FILED

January 25, 1999

Cecil W. Crowson

Appellate Court 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.
1Tenn. 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.”

2Tenn. Code Ann. § 39-17-417(c)(1) Supp. 1994) states in

pertinent part: “A violation of [Tenn. Code Ann. § 39-17-417(a)]

with respect 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 addition thereto, may be fined not more than one hundred

thousand dollars ($100,000).” 

3The court has the authority to impose a longer sentence 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

in pertinent 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 guilty to the

unlawful possession of a Schedule II substance (cocaine) with intent

to sell.1 Omitted from the indictment, however, was any reference

to the amount of substance possessed.2 This omission

notwithstanding, the offense was treated as a Class B felony and

Pettus acquiesced in an eight-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 resulted 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

community corrections sentence and replaced it with a ten-year term

to the Department of Correction.3 Based on the provisions of Tenn.
4Tenn. Code Ann. § 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.”

5Tenn. Code Ann. § 39-17-417(c)(2)(Supp. 1994) states: “Any

other Schedule II controlled substance, including cocaine in an

amount of less than point five (.5) grams, is a Class C felony

. . . .”

6Tenn. Code Ann. § 40-35-115(b)(2) states: “The court may

order sentences to run consecutively if the court finds by a

preponderance of the evidence that . . . [t]he defendant is an

offender whose record of criminal activity is extensive.”

3

Code Ann. § 40-35-115(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 illegally 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

any non-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 record supports the imposition of consecutive

sentences under Tenn. Code Ann. § 40-35-115(b)(2)(Supp. 1994).6
4

I

The indictment 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 24th day of

August, 1994, and prior to the

finding of this indictment, . . .

unlawfully and knowingly did possess,

with intent to sell, a controlled

substance, to wit: Cocaine . . . in

violation of TCA 39-17-417 and

against the peace and dignity of the

State of Tennessee. 

Interestingly enough, Pettus neither claims that his guilty plea to

this indictment was involuntarily entered nor does he seek to set it

aside. Essentially, he contends that he did not agree 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 necessary to convict and

waives all non-jurisdictional defects and constitutional

irregularities which may have existed prior to the entry of the

guilty plea. 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. Mackey are the

landmark constitutional cases for analyses of guilty pleas. Boykin

v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed.2d 274 (1969)

(federal standard); State v. Mackey, 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 matter with the accused to make sure he

has a full understanding 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

acceptance of a defendant’s plea of guilty must affirmatively

demonstrate that his decision was both voluntary and knowledgeable,

i.e., that he has been made aware of the significant consequences of

such a plea . . . .” 553 S.W.2d at 340. Based upon the foregoing,

we have no hesitation in concluding that Pettus’s guilty plea met

both the federal and state standards and is, therefore, valid.

Thus, the valid plea constitutes 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-bargain process involves a

certain amount of “give and take” so as to reach a resolution that
7The release eligibility for Range II offenses was normally

thirty-five percent.

6

is acceptable to both the State and the defendant. Often, this

process includes exaggeration or understatement of the facts and

circumstances of the offense. Specifically, we have upheld pleabargain agreements and resultant sentences in cases 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

six to fifteen years. Id. In a post-conviction petition, Hicks

argued that the sentence he received was invalid. 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 Wallen, the defendant entered guilty pleas

but later claimed that his sentence was illegal because one of the

convictions used to justify 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 the
8A trial court may impose consecutive sentencing if it finds by

a preponderance of the evidence that one or more of the required

statutory criteria exist. Furthermore, the court is required to

determine whether consecutive sentencing is (1) reasonably related

to the severity of the offenses committed; (2) serves to protect

the public from further criminal conduct by the offender; and (3)

consistent with general principles of sentencing. State v.

Wilkerson, 905 S.W.2d 933 (Tenn. 1995).

7

plea bargain. In accepting those

benefits . . . he waived any

irregularity or 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

included the district attorney general’s promise to forgo

prosecution on several other offenses in exchange for the guilty

plea. Additionally, Pettus was well into service of the sentence

when he raised this issue.

Based on the foregoing 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. Accordingly, this issue is

without merit.

II

The second issue concerns 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 sentencing 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

“conditioned upon the affirmative showing in the record that the

trial 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

corrections 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 treat the alternatives as

equivalents, ignoring thereby the natural and ordinary meaning of

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

corrections sentence 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 intended 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.2d 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

liberty to depart from the words of the statute. Hawks, 960 S.W.2d

at 16. 

A review of the language of the relevant statutes reveals

a clear distinction between community corrections 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 probation, including an

offender originally ineligible for probation, after service of one

(1) year on community corrections.” In the same vein, Tenn. Code

Ann. § 40-36-106(f) states, in pertinent part, that a court may

permit “an eligible defendant to participate in a community-based

alternative to incarceration as a condition of probation.”

Similarly, Tenn. Code Ann. § 40-36-106(e)(3)(A) states:
9We note also that Tenn. R. Crim. P. 32(c)(3) provides for

mandatory consecutive 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 and 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

somehow received 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 by the 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

[community corrections] program and

to place the offender on supervised

or unsupervised probation upon a

showing that the offender did abide

by the 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 not 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. The clarity 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), because a community corrections sentence is not

equivalent 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

activity included two theft convictions, an unlawful weapons

conviction, a conviction of contributing to the delinquency 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 entry of the guilty plea to

the drug offense, Pettus waived the right to contest the defect

alleged in the indictment. 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 corrections and

probation as one and the same for consecutive sentencing 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