# FILED January 25, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

STATE OF TENNESSEE ) FOR PUBLICATION ) Appellee ) FILED: JANUARY 25, 1999 ) v. ) MONTGOMERY COUNTY ) JABBAUL PETTUS ) HON. JOHN H. GASAWAY, Judge ) Appellant ) NO. 01-S-01-9709-CC-00202

For Appellant: For Appellee: MICHAEL R. JONES JOHN KNOX WALKUP Clarksville, TN Attorney General and Reporter MICHAEL E. MOORE Solicitor General LISA A. NAYLOR Assistant Attorney General Nashville, TN JOHN WESLEY CARNEY, JR. District Attorney General WILLIAM M. CLOUD, JR. Assistant District Attorney General Clarksville, TN

OPINION

AFFIRMED BIRCH, J.1 Tenn. Code Ann. § 39-17-417(a)(4) (Supp. 1994) states: “It is

an offense for a defendant to knowingly . . . [p]ossess a controlled substance with intent to manufacture, deliver or sell such controlled substance.”

2 Tenn. Code Ann. § 39-17 -417 (c)(1) Supp. 1994) states in pertinent p art : “A violation of [Tenn. Code Ann. § 39-17-417(a)] withrespect to: Cocaine is a Class B felony if the amount involved is point five (.5) grams or more of any substance containing cocaine and, in addi tion there to, may be fined not more than one hundred thousand dollars ($100,000).”

3 The court has the authority to impose a longer se nten ce for violations of community correction sentences pursuant to Tenn. Code Ann. § 40-36-106(e)(4) (Supp. 1994). Section 40-36-106(e)(4) states i n pertine nt part: “The court shall also possess the power to revoke the sentence imposed . . . and the court may resentence the defendant to any appropriate sentencing alternative, including incarceration, for any period of time up to the maximum sentence provided for the offense committed, less any time actually served in any community-based alternative to incarceration.” 2 Jabbaul Pettus, the appellant, pleaded gui lt y to the unlawful possession of a Schedule II substance (cocaine) with intent to sell. 1 Omitted from the indictment, however, was anyreference to the amount of su bstance possessed. 2 This omission notwithstanding, the offense was treated as a Class B felony and Pettus acquiesced in an e ight-year sentence to community corrections--a term well within the range provided for Class B felonies. While on community corrections for the drug offense, Pettus committed additional offenses which resul ted in his guilty plea to attempted aggravated robbery. For this new offense, the trial court imposed a six-year sentence to the Department of Correction. During the same hearing, the trial court revoked the communitycorrections sentence and replaced it with a ten-year term to the Department of Correction. 3 Based on the provisions of Tenn.4 Tenn. Code A nn. § 40-35-115(b)(6) states: “The court may

order sentences to run consecutively if the court finds by a preponderance of the evidence that . . . [t]he defendant is sentenced for an offense committed while on probation.”

5 Te nn. Code Ann. § 39-17-417(c)(2)(Supp. 1994) states: “Any other Schedule II controlled substance, includi ng c ocaine in an amount of less than point five (.5) grams, is a Class C felony . . . .”

6 Tenn. Code Ann. § 40-35- 115(b)(2) states: “The court may order sentences to run consecutively if the court finds by a prepo nderance of the evidence that . . . [t]he defendant is a n offender whose record of criminal activity is extensive.” 3 Code Ann. § 40-35-11 5(b)(6 ) (Supp. 1994), 4 the trial court ordered the sentences to be consecutively served.

On appeal, Pettus contends that the indictment failed to specify 0.5 grams or more as the amount of substance possessed and that the indictment therefore describes a Class C felony. 5 Thus, he insists that a Class B felony sentence was i llegally imposed. He also contends that the imposition of consecutive sentences pursuant to Tenn. Code Ann. § 40-35-115(b)(6) was erroneous. Because we find that by entry of the guilty plea, Pettus waived the right to raise anynon-jurisdictional defect in the indictment, we affirm the judgment of the Court of Criminal Appeals approving the Class B sentence. Further, we find that a community corrections sentence is not equivalent to probation, and the trial court consequently erred in imposing consecutive sentences on this basis. However, we affirm the judgment of the Court of Criminal Appeals on the sentencing issue because the rec ord supports the imposition of consecutive sentences under Tenn. Code Ann. § 40-35-115(b)(2)(Supp. 1994). 64 I

The indi ctme nt against Pettus for possession of cocaine with intent to sell provides:

that Jabbaul L. Pettus of [Montgomery] County, heretofore, to wit, on or about the 24 th day of August, 1994, and prior to the finding of this indictment, . . . unlawfullyand knowingly did possess, withintent to sell, a controlled substan ce, to wit: Cocaine . . . in violation of TCA 39-17-417 and against the peace and dignity of the State of Tennessee. Interestinglyenough, Pettus neither claims that his guilty plea to this indictment was involuntarilyentered nor does he seek to set it aside. Essentially, he contends that he did not agr ee to the lengthier sentence for a Class B felony.

The principle is well-settled in Tennessee jurisprudence that the voluntary entry of an informed and counseled guilty plea constitutes an admission of all facts necess ary to convict and waives all non-jurisdictional defects and constitutional irregularities which may have existed prior to the entry of the guiltyplea. See Hicks v. State , 945 S.W.2d 706, 709 (Tenn. 1997); State v. Wallen , 863 S.W.2d 34, 38-39 (Tenn. 1993). In our thorough examination of the record, we have been unable to find any jurisdictional irregularity or defect in the proceedings leading to the entry of the guilty plea.5 The cases of Boykin v. Alabama and State v. Mackeyare the landmark constitutional cases for analyses of guiltypleas. Boykin
v. Ala bam a , 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed.2d 274 (1969) (federal standard); State v. Ma ckey , 553 S.W.2d 337 (Tenn. 1977) (state standard). In Boykin , the United States Supreme Court held that before a trial judge can accept a guilty plea, there must be an affirmative showing that it was given intelligently and voluntarily. Id. at 242, 89 S. Ct. at 1711, 23 L. Ed. 2d at 279. In order to find that the plea was entered “intelligently” or “voluntarily,” the court must “canvass[] the matte r wit h the accused to make sure he has a full understan din g of what the plea connotes and of its consequences .” Id. at 244, 89 S. Ct. at 1712, 23 L. Ed. 2d at 280 (emphasis added).

Likewise, in Mackey , this Court held that “the record of
a ccep tance of a defendant’s plea of guilty must affirmatively demonstrate that his decision was both voluntaryand knowledgeable, i.e., that he has been made aware of the significant consequences of sucha plea . . . .” 553 S.W.2d at 340. Based upon the foregoing,
we have no hesitation in concluding that Pettus’s guilty plea met boththe federal and state standards and is, there fore, valid. Thus, the valid plea c onstitutes an agreement to the lengthier sentence.

The nature of the plea-bargain process in general, and the trial court’s order in particular, supports this conclusion. First, it is commonly known that the plea-ba rga in process involves a certain amount of “give and take” so as to reach a resolution that7 The release eligibility for Range II offenses was normally

thirty-five percent. 6 is acceptable to both the State and the defendant. Often, thi s process includes exaggeration or understatement of the facts and circumstances of the offense . Spe cifically, we have upheld pleabargain agreements and resultant sentences i n ca ses where the defendant has accepted a sentence in a range higher than called for by the indicted offense. See State v. Mahler , 735 S.W.2d 226, 228 (Tenn. 1987); accord Hicks , 945 S.W.2d at 706.

In Hicks , the defendant entered a guilty plea and was convicted of voluntary manslaughter, a Class C felony. Id. at 706. In exchange for the plea, Hicks received a “hybrid” sentence of Range II incarceration (ten years) coupled with Range I release eligibility(thirty percent). 7 Id. Under the law at the time, the punishment for Range I was three to six years and for Range II was sixto fifteenyears. I d. In a post-conviction petition, Hicks argued that the sentence he received was inval id. Id. However, this Court held that a knowing and voluntary guilty plea waives any irregularity as to offender classification or release eligibility. Id. at 709.

Likewise, in W allen , the defendant entered guilty pleas but later claimed that his sentence was illegal because one of the convictions used t o ju stify especially aggravated offender status had, in the interim, been reversed. 863 S.W.2d at 36. We stated:

In this case, the petitioner with full knowledge of his rights, voluntarily took the benefits of the8 Atrial court mayimpose consecutive sentencing if it finds by

a preponderance of the evide nce that o ne or more of the required statuto ry criteria exist. Furthermore, the court is required to determine whether consecutive sentencing is (1) reasonably related to the severity of the offenses committe d; (2) serves to protect the public from further criminal conduct by the offender; and (3) consistent with general principles of sen tencing. State v. Wilkerson , 905 S.W.2d 933 (Tenn. 1995). 7 plea bargain. In accepting those benefits . . . he waived any irregularityor defect in the proceedings including the possibility that the prior convictions used to enhance his punishment might be set aside.
Id. at 38-39.

Similarly, in the case under review, Pettus’s plea bargain in c luded the district attorney general’s promise to forgo prosecution on several other offenses in exchange for th e guilty plea. Additionally, Pettus was well into service of the sentence when he raised this issue.

Based on the fo regoing discussion, Pettus, with full knowledge of his rights, voluntarily accepted the plea bargain. By accepting it, he waived his right to contest any non-jurisdictional defect in the sentencing process. Acc ordingly, this issue is without merit.

II

The second issue conc e rns Pettus’s contention that the trial court erred by imposing consecutive sentences which is governed by Tenn. Code Ann . § 40 -35-115 (1997). 8 Specifically,8

Pettus contends that for purposes of consecutive senten cing under Tenn. Code Ann. § 40-35-115(b)(6), a community corrections sentence should not be treated as probation. Pettus contends that the imposition of consecutive sentences for attempted aggravated robbery and possession of cocaine, based on the fact that the attempted aggravated robbery was committed while he was on community corrections for the drug offense, was erroneous.

When there is a challenge to the length, range, or manner of service of a sentence, it is the duty of the reviewing court to conduct a de novo review with a presumption that the determinations made by the lower court from which the appeal is taken are correct. Tenn. Code Ann. § 40-35-401(d)(1997). This presumption is “c onditioned upon the affirmative showing in the record that t h e tr ial court considered the sentencing principles and all relevant facts and circumstances.” State v. Davis , 940 S.W.2d 558, 559 (Tenn. 1997); State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

We begin by recognizing that probation and community
co r rections sentences are alternatives to incarceration, each of which includes a suspension of incarceration. See Tenn. Code Ann. § 40-35-303(c) (Supp. 1994) (probation); Tenn. Code Ann. § 40-36- 106(e)(1) (Supp. 1994) (community corrections). But that similarity alone does not allow courts to tre at the alternatives as eq uivalents, ignoring thereby the natural and ordinary meaning o f the language used in the statute. See Carter v. State , 952 S.W.2d 417, 419 (Tenn. 1997); Tuggle v. Allright Parking Sys., Inc. , 922 S.W.2d 105, 107 (Tenn. 1996).9 To determine whether the legislature intended a community correctio ns sen tence to be equivalent to a probation sentence, we must examine the language of the relevant statutes. An elementary principle of statutory construction requires that we ascertain and give effect to the legislature’s intent without unduly restricting
or expanding a statute’s coverage beyond its int ended scope. Carter , 952 S.W.2d at 419; Hicks , 945 S .W.2d at 707. Legislative intent and purpose are to be ascertained primarily from the natural and ordinary meaning of the language used, without a forced or subtle construction that would limit or extend the meaning of the statute. Hawks v. City of Westmoreland , 960 S.W.2 d 10, 16 (Tenn. 1997); Carter , 952 S.W .2d at 419. If the legislative intent is expressed in a manner devoid of contradiction and ambiguity, there is no room for interpretation or construction, and courts are not at libertyto depart from the words of the statute. Hawks , 960 S.W.2d at 16.

Areviewof the language of the relevant statutes reveals
a clear distinction between community c orrections and probation. For example, the Sentencing Commission Comments to Tenn. Code Ann. § 40-35-303(a) state that a court may allow “a defendant sentenced to community corrections to be placed on pr obation, including an offender originally ineligible for probation, after service of one (1) year on community corrections.” In th e same vein, Tenn. Code Ann. § 40-36-106(f) states, in pertinent part, that a court may permit “an eli gible defendant to participate in a community-based altern ativ e to incarceration as a condition of probation.” Similarly, Tenn. Code Ann. § 40-36-106(e)(3)(A) states:9 W e no te also that Tenn. R. Crim. P. 32(c)(3) provides for

ma ndator yconsecutive sentences where a subsequent offense is committed while the defendant is on parole, after the defendant has been released on bail, or after the defendant has escaped. By its act of ratifying a nd approving this rule, we do not think the legislature has expressed its intent to impose mandatory consecutive sentences whenever a crime is committed after the defendant has somehowreceived the largess of the law after commission of a prior offense. See Tenn. Code Ann. § 16-3-403 (1994) (stating that court rules “shall not abridge, enlarge or modify any substantive right”). This Court is bound bythe language employed by the General Assembly even though, as a practical matter, consecutive sentencing for persons who commit offenses while on community corrections seems just as appropriate as consecutive sentencing for persons who commit offenses while on probation. 10

The court . . . has the power to terminate an offender from the [communitycorrections] program and to place the offender on supervised or unsupervised probation upon a showing that the offender did abide bythe conditions imposed on the original sentence and that the offender’s placement on probation presents no substantial risk to public safety . . . .

In reading these provisions together, we find that the legislature did no t intend a community corrections sentence and a probation sentence to be equivalents for purposes of consecutive sentencing under Tenn. Code Ann. § 40-35-115(b)(6). The legislature makes reference to probation and community corrections as distinct alternatives to incarceration where an offender may initially be eligible for a community corrections sentence but ineligible for probation. Th e c larity of the statutory language prevents undue expansion of the statute’s coverage beyond its intended scope. Carter , 952 S.W.2d at 419; Hicks , 945 S.W.2d at 707. 9

In the case at hand, we must vacate the consecutive sentence, which was imposed pursuant to Tenn. Code Ann. § 40-35-11

115(b)(6), bec ause a community corrections sentence is not equivalen t to a probation sentence. However, the record supports the imposition of a consecutive sentence pursuant to Tenn. Code Ann. § 40-35-115(b)(2)(Supp. 1994). Pettus has an extensive criminal record which dates back to 1992. Prior to the drug offense and subsequent attempted aggravated robbery charge, Pettus’s criminal activityinclu ded two theft convictions, an unlawful weapons conviction, a conviction of contributing to the deli nqu ency of a minor, and a conviction of driving on a revoked or suspended license. Because we find that Pettus’s record of criminal activity is extensive, we affirm the imposition of consecutive sentencing based upon Tenn. Code Ann. § 40-35-115(b)(2).

III

In conclusion, we find that by entryof the guilty plea to the drug offense, Pettus waived the right to contest the defect alleged in the i ndi ctment. Accordingly, we approve the sentence imposed by the trial court for the drug offense. We find, also, that the trial court’s treatment of community correc tion s and probation as one and the same for consecutive sente ncing purposes
was erroneous. The sentence shall, nevertheless, remain consecutive because Pettus’s record of criminal activity is extensive.

______________________________ ADOLPHO A. BIRCH, JR., Justice CONCUR: Anderson, C.J. Drowota, Holder, JJ. Barker, J., not participating