# 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.1 The release eligibility for Range II offenses is normally

thirty-five percent.

2 Hicks alleges that his counsel was ineffecti ve because counsel allowe d Hicks to receive an “illegal” sentence. Because the sentence is valid, it furnishes no basis from wh ich to fin d counsel ineffective. 2

Pursuant to a plea bargain agreement, Terry L. Hicks, the appellant, entered a plea of guilty and was convicted of voluntary mansla ughte r, a Class C felony. The Range I punishment for this offense is three to six years; for Range II offenders, it is six to fif teenyears. The plea agreement provided for a “hyb rid ” 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 v oluntary 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 imposedas a result of a plea bargain agreement entered voluntarily and knowingly, is valid. 2

I

Persons who commit criminal offenses in Tennessee must be sentencedpursuant to the provisions of the Criminal Sentencing3 There was also a provision for an “especially mitigated

offender.” Tenn. Code Ann. § 40-35-108 (1982)(repealed). 3 ReformAct of 1989.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 ascert ain an d give effect to the legislature’s intent without unduly restricting or expanding a statute’s coverage beyond its intended scope. Ow ens v. Sta te , 908 S.W.2d 923, 926 (Tenn. 1995); State v. Sliger , 846 S.W.2d 262, 263 (T enn. 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.2d807, 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 Sentencin g Re form 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 fortypercent of the sentence before becoming eligible for release. Tenn . Cod e Ann. § 40-35-501(d)(1982)(repealed). Those serving Range II sentences as persistent offenders whose offense was also especiallyaggravate d we re required to complete fifty percent of the sentence before becoming eligible for release. Tenn. Code Ann. § 40-35-501(e)(1982)(repealed).4 Tenn. 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). Mahle r w as indicted for first-degree murder. Ultima tely, 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.

Sixmonths af te r imposition of the agreed sentence, Mahler filed a post-conviction petitionalleging that the sentence
was invalid and that his counsel was ineffective for failing to advise him of that fact. In cours e, w e affirmed the sentence, noting that under the law in effec t at that time, the punishment range for second-degree murder was fro m 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 classificationa s a Ra nge II offender or his release eligibility percentage had been waived by the guilty plea. Id. at 228.

Inthe year following Mahler , the Court of Criminal Appeals, in State v. Terry , 755 S.W.2d 854 (Tenn. Crim. App. 1988), addressedthe 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 agg ravated assault. In return, he received a Range I sentence of ten years for kidnapping and a consecutive5 Tenn. Code Ann. § § 39-2-302 & 40-35-109 (1982)(repealed).
6 Tenn. Code Ann . § 40-35-107(3)(b)(1982)(repealed), provided that a felony committed while the perpetrator was on parole was an “especiallyaggravated offens e.” 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 lawat 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 statutorylimits for kidnapping. Terry , 755 S.W.2d at 85 5. The intermediate court cited Mahler for the proposition that “[a]ny irregularityas 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.2d884, 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 impos ed the maximum Range I sentence of thirty years. When the defendant appealed the
sen tence as excessive, the State contended that the sentence wa s appropriate because the defendant was on parole at the time of the offense and a statutory provisionin effect at the time mandated a Range II sentence. 6 We held tha t the same waiver rule invoked7 State v. Turner , 919 S.W.2d 346, 359 (Tenn. Crim. App. 1995);

McKinleyv. 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 rang e classification can be waived by the actionof the defendant. We conclud e that, proverbi all y speaking, what is applicable to the goose ought to be applied to the gander.

. . . . [Inanother 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 faithand 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 Cri minal Sentencing Reform Act of 1989, the intermediate court has app lied 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 se nten ceCrim. 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; RonaldLature Mc C ray 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. S tate , 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 deniedOct. 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 deniedAugust 31, 1992.

8 No. 02-C-01-9108-CC-00175 (Tenn. Crim. App., filed March 25, 1992, at Jackson), perm. to appeal denied August 31, 1992. 7 withinone range coupled with a release eligibility of another range is legal.

In Jos eph Harvey Cutright v. State , 8 the defendant was originallycharged 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. Inreturn for his plea of guilty to seconddegree mur der , the State agreed that the defendant be sentenced under the 1982 Act to a term of fifty years as a R ange II persistent offender with a release eligibility of fort y pe rcent. In his petition for post-conviction relief, Cutright alleged that his sentence was “illegal.” A divided pa nel of the Court of Criminal Appeals cited Terry and held that any irregularity as to classificationor release eligibil itywas waived by the plea of guiltyknowingly 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 n or the forty percent release eligibility9 Accordin g to Hicks, we disapproved of mixing range

classifications and release eligibilityper centages in our order declaring Cutright’s sentence a nullity. However, we think in Cutright the intermediate c ourt 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.

10 No. 02-C-01-9304-CC-00052 (Tenn. Crim. App., filed June 29, 1994, at Jackson), perm. to appeal denied Oct. 3, 1994.

11 George 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 comportedwith 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 yea rs. The Court of Criminal Appeals held that because the sentence was within the permissible stat utor y limits (fifteento 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 panel s of the Court of Crimi nal 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. Terryhad been published for
more than a year. Nevertheless, the provisions of the 1989 Act and the 1982 Act tha t req uire a person to be sentenced in accordance withthe statute are identical. Moreover, the statutoryprocedure9

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 classificationand 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 guil ty 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.