IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

April 6, 2011 Session

DAVID CANTRELL v. JOE EASTERLING, WARDEN

Appeal by Permission from the Court of Criminal Appeals

Circuit Court for Hardeman County

No. 09-02-0415 Joe Walker, Judge

No. W2009-00985-SC-R11-HC - Filed August 1, 2011

GARY R. WADE, J., concurring in the judgment.

I can concur that the petitioner’s sentence is illegal and void because it directly

contravenes the multiple rapist sentencing statute. By granting limited habeas corpus relief

and remanding to the trial court for entry of a corrected sentence, the majority has essentially

adopted the position of the State. While this result is proper under these specific

circumstances, I would submit that the ruling today is inconsistent with the opinion in

Edwards v. State, 269 S.W.3d 915 (Tenn. 2008), a case I continue to believe was wrongly

decided. Moreover, in an apparent effort to conform its decision today with rulings in our

previous habeas corpus cases, the majority has created new and heightened standards for

relief which, in my assessment, will serve to further confuse this area of the law. Finally, I

believe that this case offered an opportunity to overrule altogether our decision in Edwards

and, by doing so, reconcile a series of our prior opinions on the subject of habeas corpus.

Background

Article I, section 15 of the Tennessee Constitution preserves the right to seek habeas

corpus relief in our state courts. The writ of habeas corpus has been regulated in Tennessee

by statute for over one hundred years. Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007);

see also Tenn. Code Ann. § 29-21-101(a) (Supp. 2010) (“Any person imprisoned or

restrained of liberty, under any pretense whatsoever, except in cases specified in subsection

(b) and in cases specified in § 29-21-102, may prosecute a writ of habeas corpus, to inquire

into the cause of such imprisonment and restraint.”). Although the statutory language is

broad, “the grounds upon which habeas corpus relief will be granted are narrow” and

“[h]abeas corpus relief is proper only if the petition establishes that the challenged judgment

is void, as opposed to merely voidable.” Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004)

(citations omitted). This Court has held that the writ of habeas corpus may be sustained

“only when it appears upon the face of the judgment or the record of the proceedings . . . that
a court lacked jurisdiction or authority to sentence a defendant or that the sentence has

expired.” Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000); accord State v.

Galloway, 45 Tenn. (5 Cold.) 326, 336-37 (1868). An illegal sentence qualifies as void and

may be set aside through habeas corpus at any time. Summers v. State, 212 S.W.3d 251, 256

(Tenn. 2007) (citing Moody v. State, 160 S.W.3d 512, 516 (Tenn. 2005)).

Thirty-three years ago, this Court decided State v. Burkhart, 566 S.W.2d 871 (Tenn.

1978), the leading case on the subject of illegal sentences. Burkhart, who was serving a

sentence for burglary, escaped from prison. When he pled guilty to a charge of escape, the

trial court imposed a concurrent sentence, even though the relevant statute required a

consecutive term. Id. at 872. The concurrent sentence was imposed “in direct contravention

of the express [statutory] provisions . . . and consequently was a nullity.” Id. at 873. Citing

holdings in a number of other jurisdictions, this Court ruled that “a trial judge may correct

an illegal, as opposed to a merely erroneous, sentence at any time, even if it has become

final.” Id. (emphasis added). Because Burkhart asserted that his plea was the result of an

agreement that was no longer valid, the Court observed that if his allegation was “true, [he]

would be entitled to proceed to trial on [the escape] charge” and remanded for a hearing on

that issue. Id. Burkhart, therefore, has primarily stood for the proposition that an illegal

sentence imposed by a trial court – that is, a sentence that directly contravenes express

statutory provisions – may be set aside at any time, and, further, that a remand is likely

warranted when the illegal sentence is the result of a plea agreement.

The decision in State v. Mahler, 735 S.W.2d 226 (Tenn. 1987), signaled an important

development in this area of the law in the context of a plea agreement. Mahler, who was

charged with first degree murder, pled guilty to second degree murder and, even though his

prior criminal history warranted only a Range I classification, agreed to be sentenced as a

Range II offender. Id. at 226-27. Later, he filed a post-conviction petition arguing that his

sentence was illegal. Id. at 227. While acknowledging that a judgment in contravention of

statute is illegal and may be set aside at any time, this Court distinguished Burkhart and

denied relief for two reasons: “[t]he sentence imposed was clearly within statutory limits

fixed for [second degree] murder” and “any question as to the classification of appellant as

a Range II offender or as to his release eligibility was waived by the guilty plea.” Id. at 228.

For the first time, this Court drew a distinction between a sentence imposed by a trial court

and one agreed to by plea bargain.

In Hicks v. State, 945 S.W.2d 706 (Tenn. 1997), decided ten years after Mahler, this

Court restated the distinction. Hicks filed a post-conviction challenge to his “hybrid”

sentence: he had entered into a plea agreement with the State to serve a Range II sentence

of ten years for voluntary manslaughter with a Range I release eligibility of thirty percent.

Id. at 706. While observing that the Court of Criminal Appeals was split on the propriety of

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such a sentence under the Criminal Sentencing Reform Act of 1989 (“1989 Act”), id. at 708-

09, this Court denied relief, holding, as in Mahler, that “a knowing and voluntary guilty plea

waives any irregularity as to offender classification or release eligibility.” Id. at 709. The

Hicks opinion noted that Mahler had been published for more than a year when the General

Assembly passed the 1989 Act, and “[h]ad 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.” Id. Because the

General Assembly chose not to do so, the Court determined that the legislature’s intent was

to permit the practice. Id. Hicks, having entered into the plea agreement knowingly and

voluntarily, could not later mount a collateral attack on the legality of his sentence even

though the release eligibility determination contravened the provisions of the 1989 Act.

The decision in McConnell v. State, 12 S.W.3d 795 (Tenn. 2000), established limits

to the rulings in Mahler and Hicks. McConnell, who had previously pled guilty to second

degree murder and robbery, filed for post-conviction relief, arguing that his sentence was

illegal because it was calculated pursuant to the Criminal Sentencing Reform Act of 1982

even though he had committed the offense after the 1989 Act became effective. Id. at 796-

97. This Court reaffirmed the holding in Hicks, observing that offender classification and

release eligibility determinations were proper “subjects of plea bargain negotiations” and that

“[t]hese elements of plea bargaining” qualified “as non-jurisdictional.” Id. at 798. Because,

however, the term of years exceeded the statutory maximum under the 1989 Act, id. at 800,

this Court granted relief from the convictions, explaining that, “[w]hile it is true that a plea

bargain agreement is contractual, contract principles extend only so far.” Id. at 799 (citation

omitted). Allowing a sentence in excess of the statutory maximum simply because it is the

product of a plea agreement would, according to the Court as constituted at that time, “be an

obvious and impermissible intrusion on the clear Constitutional prerogative of the Legislature

to define the contours of a trial court’s jurisdiction.” Id.

In Moody, 160 S.W.3d at 512, decided five years after McConnell, this Court

established the procedure for challenging an illegal sentence. Convicted of aggravated

assault and spousal sexual battery, Moody, by agreement with the State, was placed on

probation pursuant to a program that required him to register as a sex offender. Id. at 514.

During his probation, “Moody neither sought a direct appeal of his convictions and sentences

nor challenged them in a post-conviction or habeas corpus proceeding.” Id. Almost four

years later, however, after his probation was revoked, he filed a “Motion to Correct Errors

in Judgment,” arguing that his sentence was illegal because neither of the offenses of which

he was convicted was a “sexual offense” for registration purposes as defined by statute. Id.

at 514-15. Moody appealed the trial court’s denial of his motion by filing a petition for writ

of certiorari, but the Court of Criminal Appeals dismissed the appeal, holding that he should

have sought relief from the sentences through a habeas corpus petition. Id. at 514. This

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Court affirmed, holding “that the proper procedure for challenging an illegal sentence at the

trial level is through a petition for writ of habeas corpus, the grant or denial of which can

then be appealed under the Rules of Appellate Procedure.” Id. at 516 (citing Stephenson, 28

S.W.3d at 912).

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In Smith v. Lewis, 202 S.W.3d 124 (Tenn. 2006), this Court confirmed the principle

that an illegal sentence apparent on the face of the judgment or within the record of the

underlying proceedings renders the judgment void, but also held that where the illegality is

in the sentence rather than the conviction, only the sentence is void, and the conviction may

remain intact. Id. at 130. Smith had pled guilty to one count of child rape and agreed to

serve fifteen years as a Range I offender. Id. at 126. Although the original and amended

orders provided that he would be eligible for early release, this was not permissible under

Tennessee Code Annotated section 39-13-523(b) (Supp. 1996), which provides that one

convicted of child rape must serve the full sentence without possibility of early release. Id.

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at 127. The Court, while holding that Smith’s sentence was illegal, remanded to the trial

court of conviction for a corrected sentence, to be served at 100%, but did not vacate the

underlying conviction, explaining that “where the illegality infects only the sentence, only

the sentence is rendered void and habeas corpus relief may be granted to the extent of the

sentence only. In such cases, the underlying conviction remains intact.” Id. at 130. Unlike

the procedure adopted in Burkhart, in apparent reliance on Stephenson, this Court chose not

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Later, in Summers, 212 S.W.3d at 261, this Court refined how the illegality of a sentence might be 1

established when the alleged defect does not appear on the face of the judgment. In his habeas corpus

petition, Summers claimed that by imposing his sentence for escape concurrently with his other sentences,

the trial court’s order contravened Tennessee Code Annotated section 39-16-605(c) and Tennessee Rule of

Criminal Procedure 32(c)(3)(B), both of which require consecutive sentencing for an escape conviction. Id.

at 256. We held that when there is “an illegal sentence claim based on facts not apparent from the face of

the judgment, an adequate record for summary review must include pertinent documents to support those

factual assertions.” Id. at 261. Because the judgment on his escape conviction was “facially valid and

Summers failed to support his factual assertions with pertinent documents from the record of the underlying

proceedings,” this Court determined that it was proper for the trial court to have dismissed his petition

without either appointing counsel or holding a hearing. Id. at 262. Summers, therefore, necessarily

recognizes a challenge to a possible jurisdictional defect in a sentence that is “not apparent from the face of

the judgment,” so long as “pertinent documents” from the record are attached that establish the illegality of

the sentence.

Thisstatute isthe same one at issue in this case, as it containsthe requirement of mandatory service 2

at 100% for multiple rapists as well as child rapists.

In Stephenson, this Court, after affirming a first degree murder conviction, setting aside a death 3

penalty, and remanding for re-sentencing, reviewed the propriety of a subsequent plea agreement providing

for a sentence of life without the possibility of parole. 28 S.W.3d at 911. Because life without parole was

(continued...)

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to remand to the trial court for a determination of whether Smith would be allowed to

withdraw his plea, because “the record . . . [did] not demonstrate on its face that the illegal

provision . . . was a bargained for element of [the] plea.” Id.; see also McLaney v. Bell, 59

S.W.3d 90 (Tenn. 2001) (remanding for a determination of whether consecutive sentencing

was mandatory, and, if so, permitting as an option the withdrawal of the plea).

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Hoover v. State, 215 S.W.3d 776 (Tenn. 2007), involved a plea agreement that

included a thirty-five-year sentence as a Range I offender for second degree murder and

attempt to commit especially aggravated robbery. Id. at 777. Hoover later filed a petition

for writ of habeas corpus claiming that the sentence was illegal because the maximum Range

I sentence for second degree murder was twenty-five years. Id. at 777-78. The trial court

granted Hoover habeas corpus relief, but the Court of Criminal Appeals reversed. Id. at 778.

Because the “plea-bargained sentence [wa]s well below the maximum punishment authorized

for the plea offense of second degree murder” and because “a plea-bargained sentence is

legalso long as it does not exceed the maximum punishment authorized for the plea offense,”

id. at 781, this Court denied relief, confirming the principle set forth in Mahler and Hicks that

offender classification and release eligibility may be used as bargaining tools in plea

negotiations. Id. at 780. As in McConnell, the Court referred to those two elements of

sentencing as “non-jurisdictional,” id., and held that “Hoover [had] waived any irregularity

concerning his offender classification or release eligibility when he pleaded guilty.” Id. at

780-81.

5

(...continued) 3

not a statutorily authorized sentence for first degree murder at the time the offense was committed, the State

on appeal conceded the illegality of the new sentence. Id. at 910. This Court held the sentence was void and

remanded to the trial court “for further proceedings.” Id. The “ruling d[id] not affect Stephenson’s separate

conviction and 60-year sentence for the offense of conspiracy to commit first-degree murder.” Id. at 912 n.3.

In Boykin v. Alabama, 395 U.S. 238 (1969), the United States Supreme Court held that a trial court 4

may not accept a guilty plea “without an affirmative showing that it was intelligent and voluntary,” id. at 242,

and directed courts to “canvass[] the matter with the accused to make sure he has a full understanding of

what the plea connotes and of its consequence.” Grindstaff v. State, 297 S.W.3d 208, 218 (Tenn. 2009)

(quoting Boykin, 395 U.S. at 244); see also Howell v. State, 185 S.W.3d 319, 330-31 (Tenn. 2006).

Most recently, in Davis v. State, 313 S.W.3d 751 (Tenn. 2010) (Clark, J.), the Court reaffirmed that

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release eligibility determinations are “non-jurisdictional” with respect to plea-bargained sentences. Id. at

765. The majority wrote that “[o]ur interpretation of the Act allowing for the parties to agree on sentences

that do not allow for early release on parole is consistent with our position that sentencing range

classification and [release eligibility determinations] are non-jurisdictional elements of sentencing.” Id. 

Davis is only the latest example of cases where this Court has unequivocally “drawn distinctions between

illegal sentences imposed by the trial court without a plea bargain and illegal sentences imposed pursuant

to a plea bargain.” The majority’s failure to acknowledge this distinction is a matter of concern.

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Prior to the holding in Edwards, as indicated by this brief recitation of the lead cases

on the subject of illegal sentences, there was some consistency in the progression of our

rulings since Burkhart in 1978: (1) an illegal sentence is one imposed in direct contravention

of express statutory provisions, and may be corrected at any time; (2) a knowing and

voluntary guilty plea waives any challenge to a sentencing irregularity concerning offender

classification or a release eligibility, so long as the resulting sentence falls within the range

permitted by the 1989 Act; (3) the proper procedure for correcting an illegal sentence is

through the writ of habeas corpus; (4) if the illegality affects only the sentence, then the

underlying conviction remains intact unless the guilty plea is allowed to be withdrawn; and

(5) offender classification and release eligibility are “non-jurisdictional” with respect to pleabargained sentences.

Breaking new ground, this Court in Edwards extended the concept of “nonjurisdictional” sentencing errors beyond the context of waiver in plea-bargained sentences

and applied the term as a means of upholding a sentence imposed by the trial court after a

jury trial, even though the sentence was in excess of that permitted by statute. 269 S.W.3d

at 923-24. A jury convicted Edwards of burglary, and the trial court sentenced him as a

Range III persistent offender. Id. at 917. Later, Edwards sought habeas corpus relief

because he lacked the five convictions necessary to be sentenced as a persistent offender.

Id. The Edwards majority, no longer relying on waiver by a knowing and voluntary plea,

reiterated “‘that offender classification and release eligibility are non-jurisdictional,’” id. at

923 (quoting Hoover, 215 S.W.3d at 780-81 (first emphasis added)), and ultimately denied

relief:

[O]ffender classification is a non-jurisdictional element of sentencing. Thus,

errors and/or irregularities in offender classification are waived by a guilty

plea, and are not grounds for habeas corpus relief if the sentence is imposed

by a trial court after a jury conviction. Simply stated, habeas corpus relief is

not available to correct errors or irregularities in offender classification.

Id. at 924 (emphasis added).

I continue to be unable to reconcile with established precedent the majority’s decision

in Edwards to deny habeas corpus relief where “the trial court imposed the Petitioner’s

sentence in direct contradiction of a sentencing statute after a jury verdict, [unlike] those in

which the judgment has been entered through a guilty plea.” 269 S.W.3d at 929 (Wade &

Holder, JJ., dissenting); see also Davis, 313 S.W.3d at 771 (Wade & Holder, JJ., concurring)

(“[A] sentence imposed by a trial court after conviction or an open plea of guilt (absent any

negotiated term) that qualifies as illegal under our statutory scheme [sh]ould be subject to a

meritorious [habeas corpus] attack.”).

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Analysis

In the case before us, neither the State nor the petitioner asked this Court to address

the propriety of Edwards. In my view, however, Edwards stands for the proposition that after

a guilty verdict (or an open plea of guilt), a sentence in contravention of statute is “nonjurisdictional” – merely voidable, not void – and thus not subject to habeas relief. 269

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S.W.3d at 924. For this reason, I believe that the majority’s decision today and the ruling in

Edwards are indistinguishable. Both involve a sentence imposed by the trial court after a jury

trial that contained the very kind of error that this Court identified in Edwards as “nonjurisdictional.” If habeas corpus relief was unavailable to Edwards, then it should likewise

be unavailable in this instance and the sentence, even though in contravention of statute,

should remain unchanged. Conversely, because the majority here has granted “relief” and

remanded for correction by ordering 100% service of the sentence, we should have also

granted relief in Edwards by ordering the appropriate, lesser sentence. Only by expressly

overruling the expansion of the concept of “non-jurisdictional” errors in Edwards can we

bring greater harmony to our habeas corpus decisions in the context of illegal sentences.

The majority submits that Edwards does not apply to this case because the trial court

in Edwards had jurisdiction to make the error in offender classification, whereas the trial

court here lacked jurisdiction to impose a sentence at 35% even though the petitioner was

convicted as a multiple rapist, requiring 100% service of the sentence. The majority further

states that “[t]he actual impact of Edwards . . . is limited to its unsurprising holding that an

allegedly erroneous offender classification does not create an illegal sentence so long as the

offender classification is available under the Sentencing Act.” Even if the holding in

Edwards is so limited, I see no logic in differentiating between offender classification and

release eligibility determinations for purposes of discerning whether a sentence imposed by

a trial court is illegal. The 1989 Act refers to the types of errors the majority classifies as

“appealable errors,” specifically mentioning appeals of “the length, range or the manner of

service of the sentence imposed by the sentencing court,” as well as “the imposition of

consecutive sentences.” Tenn. Code Ann. § 40-35-401(a) (2010). Both offender

classification and release eligibility determinations involve “the length, range or the manner

of service” of a sentence. Moreover, this Court has repeatedly ruled that both offender

classification and release eligibility determinations are “non-jurisdictional.” See Davis, 313

S.W.3d at 765; Edwards, 269 S.W.3d at 924; Hoover, 215 S.W.3d at 780; McConnell, 12

S.W.3d at 798. If, as the majority suggests, Edwards is limited in its reach to cases involving

erroneous offender classifications, did this Court err in Davis, Edwards, Hoover, and

This Court has defined “a voidable judgment [a]s one that is facially valid and requires proof 6

beyond the face of the record or judgment to establish its invalidity.” Summers, 212 S.W.3d at 256 (citing

Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998)).

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McConnell by also referring to release eligibility determinations as “non-jurisdictional?”

I am also concerned about the majority’s suggestion that habeas corpus is not

available to challenge a sentence, like the one in Edwards, that was imposed due to a trial

court’s erroneous findings of fact. On this point, the majority explores uncharted territory.

I know of no prior rulings by this Court stating that the availability of habeas relief turns on

whether the illegality of the sentence is based upon a finding of fact or a mistake in the law.

Both Edwards and the case at issue involved errors in the application of facts (the number

of prior convictions and the number of rape convictions, respectively) to the law (the relevant

statutes governing sentencing). The majority’s distinction between sentencing errors based

upon findings of fact and those based upon mistakes of law is nowhere to be found in

Edwards or in any of our prior decisions involving illegal sentences. My concern is that the

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decision today further clouds this troublesome area of the law.

As I stated in the concurring opinion in Davis, I believe that it is essential for this

Court to set forth a workable rule for the trial courts addressing “illegal sentences” in habeas

corpus petitions. Today’s majority opinion properly reiterates the long-held principle, first

enumerated in Burkhart, that a sentence is illegal and void, and thus may form a basis for

habeas relief, if it is imposed “in direct contravention of a governing sentencing statute” or

if it is a sentence “not available under the sentencing statutes governing the case.” See

Edwards, 269 S.W.3d at 921. Because offender classification is determined by reference to

a statutory scheme, see Tenn. Code Ann. §§ 40-35-105 to -109 (2010), I believe that a

sentence which is not a part of a plea agreement and which includes an offender

classification, either unavailable under or in direct contravention of the governing statutes,

qualifies as illegal. It is difficult to fathom how any sentence imposed by the trial court could

contain “errors and/or irregularities in offender classification” resulting in a term of

imprisonment beyond legislative authority and not “directly contravene[] a governing

statute.” Edwards, 269 S.W.3d at 924.

Expressly overruling Edwards would not, of course, affect the waiver rule first set

Indeed, the Edwards majority defines “non-jurisdictional” errors as “factual or legal errors a court 7

makes in the exercise of its jurisdiction.” 269 S.W.3d at 924 (emphasis added). The majority justifies its

unprecedented distinction between findings of fact and conclusions of law by asserting that it is “rely[ing]

upon the plain language of” Tennessee Code Annotated section 40-35-401(a). That provision, however,

makes no distinction between findings of facts and conclusions of law, but merely states that there is no

appellate review of a sentence in a post-conviction or habeas proceeding. If an error as to “the length, range

or the manner of service of the sentence” or “the imposition of consecutive sentences” results in an illegal

sentence because the trial court did not have the jurisdiction to impose it, that error may form the basis for

habeas relief. Such an error could be based upon incorrect findings of fact, erroneous conclusions of law,

or both.

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forth in Mahler and followed in McConnell, Hoover, and Davis – all cases in which the

sentence was agreed to by guilty plea. Offender classification and release eligibility

determinations should still be the subject of plea negotiations provided that the agreed

sentence is within the statutory minimum and maximum for the particular offense. A

knowing and voluntary guilty plea may serve as a waiver of irregularities in offender

classification or release eligibility; if, however, a trial court, after a conviction or upon an

open plea of guilt, imposes a sentence in contravention of our statutory scheme, including

an erroneous offender classification or release eligibility determination, a petitioner would

be entitled to habeas corpus relief.

Conclusion

Applying this standard to the circumstances before us, I can concur with the majority.

Because the petitioner’ssentencesfor hisfour aggravated rape convictions, all of which were

imposed by the trial court after verdicts of guilt, are in direct contravention of Tennessee

Code Annotated section 39-13-523(b) (Supp. 1995), his petition for writ of habeas corpus

should be granted and the cause remanded for entry of amended judgment orders in

compliance with that statute.

I am authorized to state that Justice Holder joins in this concurring opinion.

______________________________

GARY R. WADE, JUSTICE

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