         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                        Remanded by Supreme Court June 3, 2002

                   STATE OF TENNESSEE v. MELVIN WATERS

                Direct Appeal from the Criminal Court for Davidson County
                         No. 2000-A-18    Steve R. Dozier, Judge



                   No. M2002-01297-CCA-RM-CD - Filed Janaury 16, 2003


The Supreme Court remanded this case to determine the issue of whether the trial court erred in
sentencing the defendant to twelve years for the facilitation of aggravated robbery. The defendant
was classified as a Range II offender. Twelve years is outside the range of a Range II offender, Class
C felony. We conclude that the sentence is proper in that it does not exceed the range for a Class
C felony. Offender classification ranges are non-jurisdictional and may be exceeded. We affirm this
sentence.

     On Remand from the Supreme Court; Judgment of the Criminal Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
JAMES CURWOOD WITT, JR., JJ., joined.

Daniel L. McMurtry, Nashville, Tennessee, for the appellant, Melvin Waters.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General;
Victor S. (Torry) Johnson III, District Attorney General; and Brian K. Holmgren, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                    OPINION ON REMAND

                                                Facts

        The defendant, Melvin Waters, was indicted for aggravated robbery, aggravated assault,
disorderly conduct, resisting arrest, and criminal impersonation. The aggravated robbery occurred
on August 20, 1999. After a jury trial, he was convicted of facilitation of aggravated robbery, a
lesser-included offense of aggravated robbery, aggravated assault, resisting arrest, and criminal
impersonation.
                                             Sentencing

       The defendant waived a sentencing hearing and agreed to be sentenced as a Range II multiple
offender to twelve years for facilitation of aggravated robbery, a Class C felony; six years for
aggravated assault, a Class C felony; six months for resisting arrest, a Class B misdemeanor; and six
months for criminal impersonation, a Class B misdemeanor, all sentences to run concurrently.

        The defendant’s motion for a new trial and judgment of acquittal were denied. The defendant
made a direct appeal, alleging insufficiency of the evidence, and this Court affirmed the convictions.
 See State v. Melvin Waters, No. M2000-03224-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 933,
(Tenn. Crim. App. at Nashville, Dec. 5, 2001). The defendant then filed a Rule 11 application for
permission to appeal to the supreme court and raised the issue of illegal sentencing for the first time.
The supreme court remanded this case to this Court for resolution of the sentencing issue.

                                                 Issue

        The sole issue on remand is whether the trial court lacked jurisdiction to impose, upon a
Range II multiple offender, a twelve-year sentence for facilitation of aggravated robbery, a Class C
felony. We conclude it did not lack jurisdiction; that, even though a twelve-year sentence was
outside the sentencing range for a Range II multiple offender, it was within the sentencing range for
a Class C felony, and the defendant voluntarily accepted the twelve-year sentence in order to avoid
the risk of being sentenced to consecutive sentences and more total time, had a full sentencing
hearing been conducted.

                                               Analysis

         The Criminal Sentencing Reform Act of 1989 provides that “All persons who commit crimes
on or after November 1, 1989, shall be tried and sentenced under the provisions of this chapter.”
Tenn. Code Ann. § 40-35-117(a) (emphasis added). Therefore, a trial court would lack jurisdiction
to sentence an offender outside the act’s provisions. It is true, as the defendant argues, that the
twelve-year sentence for facilitation of aggravated robbery is outside the range of six to ten years for
a Range II multiple offender. Tenn. Code Ann. § 40-35-112(b)(3). However, the overall range for
a Class C felony is three to fifteen years. Tenn. Code Ann. § 40-35-111(b)(3). As will become
evident, while a trial court does lack the jurisdiction to sentence outside a sentencing range for a
class of felony, offender classification ranges are non-jurisdictional and may be used as a bargaining
tool in plea-style negotiations. The sentence in the present case, twelve years for a Range II multiple
offender, Class C felony, was the result of a sentencing agreement. In addition to the twelve years
for the facilitation of aggravated robbery, the agreement provided for six years for the aggravated
assault and six months for both the resisting arrest and the criminal impersonation, to be served
concurrently. Had the defendant not accepted the agreed-upon sentence and a full sentencing hearing
had been conducted, the defendant ran the risk that the State could have pursued consecutive
sentences, which may have resulted in a longer effective sentence.



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       An appellate court’s review of a challenged sentence is de novo on the record, with a
presumption the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). The
Sentencing Commission Comments to this section of the statute indicate the defendant bears the
burden of establishing the sentence is improper. When the trial court follows the statutory
sentencing procedure and gives due consideration and proper weight to the factors and principles
relevant to sentencing, this Court may not disturb the sentence. State v. Fletcher, 805 S.W.2d 785,
789 (Tenn. Crim. App. 1991).

         Our decision today is guided by the principles established in State v. Hicks, 945 S.W.2d 706
(Tenn. 1997). In Hicks, our supreme court reiterated that “a knowing and voluntary guilty plea
waives any irregularity as to offender classification and release eligibility.” Id. at 709. More
recently, in Marc A. Bland v. James M. Dukes, Warden, No. W2002-00579-CCA-R3-CO, 2002
Tenn. Crim. App. LEXIS 681 (Tenn. Crim. App. Aug. 13, 2002, at Jackson) app. denied (Tenn. Dec.
9, 2002), this Court interpreted both Hicks and McConnell v. State, 12 S.W.3d 795, 798 (Tenn.
2000), as standing for the position that offender classification and release eligibility are non-
jurisdictional and legitimate bargaining tools in plea negotiations under the Criminal Sentencing
Reform Act of 1989. In Hicks, the petitioner pled guilty to voluntary manslaughter, a Class C
felony, and agreed upon a Range II sentence of ten years, coupled with a Range I release eligibility
of thirty percent.1 Hicks, 945 S.W.2d at 706. The Supreme Court held such a “hybrid” sentence was
valid when imposed as a result of a knowing, voluntary plea bargain agreement. Id. at 706.

         In McConnell, the supreme court held that sentencing under the 1989 Act was jurisdictional,
in declaring that a sentence of thirty-five years for a Range I offender for second degree murder and
robbery by use of a deadly weapon was not permitted, being in excess of the provisions of the 1989
Act. McConnell, 12 S.W.3d at 800. Importantly, this Court, in Bland, recognized that, despite
McConnell’s rejection of the thirty-five-year sentence due to its being outside the permitted range
as per the 1989 Act, it did not alter the ability of the State to use offender classification and release
eligibility as subjects of plea bargain negotiations. Bland, 2002 Tenn. Crim. App. LEXIS 681, at *
6-7 (Tenn. Crim. App. at Jackson, Aug. 13, 2002). Moreover, the McConnell court declared those
elements as non-jurisdictional. Id. at 798. The McConnell court approved the prior sentencing of
an offender as a Range II offender, despite the fact the offender’s criminal record did not justify a
Range II classification. Id. at 798, citing State v. Mahler, 735 S.W.2d 226, 227-28 (Tenn. 1987)
(Pursuant to a plea bargain, the accused in Mahler pleaded guilty to second degree murder as a Range
II offender.).

        Thus, the question becomes, is a sentencing agreement made in lieu of a full sentencing
hearing tantamount to a plea agreement? We conclude that it is. Despite the fact that there was a
jury finding of guilty, when the defendant accepted the sentence established in the sentencing
agreement, instead of proceeding with a full fledged sentencing hearing, he did so in what he
perceived as his best interests, similar to the acceptance of a guilty plea. The defendant accepted a


           1
               The Range I p unishm ent was three to six years, and the Range II release eligibility was normally thirty-five
percent.

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twelve-year sentence for a Class C felony. The defendant was classified as a Range II multiple
offender, which has a sentencing range of six to ten years, but accepted a sentence provided for
Range III persistent offenders. The trial court explained to the defendant that a twelve-year sentence
was a Range III persistent offender sentence, and the defendant accepted it in order to avoid the risk
of being sentenced consecutively for his four convictions, which could have produced an effectively
longer sentence. In return, the State was relieved of the burden of having to conduct a full
sentencing hearing. This type of agreement could have been made pursuant to a plea bargain, and
we see no reason that the same bargaining principles applicable in a plea bargain should not apply
after a trial in a sentencing agreement. Therefore, applying the principles of Hicks, as long as the
sentencing agreement was entered into voluntarily and knowingly, it will be valid, even if the
sentence was outside the applicable offender range.

      There is nothing in the record to indicate this sentencing agreement was not voluntary and
knowing. In discussing the agreed-upon sentence, the following colloquy took place:

               THE COURT: All right. Do you understand that as Mr. McMurtry has
       mentioned here that one of the issues at the sentencing hearing would be whether
       either of these felony convictions or the misdemeanor conviction would run
       consecutive to each other. That would be an issue that would be addressed at the
       sentencing hearing. Do you understand that?
               DEFENDANT: Yes, sir.
               ....
               THE COURT: It’s a twelve-year sentence, facilitating aggravated robbery,
       and six years as a range two, thirty-five percent for parole purposes on the aggravated
       assault to run concurrent with each other. That’s together. That would be for– to
       your benefit. But do you understand you do not have to agree to these sentences and
       you could have a sentencing hearing? Do you understand that?
               DEFENDANT: Yes, sir.
               THE COURT: Do you understand by agreeing to this recommendation, you
       are waiving your right to have a sentencing hearing?
               DEFENDANT: Yes, sir.
               THE COURT: Is that what you choose to do?
               DEFENDANT: Yes, sir.
               THE COURT: All right. The other recommendation on your other two
       misdemeanors are the six months sentences each on the resisting arrest and criminal
       impersonation to run concurrent or you may have already served that amount of time,
       but do you understand that, as well?
               DEFENDANT: Yes, sir.
               THE COURT: All right. Is that what you choose to do, to accept this
       recommendation made by the State and have the Court impose those sentences?
               DEFENDANT: Yes, sir.




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        The record shows that the defendant knowingly and voluntarily accepted the sentence from
the sentencing agreement. Having determined that the defendant’s offender classification was the
subject of the sentencing agreement, we conclude the trial court had jurisdiction to approve such a
“bargain.”

                                           Conclusion

        The sentence imposed resulted from a sentencing agreement between the defendant and the
State. That sentencing agreement is tantamount to a plea bargain, which we conclude was made in
good faith, knowing and voluntary, and waived any irregularity as to offender classification. The
sentence imposed was within the range for a Class C felony of three to fifteen years, which is
jurisdictional and non-waivable. The offender classification and release eligibility status is non-
jurisdictional and subject to agreement and waiver by the defendant. Accordingly, we affirm the
sentence imposed by the trial court.




                                                      ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




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