y purs uan t to the plea b arga in ag reem ent in Novem ber 199 0. See Tenn. Code Ann. § 40-35- 117(b) (1997). It i s unclear t hen why the State did not st ructure t he plea agreement to comply wit h the sentenci ng guideli nes of the 1989 Act when this argum ent imp liedly conced es that it cou ld have do ne so. In fact, our r eview of th e transc ript of the po stconvicti on petitio n hea ring s ugg ests that th e Sta te ha d exp licit knowledge of the requirements of the 1989 Act. Counsel for appellant testified at that hearing that part of the pl ea bargain n egotiations with the Sta te included a spe cific d iscu ssio n “ab out w hat w ould o ccu r und er the old law and s pec ifically wha t wou ld occur under the new l aw.” This makes the fai lure to co mply with the 1989 Act even less understa ndable.
9 We note that our decisi on is consist ent with decisions of

other jurisdict ions that have considered the issue before this Cou rt. See, e.g. , Cha e v. Pe ople , 780 P.2d 481, 486 (Colo. 1989) ( “[W]hen a defendant enters into a pl ea agreement that i ncludes as a materi al element a r ecommendation for an il legal sent ence and the illeg al sen tenc e is in fact imp osed o n the def endan t, the guilty plea is i nvalid a nd must be vacated because the b asis on which the def endant enteredthe plea included the impermissible i nducement of an ill egal senten ce.”); Forbe rt v. State , 437 So. 2d 1079, 1081 (Fl a. 1983) (“[W ]hen a de fendan t pleads g uilty with the understan ding that the sentence he or

she rece ives in exchange is l egal, when i n fact the sent ence is not legal , the defenda nt should be given the opportun ity to wit hdraw the pl ea when later challengi ng the legality of the se ntence .”); State v. Sm ith , 519 A.2d 367, 368 (N.J. Su per. Ct. App. Div. 1 986) (“ Althou gh we defer to the reasonabl eness of negotiated dispositions, there can be no plea bargain to an illegal sentence.”) 7 consistently rejected as illegal. See Daniels v. State , 140 S.W.2d 148, 14 9 (Tenn. 1940); State v. Hamlin , 655 S.W.2d 200, 201-02 (Tenn. Crim. App. 1983); Jenkins v. State , 509 S.W.2d 240, 247-48 (Tenn. Crim. App. 1974); Yet the reasoning advanced

by the State would permit this very result and w ould be an expansion of the trial court’s jurisdicti on by this Court. Such an expansion would be an obvious and i mpermissible intrusion on the clear Constitutional prerog ative of the Legislature to define the c ontours ofa trial court’s jurisdiction.

Also unsatisfactory is the Sta te’s argument that the sev enty-year sent

ence is appropriate because i t could have been achieved under the 1989 Act through a combination of concurrent and consecutive sentencing. 8 We agree that if the trial court had applied the 198 9 Act, it may well have still

imposed an effective sentence of 70 years. But it is equal ly true that t he appellant could have received a shorter sentence under the 1989 Act than the one imposed. If the t rial court had imposed the sa m e comb ination of concurrent and consecutiv e sentences using the sentenci ng guidelines of the 1989 Act rather

than the 1982 Act, the appellant w ould have received a max imum effect ive sentence of thirty-sev en years -- not sev

enty years. The

State’s argument then only emphasizes the danger of departing from the sentencing guidelines.

The sentencing guidelines of the 1989 Act are jurisdictional and bind ing on trial courts. The thirty-five-y ear sentences for second degree murder and robbery by use of
a deadly weapon are for terms in excess of the provisions of the 1989 Act. Cons equently, the sentence entered by the tri al court is illegal and must be set aside. 9 On remand, the(citations omitted). 8

trial court may impose a sentence that is mutually agreeable to

the State and appellant,
so long as the sentence is available under the 1989 Act. If an agreement is not reached, though, app ella nt may withdraw hi s guilty plea and pro ceed to trial on the orig inal charges.

CONCLUSION

We conclude that thir ty- five-yea r sentences for a Range I offender for s econd degree murder and robbery by use of a deadly weapon are not permitted by the 1989 Act. Thus, they are ill egal and m ust be vaca ted. Acco rdingly, we reverse the judgments of the trial court and theCourt of Criminal Appeals and remand this case to the trial cour t for further proceedings.

__________________________ WILLIAM M. BARKER, JUSTICE CONCUR: ANDERSON, C.J. DROWOTA, BIRCH, AND HOLDER, J.J.