        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs February 5, 2014

       STATE OF TENNESSEE v. JULIE FULLER, a.k.a. JULIE COLE

                  Appeal from the Criminal Court for Shelby County
                     No. 10-06605    James Lammey, Jr., Judge


                 No. W2013-00900-CCA-R3-CD - Filed April 25, 2014


The defendant, Julie Fuller a.k.a. Julie Cole, appeals the trial court’s denial of her motion for
correction of an illegal sentence and/or reduction of sentence. On August 9, 2012, the
defendant pleaded guilty to theft of property over $10,000, a Class C felony. The defendant
was sentenced as a persistent offender to serve ten years at thirty percent. On appeal, the
defendant argues that her sentence was illegal and that the trial court erred and abused its
discretion by failing to modify it. Following a review of the record, we reverse the trial
court’s denial of the motion and remand to correct the judgment.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed
                                  and Remanded

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which A LAN E.G LENN
and C AMILLE R. M CM ULLEN, joined.

Julie Fuller, a.k.a. Julie Cole, Memphis, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel;
Amy P. Weirich, District Attorney General; and Byron Winsett, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                          OPINION

        The defendant entered into a negotiated plea agreement with an agreed-to sentence
to plead guilty to theft of property over $10,000, a Class C felony. Although a transcript of
the guilty plea hearing was not included in the record for review, the plea agreement stated
that the defendant would be sentenced as a Range I offender to serve ten years with a release
eligibility of 30%. The judgment of the court shows that she was sentenced as a Range III
persistent offender to serve ten years with a 30% release eligibility date. A conviction for
a Class C felony carries a possible incarceration sentence of three to fifteen years, with a
release eligibility date of 30% for a Range I, standard offender, and a release eligibility date
of 45% for a Range III, persistent offender. A Class C conviction for a Range I, standard
offender calls for a possible jail sentence of three to six years, while a Class C felony
conviction for a Range III, persistent offender calls for a possible jail sentence of ten to
fifteen years. The judgment was entered on August 9, 2012, and executed on August 17,
2012. On December 15, 2012, the defendant filed a pro se motion for correction of an illegal
sentence and/or reduction of sentence pursuant to Tennessee Rules of Criminal Procedure
Rule 35, stating that her sentence was illegal because it exceeded the maximum range for a
Range I offender. The trial court issued an order denying this motion. On appeal, the
defendant contends that the trial court erred and abused its discretion in denying the motion.
Following review of the record before us, we reverse the denial of the petition and conclude
that the defendant’s sentence was an illegal sentence imposed in contravention of the statute.

        Rule 35 of the Tennessee Rules of Criminal Procedure states that “the trial court may
reduce a sentence upon motion filed within 120 days after the sentence is imposed or
probation is revoked. No extension shall be allowed on the time limitation. No other actions
toll the running of this time limitation.” Tenn. R. Crim. P. 35(a). The State argues that the
trial court did not have jurisdiction to consider the defendant’s motion because it was filed
beyond the 120 day time limit of Rule 35. The defendant was sentenced on August 9, 2012,
but judgment was not executed until August 17, 2012. Thus, because the defendant
submitted her petition on December 15, 2012, and the judgment was executed on August 17,
2012, the trial court properly found that the defendant satisfied the 120 day time limitation
of Rule 35.

       This court examines Rule 35 motions to reduce sentences under an abuse of discretion
standard. State v. Ruiz, 204 S.W.3d 772, 777 (Tenn. 2006); State v. Irick, 861 S.W.2d 71,
75 (Tenn. Crim. App. 1993). The trial court abuses its discretion “only when the trial court
has applied an incorrect legal standard, or has reached a decision which is illogical or
unreasonable and causes an injustice to the party complaining.” Ruiz, 204 S.W.3d at 778.
The purpose of the rule is “to allow modification in circumstances where an alteration of the
sentence may be proper in the interest of justice.” State v. Hodges, 815 S.W.2d 151, 154
(Tenn. 1993).

        The “interest of justice” implicated in this case is the defendant’s illegal sentence.
The sentence is illegal because it imposes a release eligibility date that is specifically
prohibited by statute. See State v. Davis, 313 S.W.3d 751, 759 (Tenn. 2010); Smith v. Lewis,
202 S.W.3d 124, 127-28 (Tenn. 2006). Unlike the determination of a defendant’s offender
classification, which is a question of fact, a defendant’s release eligibility date (“RED”)
“does not depend directly upon factual findings by the trial court, but is determined entirely

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by statute.” Cantrell v. Easterling, 346 S.W.3d 445, 451 (Tenn. 2011). Our supreme court
“has recognized that a defendant and the State may agree to ‘mix and match’ offender
classifications and REDs pursuant to a plea bargain.” Id. at 452. Such hybrid plea bargains
are permissible “so long as (1) the term of years is within the overall range of years specified
for the offense, and (2) the RED is not less than the minimum allowable for the offense.”
Davis, 313 S.W.3d at 760 (citations omitted). For example, a defendant who is a Range I,
standard offender charged with a Class A felony could plead guilty to a Class C felony in
exchange for a ten-year sentence with an RED of 30%, even though the sentencing range for
a Range I, standard offender charged with a Class C felony is three to six years. The
sentence is permissible because it was entered into pursuant to a plea bargain and the term
of years is within the overall range of years specified for a Class C felony. See State v. Hicks,
945 S.W.2d 706, 707-09 (Tenn. 1997) ( holding that a “knowing and voluntary guilty plea
waives any irregularity as to offender classification or release eligibility” so long as the
sentence imposed is within the statutory limits for the offense). A hybrid plea agreement may
not “contravene the Sentencing Act,” meaning that “both the offender classification and RED
must be available for the plea offense under the Act.” Cantrell, 346 S.W.3d at 452. Such
a plea agreement is illegal when it includes “a sentence designating an RED where an RED
is specifically prohibited by statute.” Davis, 313 S.W.3d at 759. The trial court lacks the
statutory authority to impose such a sentence. Id.

        The defendant contends that her ten-year sentence is illegal because it exceeds the
three to six year term limit for a Range I, standard offender convicted of a Class C felony.
While we do not agree that the length of the defendant’s sentence is illegal, we conclude that
the imposition of a statutorily prohibited RED renders the sentence illegal. From the sparse
record before us, it appears that the defendant intended to enter a hybrid plea bargain. The
defendant’s petition for acceptance of a plea of guilty indicates that the defendant pleaded
guilty to theft of property over $10,000 in exchange for a ten-year sentence as a Range I
offender with a 30% RED. Under Hicks, this plea agreement is proper even though it
exceeds the three to six term of years for a Range I, standard offender convicted of a Class
C felony. It is proper because the overall sentencing range for a Class C felony is three to
fifteen years, and the ten-year sentence is within this overall range. Further, the guilty plea
petition signed by the defendant stated that the defendant was aware of her right to plead not
guilty and was choosing to plead guilty of her own free will and choice, and a “knowing and
voluntary guilty plea waives any irregularity as to offender classification and release
eligibility.” Hicks, 945 S.W.2d at 709. However, the judgment sheet proves problematic,
as it contains a sentence different from that of the petition for acceptance of a plea of guilty.
On the judgment sheet, the boxes for both standard and persistent offender were checked, but
the standard offender box was struck through, indicating that the defendant was to be
sentenced as a persistent offender. The standard 30% RED box was checked, meaning that
the defendant was sentenced as a Range III, persistent offender to a ten-year sentence with

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a 30% RED date. The particular coupling of a Range III, persistent offender status with a
30% RED date renders the sentence illegal because it directly contravenes the applicable
Sentencing Act.

        Tennessee Code Annotated section 40-35-501 provides the REDs for each offender
status, and states that “[r]elease eligibility for each defendant sentenced as a Range III
persistent offender shall occur after service of forty-five percent (45%) of the actual sentence
imposed less sentence credits earned and retained by the defendant.” T.C.A. § 40-35-501(e)
(2013) (emphasis added). The term “shall occur” is mandatory language that sets an express
statutory minimum threshold for when an inmate becomes eligible for parole. See State v.
Graves, 126 S.W.3d 873, 877 (Tenn. 2003) ( “It is academic that the use of the word ‘shall’
in a statute is indicative of mandatory legislative intent.”). A defendant sentenced as a Range
III, persistent offender is not eligible for release until 45% of the sentence is served, and
granting a Range III, persistent offender a 30% RED results in a sentence less than the
statutory minimum. See Dixon v. State, 934 S.W.2d 69, 73 (Tenn. Crim. App. 1996)
(holding that a sentence where the defendant was classified as a Range III offender but
received a Range I RED was illegal because it “did not comply with the statutory sentencing
guidelines”). “Sentences beneath the minimum provided for by statute, however, have been
consistently rejected as illegal,” McConnell v. State, 12 S.W.3d 795, 799 (Tenn. 2000) and
“[a] court lacks jurisdiction to impose an agreed sentence that is illegal, even an illegally
lenient one.” Summers v. State, 212 S.W.3d 251, 258 (Tenn. 2007).

        The 1989 Sentencing Act creates the outer boundaries within which the State and the
defendant may negotiate, and courts must respect these limits. McConnell, 12 S.W.3d at 799.
It is permissible for the parties to negotiate an RED that is greater than the statutory
minimum, so long as it does not also exceed the statutory maximum. For example, a
defendant could agree to a sentence as a Range II offender with an RED of 45%, rather than
the statutory minimum 35%, but could not agree to be sentenced as a Range II offender with
a 30% RED. The latter sentence would be in direct contravention to the Sentencing Act, and
thus impermissible. See Cantrell, 346 S.W.3d at 452. Here, the defendant’s sentence is akin
to the second example, as the defendant was sentenced as Range III, persistent offender but
received a 30% RED. The defendant’s petition for acceptance of a guilty plea reflects an
appropriate sentence because the defendant was sentenced as a Range I offender, making her
eligible for a 30% RED. However, the judgment sheet reflects an illegal sentence because
a 30% RED is not applicable to a defendant sentenced as a Range III, persistent offender.
In its order denying the motion for correction of an illegal sentence and/or reduction of
sentence, the trial court found nothing illegal about the judgment because the defendant “pled
to 10 years as a persistent offender and at 30% on a ‘C’ felony, which carries a possible jail
sentence of 3 to 15 years.” While it is correct that a ten-year sentence for a Class C felony
is not illegal, a Range III, persistent offender cannot be sentenced to a RED less than 45%.

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We conclude that the sentence imposed is an illegal sentence in light of the mandatory
provisions of the sentencing act, reverse the trial court’s denial of the motion, and remand
for a determination of whether the judgment was entered correctly.

                                     CONCLUSION

       For the foregoing reasons, we reverse the judgment of the trial court and remand for
the judgment to reflect the legal plea bargain agreement.




                                                  _________________________________
                                                  JOHN EVERETT WILLIAMS, JUDGE




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