Opinion
No. M2007-01729-CCA-R3-HC.
December 18, 2007 Session.
Filed May 6, 2008.
Appeal from the Circuit Court for Hickman County; No. 07-5033C; Timothy Easter, Judge.
Judgment of the Circuit Court is Reversed; Case Remanded.
Jay Norman, Nashville, Tennessee, attorney for appellant, Terrance Lavar Davis.
Robert E. Cooper, Jr., Attorney General Reporter; and Mark A. Fulks, Assistant Attorney General, Nashville, Tennessee, attorneys for appellee, State of Tennessee.
D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Alan E. Glenn, JJ., joined.
OPINION
The petitioner, Terrance Lavar Davis, appeals as of right the Hickman County Circuit Court's summary dismissal of his petition for a writ of habeas corpus. The petition alleges that his bargained-for sentence of twenty-two years to be served at one hundred percent for possession of cocaine for resale in a drug-free school zone is illegal because the release eligibility is in contravention to the 1989 Criminal Sentencing Reform Act. The state argues that release eligibility is non-jurisdictional and can be an element of a plea-bargained sentence. Following our review, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.
The record reflects that the petitioner pled guilty to two counts of possession of more than 26 grams of cocaine for resale in a drug-free school zone and received a total effective sentence of twenty-two years. As an element of the plea bargain, the petitioner agreed to a release eligibility of one hundred percent. This court affirmed the denial of a petition for post-conviction relief. Terrance Davis v. State, No. M2005-01902-CCA-R3-PC, 2006 WL 3290822 (Tenn.Crim.App. Nov. 13, 2006),perm to appeal denied (Tenn. March 12, 2007).
ANALYSIS
Tennessee law provides that "[a]ny person imprisoned or restrained of his liberty under any pretense whatsoever . . . may prosecute a writ of habeas corpus to inquire into the cause of such imprisonment." Tenn. Code Ann. § 29-21-101. Habeas corpus relief is limited and available only when it appears on the face of the judgment or the record of proceedings below that a trial court was without jurisdiction to convict the petitioner or that the petitioner's sentence has expired.Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). To prevail on a petition for a writ of habeas corpus, a petitioner must establish by a preponderance of the evidence that a judgment is void or that a term of imprisonment has expired. See State ex rel. Kuntz v. Bomar, 214 Tenn. 500, 504, 381 S.W.2d 290, 291-92 (1964). If a petition fails to state a cognizable claim, it may be dismissed summarily by the trial court without further inquiry. See State ex rel. Byrd v. Bomar, 214 Tenn. 476, 483, 381 S.W.2d 280, 283 (1964); Tenn. Code Ann. § 29-21-109. We note that the determination of whether to grant habeas corpus relief is a matter of law; therefore, we will review the habeas corpus court's finding de novo without a presumption of correctness. McLaney v. Bell, 59 S.W.3d 90, 92 (Tenn. 2001).
The petition for a writ of habeas corpus alleges that the petitioner's sentence is illegal because a release eligibility date of one hundred percent exceeds that which is allowed pursuant to the 1989 Criminal Sentencing Reform Act. The petitioner admits that he agreed to this sentence, but insists that even an agreed sentence must be imposed within the limits of statutory authority. The state argued successfully in the habeas coprus court that release eligibility is an element of plea bargaining that could be negotiated between the state and the defendant, regardless of whether the offense is statutorily eligible for such release status.
The state also argued, and the habeas court agreed, that the judgments of conviction reflect an imposition of sentences in accordance with the Drug-Free School Zone statute and that the reference to one hundred percent service was a random notation, not affecting the sentences. However, also attached to the petition are the Petitions to Enter Plea of Guilty that indicate the parties agreed that the sentences would be served at one hundred percent service. The judgments and attached documents establish that the sentences were to be served at one hundred percent. See Summers v. State, 212 S.W.3d 251 (Tenn. 2007). Furthermore, this court's opinion affirming the denial of post-conviction relief acknowledges that the sentences were to be served at one hundred percent. Therefore, we respectfully disagree with both the state and the habeas court's characterization of the judgments in this case.
In State v. Mahler, 735 S.W.2d 226, 228 (Tenn. 1987), our supreme court held that questions of offender classification and release eligibility may be waived by a knowing and voluntary guilty plea. InHicks v. State, 945 S.W.2d 706, 707 (Tenn. 1997), the court reiterated that a plea-bargained sentence is legal as long as it does not exceed the maximum punishment authorized for the offense. The court inHicks held once again that a knowing and voluntary guilty plea waives any irregularity as to offender classification or release eligibility.Hicks, 945 S.W.2d at 709.
Three years later, in McConnell v. State, 12 S.W.3d 795 (Tenn. 2000), our supreme court granted post-conviction relief to a petitioner who received a sentence that, although within legal limits of the 1982 Criminal Sentencing Reform Act, was imposed for a conviction not eligible to be sentenced under the 1982 Act because it occurred subsequent to the 1989 Criminal Sentencing Reform Act. Similarly, the court granted habeas corpus relief to a petitioner who agreed to a sentence of life without parole when that option was not statutorily available to him because it did not exist at the time of the commission of the offense.Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000). More recently, in Smith v. Lewis, 202 S.W.3d 124, 128 (Tenn. 2006), our supreme court granted habeas corpus relief to a petitioner who agreed to a sentence for rape with a release eligibility of thirty percent. In granting relief, the court held that the sentence was illegal because the thirty percent release eligibility was precluded by the 1989 Act. See Tenn. Code Ann. § 40-35-501(i)(2).
Turning to the facts of this case, the judgments and documents attached to the petition for a writ of habeas corpus show that the petitioner agreed to a sentence of twenty-two years each for the two counts of possession for resale of more than 26 grams of cocaine in a Drug-Free School Zone, Class A felonies. Tenn. Code Ann. §§ 39-17-417(i)(5) -432(b)(2)(E). The term of imprisonment authorized for a Class A felony is fifteen to sixty years. Tenn. Code Ann. § 40-35-111(b)(1). Clearly, the lengths of the sentences in this case are within the limits proscribed by the statute.
However, the attached documents clearly indicate that the petitioner agreed to serve the sentence at one hundred percent. A conviction for a violation of the Drug-Free School Zone statute provides for release eligibility upon the "service of the entire minimum sentence for [the] defendant's appropriate range." Tenn. Code Ann. § 39-17-432(c),(d), (e). Therefore, the defendant would not be eligible for release until the completion of fifteen years imprisonment for a Class A felony. We further note that a violation of the Drug-Free School Zone statute is not one of the enumerated offenses requiring a one hundred percent release eligibility found in Tennessee Code Annotation section 40-35-501(i)(2). See also Tenn. Code Ann. § 39-17-432(d) ("the provisions of title 40, chapter 35, part 5, relative to release eligibility status and parole, shall not apply to or authorize the release of a defendant sentenced for a violation of [the Drug-Free School Zone statute] prior to the service of the entire minimum sentence for such defendant's appropriate range of sentence").
We note that the only instance in which a sentence for such an offense would result in a release eligibility of one hundred percent would be where the trial court imposed the minimum sentence. For example, a sentence of fifteen years for a C lass A felony violation of the Drug-Free School Zone statute would result, for practical purposes, in a release eligibility of one hundred percent. However, such a release eligibility would occur only by operation of the applicable provision found in Tennessee Code Annotated section 39-17-532(c)-(e).
A sentence imposed in direct contravention of the law is a nullity.Smith, 202 S.W.3d at 127. Despite the state's assertion to the contrary, this court cannot conclude that a bargained-for sentence that results in a more severe release eligibility status than that allowed by the statute is any less erroneous than a bargained-for sentence that results in a less severe release eligibility status than that allowed by statute. See id.; see also Tenn. Code Ann. § 40-35-501(f) (generally, the maximum release eligibility is sixty percent when sentenced as a career offender). Therefore, we conclude that the habeas court erred in summarily dismissing the petition for a writ of habeas corpus because the sentence imposed, although bargained-for, is illegal and contrary to the statute regarding release eligibility for violation of the Drug-Free School Zone statute. Because it is apparent from the record that the illegal release eligibility was a bargained-for element of the sentence, the habeas court shall remand the case to the trial court of conviction to allow a withdrawal of the guilty plea or, in the alternative, for resentencing upon the original plea. Id. at 129 (citingMcClaney, 59 S.W.3d at 95-96 and McConnell, 12 S.W.3d at 800); see also Charles G. Summers v. James Fortner, No. M2007-01596-CCA-R3-HC, 2008 WL 343136, at *3-5 (Tenn.Crim.App. Feb. 6, 2008) (in-depth discussion of remedies available to habeas corpus petitioner who successfully challenges a judgment arising from a guilty plea).
CONCLUSION
Based upon the foregoing, we conclude that habeas court erred in summarily dismissing the petition for a writ of habeas corpus. The judgment of the habeas court is reversed and the case is remanded for further proceedings consistent with this opinion.