### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs A

pril 25, 2001
MARIO LAMBERT v. JACK MORGAN , WARDEN Appeal from the Circuit Court for Hickman County No. 99-5086C-II Timothy L. Easter, Judge

No. M1999-02321-CCA-R3-PC - Filed August 7, 2001

The Defendant, Mar

io Lambert, appeals as of right from the trial court’s dismissal of his petition for wr it of habeas corpu

s. He asserts that

his sentence is ille

gal because th

e trial court was withou t authority to sentence him as a Range I, standard offender with a

release eligi

bility of thirty percent for the offense of second degree murder. We hold that the trial c ourt was without au

thority to sentence the Defendant a

s a Range I, sta

ndard offender

with a thirty

percent relea

se eligibility for the offense of second degree murder. Therefore, based on our revie w of the record on ap

peal, it appears that the sentence imposed is an illegal sentence. Accordingly , we remand this case to the criminal court of Shelby County for further proc eedings consistent with this opinion. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Circuit Cour

t Reversed; Cas

e Remanded
D AVID H. W ELLES , J., delivered the opinion of the court, in which N ORMA M C G EE O GLE and A LAN E. G LENN , JJ., joined. Mario Lambert, Only, Tennessee, Pro Se. Paul G. Summers,

Att orn ey Gen eral and Rep ort er; Dav id H . Fi ndl ey, Assistant Attorney General, and Ron Davis, Distr

ict Attorney

General.
OPINION
On August 15, 1996, the Defendant pled guilty in Shelby County to th

e offense of second degree murder, which occurred on August 21, 199 5. Pursu ant to his plea agreement, he was sen tenced by the trial court to serve fifteen y ears in the Tennessee Department of Corre ction as a Range I, standard o

ffender with

a release elig

ibility of thir

ty percent

. Subsequently, on September 20, 1999, the Defendant filed a petition for writ of habeas corpus in the Circuit Court of Hickman County in which he alleged that the sentence i mposed by the trial court was an illegal sentence because the trial court was without authority to sentence him as a Range I, standa rd offender

with a thirt y perc

ent relea se eligib ility. H e asserte d that the s

entence was not a s

tatutoril y autho rize d1 On appeal, the Defendan t seems to no l

onger take iss

ue with his

sentence. He ass

erts that he was informed by the prison aut

horities t hat they woul

d honor his origi

nal plea agree ment, and h e seems to be content wit h that sent

ence. However, “the parti

es cannot by agree

ment salvage an

illegal sentence or otherwis e create authority for t

he imposit

ion of a senten ce that has not been authorized

by statut e.” Stephenson

v. Carlt on , 28 S.W.3d 910, 911 (T enn. 2000). T hus, the Defendant’s

assertions

on appeal do not alter

our resoluti

on of this cas

e. -2- punishment for the offense of second degree murder at the time of the offense

. The trial court denied relief without a h

earing, and the

Defendant then a

ppealed the cas

e to this Court. 1
Habeas corpus relief is a

vailable only

when it appears upon the face of the judgment or the record of the procee dings upon whi ch the judgment is rendered that a court lacked jurisdiction or authority to sentence a defendant or that the sentence has expired. See Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). A petition for writ of habeas corpus may be used to challenge judgments that are void, but not judgments that are merely voidable. See id. ; Taylor v. State , 995 S.W.2d 78, 83 (Tenn. 1999). However, our supreme court has recognized that a sentence imposed in direct contravention of a statute i s void and illegal. Stephenson v. Carlton , 28 S.W.3d 910, 911 (Tenn. 2000); see also State v. Burkhart , 566 S.W.2d 871, 873 (Tenn. 1978).
Our sentencing law , which was in eff ect at the time

of the Defendant’s offense, provides that “[t]here shall be no release eligibility for a person committing an offense, on or after July 1, 1995, that is enumerated

in subdivision (2). Such person shall serve one hundred percent (100%) of the sentence imposed by the court less sentence credits earned and retained.” Tenn. Code Ann. § 40-35- 501(i)(1). Se cond d egree murder is one of the enume

rated offenses

for which there

is no release eli gibi lit y. See id. § 40-35-501(i) (2 )(B). Because the offense for which the Defendant wa s convicted appears to have occurred on August 21, 1995, this statute was applicable to the Defendant when he was sentenced; thus, h

e could not lega

lly be sentenced as

a Range I, s

tandard offend

er with a thirty per cent release eligibility. Therefore, if the Defe ndant’s allegations are correct, the sentence impose d by the trial court is in direct contravention of a statute and is accord ingly void a

nd illegal. See Stephenson , 28 S.W.3 d at 911 ; see also McConnell v. State, 12 S.W.3d 795, 800 (Tenn. 2000) (concluding that t

hir ty-five year sentenc

es for a Range I offender for second de gree murder and robbery by use of a deadly weapon are not permitted by the 1989 Sentencing Act and are therefore illegal).
In addition to the alle

gations containe

d in his petition, the D

efendant has att

ached to his petition what appears to be a copy of the judgment of conviction in his case. The judgment appears to affirm the factual allegations of the petition. The trial judge di s missed the petition b ecause it found that the allegations contained in the petition did not entitle the Defendant to ha beas corpus relief. On appeal, the State argues that a h

abeas corpus pe

tition is not appropriate to attack an illegal sentence. The State acknowledg es that the Tenne

ssee Supreme

Court held in Stephenson v. Carlton , 28 S.W.3d 910, 912 (Tenn. 2000), that habeas corpus relief was available to remedy an i llegal sentence. Although the State argues that our supreme court wrongly dec ided Stephenson v. Carlton , we are of the firm opinion t hat we should rec

ognize that our sup

reme court’s opi

nion is a binding precedent which should be followed.2 Because ther e was not an evidentiary hearing to develop the f acts in this case,

our resolution of the issue presented is contingent up on the factual a llegations bein g established as correct. -3- Because the sentence imposed upon the Defendant appears to be an illegal and void sentence based upon our review of the record before

us, we conclude that the trial court erred in dismissing the petit ion. If the factual allegations are correct, resolution of this issue leaves th

e Defendant’s c

ase pending in the Criminal Court of Shelby County, wh e re further proceedings are warranted. 2 See Taylor v. Morgan , 909 S.W.2d 17, 20 (Tenn. Crim. App. 19 95). This w ill leave the status of the original prosecution at the sentencing stage. See Dixon v. State , 934 S.W.2d 69, 74 (Tenn. Crim. App. 1996). Because the sentence recommended by the State at the guilty plea proceeding appears to have been an illegal sentence, the trial court must reject the sentence. Id. T hereafter, the proceedings shall be governed by Rule 11(e) of the Tennessee Rules of Criminal Procedure. Id. , see also Woods v. State , 928 S.W.2d 52, 54 (Tenn. Crim. App. 1996). Therefore, we reverse the judgment of the Circuit Cour t of Hickman County, and in the interest of judicial economy, we

remand this case to the Shelby County Criminal Court for further proceedings.



### __________________________________ _ DAVID H. WELLES, JUDGE