1

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

MICHAEL O’NEAL MCCONNELL, ) FOR PUBLICATION

 )

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 & Reporter

Nashville, Tennessee

Gordon W. Smith

Assistant Attorney General

Nashville, Tennessee

Ellen H. Pollack

Assistant Attorney General

Nashville, Tennessee

OPINION

COURT OF CRIMINAL APPEALS

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 Court Clerk
 

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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. §§ 39-2-212, 39-2-501 (1982);

Tenn. Code Ann. § 40-35-109 (Supp. 1983). By contrast, under the 1989 Act, the maximum Range I

sentence for robbery 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 second degree murder is twenty-five

years. See id. §§ 40-35-118, -111(b)(1), -112(a)(1).

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the trial court pursuant to a plea bargain agreement that exceeded provisions of the

Criminal Sentencing Reform Act of 1989 are illegal. We have examined the record and

considered the arguments of the parties as well as applicable law. We conclude that the

sentences imposed were outside the trial court’s jurisdiction and were therefore illegal.

Accordingly, we vacate appellant’s sentences and remand this case to the trial court for

proceedings consistent with this opinion.

BACKGROUND

Appellant, Michael O’Neal McConnell, was indicted on one count of first degree

murder and six counts of robbery by use of a deadly weapon for offenses occurring in

January 1989. On November 20, 1990, after the State filed notice that it was seeking the

death penalty, appellant entered pleas of guilty pursuant to a plea bargain agreement.

The agreement provided that appellant would plead guilty as a Range I offender to the

following: (1) second degree murder, for which he would be sentenced to thirty-five years;

(2) five counts of robbery by use of a deadly weapon, for which he would receive five tenyear sentences to be served concurrently with the second degree murder sentence; and

(3) one count of robbery by use of a deadly weapon, for which he would be sentenced to

thirty-five years to be served consecutively to the second degree murder sentence. The

trial court sentenced appellant according to the agreement for an effective sentence of

seventy years. The sentencing calculations were based on the Criminal Sentencing

Reform Act of 1982 (“1982 Act”) and not the Criminal Sentencing Reform Act of 1989

(“1989 Act”).1

On November 2, 1993, appellant filed a petition for post-conviction relief 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 appellant’s petition.

The Court of Criminal Appeals affirmed the lower court’s judgment and concluded that
 

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 The Post-Conviction Procedure Act provides that an appe llant has “the burden of proving the

allegations 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-conviction relief filed after May 10, 1 995, and motion s filed after th at date

to reopen petitions for post-conviction relief that were co ncluded prior to May 10, 1 995. See id. § 40-30-201

Compiler’s Notes. Appellant filed petitions for post-conviction relief on November 2, 1993 and November

5, 1993, and it is from the trial court’s denial of these petitions that appellant soug ht permission to appeal.

Thus, the former “preponderance of the evidence” standard is applicable in this case.

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the same effective sentence could have been imposed under either the 1982 Act or the

1989 Act. We granted appellant’s application for permission to appeal to determine

whether his sentences are illegal.

DISCUSSION

In this post-conviction proceeding, appellant has the burden of proving the

allegations in his petition by 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 conclusive on

appeal unless the evidence preponderates against the judgment. See id.

Appellant’s sole argument on appeal is that the trial court was without jurisdiction

under the 1989 Act to enter thirty-five year 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 provisions of [the Act].” Tenn. Code Ann. § 40-35-117(b) (1997) (emphasis

added). The offenses with which appellant is charged occurred in January 1989 and

were followed by sentencing in 1990. Thus, the 1989 Act applied in this case. 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 25 years. See id. §§ 40-35-118, -35-111(b)(1), -35-

112(a)(1). Also 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 years. See id. §§ 40-35-

118, -35-111(b)(2), -35-112(a)(2).

The sentences that the trial court actually imposed, however, deviated from the

provisions of the 1989 Act. On five counts of robbery by use of a deadly weapon, the

court’s sentence of 10 years per count complied with the 1989 Act. Thus, the sentences
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on these counts are not in dispute. On the charge of second degree murder and the

remaining charge of robbery by use of a deadly weapon, the length of the sentences

imposed by the trial court exceeded that which is provided for by the 1989 Act.

The State contends that the triggering provision of the 1989 Act is not jurisdictional,

thus permitting the trial court to depart from the mandates of the 1989 Act. But see

Archer v. State, 851 S.W.2d 157, 163 (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 decision in Hicks v. State, 945 S.W.2d 706 (Tenn. 1997). In Hicks, the Court

refused to overturn a plea bargain sentence that provided for a Range II incarceration

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 negotiated

in good faith and without fraud. See id. at 708.

The 1989 Act did not provide for coupling different incarceration and release

eligibility ranges, but we had previously 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 failure to limit the use of offender classification and release eligibility as

plea bargaining tools evinced the legislature’s intent to permit the practice. See Hicks,

945 S.W.2d at 709. We did not, however, condone departures from the maximum and

minimum sentencing guidelines imposed by the 1989 Act.

Our decision in Mahler is illustrative of the distinction between the use of plea

bargaining tools and sentencing. Pursuant to a plea bargain agreement, the accused in

Mahler pleaded guilty to murder in the second degree as a Range II aggravated offender

even though his prior criminal record did not justify a Range II classification. See 735

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

provisions regarding sentencing is illegal and is subject to being set aside at any time,

even if it has become final.” Id. We also observed that, when courts did impose

sentences higher or lower than the statutorily authorized punishment, the sentences were
 

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 In Henderson, the defendant agreed to plead guilty to a charge of armed robbery committed while he

was on parole. Pursuant to the plea a greem ent, the defendant accepted a concurrent sentence which was

entered by the trial court. A statute, however, required the trial court to impose consecutive sentencing for

crimes com mitte d by a d efen dant on parole . W e con cluded that the trial co urt ha d no jurisd iction to ac t in

contravention of the sentenc ing statute , thus warranting the issua nce of a w rit of habeas corpus to release

the defendant from his guilty plea. See Henderson, 419 S.W .2d at 178 -79; see also Arche r v. State, 851

S.W .2d 157, 163 (Tenn. 1993 ).

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to be vacated or corrected. See id.

Our decision today in no way alters the ability of the State and defendants to use

offender classification and release eligibility as subjects of plea bargain negotiations.

These elements of plea bargaining have been and still are properly characterized as nonjurisdictional. However, we do maintain the distinction between the subjects of plea

bargaining and the length of a sentence.

Sentencing is jurisdictional and must be executed in compliance with the 1989 Act.

Our Constitution grants the Legislature the power to define the limits of a trial court’s

jurisdiction. Tenn. Const. art. VI, § 8 (“The jurisdiction of the Circuit, Chancery and other

Inferior Courts, shall be as now established by law, until changed by the Legislature.”).

Consequently, a trial court’s jurisdiction with regard to sentencing is limited by Legislative

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 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 provisions of [the Act].” Tenn. Code

Ann. § 40-35-117(b) (1997) (emphasis added). Thus, the jurisdiction of a trial court to

sentence defendants is limited to provisions of the 1989 Act.

Previous decisions have recognized this principle when examining sentences

entered pursuant to a plea bargain agreement but in excess of the relevant range

classification. In State v. Cutright, No. 02C01-9108-CC-00175 (Tenn. Mar. 25, 1992), an

unreported decision of this Court, we examined a factual scenario identical to that now

before us. After the effective date of the 1989 Act, the defendant agreed to a plea

bargain agreement that would impose a sentence under the 1982 Act, even though the

term exceeded the 1989 Act’s sentencing guidelines. We concluded that because the
 

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 In approving the use of offender classification and release eligibility as plea bargaining tools in Hicks,

we distinguished Cutright on the grounds that the Cutright sentence “was void on its face because it reflected

that the defendant . . . was improperly sentenced unde r the 1982 Act.” Hicks, 945 S.W.2d at 709 n.9.

 

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 Reliance by the intermediate court on ou r dec ision in Cutright is not misplaced even though Cutright

is not a published opinion of this Court. 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 controlling authority, unpublished decisions of this Court are entitled to at least the sam e respe ct.

 

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 It app ears that a court has perm itted a plea b arga in sen tenc e that was in excess of the pen alty

imposed by statute 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 decision in Cutright which explicitly refused to permit such a sentence

to stand. 

 

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 In fact, the 1989 Act contemplates that its provisions will govern plea bargain agreements. The 1989

Act permits a court to impose a plea bargain sentence without a specific sentencing hearing or presentence

report. See Tenn. Code Ann. § 40-35-203(b), -205(d) (1997). If the Legislature also wanted to permit the

State and defendants to contract out of the 1989 Act altogether, it could have done so. It did not.

Cons equen tly, plea barga in senten ces rem ain subje ct to the se ntencing provisions of the 198 9 Act.

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plea bargain agreement exceeded the maximum sentence available under the 1989 Act,

the sentence was “a nullity and cannot be waived.”4 The intermediate court then relied

on Cutright to set aside sentences in excess of the 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 (Tenn. Crim. App. 1996).6

The State, despite the constitutional mandate concerning jurisdiction, previous

court decisions, and the text of the 1989 Act, nevertheless contends 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 result could be reached by applying the 1989 Act.

These arguments, however, ignore that to affirm the sentence imposed below is to render

ineffective the sentencing provisions of the 1989 Act. 

While it is true that a plea bargain agreement is contractual, see State v.

Howington, 907 S.W.2d 403, 407 (Tenn. 1995), 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 principles of contract law do not apply.”). The 1989 Act

establishes the outer limits within which the State and a defendant are free to negotiate,

and the courts are bound to respect those limits.7 If we accepted the State’s argument

that the 1989 Act is not jurisdictional, we could easily be left with the logical corollary to

the matter before us: a plea bargained sentence less than the statutory minimum.

Sentences beneath the minimum provided for by statute, however, have been
 

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 The 1989 Act was clearly applic able w hen appe llant pleade d guilt y purs uant to the plea b arga in

agreement in Novem ber 199 0. See Tenn. Code Ann. § 40-35-117(b) (1997). It is unclear then why the

State did not structure the plea agreement to comply with the sentencing guidelines 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 stconviction petitio n hea ring s uggests that th e Sta te had exp licit knowledge of the requirements of the 1989

Act. Counsel for appellant testified at that hearing that part of the plea bargain n egotiations with the Sta te

included a spe cific d iscussion “ab out what would o ccur und er the old law and s pec ifically what wou ld occur

under the new law.” This makes the failure to comply with the 1989 Act even less understandable.

 

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 We note that our decision is consistent with decisions of other jurisdictions 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 plea agreement that includes as a material element a recommendation for an illegal sentence

and the illeg al sen tenc e is in fact imp osed o n the def endan t, the guilty plea is invalid and must be vacated

because the basis on which the defendant entered the plea included the impermissible inducement of an

illegal senten ce.”); Forbe rt v. State, 437 So. 2d 1079, 1081 (Fla. 1983) (“[W ]hen a de fendan t pleads g uilty

with the understanding that the sentence he or she rece ives in exchange is legal, when in fact the sentence

is not legal, the defendant should be given the opportunity to withdraw the plea when later challenging the

legality of the se ntence .”); State v. Sm ith, 519 A.2d 367, 368 (N.J. Su per. Ct. App. Div. 1986) (“Although we

defer to the reasonableness of negotiated dispositions, there can be no plea bargain to an illegal sentence.”)

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consistently rejected as illegal. See Daniels v. State, 140 S.W.2d 148, 149 (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 would be an expansion of the trial court’s jurisdiction by

this Court. Such an expansion would be an obvious and impermissible intrusion on the

clear Constitutional prerogative of the Legislature to define the contours of a trial court’s

jurisdiction.

Also unsatisfactory is the State’s argument that the seventy-year sentence is

appropriate because it 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 1989 Act, it may well have still imposed an effective sentence of 70

years. But it is equally true that the appellant could have received a shorter sentence

under the 1989 Act than the one imposed. If the trial court had imposed the same

combination of concurrent and consecutive sentences using the sentencing guidelines

of the 1989 Act rather than the 1982 Act, the appellant would have received a maximum

effective sentence of thirty-seven years -- not seventy 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 binding on trial

courts. The thirty-five-year 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. Consequently,

the sentence entered by the trial court is illegal and must be set aside.9 On remand, the
(citations omitted).

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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, appellant may withdraw his guilty plea and proceed to trial on the original

charges.

CONCLUSION

We conclude that thirty-five-year sentences for a Range I offender for second

degree murder and robbery by use of a deadly weapon are not permitted by the 1989 Act.

Thus, they are illegal and must be vacated. Accordingly, we reverse the judgments of the

trial court and the Court of Criminal Appeals and remand this case to the trial court for

further proceedings.

__________________________

WILLIAM M. BARKER, JUSTICE

CONCUR:

ANDERSON, C.J.

DROWOTA, BIRCH, AND HOLDER, J.J.