FILED

June 25, 1999

Cecil Crowson, Jr.

Appellate C ourt

Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

JANUARY 1999 SESSION

STATE OF TENNESSEE, * No. 03C01-9801-CR-00030

Appellee, * CARTER COUNTY

VS. * Honorable Arden L. Hill, Judge

KERRY HUGHES, * (Voluntary manslaughter)

Appellant. *

For Appellant: For Appellee:

Keith A. Hopson John Knox Walkup 

Counsel for the Appellant Attorney General and Reporter

410 Shelby Street

Kingsport, TN 37660 Clinton J. Morgan

Counsel for the State 

425 Fifth Avenue, North 

Cordell Hull Building, Second Floor

Nashville, TN 37243-0493

Kenneth Baldwin

Assistant District Attorney General

900 East Elk Avenue 

Elizabethton, TN 37643

OPINION FILED:__________________

AFFIRMED

GARY R. WADE, PRESIDING JUDGE
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OPINION

The defendant, Kerry M. Hughes, appeals as of right the trial court's

denial of his motion to correct an illegal sentence. The single issue presented is

whether the trial court erred by denying the motion. We affirm the judgment of the

trial court. 

The defendant, who was indicted for first degree murder, entered into

an agreement whereby he entered a best interest plea of guilt to voluntary

manslaughter, a Class C felony. See North Carolina v. Alford, 400 U.S. 25 (1970). 

The punishment for voluntary manslaughter may range from three to fifteen years. 

Tenn. Code Ann. § 40-35-112. A Range I sentence is three to six years. Tenn.

Code Ann. § 40-35-112(a)(3). In 1992, the trial court imposed a sentence of fifteen

years coupled with Range I release eligibility of thirty percent.

In 1997, the defendant sought relief, claiming the sentence was illegal. 

At an evidentiary hearing, counsel for the defense introduced the judgment form and

the transcript of the plea submission hearing but did not submit the written plea

agreement. Defense counsel argued that the trial court had failed to properly inform

the defendant that he was agreeing to a sentence higher than that permitted for a

Range I offender. While the defendant was present at the evidentiary hearing, he 

declined to testify. The defendant's trial counsel did not participate in the

proceeding. The trial court denied the motion, concluding that the post-conviction

statute of limitations barred consideration of the claim and that the transcript

established that defendant's plea was knowing and voluntary. 

During the submission hearing, the defendant had stated under oath

that he understood his right to a trial by jury, his right to counsel, his right to confront
3

the witnesses, his right of compulsory process, and his right against selfincrimination. He assured the trial court that his plea was voluntary, that he was not

coerced or threatened, and that he had read, signed, and understood the plea

agreement. Terms of the plea agreement were disclosed during the hearing, as

follows: 

Trial Court: Are you pleading guilty rather than go to

trial charged with murder in the first degree

and possibly being found guilty, and

possibly receiving a greater sentence than

this fifteen years to which you are

agreeing?

Defendant: Yes, I am.

Trial Court: In other words, this is as a result of plea

bargaining, and whether you are guilty or

not, you are accepting the fifteen years, is

that right?

Defendant: Rather than face the consequences of a life

sentence or capital punishment, yes sir.

***

Trial Court: ... [T]he Court finds you guilty of Voluntary

Manslaughter and sets your punishment at

fifteen (15) years in the Tennessee

Department of Correction[], as a Standard

30% Range I Offender ... [D]o you

understand everything that's gone on here

today?

Defendant: Yes, sir.

***

Trial Court: ... Did you sign this form, Waiver of Jury

Trial, Plea of Guilty and Submission of the

Case to the Court[?] I saw you sign it, did

you read it before you signed it?

Defendant: Yes, sir, I did.

Trial Court: Let the record show that I saw him sign it,

and -- well, this shows ...

Defendant: And you saw me read it too.

(Emphasis added).

There was no discussion of the defendant's range nor did the trial

court inform the defendant that the fifteen-year sentence he was agreeing to

exceeded the three- to six-year range set forth by the statute. On the other hand,

the transcript indicates that the sentence resulted from a written plea agreement
4

which had been approved by the trial court. That agreement is conspicuously

absent from the record. 

It is the duty of the appellant to prepare a record that conveys a fair,

accurate, and complete account of what transpired in the trial court with respect to

the issues that form the basis for the appeal. Because the agreement is not in the

record, this issue must be treated as waived. Tenn. R. App. P. 24(b); State v. Miller,

737 S.W.2d 556, 558 (Tenn. Crim. App. 1987).

Nevertheless, the defendant would not prevail on the merits. Although

this court recognizes that the post-conviction statute of limitations would bar any

constitutional claims of the defendant, see Compiler's Notes, Tenn. Code Ann. §

40-30-201 (1997); Thomas C. Maney, Jr., v. State, No. 03C01-9612-CR-00470

(Tenn. Crim. App., at Knoxville, Oct. 10, 1997), as a general rule, an illegal sentence

may be corrected at any time. State v. Burkhart, 566 S.W.2d 871, 873 (Tenn.

1978). Moreover, this court has held that the post-conviction statute of limitations

does not bar consideration of a claim that the sentence imposed is illegal. Kevin

Lavell Abston v. State, No. 02C01-9807-CR-00212 (Tenn. Crim. App., at Jackson,

Dec. 30, 1998) (citing State v. Mahler, 735 S.W.2d 226, 228 (Tenn. 1987)); accord

James Gordon Coons, III v. State, No. 01C01-9801-CR-00014 (Tenn. Crim. App., at

Nashville, May 6, 1999). Our supreme court has ruled that a hybrid sentence, in

which the defendant agrees to a sentence in excess of his or her range, is not illegal

so long as the plea is knowingly and voluntarily made. Hicks v. State, 945 S.W.2d

706 (Tenn. 1997). Claims regarding range classification and release eligibility are

considered waived by a knowing and voluntary plea. Id. at 709; Mahler, 735 S.W.2d

at 228.
5

In Boykin v. Alabama, 395 U.S. 238 (1969), the United States

Supreme Court ruled that defendants should be advised of certain of their

constitutional rights before entering pleas of guilt. Included among those required

warnings are the right against self-incrimination, the right to confront witnesses, and

the right to a trial by jury. Id. at 243. The overriding Boykin requirement is that the

guilty plea must be knowingly and voluntarily made. Id. at 242-44. If the proof

established that the petitioner was aware of his constitutional rights, he is entitled to

no relief. Johnson v. State, 834 S.W.2d 922, 926 (Tenn. 1992). "[A] plea is not

'voluntary' if it is the product of '[i]gnorance, incomprehension, coercion, terror,

inducements, [or] subtle or blatant threats ....'" Blankenship v. State, 858 S.W.2d

897, 904 (Tenn. 1993) (quoting Boykin, 395 U.S. at 242-43). That is, the accused

must have a "'full understanding of what the plea connotes and of its

consequences." State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999) (quoting

Boykin, 395 U.S. at 244 (emphasis added in Pettus)). The record of the plea

submission must "affirmatively demonstrate" that the defendant was aware of the

significant consequences of his plea. State v. Mackey, 553 S.W.2d 337, 340 (Tenn.

1977).

In this instance, the transcript demonstrates that the defendant was

informed of and understood his constitutional rights and that the defendant agreed

to a fifteen-year sentence for voluntary manslaughter rather than face a trial for first

degree murder. Obviously, plea negotiations between the defendant and the state

had resulted in a plea bargain agreement. During the proceeding, a written

agreement had been approved by defense counsel and signed by the defendant. 

Although the trial court did not explain that the Range I sentence for voluntary

manslaughter was three to six years, that alone does not render the plea involuntary

or unknowing. Because the length of sentence was the significant consequence of
6

the plea, the defendant clearly understood the length of his term of imprisonment. 

Accordingly, we affirm the judgment of the trial court.

_____________________________

Gary R. Wade, Presiding Judge

CONCUR:

______________________________

Norma McGee Ogle, Judge

______________________________

John K. Byers, Senior Judge