         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                    January 6, 2004 Session

                STATE OF TENNESSEE v. ELIZABETH ALLISON

                   Direct Appeal from the Circuit Court for Gibson County
                             No. 14872-2 L. T. Laferty, Judge



                     No. W2003-02007-CCA-R3-CD - Filed April 8, 2004


Petitioner, Elizabeth Allison, filed a petition for writ of habeas corpus in which she alleged that her
judgment of conviction was void because the length of her sentence exceeded the range of sentence
for a Range I offender. Relying upon the supreme court’s decision in McConnell v. State, 12 S.W.3d
795 (Tenn. 2000), the trial court granted Petitioner habeas corpus relief. The State now appeals and
argues that the trial court erred in granting Petitioner’s petition for writ of habeas corpus. After a
through review of this matter, we reverse the judgment of the trial court, dismiss the petition, and
remand this matter for reinstatement of the judgment of conviction and sentence previously imposed.

                          Tenn. R. App. P. 3 Appeal as of Right;
         Judgment of the Trial Court Reversed, Petition Dismissed, and Remanded

THOMAS T. WOODALL, J., delivered the opinion of the court, in which DAVID G. HAYES and JERRY
L. SMITH , JJ., joined.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Garry
Brown, District Attorney General; and William Bowen, Assistant District Attorney General, for the
appellant, the State of Tennessee.

Richard Gossum, Trenton, Tennessee, for the appellee, Elizabeth Allison.

                                             OPINION

        Petitioner was indicted for first degree murder. She pled guilty to second degree murder, a
Class A felony, and was classified as a Range I standard offender. The potential sentence for a
Range I standard offender convicted of a Class A felony is fifteen to twenty-five years. Tenn. Code
Ann. § 40-35-112(a)(1). As a condition of her plea, however, Petitioner agreed to a sentence of forty
years, which is a Range II sentence, with a Range I release eligibility date. See id. 40-35-112(b)(1).

       Petitioner filed a petition for writ of habeas corpus alleging that the length of her sentence
was in contravention of the 1989 Sentencing Act and therefore void. The trial court found that the
length of Petitioner’s sentence could not exceed the maximum sentence for a Range I standard
offender, or twenty-five years, under the supreme court’s holding in McConnell, and granted
Petitioner habeas corpus relief.

         The State argues on appeal that Petitioner knowingly and voluntary agreed to a hybrid
sentence that combined the length of incarceration for a Range II offender with the release eligibility
date of a Range I offender. The range of sentence for a Class A felony is fifteen to sixty years. Tenn.
Code Ann. § 40-35-211(b)(1). Because the forty-year sentence agreed to by Petitioner does not
exceed the sentence for her felony class, the State contends that Petitioner’s sentence is legal, and
the trial court erred in granting Petitioner’s petition for a writ of habeas corpus. See Hicks v. State,
945 S.W.2d 706 (Tenn. 1997). As supplemental authority, the State relies on State v. Joy Nelson,
No. W2003-00798-CCA-R3-CD ((Tenn. Crim. App., Jackson, Dec. 19, 2003) in which this Court
found that the mixing of a Range II sentence with a Range I release eligibility date is permissible
under Hicks.

        Habeas corpus relief is only available when a conviction is void because the convicting court
was without jurisdiction or authority to sentence a defendant, or when a defendant’s sentence has
expired and the defendant is being illegally restrained. Archer v. State, 851 S.W.2d 157, 164 (Tenn.
1993); Johns v. Bowlen, 942 S.W.2d 544, 546 (Tenn. Crim. App. 1996). A sentence that directly
contravenes a statute is illegal and void. Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000).
In order to prevail, the petitioner must show that the illegality of the sentence is apparent from “the
face of the judgment or the record of the proceedings upon which the judgment is rendered.” Id.

        Offender classification and release eligibility “are non-jurisdictional and legitimate
bargaining tools in plea negotiations under the Criminal Sentencing Reform Act of 1989.” Bland
v. Dukes, 97 S.W.3d 133, 134 (Tenn. Crim. App. 2003), citing McConnell v. State, 12 S.W.3d 795,
798 (Tenn. 2000); Hicks, 945 S.W.3d at 709. Although Petitioner relies upon McConnell to argue
that her sentence is facially void, this Court has previously concluded that “the plea agreement in
McConnell was nullified because it was expressed in terms of the 1982 Act, not because the number
of years was outside the range.” Bland, 97 S.W.3d at 135 (citations omitted). In Hicks, which was
cited with approval in McConnell, the supreme court stated that “a knowing and voluntary guilty plea
waives any irregularity as to offender classification or release eligibility.” Hicks, 945 S.W.2d at 709.

        In the case sub judice, Petitioner negotiated her plea agreement under the terms of the 1989
Sentencing Act, and the agreed upon hybrid sentence which mixed the range of incarceration and
the release eligibility date was permissible under Hicks. A forty-year sentence is within the range
of sentence established for a Class A felony. Tenn. Code Ann. § 40-35-211(b)(1). Thus, the
judgment on its face does not contravene the statute.




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                                          CONCLUSION

       Based on the foregoing, we reverse the trial court’s grant of Petitioner’s petition for habeas
corpus relief, dismiss the petition, and remand this matter for reinstatement of the original judgment
of conviction and sentence previously imposed for second degree murder.


                                               __________________________________________
                                               THOMAS T. WOODALL, JUDGE




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