Cyril v. Fraser

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
MARCH 1995 SESSION
September 27, 1995
Cecil Crowson, Jr.
Appellate Court Clerk
RONALD LATURE McCRAY, * C.C.A. # 02C01-9412-CC-00277
APPELLANT, * FAYETTE COUNTY
VS. * Hon. Jon Kerry Blackwood, Judge
STATE OF TENNESSEE, * (Post-Conviction)
APPELLEE. *
For the Appellant: For the Appellee:
Shana C. McCoy Charles W. Burson
Asst. Dist. Public Defender Attorney General and Reporter
P.O. Box 700 450 James Robertson Parkway
Somerville, TN 38068-0700 Nashville, TN 37243-0493
Cyril V. Fraser
Counsel for the State
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
Elizabeth T. Rice
District Attorney General
and
Christopher Marshburn
Asst. District Attorney General
302 Market Street
Somerville, TN 38068
OPINION FILED:
REVERSED AND REMANDED
Gary R. Wade, Judge
OPINION
The petitioner, Ronald Lature McCray, appeals the
trial court's denial of post-conviction relief. The single
issue presented for our review is whether the trial court
should have granted relief due to the illegality of the
sentence.
We find that the trial court committed error by
denying relief and remand the cause for further proceedings.
Originally charged with first degree murder,
possession of a firearm with intent to use it in the
commission of a felony, and especially aggravated robbery, the
petitioner pled guilty to second degree murder and, pursuant
to agreement, received a Range I sentence of 60 years.
Thereafter, the petitioner filed a motion to correct or reduce
the sentence and the trial court denied relief. The
petitioner appealed and this court affirmed. State of
Tennessee v. Ronald McCray, No. 02C01-9309-CC-00220 (Tenn.
Crim. App., at Jackson, October 5, 1994). The supreme court
denied the application for permission to appeal on January 3,
1995.
In his petition for post-conviction relief, the
petitioner complained that his counsel was ineffective for,
among other things, having failed to conduct an adequate
investigation and allowing the defendant to agree to a
sentence greater than the statutory range. See Tenn. Code
Ann. § 40-35-112(a)(1). The petitioner testified that before
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this incident he had not been previously charged with a crime.
He complained that he had entered his plea only because of his
fear of the death penalty or life imprisonment and because his
counsel had failed to advise him that, as a Range I offender,
the statutory sentence was between l5 and 25 years.
The petitioner's trial counsel testified that he
believed a first degree murder conviction was likely because
the death of the victim had been "execution style" while in
the course of a robbery. He testified that the petitioner had
been advised that his 60-year sentence could be served in l8
years. Trial counsel also stated that he had assured the
state that the petitioner was likely to plead guilty and had,
by doing so, convinced the state not to file notice of its
intention to seek the death penalty.
At the conclusion of the hearing, the trial court
ruled that the petitioner had not been denied the effective
assistance of counsel. It specifically found that trial
counsel had not been ineffective by suggesting a plea
agreement of sixty years with a release eligibility date at
30%. It is implicit in the ruling that the trial court found
nothing illegal about the sentence.
In State v. Mahler, 735 S.W.2d 226 (Tenn. 1987), our
supreme court held that a defendant who had entered a knowing
and voluntary plea of guilt to a sentence within the statutory
range could accept classification as a Range II offender, even
though he did not technically qualify above Range I. See
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Tenn. Code Ann. §§ 40-35-105 through -109. The sentence was
affirmed on the basis that the defendant could legitimately
enter a plea agreement within a range of punishment provided
by law, even if the defendant did not have a sufficient prior
record to warrant the higher classification within the range.
In Mahler, however, the supreme court made a distinction
regarding the length of the sentence. It ruled that "a
judgment imposed by a trial court in direct contravention of
express statutory provisions ... is illegal and is subject to
being set aside at any time, even if it has become final."
735 S.W.2d at 228 (emphasis added).
More recently, this court set aside as illegal a
plea agreement similar to that made in this case. In George
Cheairs v. State, No. 02C01-9304-CC-00070 (Tenn. Crim. App.,
at Jackson, October 26, 1994), this court made the following
observation:
If the parties can agree that a
defendant be sentenced to a term of years
exceeding the maximum for his range, then
logically by agreement he could be
sentenced to a term less than the minimum.
The release eligibility date would then be
determined by the agreement rather than
the Range. Thus, the statutory ranges and
the corresponding release eligibility
percentages would be virtually
meaningless, with sentencing structure
governed by contract rather than by
statute.
Although we cannot distinguish the holding in Cheairs from
that in Darnell Gentry v. State, No. 02C01-9304-CC-00052
(Tenn. Crim. App., at Jackson, June 29, 1994), perm. to app.
denied, (Tenn. 1994), the decision in Cheairs appears to be in
compliance with an order entered by our supreme court in State
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v. Joseph Harvey Cutright, No. 02C01-9108-CC-00175 (Tenn., at
Jackson, March 25, 1992). Because the range classification is
based upon fact (prior criminal history of the defendant) and
therefore is subject to plea negotiation, an arrangement such
as that made in Mahler is permissible. Once range is
established, however, the statute provides specific legal
boundaries within which the determinative sentence must fall.
Here, that would have been from fifteen to twenty-five years
for a Range I offender.1
Based upon the greater weight of the authorities
available, we are constrained to set aside this sentence as
illegal and remand the cause to the trial court. Because the
sentence proposed in the plea agreement exceeds the statutory
limits, the trial court must reject the original, recommended
sentence. Thereafter, the proceedings shall be governed by
Tenn. R. Crim. P. 11(e)(2) or 11(e)(4). See State v. Hodges,
815 S.W.2d 151 (Tenn. 1991).
It is so ordered.
_____________________________________
Gary R. Wade, Judge
CONCUR:
_________________________________
Joe B. Jones, Judge
1
The state's offer of 60 years at 30% would have provided a release
eligibility date of l8 years. It could have accomplished the same l8-year
result with a Range III (45%), 40-year sentence. See Tenn. Code Ann. § 40-
35-101, et seq.
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_________________________________
John K. Byers, Senior Judge
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