Exam Ples of Cases Approving Such a Sentencing Structure Are State v. Terry, 755 S.W .2D 854

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
DECEMBER 1995 SESSION
FILED
March 20, 1996
BILL R. DIXON, JR., )
) Cecil Crowson, Jr.
Appellant, ) Appellate Court Clerk
)
)
VS. ) C.C.A. NO. 02C01-9503-CC-00070
)
)
STATE OF TENNESSEE. )
)
Appellee. )
CONCURRING OPINION
I agree with the majority’s conclusion that the petitioner’s sentence is illegal
and, based on prior decisions of our Supreme Court, must be set aside. I write
separately, however, to emphasize a policy concern which I believe has been overlooked
in the debate regarding whether a sentence in which the term of imprisonment does not
correspond to the range imposed must be set aside.
The majority correctly frames the precise issue which confronts us, namely,
whether a defendant may be legally sentenced to a term of imprisonment which, although
it falls within the entire range of authorized imprisonment for the particular felony class,
does not correspond to the specific range imposed. As the majority points out, this Court
has had considerable trouble with this issue. In fact, this Court has approved of some
sentences in which the term of imprisonment did not correspond to the range imposed,1
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Exam ples of cases approving such a sentencing structure are State v. Terry, 755 S.W .2d 854
(Tenn. Crim . App. 1988); Terry L. Hicks, Jr., v. State, No. 02C01-9503-CC-00071, Madison County
(Tenn. Crim . App. filed January 31, 1996, at Jackson); Darnell Gentry v. State, No. 02C01-9304-CC-
00052, Gibson County (Tenn. Crim . App. filed June 29, 1994, at Jackson).
but has disapproved of other indistinguishable sentences.2
The Tennessee Supreme Court, on the other hand, has been somewhat
more consistent with its treatment of this issue. Perhaps the most often cited case is
State v. Mahler, 735 S.W.2d 226 (Tenn. 1987). In Mahler, the defendant pled guilty to
second-degree murder with an agreed sentence of fifty years at Range II. Mahler, 735
S.W.2d at 227. Upon review, however, it appeared from the record that the defendant
did not qualify as a Range II offender. Mahler, 735 S.W.2d at 227. In affirming the
sentence the Court stated that the defendant’s guilty plea waived any complaint regarding
his range classification. Our Supreme Court held that because the term of imprisonment
was “within statutory limits fixed for the offense of murder in the second degree,” the
sentence was not illegal. Mahler, 735 S.W.2d at 228 (emphasis added). The Court’s
language appears to focus the inquiry on whether the term of imprisonment is within the
entire range of punishment for the offense, not on whether the term of imprisonment and
the range imposed correspond to each other. It is important to note, however, that the
defendant’s fifty year term of imprisonment was not only within the statutory limit fixed for
the offense, but also within the appropriate punishment for a Range II offender.
Our Supreme Court revisited this issue, albeit in a different procedural
posture, three years later in State v. Russell, 800 S.W.2d 169 (Tenn. 1990). In Russell,
the defendant was convicted of aggravated rape (sexual penetration of a child under
thirteen years of age), incest, and crime against nature. The age of the victim was
alleged in the first count but not in the second or the third count. The trial court
sentenced the defendant as a Range I offender to twenty years on each count, with all
counts concurrent. Russell, 800 S.W.2d at 169. The twenty year sentence was within
2
Exam ples of cases disapproving such a sentencing structure are Ronald Lature McCray v.
State, No. 02C01-9412-CC-00277, Fayette County (Tenn. Crim . App. filed Septem ber 27, 1995, at
Jackson), and George Cheairs v. State, No. 02C01-9304-CC-00070, Fayette County (Tenn. Crim . App.
filed October 26, 1994, at Jackson).
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Range I for aggravated rape, within Range II for incest, and in excess of the maximum
statutory punishment for crime against nature. Russell, 800 S.W.2d at 169-170. On
appeal, the State conceded that the twenty year sentence for crime against nature was
illegal. Yet the State also argued that because these offenses were especially
aggravated, statutory sentencing guidelines required that Range II sentencing be
imposed. Russell, 800 S.W.2d at 170. The Court held that the State’s failure to file
notice of intent to seek Range II sentencing effectively waived Range II sentencing on
both the incest count and the crime against nature count. With respect to the aggravated
rape, however, the Court held that notice of Range II sentencing was given in the
indictment itself because that count alleged the age of the child. Russell, 800 S.W.2d at
172. Based on the Court’s holding, the defendant’s sentences for both the incest count
and the crime against nature count were modified to five years each at Range I. Russell,
800 S.W.2d at 170. The case was remanded to the trial court for the imposition of a
Range II sentence on aggravated rape. Russell, 800 S.W.2d at 174. Based on the
sentence modification for the incest conviction, it appears that Russell requires the term
of imprisonment and the range imposed to correspond to each other.
Confusion arises within Russell, however, from the following explanation
of the holding in Mahler:
In another context, this Court has recognized that
Ranges I and II do not have the same force as the
punishment limits set by the penal statutes. In State v.
Mahler, 735 S.W.2d 226 (Tenn. 1987), it was held that
a defendant can waive “Range I” sentencing in a
negotiated plea, and the resulting sentence is not
illegal or void so long as it is within the outer limits of
the penal statutes.
Russell, 800 S.W.2d at 172. This language appears to indicate, perhaps contrary to the
holding in Russell, that a sentence’s range classification and its term of imprisonment do
not have to correspond to each other. Yet in keeping with the holding in Russell, it could
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be argued that the application of this language is restricted to negotiated pleas, as was
the case in Mahler.
Thus, the teaching of Mahler and Russell appears to be, notwithstanding
some language seemingly at odds with the holdings, that a sentence’s term of
imprisonment and range must correspond to each other.
Applying the above considerations to the present case, I am forced to agree
with the majority that the defendant’s Range I five year sentence for unlawful possession
of a deadly weapon, which actually falls within the punishment limits of Range III, is illegal
and must be set aside. On remand, as the majority indicates, proceedings on the guilty
plea shall be governed by Rule 11(e)(2) or Rule 11(e)(4) of the Tennessee Rules of
Criminal Procedure. I concur with the majority’s disposition of the case before us.
Yet, I do wish to voice a concern over the implications of this holding, so
that its application might be tempered by reason. In the present case, the petitioner was
indicted relatively recently, on September 15, 1992. If, upon remand, the petitioner were
to withdraw his guilty pleas and force the State to proceed to trial, witnesses’ memories
would hopefully still be fresh and evidence would still be available.
Should the case arise, however, in which a considerable period of time has
passed since a negotiated plea agreement, I believe that the State’s legitimate interest
in finality might outweigh a petitioner’s interest in setting aside his or her illegal sentence
arrived at through a knowing, intelligent, and voluntary guilty plea. In such a case, there
exists the distinct possibility that witnesses’ memories will have faded to such a degree
as to make proceeding to trial virtually impossible. Moreover, witnesses and evidence
simply may not be available. In fact, evidence may have even been destroyed in
accordance with law enforcement procedures. Under such circumstances, a petitioner’s
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interest in setting aside a negotiated sentence, which more than likely the petitioner
accepted because it was beneficial to him or her, is minimal when compared with the
State’s interests in preventing stale litigation and excessive costs.
Having expressed my concerns regarding the somewhat confusing case law
on this issue, and the potentially broad application of the holding in the present case, I
concur with the majority in all other respects.
______________________________
JOHN H. PEAY, Judge
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