FILED

April 21, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

TERRY L. HICKS, JR. ) FOR PUBLICATION

)

Appellant ) FILED: APRIL 21, 1997

)

v. ) HON. FRANKLIN MURCHISON, 

) Judge

)

STATE OF TENNESSEE ) MADISON COUNTY

)

Appellee ) NO. 02-S-01-9607-CC-00063

FOR THE APPELLANT: FOR THE APPELLEE:

GEORGE MORTON GOOGE JOHN KNOX WALKUP

26th District Public Defender Attorney General and Reporter

PAMELA J. DREWERY MICHAEL E. MOORE

Assistant Public Defender Solicitor General

227 West Baltimore Street

Jackson, Tennessee KAREN M. YACUZZO

Assistant Attorney General

450 James Robertson Parkway

Nashville, Tennessee

JAMES G. WOODALL

District Attorney General

DONALD H. ALLEN

Assistant District Attorney 

General

P.O. Box 2825

Jackson, Tennessee

OPINION

AFFIRMED BIRCH, C.J.
1The release eligibility for Range II offenses is normally

thirty-five percent.

2Hicks alleges that his counsel was ineffective because

counsel allowed Hicks to receive an “illegal” sentence. Because

the sentence is valid, it furnishes no basis from which to find

counsel ineffective.

2

Pursuant to a plea bargain agreement, Terry L. Hicks, the

appellant, entered a plea of guilty and was convicted of voluntary

manslaughter, a Class C felony. The Range I punishment for this

offense is three to six years; for Range II offenders, it is six to

fifteen years. The plea agreement provided for a “hybrid”

sentence: that is, Range II incarceration (ten years) coupled with

Range I release eligibility (thirty percent). The trial court

accepted the plea agreement and convicted Hicks of voluntary

manslaughter. Adhering to the terms of the agreement, the trial

court sentenced Hicks to the Department of Correction for ten years

as a Range I standard offender with a release eligibility of thirty

percent.

At issue in this post-conviction case is whether a plea

bargained Range II sentence is valid when coupled with Range I

release eligibility.1 We conclude that such a sentence, when

imposed as a result of a plea bargain agreement entered voluntarily

and knowingly, is valid.2

I

Persons who commit criminal offenses in Tennessee must be

sentenced pursuant to the provisions of the Criminal Sentencing
3There was also a provision for an “especially mitigated

offender.” Tenn. Code Ann. § 40-35-108 (1982)(repealed).

3

Reform Act of 1989. Tenn. Code Ann. § 40-35-104(a)(1990); State v.

Palmer, 902 S.W.2d 391, 392 (Tenn. 1995). 

One basic 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. Owens v. State, 908 S.W.2d 923, 926 (Tenn.

1995); State v. Sliger, 846 S.W.2d 262, 263 (Tenn. 1993). In

construing statutes, we presume that the legislature has knowledge

of its prior enactments and is fully aware of any judicial

constructions of those enactments. Wilson v. Johnson County, 879

S.W.2d 807, 810 (Tenn. 1994); Hamby v. McDaniel, 559 S.W.2d 774,

776 (Tenn. 1977). Thus, although not controlling, we take some

guidance from cases decided under the Criminal Sentencing Reform

Act of 1982.

The 1982 Act provided for two sentencing ranges: Range

I and Range II. Tenn. Code Ann. § 40-35-109 (1982)(repealed).3

Persons serving Range II sentences as either persistent offenders

or for an especially aggravated offense were required to complete

forty percent of the sentence before becoming eligible for release.

Tenn. Code Ann. § 40-35-501(d)(1982)(repealed). Those serving

Range II sentences as persistent offenders whose offense was also

especially aggravated were required to complete fifty percent of

the sentence before becoming eligible for release. Tenn. Code Ann.

§ 40-35-501(e)(1982)(repealed).
4Tenn. Code Ann. § § 39-2-212 & 40-35-109 (1982)(repealed).

4

In 1987, this Court decided State v. Mahler, 735 S.W.2d

226 (Tenn. 1987). Mahler was indicted for first-degree murder.

Ultimately, the parties agreed to a guilty plea to second-degree

murder in exchange for the State’s recommendation of a fifty-year

sentence as a Range II offender. The defendant agreed to the

sentence even though he lacked the criminal history sufficient to

justify sentencing within Range II. 

Six months after imposition of the agreed sentence,

Mahler filed a post-conviction petition alleging that the sentence

was invalid and that his counsel was ineffective for failing to

advise him of that fact. In course, we affirmed the sentence,

noting that under the law in effect at that time, the punishment

range for second-degree murder was from ten years to life.4

Because the sentence imposed was clearly within statutory limits,

we held the sentence valid. Mahler, 735 S.W.2d at 227. More

significant, we held that any question as to Mahler’s

classification as a Range II offender or his release eligibility

percentage had been waived by the guilty plea. Id. at 228.

In the year following Mahler, the Court of Criminal

Appeals, in State v. Terry , 755 S.W.2d 854 (Tenn. Crim. App. 1988),

addressed the precise question we face today, albeit under the

Criminal Sentencing Reform Act of 1982. Pursuant to a plea bargain

agreement, Terry pleaded guilty to one count of simple kidnapping

and one count of aggravated assault. In return, he received a

Range I sentence of ten years for kidnapping and a consecutive
5Tenn. Code Ann. § § 39-2-302 & 40-35-109 (1982)(repealed).

6Tenn. Code Ann. § 40-35-107(3)(b)(1982)(repealed), provided

that a felony committed while the perpetrator was on parole was an

“especially aggravated offense.” Tenn. Code Ann. § 40-37-107(8)

further provided that “[a] defendant who is found by the court

beyond a reasonable doubt to have committed an especially

aggravated offense shall receive a sentence within Range II.”

5

Range I sentence of five years for aggravated assault. Under the

law at the time, the punishment range for kidnapping was two to ten

years, and a Range I sentence was two to six years.5 

After the judgment became final, Terry filed a motion to

correct the “illegal” kidnapping sentence. The Court of Criminal

Appeals upheld the sentence and noted that it was within the

statutory limits for kidnapping. Terry, 755 S.W.2d at 855. The

intermediate court cited Mahler for the proposition that “[a]ny

irregularity as to classification or release eligibility was waived

by the plea of guilty knowingly and voluntarily entered.” Id. at

854.

Similarly, this waiver rule also applies to the State--

the other party to the plea agreement. State v. Watkins, 804

S.W.2d 884, 886 (Tenn. 1991). In Watkins, the State agreed to a

Range I sentence and the dismissal of an habitual criminal count.

After a sentencing hearing, the trial court imposed the maximum

Range I sentence of thirty years. When the defendant appealed the

sentence as excessive, the State contended that the sentence was

appropriate because the defendant was on parole at the time of the

offense and a statutory provision in effect at the time mandated a

Range II sentence.6 We held that the same waiver rule invoked
7State v. Turner, 919 S.W.2d 346, 359 (Tenn. Crim. App. 1995);

McKinley v. State, 910 S.W.2d 465, 467 (Tenn. Crim. App. 1995); see

also Bill R. Dixon, Jr. v. State , No. 02-C-01-9503-CC-00070 (Tenn.

6

against the defendant in Mahler applied to the State where it

negotiated a plea agreement and thus encouraged the trial court to

set the defendant’s sentence in the “wrong” range:

Mahler stands for the proposition

that an erroneous range

classification can be waived by the

action of the defendant. We

conclude that, proverbially

speaking, what is applicable to the

goose ought to be applied to the

gander.

. . . .

[In another case,] we concluded,

furthermore, that “the state would

waive ‘Range II’ sentencing by

failing to file the required notice,

failing to present proof of the

basis relied on, or deliberately, by

striking a Range II notice in

exchange for a guilty plea.” The

latter procedure . . . “is similar

to allowing a defendant to plead to

a lesser offense, and is a common

tool in plea bargaining.” 

Watkins, 804 S.W.2d at 886 (quoting State v. Russell, 800 S.W.2d

169, 172 (Tenn. 1990)). Thus, where the parties negotiate in good

faith and there are no allegations of fraud or misfeasance, the

parties are precluded from attacking on appeal the agreed range

imposed by the trial court.

Since passage of the Criminal Sentencing Reform Act of

1989, the intermediate court has applied the Mahler principal,

i.e., a defendant can waive the range classification as part of a

negotiated guilty plea, to sentences in cases arising under the new

Act.7 That court has divided, however, over whether a sentence
Crim. App., filed March 20, 1996, at Jackson); George John Callis

v. State, No. 03-C-01-9411-CR-00401 (Tenn. Crim. App., filed Oct.

11, 1995 at Knoxville), perm. to appeal denied April 1, 1996;

Ronald Lature McCray v. State, No. 02-C-01-9412-CC-00277 (Tenn.

Crim. App., filed Sept. 27, 1995, at Jackson); George Cheairs v.

State, No. 02-C-01-9304-CC-00070 (Tenn. Crim. App., filed Oct. 26,

1994, at Jackson); Darnell Gentry v. State, No. 02-C-01-9304-CC00052 (Tenn. Crim. App., filed June 29, 1994, at Jackson), perm. to

appeal denied Oct. 3, 1994; Eric Williamson v. State, No. 0-2-C-01-

9305-CR-00096 (Tenn. Crim. App., filed May 11, 1994, at Jackson),

perm. to appeal denied Oct. 10, 1994; Joseph Harvey Cutright v.

State, No. 02-C-01-9108-CC-00175 (Tenn. Crim. App., filed March 25,

1992, at Jackson), perm. to appeal denied August 31, 1992.

8No. 02-C-01-9108-CC-00175 (Tenn. Crim. App., filed March 25,

1992, at Jackson), perm. to appeal denied August 31, 1992.

7

within one range coupled with a release eligibility of another

range is legal.

In Joseph Harvey Cutright v. State,

8 the defendant was

originally charged with premeditated murder, felony-murder, and

grand larceny. Although the offenses pre-dated the effective date

of the 1989 Act, the defendant was sentenced after the effective

date of the 1989 Act. In return for his plea of guilty to seconddegree murder, the State agreed that the defendant be sentenced

under the 1982 Act to a term of fifty years as a Range II

persistent offender with a release eligibility of forty percent.

In his petition for post-conviction relief, Cutright alleged that

his sentence was “illegal.” A divided panel of the Court of

Criminal Appeals cited Terry and held that any irregularity as to

classification or release eligibility was waived by the plea of

guilty knowingly and voluntarily entered. In the order denying the

application for permission to appeal, we noted that the defendant

had been improperly sentenced under the 1982 Act. Neither the

fifty-year sentence nor the forty percent release eligibility
9According to Hicks, we disapproved of mixing range

classifications and release eligibility percentages in our order

declaring Cutright’s sentence a nullity. However, we think in

Cutright the intermediate court misinterpreted our order. The

judgment was void on its face because it reflected that the

defendant in that case was improperly sentenced under the 1982 Act

and because the sentence included a release eligibility percentage

that does not even exist under the 1989 Act.

10No. 02-C-01-9304-CC-00052 (Tenn. Crim. App., filed June 29,

1994, at Jackson), perm. to appeal denied Oct. 3, 1994.

11George Cheairs v. State, No. 02-C-01-9304-CC-00070 (Tenn.

Crim. App., filed Oct. 26, 1994, at Jackson); Ronald Lature McCray

v. State, No. 02-C-01-9412-CC-00277 (Tenn. Crim. App., filed Sept.

27, 1995, at Jackson); Bill R. Dixon, Jr. v. State , No. 02-C-01-

9503-CC-00070 (Tenn. Crim. App., filed March 20, 1996, at Jackson).

8

comported with the provisions of the new Act; therefore, we

declared the sentence a nullity.9

In Darnell Gentry v. State,

10 the defendant pleaded guilty

to second-degree murder. He was designated as a Range I offender

for release eligibility purposes but was sentenced outside that

range to forty years. The Court of Criminal Appeals held that

because the sentence was within the permissible statutory limits

(fifteen to sixty years), it was valid. Citing to Terry, the court

held that any irregularity as to classification was waived by the

defendant’s guilty plea. Since Gentry, however, three panels of

the Court of Criminal Appeals have concluded that these “hybrid”

sentences are invalid.11

We note that when the Sentencing Reform Act of 1989 was

passed, State v. Mahler and State v. Terry had been published for

more than a year. Nevertheless, the provisions of the 1989 Act and

the 1982 Act that require a person to be sentenced in accordance

with the statute are identical. Moreover, the statutory procedure
9

for imposing an enhanced sentence is also the same under both Acts.

Had 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. That the legislature did not evinces its

intent to permit this practice.

We reiterate today that a knowing and voluntary guilty

plea waives any irregularity as to offender classification or

release eligibility. Accordingly and for the reasons stated above,

the judgment of the Court of Criminal Appeals is affirmed.

___________________________________

ADOLPHO A. BIRCH, JR., Chief Justice

CONCUR:

Drowota, Anderson, Reid, JJ.