        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs June 29, 2016

           STATE OF TENNESSEE v. PAUL SAMUEL ESLINGER

                  Appeal from the Circuit Court for Sevier County
                 No. 17752, 18304, 18493 Richard R. Vance, Judge
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                 No. E2015-02126-CCA-R3-CD – Filed July 19, 2016
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Paul Samuel Eslinger, the Defendant, pleaded guilty to two counts of sale of a Schedule
II controlled substance, both Class C felonies, and one count of sale of a Schedule I
controlled substance, a Class B felony, and was sentenced pursuant to a plea agreement to
three thirty-year concurrent sentences. On appeal, the Defendant argues that the trial
court erred when it did not allow him to withdraw his guilty pleas. Upon review, we
conclude that the Defendant‟s negotiated sentences were illegal and the trial court
exceeded its jurisdiction when it accepted the negotiated sentences as part of the plea
agreement. Therefore, the trial court should have allowed him to withdraw his guilty
pleas. The judgments of the trial court are reversed, and the case is remanded.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court are Reversed
                                  and Remanded

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which CAMILLE R.
MCMULLEN and ROBERT H. MONTGOMERY, JR., JJ., joined.

James R. Hickman, Jr. (on appeal) and Samantha A. McCammon (at trial), Sevierville,
Tennessee, for the appellant, Paul Eslinger.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Assistant
Attorney General; James B. Dunn, District Attorney General; and Ronald C. Newcomb,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                         Factual and Procedural Background

       On September 17, 2012, the Sevier County Grand Jury indicted the Defendant for
sale of Schedule II controlled substance and for delivery of Schedule II controlled
substance with an offense date of April 20, 2012 (case number 17752). The trial court
entered an “Order for Appearance Bond” in the amount of $10,000.00 on September 17,
2012. The appearance bond was approved on October 1, 2012.

       On March 4, 2013, the grand jury indicted the Defendant for sale of Schedule II
controlled substance and for delivery of Schedule II controlled substance with an offense
date of August 20, 2012 (case number 18304).

       On May 14, 2013, the grand jury indicted the Defendant for sale of schedule I
controlled substance and for delivery of Schedule I controlled substance with an offense
date of October 12, 2012 (case number 18493).

      The State filed a “Notice of Intent to Seek Enhanced Punishment and Notice of
Enhancement Factors” stating the Defendant was a “Career Offender” and listing five
felony convictions. Attached to the notice was the Defendant‟s “Criminal History
Report.”

       The parties entered into a “Plea Agreement” and the Defendant executed a
“Waiver of Jury Trial and Guilty Plea.” The Plea Agreement called for the Defendant to
plead guilty to two counts of Class C felony sale of Schedule II controlled substance and
one count of Class B felony sale of Schedule I controlled substance in exchange for three
concurrent sentences of thirty years‟ incarceration as a persistent offender with 45%
release eligibility. Additionally, the Plea Agreement stated, “All charges to run
concurrent [at] Range III, net of [thirty] years [at] 45%.” The three counts of delivery
were dismissed. The trial court conducted a plea hearing during which the Defendant,
after being advised of certain constitutional and statutory rights, entered a guilty plea to
the three counts of selling a controlled substance. The Defendant was sentenced in
accordance with the plea agreement.

        Within thirty days of the entry of his plea, the Defendant filed a “Motion to
Withdraw Guilty Plea” in which he “assert[ed] his innocence as to the charge of
possession with intent to sell schedule I and [] state[d] that due to his age, the plea
agreement currently on record is in effect a life sentence.” At the hearing on the Motion
to Withdraw Guilty Plea, the Defendant testified that his attorney informed him that he
would be sentenced to thirteen years at 45% and that he “signed the papers for thirteen
years.” However, during the plea colloquy the trial judge announced that the Defendant‟s
agreed-upon sentence was thirty years. The Defendant said he would not have agreed to
a thirty-year sentence because he was almost seventy-five years old and he did not expect
to live to the end of a thirty-year sentence. On cross-examination, the Defendant agreed
that the written plea agreement said thirty years. The Defendant explained that he could
not read well so he did not read the plea agreement when he signed it.




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       Trial counsel testified that the Defendant was sentenced to three concurrent thirty-
year sentences pursuant to the plea agreement. She denied telling the Defendant that the
negotiated plea was thirteen years.

       On July 13, 2015, the trial court entered an order denying the motion to withdraw
the guilty pleas. An untimely notice of appeal was filed August 24, 2015, accompanied
by a “Motion to Accept „Notice of Appeal.‟” This court granted the late-filed notice of
appeal on November 16, 2015.

                                       II. Analysis

        On appeal, the Defendant argues that he understood that he would be sentenced to
thirteen years at 45%, not thirty years. Therefore, he asserts that his plea was “made
based on a lack of hearing and understanding” and therefore was not voluntarily or
intelligently entered. As such, the Defendant contends that the trial court erred when it
denied his request to withdraw his guilty pleas. The State argues that the trial court
“thoroughly explained the parameters of the plea agreement[,]” including the thirty-year
sentence, and that the Defendant entered his plea knowingly and voluntarily. We agree
with the State.

        We review a trial court‟s decision on a defendant‟s motion to withdraw a guilty
plea for an abuse of discretion. State v. Phelps, 329 S.W.3d 436, 443 (Tenn. 2010). “A
trial court abuses its discretion when it applies incorrect legal standards, reached an
illogical conclusion, bases its ruling on a clearly erroneous assessment of the proof, or
applies reasoning that causes an injustice to the complaining party.” Id. (citing State v.
Jordan, 325 S.W.3d 1, 38-40 (Tenn. 2010)).

      Tennessee Rule of Criminal Procedure 32(f) provides:

      (1) Before Sentence Imposed. Before sentence is imposed, the court may
      grant a motion to withdraw a guilty plea for any fair and just reason.

      (2) After Sentence But Before Judgment Final. After sentence is imposed
      but before the judgment becomes final, the court may set aside the
      judgment of conviction and permit the defendant to withdraw the plea to
      correct manifest injustice.

Under this rule, a defendant who had pleaded guilty may unilaterally withdraw his guilty
plea before or after sentencing. Phelps, 329 S.W.3d at 444. However, “[t]he defendant
bears the burden of establishing sufficient grounds for withdrawing his plea.” Id.
Additionally, the Tennessee Supreme Court has stated:

      Before sentencing, the inconvenience to court and prosecution resulting
      from a change of plea is ordinarily slight as compared with the public
      interest in protecting the right of the accused to trial by jury. But if a plea
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       of guilty could be retracted with ease after sentence, the accused might be
       encouraged to plead guilty to test the weight of potential punishment, and
       withdraw the plea if the sentence were unexpectedly severe. The result
       would be to undermine respect for the courts and fritter away the time and
       painstaking effort devoted to the sentencing process.

State v. Crowe, 168 S.W.3d 731, 741 (Tenn. 2005) (quoting Kadwell v. United States,
315 F.2d 667, 670 (9th Cir. 1963)). In the case of withdrawing a plea after sentencing,
courts have previously determined that “manifest injustice” warrants withdrawing the
plea when:

       (1) the plea “was entered through a misunderstanding as to its effect, or
       through fear and fraud, or where it was not made voluntarily”; (2) the
       prosecution failed to disclose exculpatory evidence as required by Brady v.
       Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.ED.2d 215 (1963), and this
       failure to disclose influenced the entry to the plea; (3) the plea was not
       knowingly, voluntarily, and understandingly entered; and (4) the defendant
       was denied the effective assistance of counsel in connection with the entry
       of the plea.

Phelps, 329 S.W.3d at 444; Crowe, 168 S.W.3d at 742. However, a defendant‟s “change
of heart” or dissatisfaction with the sentence imposed is not manifest injustice which
would warrant the withdrawal of the guilty plea. Crowe, 168 S.W.3d at 743.

        Turning to this case, initially we note that there is nothing in the record to support
the Defendant‟s claim that he negotiated a thirteen-year sentence to be served at 45%.
The Plea Agreement signed by the Defendant and his counsel clearly showed three
concurrent sentences of “[thirty] years [at] 45%.” The plea colloquy is also clear as to
the length of the sentence. In announcing the terms of the plea agreement, the assistant
district attorney stated that the Defendant would receive three concurrent sentences of
thirty years to be served at 45%. The trial court announced the sentence and sentenced
the Defendant pursuant to the terms of the plea agreement to an effective sentence of
thirty years at 45%. The issue as presented by the Defendant is without merit.

       However, upon review we conclude that the terms of the Defendant‟s negotiated
sentence for his Class C felony convictions were illegal, resulting in a manifest injustice
that should allow the Defendant to withdraw his guilty pleas. Although not raised by
either the Defendant or the State, the record clearly shows that the Defendant was
sentenced to thirty years‟ incarceration for both of his Class C felony convictions. The
maximum sentence for anyone convicted of a Class C felony is fifteen years. Tenn. Code
Ann. § 40-35-111(a)(3). The sentencing range for a Range III offender convicted of a
Class C felony is ten to fifteen years. Tenn. Code Ann. § 40-35-112(c)(3).



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        Sentencing is jurisdictional and must be executed in compliance with the 1989
Sentencing Act. McConnell v. State, 12 S.W.3d 795, 798 (Tenn. 2000). “The 1989 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.” Id. at 799. Parties may agree to a
“hybrid” sentence that “„mixes and matches‟ range assignment, terms of years, and
release eligibility[.]” Davis v. State, 313 S.W.3d 751, 760 (Tenn. 2010). However,
parties cannot agree to a sentence that is less than the minimum sentence or exceeds the
maximum sentence provided by statute. McConnell, 12 S.W.3d at 799. A bargained-for
sentence that exceeds the maximum sentence available under the 1989 Act is “a nullity
and cannot be waived.” Id. Further, our supreme court has stated that “unauthorized
sentences, including those that are in direct contravention of an applicable statute, [are]
illegal as opposed to merely erroneous.” Davis, 313 S.W.3d at 759; see also Tenn. R.
Crim. P. 36.1 (“[A]n illegal sentence is one that is not authorized by the applicable
statutes or that directly contravenes an applicable statute.”).

        In this case, the trial court exceeded its jurisdiction when it sentenced the
Defendant to thirty years‟ incarceration for both Class C felony convictions. See Davis,
313 S.W.3d at 759; McConnell, 12 S.W.3d at 798-99. As to the Defendant‟s Class B
felony conviction, we note that the thirty-year sentence was authorized by statute. See
Tenn. Code Ann. § 40-35-112(c)(2) (Range III sentence for a Class B felony is “not less
than twenty (20) years nor more than thirty (30) years”). However, it is clear from the
record that the parties negotiated a package agreement. Therefore, we conclude that the
trial court should have granted the Defendant‟s motion seeking to withdraw his guilty
plea and reinstated the original charges against the Defendant.

        Additionally, it appears from the record that the Defendant committed the Class B
felony in case number 18493 while he was released on bond in case number 17752. The
Defendant executed an appearance bond in case number 17752 on October 1, 2012, and
the appearance bond was approved on the same date. The indictment and the judgment
of conviction for case number 18493 show an offense date of October 12, 2012. If a
defendant commits a felony while he or she was released on bond, and the defendant is
convicted of both offenses, then “the trial judge shall not have discretion as to whether
the sentences shall run concurrently or cumulatively, but shall order that the sentences be
served cumulatively.” Tenn. Code Ann. § 40-20-111(b). Therefore, the concurrent
alignment of the sentences in case number 17752 and 18493 was error.

                                     III. Conclusion

      For the aforementioned reasons, the judgments of the trial court are reversed and
remanded for further proceedings consistent with this opinion.


                                         _______________________________________
                                         ROBERT L. HOLLOWAY, JR., JUDGE

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