CORNELIA A. CLARK, C.J., delivered the opinion of the Court, in which WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined. GARY R. WADE, J., filed a separate opinion in which JANICE M. HOLDER, J., joined.
We granted this appeal to determine if the defendant's four sentences for aggravated rape are illegal because each of the four uniform judgment documents designates the defendant as a "Multiple 35% Range 2" offender and does not designate the defendant as a "Multiple Rapist." Because the four uniform judgment documents indicate that the defendant is eligible for early release on parole, which is in direct contravention of a statutory provision, we hold that the four sentences are illegal and void. The defendant's underlying convictions of aggravated rape, which arose from a jury verdict before a court of competent jurisdiction, remain intact. We remand this matter to the sentencing court for the entry of four amended judgment orders, each to set forth the legal sentence on each of the defendant's four convictions of aggravated rape, including the designation that the defendant is a "Multiple Rapist."
In 1995, a jury convicted David Cantrell ("Defendant") of four counts of aggravated rape, a Class A felony, and one count of false imprisonment, a Class A misdemeanor, that he committed earlier that year. The trial court sentenced Defendant to forty years on each of the aggravated rape convictions and structured service of the sentences to result in an effective term of eighty years. On each of the four judgment orders entered on the aggravated rape convictions, Defendant is designated a "Multiple 35% Range 2" offender. Although each judgment order also contains a place in which to designate the offender a "Multiple Rapist," none of Defendant's four judgment orders on his aggravated rape convictions reflects this designation.
Defendant appealed, challenging the sufficiency of the evidence and claiming that his effective eighty-year sentence was excessive. The Court of Criminal Appeals affirmed Defendant's convictions and sentence. Although the intermediate appellate court made specific mention of Defendant's sentencing classification as a "Range II Multiple Offender," it did not address that classification as error. See State v. Cantrell, C.C.A. No. 01C01-9604-CC-00136, 1997 WL 661496, at *5-6 (Tenn. Crim.App. Oct. 24, 1997). This Court denied Defendant's application for permission to appeal. Id., perm. appeal denied (Tenn. July 6, 1998).
On April 21, 2009, Defendant filed a pro se petition for writ of habeas corpus on the basis that the trial court did not have authority to sentence him as a multiple, Range II offender "with a release eligibility of 35%." The habeas corpus court denied relief, ruling that Defendant's sentences on his aggravated rape convictions were not illegal. Defendant appealed and the Court of Criminal Appeals affirmed, concluding that the designation of Defendant as a "Multiple 35% Range 2" offender was "merely a clerical error." Cantrell v. Easterling, No. W2009-00985-CCA-R3-HC, 2010 WL 848810, at *5 (Tenn.Crim. App. Mar. 10, 2010) The intermediate appellate court reasoned as follows:
Id. at *4 (citing Braden v. Bell, No. M2004-01381-CCA-R3HC, 2005 WL 2008200, at *3-4 (Tenn.Crim.App. Aug. 19, 2005)).
We granted permission to appeal to address, once again, the effect of a judgment order which sets forth a sentence that directly contravenes a statute.
Whether to grant relief upon review of the denial of a petition for a writ of habeas corpus is a question of law. Hart v. State, 21 S.W.3d 901, 903 (Tenn.2000). Accordingly, our review is de novo with no presumption of correctness given to the conclusions of the court below. Hogan v. Mills, 168 S.W.3d 753, 755 (Tenn.2005).
The Tennessee Criminal Sentencing Reform Act of 1989 ("the Sentencing Act") is codified at Tennessee Code Annotated sections 40-35-101 through -505 (2010). It consists of sixty-six statutes, many containing multiple parts. The multitude of cases explicating these statutes demonstrates that, in application, the Sentencing Act presents challenges to both trial and appellate courts. Mistakes are inevitable. A recurring issue before Tennessee's trial
Some errors arise simply from a clerical mistake in filling out the uniform judgment document. As to these types of errors, which we will refer to as "clerical errors," Tennessee Rule of Criminal Procedure 36 provides that "[a]fter giving any notice it considers appropriate, the court may at any time correct clerical mistakes in judgments, orders, or other parts of the record, and errors in the record arising from oversight or omission."
For instance, in Wilkerson v. Carlton, No. E2007-02453-CCA-R3-HC, 2008 WL 4949227 (Tenn.Crim.App. Nov. 20, 2008), the defendant was convicted of first degree murder, especially aggravated robbery, and theft over $1,000. The transcript of the sentencing hearing revealed that the trial court sentenced the defendant to twenty-five years on the robbery conviction and four years on the theft conviction. In filling out the uniform judgment documents, however, the trial court mistakenly transposed the sentences for the robbery and theft convictions. Thus, the uniform judgment order on the defendant's especially aggravated robbery conviction set forth a sentence of four years, and the judgment order on the defendant's theft over $1,000 conviction set forth a sentence of twenty-five years. The Court of Criminal Appeals correctly determined that this error was clerical in nature and affirmed the habeas corpus court's ruling that the judgments be forwarded to the sentencing court for correction. Id. at *4-6.
A second category of errors, which we will label "appealable errors," consists of those errors for which the Sentencing Act specifically provides a right of direct appeal:
Tenn.Code Ann. § 40-35-401(a) (emphases added). Similarly,
Id. § 40-35-402(a). And, Tennessee Code Annotated sections 40-35-106(d), -107(d), and -108(d) provide that either party may appeal from a trial court's determination that a defendant is a multiple, persistent, or career offender.
A brief consideration of the methodology used to determine a defendant's offender classification (which also determines his sentencing range), the length of his sentence, the manner of service of his sentence, and whether multiple sentences should run concurrently or consecutively, demonstrates why these issues depend upon findings of fact and are therefore appropriately raised only on direct appeal.
A trial court's conclusion that a defendant is, for example, a multiple offender, and therefore subject to a Range II sentence, rests on issues of fact—the number, classes, and dates of his prior convictions—which must be determined "beyond a reasonable doubt." Id. § 40-35-106(c). Accordingly, a trial court's "finding" that a defendant is a multiple offender "is appealable by either party." Id. § 40-35-106(d). So, if a defendant is aggrieved by the trial court's determination that he is a multiple offender, he may raise this issue on direct appeal. Such an appeal is in the nature of a challenge to the sufficiency of the evidence.
Similarly, the length of a defendant's sentence is based in part upon the trial court's consideration of the mitigating and enhancement factors set forth in Tennessee Code Annotated sections 40-35-113 and -114. See id. § 40-35-210(b); but see id. § 40-35-108(c) ("A defendant who is found by the court beyond a reasonable doubt to be a career offender shall receive the maximum sentence within the applicable Range III."). Again, each of these factors must be established through proof and, when relying on any of these factors, the trial court is, in essence, making findings of fact. Likewise, the manner in which a defendant is ordered to serve his sentence, e.g., on probation or incarcerated, depends on the proof offered at the sentencing hearing and findings of fact made by the trial court. See id. § 40-35-210(f). And, finally, whether a defendant is ordered to serve multiple sentences concurrently or consecutively generally depends upon the proof supporting, and the trial court's findings of fact regarding, the factors set forth in section 40-35-115. In short, a challenge to a defendant's sentence on any of these bases is akin to a challenge to the sufficiency of the evidence supporting a conviction. Thus, the Sentencing Act makes clear that errors of this nature are to be addressed on direct appeal and not in a post-conviction or habeas corpus proceeding.
Release eligibility dates ("REDs") are of a different nature altogether. An RED is the date upon which an inmate becomes eligible for parole. See Tenn. Code Ann. § 40-35-501(a). Release on parole is, of course, not a right but a privilege. Id. § 40-35-503(b); Davis v. State, 313 S.W.3d 751, 756 n. 5 (Tenn.2010). Parole determinations are made by the Board of Probation and Parole, not trial courts. Tenn.Code Ann. §§ 40-28-118(a) (2006), 40-35-503(a).
A defendant's RED does not depend directly upon factual findings by the trial court, but is determined entirely by statute. See Tenn.Code Ann. § 40-35-501. While not explicitly determined or assigned
Although a trial court does not assign an RED to a defendant at sentencing (except insofar as the trial court assigns an offender classification), this Court has recognized that a defendant and the State may agree to "mix and match" offender classifications and REDs pursuant to a plea bargain. As we stated in Davis,
313 S.W.3d at 760 (citations omitted). See also McConnell v. State, 12 S.W.3d 795, 799 (Tenn.2000) ("The 1989 [Sentencing] Act establishes the outer limits within which the State and a defendant are free to negotiate, and the courts are bound to respect those limits."). Thus, a defendant may agree to be sentenced as a Range I standard offender with an RED of thirty-five percent even if the facts would support a different offender classification and different RED. Such a plea-bargained sentence may not, however, contravene the Sentencing Act. That is, both the offender classification and the RED must be available for the plea offense under the Act.
We refer to the third category of sentencing errors as "fatal errors" because they are so profound as to render the sentence illegal and void. An illegal sentence is one which is "in direct contravention of the express provisions of [an applicable statute], and consequently [is] a nullity." State v. Burkhart, 566 S.W.2d 871, 873 (Tenn.1978). We also include within the rubric "illegal sentences" those sentences which are not authorized under the applicable statutory scheme. Davis, 313 S.W.3d at 759.
Examples of illegal sentences include
Id. (citations omitted) (emphasis added). See also, e.g., May v. Carlton, 245 S.W.3d 340, 348-49 (Tenn.2008) (granting habeas corpus relief where the judgment included a declaration of infamy for a crime not declared infamous by the statutes in effect when the offense was committed and the sentence imposed); Smith v. Lewis, 202 S.W.3d 124, 127-28 (Tenn.2006) (holding a sentence illegal because it included a release eligibility percentage in clear contravention of a statute requiring child rapists to serve their entire sentence); Stephenson v. Carlton, 28 S.W.3d 910, 912 (Tenn. 2000) (granting habeas corpus relief where the judgment included an "illegal and void" sentence of life imprisonment without the
Drawing the distinction among these various categories has proved vexatious for our courts, yet it is crucial to determine the category into which an alleged sentencing error falls, because the avenues of relief are significantly different. Errors belonging to the category known as "clerical mistakes" are addressed pursuant to Tennessee Rule of Criminal Procedure 36. Errors belonging to the category which we have labeled "appealable errors" may be addressed only on direct appeal. Only sentences containing "fatal errors," and which are therefore illegal, may be addressed through the collateral proceeding of habeas corpus.
In 1978, this Court recognized that a trial court has the authority to correct an illegal sentence at any time. Burkhart, 566 S.W.2d at 873. We did not at that time, however, set forth the procedure to be followed for seeking the correction of an allegedly illegal sentence. A year later, Tennessee's Rules of Criminal Procedure became effective. Unfortunately, the Rules did not contain a specific procedural mechanism for seeking relief from an allegedly illegal sentence. In 2005, this Court determined that habeas corpus was a correct procedural mechanism to use for seeking the correction of an illegal sentence. Moody, 160 S.W.3d at 516.
Although the Tennessee Constitution guarantees the right to seek habeas corpus relief, see Tenn. Const. art. I, § 15, the procedure for seeking state habeas corpus relief is regulated by statute. See Tenn.Code Ann. §§ 29-21-101 through -130 (2000 and Supp.2010). "Any person imprisoned or restrained of liberty, under any pretense whatsoever, except in cases specified in § 29-21-102 [dealing with federal prisoners], may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment and restraint." Id. § 29-21-101 (2000). Although this statutory language is broad, this Court has long recognized "the limited nature of the relief available pursuant to the writ of habeas corpus." Archer v. State, 851 S.W.2d 157, 161 (Tenn.1993) (citing State ex rel. Karr v. Taxing Dist. of Shelby Cnty., 84 Tenn. (16 Lea) 240, 249-50 (1886)). To wit, "`[w]hen the restraint, from which relief is sought by a writ of habeas corpus, proceeds from a judgment erroneous but not void, the writ will not lie.'" Archer, 851 S.W.2d at 161 (quoting Karr, 84 Tenn. at 249). Thus, the key issue becomes whether the challenged judgment is "void." And, as we explained many years ago,
Lynch, 166 S.W.2d at 398 (quoting New York Cas. Co. v. Lawson, 160 Tenn. 329, 336, 24 S.W.2d 881 (1930)). Stated slightly differently,
Archer, 851 S.W.2d at 164. "[F]or purposes of habeas corpus proceedings, the term `jurisdiction' is synonymous with the term `authority.'" Edwards v. State, 269 S.W.3d 915, 920-21 (Tenn.2008) (citing Lynch, 166 S.W.2d at 398-99).
The separate concurring opinion maintains that this Court has drawn distinctions between illegal sentences imposed by the trial court without a plea bargain and illegal sentences imposed pursuant to a plea bargain. We disagree. A trial court either has jurisdiction to impose the sentence or it does not, regardless of how the specific sentence is determined. If the trial court has the statutory authority to impose a particular sentence, habeas corpus relief is not available. See Edwards, 269 S.W.3d at 921 (recognizing that this Court's decisions "illustrate that the availability of habeas corpus relief is not dependent upon the manner of imposition of the sentence").
The actual distinction we have drawn is between sentences that are statutorily available but ordinarily inapplicable to a given defendant and those that are simply unavailable under the Sentencing Act. For example, a defendant with a single prior conviction of a Class C felony may be charged with a Class A felony. On conviction, such a defendant typically would be sentenced as a standard offender. See Tenn.Code Ann. § 40-35-105(a). Standard offenders are sentenced within Range I. Id. § 40-35-105(b). A Range I sentence for a Class A felony is fifteen to twenty-five years. Id. § 40-35-112(a)(1). The RED for a Range I sentence is thirty percent. Id. § 40-35-501(c). The defendant is therefore subject to a minimum term of incarceration of four years and six months (less any applicable sentence credits) if he is convicted as charged. However, the defendant and the State may agree for the defendant to plead guilty to a Class B felony as a Range II multiple offender for the minimum term. A Range II sentence for a Class B felony is twelve to twenty years, id. § 40-35-112(b)(2), and the RED is thirty-five percent, id. § 40-35-501(d). Under the plea agreement, the defendant would be eligible for parole after serving four years and approximately two and one-half months. Although the defendant in this scenario does not have the prior convictions that would ordinarily result in the multiple offender classification, see id. § 40-35-106(a), his agreement to be sentenced as a Range II offender does not create a jurisdictional problem because Range II sentences for Class B felonies are available under the Sentencing Act, id. § 40-35-112(b)(2). This Court considers the defendant to have waived any complaint he might later lodge concerning this legal, if irregular, sentence. See, e.g., Hicks v. State, 945 S.W.2d 706, 709 (Tenn. 1997). No jurisdictional defect exists because the trial court had the statutory authority to impose the sentence and the sentence contravenes no statute.
By the same token, a trial court may miscount the number of prior convictions that a defendant has. In so doing, the trial court may classify a defendant as a
Because habeas corpus relief is available only where the judgment being attacked is "void" or where the sentence has expired, petitioners must cast their allegations this way, and this Court has been asked numerous times to determine whether a particular sentence is illegal and therefore void. See, e.g., Davis, 313 S.W.3d at 754; May, 245 S.W.3d at 342; Summers v. State, 212 S.W.3d 251, 254 (Tenn.2007); Smith, 202 S.W.3d at 125-26; Stephenson, 28 S.W.3d at 910. As recited above, we set forth in Davis four non-exclusive categories of illegal sentences, including those that designate an RED where prohibited by statute. The legality of the sentences in all of these categories generally may be determined by simply comparing the judgment order against the relevant statutes.
If we determine that a challenged judgment is void, we must also determine which component of the judgment is void. As our Rules of Criminal
Moreover, if the conviction is valid but the sentence is illegal, and therefore void, then the remedy depends upon whether the sentence was imposed pursuant to a plea-bargain.
Convicted defendants who are classified as "Multiple 35% Range 2" offenders are eligible for early release on parole after serving thirty-five percent of their sentence (less sentence credits). Tenn.Code Ann. § 40-35-501(d). However,
Because of his four convictions for aggravated rape, Defendant is statutorily ineligible for early release on parole. See Tenn.Code Ann. § 39-13-523(b), (c). Unfortunately, his four judgment orders do not correctly reflect his statutorily-required sentencing status. Instead, Defendant's four judgment orders, entered on each of his aggravated rape convictions, indicate that he is eligible for early release on parole after serving 35% of his sentence. This indication is in direct contravention of Tennessee Code Annotated section 39-13-523, which provides that he is not eligible for early release on parole. Defendant's sentences on his four aggravated rape convictions are therefore illegal and void. See Smith, 202 S.W.3d at 128. The State concedes this point in its brief to this Court.
The Court of Criminal Appeals held that the "Multiple 35% Range 2" designation in each of Defendant's four aggravated rape judgment orders was "merely a clerical error" and did not create an illegal sentence subject to habeas corpus relief. On the record before us, we must disagree. There is no evidence demonstrating that the judgment orders conflict with the sentences actually imposed by the trial court during the sentencing hearing. Cf. Coleman v. Morgan, 159 S.W.3d 887, 892 (Tenn.Crim.App.2004) (concluding that Rule 36 did not apply where transcript of defendant's guilty plea hearing indicated that illegal sentence reflected on judgment document was sentence actually imposed); see also Braden, 2005 WL 2008200, at *6 (recognizing that a sentencing error on the judgment document may be deemed "clerical" only where "shown by the transcript of the sentencing hearing, minute book entries, or other records in the convicting case") (Tipton, J., dissenting). Moreover, the intermediate appellate court's conclusion does not take into account the binding nature of the documents on TDOC. TDOC is required to enforce judgment orders as they are written. TDOC does not have the authority to "correct" what it perceives to be errors, clerical or otherwise, in judgment orders. Burkhart, 566 S.W.2d at 873 (recognizing that "[t]he Department of Correction may not alter the judgment of a court, even if that judgment is illegal"); see also Tenn. Atty. Gen. Op. No. 98-126, 1998 WL 423988, at *1 (July 20, 1988) (opining that "[t]he Department of Correction may not alter a judgment entered by a court even if it is illegal. The Department must comply with the order until it is corrected"). According to each of Defendant's four judgment orders, TDOC must certify Defendant as eligible for parole upon his having served 35% of his sentence. See Tenn. Atty. Gen. Op. 98-126, 1998 WL 423988, at *1. However, according to Tennessee Code Annotated section 39-13-523(c), Defendant is not eligible to be considered for parole. TDOC is caught in the middle, between a fundamentally flawed judgment order and a legislative mandate. This result is not acceptable.
The separate concurring opinion misconstrues isolated language in Edwards in an attempt to make out a jurisdictional issue where none exists. Edwards deals with a convicted defendant who was trying to challenge in a habeas corpus proceeding the trial court's finding that he was a persistent offender. The defendant claimed that his offender classification was not supported by the requisite number of prior convictions. Edwards, 269 S.W.3d at 917. That is, the defendant was challenging the sufficiency of the evidence underlying the trial court's offender classification decision. We rejected the defendant's challenge, reiterating that
Id. at 924.
Edwards does not deal with a sentence that fell outside of the trial court's jurisdiction. Nor does it deal with a sentence that "was in excess of that permitted by statute," as asserted in the separate concurring opinion. Edwards was sentenced to a Range III nine-year sentence as a persistent offender on a Class D felony. Id. Tennessee Code Annotated section 40-35-112(c)(4) permits this sentence. While a trial court may make an error in offender classification, the error is not going to render the sentence illegal so long as the classification falls within the purview of the Sentencing Act. That is because the trial court had the jurisdiction to make the error. See Edwards, 269 S.W.3d at 924. ("[The Defendant's] assertions amount to no more than a claim that the trial court erred in exercising the jurisdiction it clearly possessed under the governing sentencing statutes."). Correction of an alleged error in offender classification must be sought on direct appeal. See Tenn.Code Ann. §§ 40-35-106(d), -107(d), -108(d), 40-35-401(a), -402(a) & (b)(4).
If the trial court in Edwards had instead classified the defendant as, for instance, a "de minimus" offender, the defendant's habeas corpus challenge to the legality of his sentence would have succeeded. Under the Sentencing Act, a trial court does not have the authority or the jurisdiction to classify a defendant as a "de minimus" offender. The actual impact of Edwards, then, is limited to its unsurprising holding
The language in Edwards cited by the separate concurring opinion—that "offender classification is a non-jurisdictional element of sentencing"—presumes that the offender classification at issue is a statutorily available one because the offender classification at issue in that case was statutorily available. The cited language does not stand for the proposition that an offender classification can never, under any circumstances, be illegal.
With respect to REDs, we emphasize that they are a function of statute, not trial court findings of fact or conclusions of law. See generally Tenn.Code Ann. § 40-35-501. As set forth above, REDs are typically dependent upon a defendant's offender classification, but can be "mixed and matched" in conjunction with plea agreements, so long as the RED is available under the Sentencing Act. If the RED is not available under the Sentencing Act, as in this case, its provision is illegal because no authority exists for its imposition. Edwards does not contradict this principle.
In sum, the release eligibility date designated on the judgment orders in this case was not available under the Sentencing Act. Ergo, the trial court lacked jurisdiction to impose the sentences at issue and habeas corpus relief is available. Edwards is not inconsistent with our holding.
Defendant's four sentences for his four aggravated rape convictions are illegal because, in direct contravention of Tennessee Code Annotated section 39-13-523, each of the judgment orders indicates that Defendant is eligible for early release on parole (by the designation "Multiple 35% Range 2" offender) instead of indicating that he must serve his entire sentence (by the designation "Multiple Rapist"). Defendant's underlying convictions are not tainted by the illegality and therefore remain intact. We grant habeas corpus relief to the extent of remanding this matter to the Circuit Court of Hickman County, Tennessee, for the entry of amended judgment orders reflecting Defendant's status as a "Multiple Rapist." Defendant's judgments are in no other way modified.
The costs of this cause are taxed to the State, for which execution may issue if necessary.
GARY R. WADE, J., concurring in the judgment.
I can concur that the petitioner's sentence is illegal and void because it directly contravenes the multiple rapist sentencing statute. By granting limited habeas corpus relief and remanding to the trial court for entry of a corrected sentence, the majority has essentially adopted the position of the State. While this result is proper under these specific circumstances, I would submit that the ruling today is inconsistent with the opinion in Edwards v. State, 269 S.W.3d 915 (Tenn.2008), a case I continue to believe was wrongly decided. Moreover, in an apparent effort to conform its decision today with rulings in our previous habeas corpus cases, the majority has created new and heightened standards for relief which, in my assessment, will serve to further confuse this area of the law. Finally, I believe that this case offered an opportunity to overrule altogether our decision in Edwards and, by doing so, reconcile a series of our prior opinions on the subject of habeas corpus.
Article I, section 15 of the Tennessee Constitution preserves the right to seek habeas corpus relief in our state courts. The writ of habeas corpus has been regulated in Tennessee by statute for over one hundred years. Faulkner v. State, 226 S.W.3d 358, 361 (Tenn.2007); see also Tenn.Code Ann. § 29-21-101(a) (Supp. 2010) ("Any person imprisoned or restrained of liberty, under any pretense whatsoever, except in cases specified in subsection (b) and in cases specified in § 29-21-102, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment and restraint."). Although the statutory language is broad, "the grounds upon which habeas corpus relief will be granted are narrow" and "[h]abeas corpus relief is proper only if the petition establishes that the challenged judgment is void, as opposed to merely voidable." Hickman v. State, 153 S.W.3d 16, 20 (Tenn.2004) (citations omitted). This Court has held that the writ of habeas corpus may be sustained "only when it appears upon the face of the judgment or the record of the proceedings ... that a court lacked jurisdiction or authority to sentence a defendant or that the sentence has expired." Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn.2000); accord State v. Galloway, 45 Tenn. (5 Cold.) 326, 336-37 (1868). An illegal sentence qualifies as void and may be set aside through habeas corpus at any time. Summers v. State, 212 S.W.3d 251, 256 (Tenn.2007) (citing Moody v. State, 160 S.W.3d 512, 516 (Tenn.2005)).
Thirty-three years ago, this Court decided State v. Burkhart, 566 S.W.2d 871 (Tenn.1978), the leading case on the subject of illegal sentences. Burkhart, who was serving a sentence for burglary, escaped from prison. When he pled guilty to a charge of escape, the trial court imposed a concurrent sentence, even though the relevant statute required a consecutive term. Id. at 872. The concurrent sentence was imposed "in direct contravention of the express [statutory] provisions ... and consequently was a nullity." Id. at 873. Citing holdings in a number of other jurisdictions, this Court ruled that "a trial judge may correct an illegal, as opposed to a merely erroneous, sentence at any time, even if it has become final." Id. (emphasis added). Because Burkhart asserted that his plea was the result of an agreement that was no longer valid, the Court observed that if his allegation was "true, [he] would be entitled to proceed to trial on [the escape] charge" and remanded for a hearing on that issue. Id. Burkhart,
The decision in State v. Mahler, 735 S.W.2d 226 (Tenn.1987), signaled an important development in this area of the law in the context of a plea agreement. Mahler, who was charged with first degree murder, pled guilty to second degree murder and, even though his prior criminal history warranted only a Range I classification, agreed to be sentenced as a Range II offender. Id. at 226-27. Later, he filed a post-conviction petition arguing that his sentence was illegal. Id. at 227. While acknowledging that a judgment in contravention of statute is illegal and may be set aside at any time, this Court distinguished Burkhart and denied relief for two reasons: "[t]he sentence imposed was clearly within statutory limits fixed for [second degree] murder" and "any question as to the classification of appellant as a Range II offender or as to his release eligibility was waived by the guilty plea." Id. at 228. For the first time, this Court drew a distinction between a sentence imposed by a trial court and one agreed to by plea bargain.
In Hicks v. State, 945 S.W.2d 706 (Tenn. 1997), decided ten years after Mahler, this Court restated the distinction. Hicks filed a post-conviction challenge to his "hybrid" sentence: he had entered into a plea agreement with the State to serve a Range II sentence of ten years for voluntary manslaughter with a Range I release eligibility of thirty percent. Id. at 706. While observing that the Court of Criminal Appeals was split on the propriety of such a sentence under the Criminal Sentencing Reform Act of 1989 ("1989 Act"), id. at 708-09, this Court denied relief, holding, as in Mahler, that "a knowing and voluntary guilty plea waives any irregularity as to offender classification or release eligibility." Id. at 709. The Hicks opinion noted that Mahler had been published for more than a year when the General Assembly passed the 1989 Act, and "[h]ad 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." Id. Because the General Assembly chose not to do so, the Court determined that the legislature's intent was to permit the practice. Id. Hicks, having entered into the plea agreement knowingly and voluntarily, could not later mount a collateral attack on the legality of his sentence even though the release eligibility determination contravened the provisions of the 1989 Act.
The decision in McConnell v. State, 12 S.W.3d 795 (Tenn.2000), established limits to the rulings in Mahler and Hicks. McConnell, who had previously pled guilty to second degree murder and robbery, filed for post-conviction relief, arguing that his sentence was illegal because it was calculated pursuant to the Criminal Sentencing Reform Act of 1982 even though he had committed the offense after the 1989 Act became effective. Id. at 796-97. This Court reaffirmed the holding in Hicks, observing that offender classification and release eligibility determinations were proper "subjects of plea bargain negotiations" and that "[t]hese elements of plea bargaining" qualified "as non-jurisdictional." Id. at 798. Because, however, the term of years exceeded the statutory maximum under the 1989 Act, id. at 800, this Court granted relief from the convictions, explaining that, "[w]hile it is true that a plea bargain agreement is contractual, contract principles extend only so far." Id. at 799 (citation omitted). Allowing a sentence in excess of the statutory maximum
In Moody, 160 S.W.3d at 512, decided five years after McConnell, this Court established the procedure for challenging an illegal sentence. Convicted of aggravated assault and spousal sexual battery, Moody, by agreement with the State, was placed on probation pursuant to a program that required him to register as a sex offender. Id. at 514. During his probation, "Moody neither sought a direct appeal of his convictions and sentences nor challenged them in a post-conviction or habeas corpus proceeding." Id. Almost four years later, however, after his probation was revoked, he filed a "Motion to Correct Errors in Judgment," arguing that his sentence was illegal because neither of the offenses of which he was convicted was a "sexual offense" for registration purposes as defined by statute. Id. at 514-15. Moody appealed the trial court's denial of his motion by filing a petition for writ of certiorari, but the Court of Criminal Appeals dismissed the appeal, holding that he should have sought relief from the sentences through a habeas corpus petition. Id. at 514. This Court affirmed, holding "that the proper procedure for challenging an illegal sentence at the trial level is through a petition for writ of habeas corpus, the grant or denial of which can then be appealed under the Rules of Appellate Procedure." Id. at 516 (citing Stephenson, 28 S.W.3d at 912).
In Smith v. Lewis, 202 S.W.3d 124 (Tenn.2006), this Court confirmed the principle that an illegal sentence apparent on the face of the judgment or within the record of the underlying proceedings renders the judgment void, but also held that where the illegality is in the sentence rather than the conviction, only the sentence is void, and the conviction may remain intact. Id. at 130. Smith had pled guilty to one count of child rape and agreed to serve fifteen years as a Range I offender. Id. at 126. Although the original and amended orders provided that he would be eligible for early release, this was not permissible under Tennessee Code Annotated section 39-13-523(b) (Supp.1996), which provides that one convicted of child rape must serve the full sentence without possibility of early release.
Hoover v. State, 215 S.W.3d 776 (Tenn. 2007), involved a plea agreement that included a thirty-five-year sentence as a Range I offender for second degree murder and attempt to commit especially aggravated robbery. Id. at 777. Hoover later filed a petition for writ of habeas corpus claiming that the sentence was illegal because the maximum Range I sentence for second degree murder was twenty-five years. Id. at 777-78. The trial court granted Hoover habeas corpus relief, but the Court of Criminal Appeals reversed. Id. at 778. Because the "plea-bargained sentence [wa]s well below the maximum punishment authorized for the plea offense of second degree murder" and because "a plea-bargained sentence is legal so long as it does not exceed the maximum punishment authorized for the plea offense," id. at 781, this Court denied relief, confirming the principle set forth in Mahler and Hicks that offender classification and release eligibility may be used as bargaining tools in plea negotiations. Id. at 780. As in McConnell, the Court referred to those two elements of sentencing as "non-jurisdictional," id., and held that "Hoover [had] waived any irregularity concerning his offender classification or release eligibility when he pleaded guilty." Id. at 780-81.
Breaking new ground, this Court in Edwards extended the concept of "non-jurisdictional" sentencing errors beyond the context of waiver in plea-bargained sentences and applied the term as a means of upholding a sentence imposed by the trial court after a jury trial, even though the sentence was in excess of that permitted by statute. 269 S.W.3d at 923-24. A jury convicted Edwards of burglary, and the trial court sentenced him as a Range III persistent offender. Id. at 917. Later, Edwards sought habeas corpus relief because he lacked the five convictions necessary to be sentenced as a persistent offender. Id. The Edwards majority, no longer relying on waiver by a knowing and voluntary plea, reiterated "`that offender classification and release eligibility are non-jurisdictional,'" id. at 923 (quoting Hoover, 215 S.W.3d at 780-81 (first emphasis added)), and ultimately denied relief:
Id. at 924 (emphasis added).
I continue to be unable to reconcile with established precedent the majority's decision in Edwards to deny habeas corpus relief where "the trial court imposed the Petitioner's sentence in direct contradiction of a sentencing statute after a jury verdict, [unlike] those in which the judgment has been entered through a guilty plea." 269 S.W.3d at 929 (Wade & Holder, JJ., dissenting); see also Davis, 313 S.W.3d at 771 (Wade & Holder, JJ., concurring) ("[A] sentence imposed by a trial court after conviction or an open plea of guilt (absent any negotiated term) that qualifies as illegal under our statutory scheme [sh]ould be subject to a meritorious [habeas corpus] attack.").
In the case before us, neither the State nor the petitioner asked this Court to address the propriety of Edwards. In my view, however, Edwards stands for the proposition that after a guilty verdict (or an open plea of guilt), a sentence in contravention of statute is "non-jurisdictional"— merely voidable,
The majority submits that Edwards does not apply to this case because the trial court in Edwards had jurisdiction to make the error in offender classification, whereas the trial court here lacked jurisdiction to impose a sentence at 35% even though the petitioner was convicted as a multiple rapist, requiring 100% service of the sentence. The majority further states that "[t]he actual impact of Edwards ... is limited to its unsurprising holding that an allegedly erroneous offender classification does not create an illegal sentence so long as the offender classification is available under the Sentencing Act." Even if the holding in Edwards is so limited, I see no logic in differentiating between offender classification and release eligibility determinations for purposes of discerning whether a sentence imposed by a trial court is illegal. The 1989 Act refers to the types of errors the majority classifies as "appealable errors," specifically mentioning appeals of "the length, range or the manner of service of the sentence imposed by the sentencing court," as well as "the imposition of consecutive sentences." Tenn.Code Ann. § 40-35-401(a) (2010). Both offender classification and release eligibility determinations involve "the length, range or the manner of service" of a sentence. Moreover, this Court has repeatedly ruled that both offender classification and release eligibility determinations are "non-jurisdictional." See Davis, 313 S.W.3d at 765; Edwards, 269 S.W.3d at 924; Hoover, 215 S.W.3d at 780; McConnell, 12 S.W.3d at 798. If, as the majority suggests, Edwards is limited in its reach to cases involving erroneous offender classifications, did this Court err in Davis, Edwards, Hoover, and McConnell by also referring to release eligibility determinations as "non-jurisdictional?"
I am also concerned about the majority's suggestion that habeas corpus is not available to challenge a sentence, like the one in Edwards, that was imposed due to a trial court's erroneous findings of fact. On this point, the majority explores uncharted territory. I know of no prior rulings by this Court stating that the availability of habeas relief turns on whether the illegality of the sentence is based upon a finding of fact or a mistake in the law. Both Edwards and the case at issue involved errors in the application of facts (the number of prior convictions and the number of rape convictions, respectively) to the law (the relevant statutes governing sentencing). The majority's distinction between sentencing errors based upon findings of fact and those based upon mistakes of law is nowhere to be found in Edwards or in any of our prior decisions involving illegal sentences.
As I stated in the concurring opinion in Davis, I believe that it is essential for this Court to set forth a workable rule for the trial courts addressing "illegal sentences" in habeas corpus petitions. Today's majority opinion properly reiterates the long-held principle, first enumerated in Burkhart, that a sentence is illegal and void, and thus may form a basis for habeas relief, if it is imposed "in direct contravention of a governing sentencing statute" or if it is a sentence "not available under the sentencing statutes governing the case." See Edwards, 269 S.W.3d at 921. Because offender classification is determined by reference to a statutory scheme, see Tenn. Code Ann. §§ 40-35-105 to -109 (2010), I believe that a sentence which is not a part of a plea agreement and which includes an offender classification, either unavailable under or in direct contravention of the governing statutes, qualifies as illegal. It is difficult to fathom how any sentence imposed by the trial court could contain "errors and/or irregularities in offender classification" resulting in a term of imprisonment beyond legislative authority and not "directly contravene[] a governing statute." Edwards, 269 S.W.3d at 924.
Expressly overruling Edwards would not, of course, affect the waiver rule first set forth in Mahler and followed in McConnell, Hoover, and Davis—all cases in which the sentence was agreed to by guilty plea. Offender classification and release eligibility determinations should still be the subject of plea negotiations provided that the agreed sentence is within the statutory minimum and maximum for the particular offense. A knowing and voluntary guilty plea may serve as a waiver of irregularities in offender classification or release eligibility; if, however, a trial court, after a conviction or upon an open plea of guilt, imposes a sentence in contravention of our statutory scheme, including an erroneous offender classification or release eligibility determination, a petitioner would be entitled to habeas corpus relief.
Applying this standard to the circumstances before us, I can concur with the majority. Because the petitioner's sentences for his four aggravated rape convictions, all of which were imposed by the trial court after verdicts of guilt, are in direct contravention of Tennessee Code Annotated section 39-13-523(b) (Supp. 1995), his petition for writ of habeas corpus should be granted and the cause remanded for entry of amended judgment orders in compliance with that statute.
I am authorized to state that Justice Holder joins in this concurring opinion.
Our Court of Criminal Appeals has, however, commented on the proper use of Rule 36 to amend judgments of conviction to correct an error in sentencing:
State v. Thomas, C.C.A. No. 03C01-9504-CR-00109, 1995 WL 676396, at *1 (Tenn.Crim. App. Nov. 15, 1995). The transcript of the sentencing hearing is not included in the record before us in this case. We note, however, that Defendant asserted in his motion to reconsider, filed after the habeas corpus court denied relief, that the sentencing court informed him during the sentencing hearing "that he would be eligible for parole after serving 35%" of his sentence. If the uniform judgment documents prepared and entered on Defendant's aggravated rape convictions accurately reflect the actual sentences imposed, then relief under Tennessee Rule of Criminal Procedure 36 is not available. See Coleman v. Morgan, 159 S.W.3d 887, 892 (Tenn.Crim.App.2004) (concluding that Rule 36 did not apply where transcript of defendant's guilty plea hearing indicated that illegal sentence reflected on judgment document was sentence actually imposed).
Tenn. R.Crim. P. 32(c)(3). See also Tenn. Code Ann. §§ 39-16-605(d) (2010); 40-20-111(b) (2006); 40-28-123(a) (2006). Thus, where a defendant has been sentenced for a felony that she committed while on parole for a previous felony conviction, the judgment order for the subsequent felony may not reflect the defendant's previous parole status. A court reviewing the second judgment order would therefore have to consider matters of record beyond the face of the judgment order to determine that a consecutive sentence was mandated. Habeas corpus relief is appropriate in these cases because the trial court was without authority to sentence the defendant to a concurrent sentence.
Tenn.Code Ann. § 29-21-101(b) (Supp.2010); Act of June 2, 2009, ch. 420, § 3, 2009 Tenn. Pub. Acts ___. Because Defendant filed this action prior to June 9, 2009, we do not address this amendment in this case.
