         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                   November 4, 2003 Session

                      STATE OF TENNESSEE v. JOY NELSON

                   Direct Appeal from the Circuit Court for Gibson County
                             No. 14872-1    L.T. Lafferty, Judge



                  No. W2003-00798-CCA-R3-CD - Filed December 19, 2003


The Defendant, Joy Nelson, appeals from the trial court’s denial of her motion to correct an illegal
sentence. The Defendant pled guilty to second degree murder, a Class A felony. She was classified
as a Range I offender. She agreed to a sentence of forty years, which is outside the range of a Range
I offender, Class A felony. We find that the sentence is proper because the Defendant knowingly
and voluntarily agreed to it.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

DAVID H. WELLES, J., delivered the opinion of the court, in which JOE G. RILEY and JOHN EVERETT
WILLIAMS, JJ., joined.

Charles S. Kelly, Sr., Dyersburg, Tennessee, for the appellant, Joy Nelson.

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

                                              OPINION


         In 1994, the Defendant was indicted for first degree murder. On April 10, 1995, she pled
guilty to second degree murder, a Class A felony. A Range I offender convicted of a Class A felony
is subject to a potential sentence of fifteen to twenty-five years. See Tenn. Code Ann. § 40-35-
112(a)(1). However, as a condition of her plea, the Defendant agreed to a sentence of forty years
even though she was classified as a Range I offender and received a Range I release eligibility date.
For a Class A felony, forty years is a Range II sentence. See id. § 40-35-112(b)(1). On July 16,
2002, the Defendant filed a “Motion for Correction of Illegal Sentence,” which the trial court denied.
It is from the denial of her motion that the Defendant now appeals.

       The trial court’s action on the Defendant’s motion to correct an illegal sentence is not directly
appealable under Rule 3(b) of the Tennessee Rules of Appellate Procedure. See Cox v. State, 53
S.W.3d 287, 293 (Tenn. Crim. App. 2001). Therefore, to the extent that this record presents only
an appeal from the trial court’s denial of the Defendant’s motion, this case is not properly before this
Court. However, the trial court, citing Cox, determined that the Defendant’s motion should be
treated as a petition for writ of habeas corpus. “The phrase ‘illegal sentence’ is synonymous with
the habeas corpus concept of a void sentence.” Id. at 292. “[A] claim that merely asserts a void
sentence, even though it may not assert a void conviction, is cognizable as a habeas corpus
proceeding.” Id. Therefore, the appropriate procedure for challenging an illegal sentence is a
petition for writ of habeas corpus. See id.


       However, the Defendant failed to comply with the procedural requirements for properly filing
a habeas corpus petition. First, the Defendant did not file her motion in the proper venue for a
habeas corpus action. Under Tennessee Code Annotated section 29-21-105, a petition for writ of
habeas corpus must be filed with “the court or judge most convenient in point of distance to the
applicant, unless a sufficient reason be given in the petition for not applying to such court or judge.”
Generally, this is in the county in which the applicant is incarcerated. See, e.g., Lewis v.
Metropolitan Gen. Sessions Ct., 949 S.W.2d 696, 700 (Tenn. Crim App. 1996). The “Motion for
Correction of Illegal Sentence” was filed in Gibson County; however, the record reflects that the
Defendant is incarcerated in Shelby County.


        Second, the motion does not comply with the drafting requirements for a petition seeking the
writ of habeas corpus. According to Tennessee Code Annotated section 29-21-107(b), a petition for
writ of habeas corpus shall state:
       (1) That the person in whose behalf the writ is sought, is illegally restrained of
       liberty, and the person by whom and place where restrained, mentioning the name of
       such person, if known, and, if unknown, describing the person with as much
       particularity as practicable;
       (2) The cause or pretense of such restraint according to the best information of the
       applicant, and if it be by virtue of any legal process, a copy thereof shall be annexed,
       or a satisfactory reason given for its absence;
       (3) That the legality of the restraint has not already been adjudged upon a prior
       proceeding of the same character, to the best of the applicant’s knowledge and belief;
       and
       (4) That it is first application for the writ, or, if a previous application has been
       made, a copy of the petition and proceedings thereon shall be produced, or
       satisfactory reasons be given for the failure so to do.


The Defendant failed to name the warden in her motion as required by subsection (1). Additionally,
a panel of this Court has already ruled upon the legality of the Defendant’s sentence. In Joy Nelson
v. State, No. W1999-01885-CCA-R3-PC, 1999 WL 1532150 (Tenn. Crim. App., Jackson, Dec. 20,
1999), a panel of this Court reviewed the trial court’s denial of the Defendant’s petition for post-

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conviction relief. Although the court determined that her post-conviction appeal was time-barred,
it ruled upon the legality of her sentence. In so ruling, the court relied upon Hicks v. State, 945
S.W.2d 706 (Tenn. 1997).


       In Hicks, the defendant pled guilty to a Class C felony. Pursuant to the plea agreement, he
was sentenced as a Range I offender with a Range I release eligibility. However, the plea agreement
provided for a sentence of ten years, which, for a Class C felony, is a Range II sentence. Our
supreme court ruled that this “hybrid” sentence was valid because it was imposed pursuant to a plea
agreement that was entered voluntarily and knowingly. See id. at 709.


       In the Defendant’s post-conviction appeal, this Court stated:
       We find the holding in Hicks controlling in this case where, as in Hicks, a sentence
       was imposed that was outside the span of years of the offense, based on the agreed
       range of the offender, but within the overall statutory span of years for the class of
       felony. Therefore, we conclude that petitioner’s plea bargain agreement was valid
       and the sentence legal.


Joy Nelson v. State, 1999 WL 1532150, at *3. Although a panel of this Court has already ruled that
the Defendant’s sentence is legal, she now relies upon McConnell v. State, 12 S.W.3d 795 (Tenn.
2000), to support her position that her forty-year sentence is illegal. Because an illegal sentence may
be corrected at any time, see State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978), we will address
the Defendant’s contention.


        In McConnell, the defendant pled guilty and agreed to sentences under the 1982 Sentencing
Act, although the 1989 Sentencing Act had already taken effect. The defendant pled guilty to a Class
A felony and six Class B felonies. He agreed to a sentence of thirty-five years as a Range I offender
for the Class A felony, to concurrent ten-year sentences for five of the Class B felonies, and to a
consecutive thirty-five year sentence for the sixth Class B felony. Our supreme court held that the
trial court’s jurisdiction to sentence the defendant was limited by the 1989 Sentencing Act, which
sets the parameters within which the State and the defendant must negotiate. See McConnell, 12
S.W.3d at 798-99. The court stated that the thirty-five year sentences imposed pursuant to the 1982
Sentencing Act exceeded the maximum twenty-five year and twelve-year sentences for a Range I
offender under the 1989 Act. See id. at 800.


        This Court has previously addressed the argument raised by the Defendant, that McConnell
deprives trial courts of jurisdiction to impose a sentence that exceeds the maximum statutory penalty
in a defendant’s range, even where the defendant agreed to the sentence. See Bland v. Dukes, 97
S.W.3d 133 (Tenn. Crim. App. 2002). As the court in Bland noted, “the McConnell court cited
Hicks with approval and affirmed that its decision did not alter ‘the ability of the State and
defendants to use offender classification and release eligibility as subjects of plea bargain

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negotiations.’” Id. at 135 (quoting McConnell, 12 S.W.3d at 798). “In light of McConnell’s
affirmation of Hicks, this [C]ourt has 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 this case, the Defendant negotiated her plea
agreement using the terms of the 1989 Sentencing Act; therefore, the mixing of the length of her
sentence and her release eligibility status is permissible under Hicks, in which our supreme court
stated that “a knowing and voluntary guilty plea waives any irregularity as to offender classification
or release eligibility.” 945 S.W.2d at 709; see also State v. Melvin Waters, No. M2002-01297-CCA-
RM-CD, 2003 WL 141087, at *2 (Tenn. Crim. App. Nashville, January 16, 2003).


       Finding that the Defendant’s sentence is not illegal, we affirm the judgment of the trial court




                                                       ___________________________________
                                                       DAVID H. WELLES, JUDGE




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