                  IN THE SUPREME COURT OF TENNESSEE
                              AT JACKSON
                                   April 6, 2011 Session

             DAVID CANTRELL v. JOE EASTERLING, WARDEN

              Appeal by Permission from the Court of Criminal Appeals
                        Circuit Court for Hardeman County
                       No. 09-02-0415     Joe Walker, Judge


                 No. W2009-00985-SC-R11-HC - Filed August 1, 2011


G ARY R. W ADE, J., concurring in the judgment.

        I can concur that the petitioner’s sentence is illegal and void because it directly
contravenes the multiple rapist sentencing statute. By granting limited habeas corpus relief
and remanding to the trial court for entry of a corrected sentence, the majority has essentially
adopted the position of the State. While this result is proper under these specific
circumstances, I would submit that the ruling today is inconsistent with the opinion in
Edwards v. State, 269 S.W.3d 915 (Tenn. 2008), a case I continue to believe was wrongly
decided. Moreover, in an apparent effort to conform its decision today with rulings in our
previous habeas corpus cases, the majority has created new and heightened standards for
relief which, in my assessment, will serve to further confuse this area of the law. Finally, I
believe that this case offered an opportunity to overrule altogether our decision in Edwards
and, by doing so, reconcile a series of our prior opinions on the subject of habeas corpus.

                                         Background
        Article I, section 15 of the Tennessee Constitution preserves the right to seek habeas
corpus relief in our state courts. The writ of habeas corpus has been regulated in Tennessee
by statute for over one hundred years. Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007);
see also Tenn. Code Ann. § 29-21-101(a) (Supp. 2010) (“Any person imprisoned or
restrained of liberty, under any pretense whatsoever, except in cases specified in subsection
(b) and in cases specified in § 29-21-102, may prosecute a writ of habeas corpus, to inquire
into the cause of such imprisonment and restraint.”). Although the statutory language is
broad, “the grounds upon which habeas corpus relief will be granted are narrow” and
“[h]abeas corpus relief is proper only if the petition establishes that the challenged judgment
is void, as opposed to merely voidable.” Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004)
(citations omitted). This Court has held that the writ of habeas corpus may be sustained
“only when it appears upon the face of the judgment or the record of the proceedings . . . that
a court lacked jurisdiction or authority to sentence a defendant or that the sentence has
expired.” Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000); accord State v.
Galloway, 45 Tenn. (5 Cold.) 326, 336-37 (1868). An illegal sentence qualifies as void and
may be set aside through habeas corpus at any time. Summers v. State, 212 S.W.3d 251, 256
(Tenn. 2007) (citing Moody v. State, 160 S.W.3d 512, 516 (Tenn. 2005)).

        Thirty-three years ago, this Court decided State v. Burkhart, 566 S.W.2d 871 (Tenn.
1978), the leading case on the subject of illegal sentences. Burkhart, who was serving a
sentence for burglary, escaped from prison. When he pled guilty to a charge of escape, the
trial court imposed a concurrent sentence, even though the relevant statute required a
consecutive term. Id. at 872. The concurrent sentence was imposed “in direct contravention
of the express [statutory] provisions . . . and consequently was a nullity.” Id. at 873. Citing
holdings in a number of other jurisdictions, this Court ruled that “a trial judge may correct
an illegal, as opposed to a merely erroneous, sentence at any time, even if it has become
final.” Id. (emphasis added). Because Burkhart asserted that his plea was the result of an
agreement that was no longer valid, the Court observed that if his allegation was “true, [he]
would be entitled to proceed to trial on [the escape] charge” and remanded for a hearing on
that issue. Id. Burkhart, therefore, has primarily stood for the proposition that an illegal
sentence imposed by a trial court – that is, a sentence that directly contravenes express
statutory provisions – may be set aside at any time, and, further, that a remand is likely
warranted when the illegal sentence is the result of a plea agreement.

        The decision in State v. Mahler, 735 S.W.2d 226 (Tenn. 1987), signaled an important
development in this area of the law in the context of a plea agreement. Mahler, who was
charged with first degree murder, pled guilty to second degree murder and, even though his
prior criminal history warranted only a Range I classification, agreed to be sentenced as a
Range II offender. Id. at 226-27. Later, he filed a post-conviction petition arguing that his
sentence was illegal. Id. at 227. While acknowledging that a judgment in contravention of
statute is illegal and may be set aside at any time, this Court distinguished Burkhart and
denied relief for two reasons: “[t]he sentence imposed was clearly within statutory limits
fixed for [second degree] murder” and “any question as to the classification of appellant as
a Range II offender or as to his release eligibility was waived by the guilty plea.” Id. at 228.
For the first time, this Court drew a distinction between a sentence imposed by a trial court
and one agreed to by plea bargain.

        In Hicks v. State, 945 S.W.2d 706 (Tenn. 1997), decided ten years after Mahler, this
Court restated the distinction. Hicks filed a post-conviction challenge to his “hybrid”
sentence: he had entered into a plea agreement with the State to serve a Range II sentence
of ten years for voluntary manslaughter with a Range I release eligibility of thirty percent.
Id. at 706. While observing that the Court of Criminal Appeals was split on the propriety of


                                              -2-
such a sentence under the Criminal Sentencing Reform Act of 1989 (“1989 Act”), id. at 708-
09, this Court denied relief, holding, as in Mahler, that “a knowing and voluntary guilty plea
waives any irregularity as to offender classification or release eligibility.” Id. at 709. The
Hicks opinion noted that Mahler had been published for more than a year when the General
Assembly passed the 1989 Act, and “[h]ad the legislature intended for the new Act to be
interpreted differently, it would have been a simple matter to limit a prosecutor’s use of
offender classification and release eligibility as plea bargaining tools.” Id. Because the
General Assembly chose not to do so, the Court determined that the legislature’s intent was
to permit the practice. Id. Hicks, having entered into the plea agreement knowingly and
voluntarily, could not later mount a collateral attack on the legality of his sentence even
though the release eligibility determination contravened the provisions of the 1989 Act.

        The decision in McConnell v. State, 12 S.W.3d 795 (Tenn. 2000), established limits
to the rulings in Mahler and Hicks. McConnell, who had previously pled guilty to second
degree murder and robbery, filed for post-conviction relief, arguing that his sentence was
illegal because it was calculated pursuant to the Criminal Sentencing Reform Act of 1982
even though he had committed the offense after the 1989 Act became effective. Id. at 796-
97. This Court reaffirmed the holding in Hicks, observing that offender classification and
release eligibility determinations were proper “subjects of plea bargain negotiations” and that
“[t]hese elements of plea bargaining” qualified “as non-jurisdictional.” Id. at 798. Because,
however, the term of years exceeded the statutory maximum under the 1989 Act, id. at 800,
this Court granted relief from the convictions, explaining that, “[w]hile it is true that a plea
bargain agreement is contractual, contract principles extend only so far.” Id. at 799 (citation
omitted). Allowing a sentence in excess of the statutory maximum simply because it is the
product of a plea agreement would, according to the Court as constituted at that time, “be an
obvious and impermissible intrusion on the clear Constitutional prerogative of the Legislature
to define the contours of a trial court’s jurisdiction.” Id.

        In Moody, 160 S.W.3d at 512, decided five years after McConnell, this Court
established the procedure for challenging an illegal sentence. Convicted of aggravated
assault and spousal sexual battery, Moody, by agreement with the State, was placed on
probation pursuant to a program that required him to register as a sex offender. Id. at 514.
During his probation, “Moody neither sought a direct appeal of his convictions and sentences
nor challenged them in a post-conviction or habeas corpus proceeding.” Id. Almost four
years later, however, after his probation was revoked, he filed a “Motion to Correct Errors
in Judgment,” arguing that his sentence was illegal because neither of the offenses of which
he was convicted was a “sexual offense” for registration purposes as defined by statute. Id.
at 514-15. Moody appealed the trial court’s denial of his motion by filing a petition for writ
of certiorari, but the Court of Criminal Appeals dismissed the appeal, holding that he should
have sought relief from the sentences through a habeas corpus petition. Id. at 514. This


                                              -3-
Court affirmed, holding “that the proper procedure for challenging an illegal sentence at the
trial level is through a petition for writ of habeas corpus, the grant or denial of which can
then be appealed under the Rules of Appellate Procedure.” Id. at 516 (citing Stephenson, 28
S.W.3d at 912).1

        In Smith v. Lewis, 202 S.W.3d 124 (Tenn. 2006), this Court confirmed the principle
that an illegal sentence apparent on the face of the judgment or within the record of the
underlying proceedings renders the judgment void, but also held that where the illegality is
in the sentence rather than the conviction, only the sentence is void, and the conviction may
remain intact. Id. at 130. Smith had pled guilty to one count of child rape and agreed to
serve fifteen years as a Range I offender. Id. at 126. Although the original and amended
orders provided that he would be eligible for early release, this was not permissible under
Tennessee Code Annotated section 39-13-523(b) (Supp. 1996), which provides that one
convicted of child rape must serve the full sentence without possibility of early release.2 Id.
at 127. The Court, while holding that Smith’s sentence was illegal, remanded to the trial
court of conviction for a corrected sentence, to be served at 100%, but did not vacate the
underlying conviction, explaining that “where the illegality infects only the sentence, only
the sentence is rendered void and habeas corpus relief may be granted to the extent of the
sentence only. In such cases, the underlying conviction remains intact.” Id. at 130. Unlike
the procedure adopted in Burkhart, in apparent reliance on Stephenson,3 this Court chose not


        1
           Later, in Summers, 212 S.W.3d at 261, this Court refined how the illegality of a sentence might be
established when the alleged defect does not appear on the face of the judgment. In his habeas corpus
petition, Summers claimed that by imposing his sentence for escape concurrently with his other sentences,
the trial court’s order contravened Tennessee Code Annotated section 39-16-605(c) and Tennessee Rule of
Criminal Procedure 32(c)(3)(B), both of which require consecutive sentencing for an escape conviction. Id.
at 256. We held that when there is “an illegal sentence claim based on facts not apparent from the face of
the judgment, an adequate record for summary review must include pertinent documents to support those
factual assertions.” Id. at 261. Because the judgment on his escape conviction was “facially valid and
Summers failed to support his factual assertions with pertinent documents from the record of the underlying
proceedings,” this Court determined that it was proper for the trial court to have dismissed his petition
without either appointing counsel or holding a hearing. Id. at 262. Summers, therefore, necessarily
recognizes a challenge to a possible jurisdictional defect in a sentence that is “not apparent from the face of
the judgment,” so long as “pertinent documents” from the record are attached that establish the illegality of
the sentence.
        2
         This statute is the same one at issue in this case, as it contains the requirement of mandatory service
at 100% for multiple rapists as well as child rapists.
        3
          In Stephenson, this Court, after affirming a first degree murder conviction, setting aside a death
penalty, and remanding for re-sentencing, reviewed the propriety of a subsequent plea agreement providing
for a sentence of life without the possibility of parole. 28 S.W.3d at 911. Because life without parole was
                                                                                              (continued...)

                                                      -4-
to remand to the trial court for a determination of whether Smith would be allowed to
withdraw his plea, because “the record . . . [did] not demonstrate on its face that the illegal
provision . . . was a bargained for element of [the] plea.” Id.; see also McLaney v. Bell, 59
S.W.3d 90 (Tenn. 2001) (remanding for a determination of whether consecutive sentencing
was mandatory, and, if so, permitting as an option the withdrawal of the plea).4

        Hoover v. State, 215 S.W.3d 776 (Tenn. 2007), involved a plea agreement that
included a thirty-five-year sentence as a Range I offender for second degree murder and
attempt to commit especially aggravated robbery. Id. at 777. Hoover later filed a petition
for writ of habeas corpus claiming that the sentence was illegal because the maximum Range
I sentence for second degree murder was twenty-five years. Id. at 777-78. The trial court
granted Hoover habeas corpus relief, but the Court of Criminal Appeals reversed. Id. at 778.
Because the “plea-bargained sentence [wa]s well below the maximum punishment authorized
for the plea offense of second degree murder” and because “a plea-bargained sentence is
legal so long as it does not exceed the maximum punishment authorized for the plea offense,”
id. at 781, this Court denied relief, confirming the principle set forth in Mahler and Hicks that
offender classification and release eligibility may be used as bargaining tools in plea
negotiations. Id. at 780. As in McConnell, the Court referred to those two elements of
sentencing as “non-jurisdictional,” id., and held that “Hoover [had] waived any irregularity
concerning his offender classification or release eligibility when he pleaded guilty.” Id. at
780-81.5



        3
          (...continued)
not a statutorily authorized sentence for first degree murder at the time the offense was committed, the State
on appeal conceded the illegality of the new sentence. Id. at 910. This Court held the sentence was void and
remanded to the trial court “for further proceedings.” Id. The “ruling d[id] not affect Stephenson’s separate
conviction and 60-year sentence for the offense of conspiracy to commit first-degree murder.” Id. at 912 n.3.
        4
         In Boykin v. Alabama, 395 U.S. 238 (1969), the United States Supreme Court held that a trial court
may not accept a guilty plea “without an affirmative showing that it was intelligent and voluntary,” id. at 242,
and directed courts to “canvass[] the matter with the accused to make sure he has a full understanding of
what the plea connotes and of its consequence.” Grindstaff v. State, 297 S.W.3d 208, 218 (Tenn. 2009)
(quoting Boykin, 395 U.S. at 244); see also Howell v. State, 185 S.W.3d 319, 330-31 (Tenn. 2006).
        5
          Most recently, in Davis v. State, 313 S.W.3d 751 (Tenn. 2010) (Clark, J.), the Court reaffirmed that
release eligibility determinations are “non-jurisdictional” with respect to plea-bargained sentences. Id. at
765. The majority wrote that “[o]ur interpretation of the Act allowing for the parties to agree on sentences
that do not allow for early release on parole is consistent with our position that sentencing range
classification and [release eligibility determinations] are non-jurisdictional elements of sentencing.” Id.
Davis is only the latest example of cases where this Court has unequivocally “drawn distinctions between
illegal sentences imposed by the trial court without a plea bargain and illegal sentences imposed pursuant
to a plea bargain.” The majority’s failure to acknowledge this distinction is a matter of concern.

                                                      -5-
        Prior to the holding in Edwards, as indicated by this brief recitation of the lead cases
on the subject of illegal sentences, there was some consistency in the progression of our
rulings since Burkhart in 1978: (1) an illegal sentence is one imposed in direct contravention
of express statutory provisions, and may be corrected at any time; (2) a knowing and
voluntary guilty plea waives any challenge to a sentencing irregularity concerning offender
classification or a release eligibility, so long as the resulting sentence falls within the range
permitted by the 1989 Act; (3) the proper procedure for correcting an illegal sentence is
through the writ of habeas corpus; (4) if the illegality affects only the sentence, then the
underlying conviction remains intact unless the guilty plea is allowed to be withdrawn; and
(5) offender classification and release eligibility are “non-jurisdictional” with respect to plea-
bargained sentences.

        Breaking new ground, this Court in Edwards extended the concept of “non-
jurisdictional” sentencing errors beyond the context of waiver in plea-bargained sentences
and applied the term as a means of upholding a sentence imposed by the trial court after a
jury trial, even though the sentence was in excess of that permitted by statute. 269 S.W.3d
at 923-24. A jury convicted Edwards of burglary, and the trial court sentenced him as a
Range III persistent offender. Id. at 917. Later, Edwards sought habeas corpus relief
because he lacked the five convictions necessary to be sentenced as a persistent offender.
Id. The Edwards majority, no longer relying on waiver by a knowing and voluntary plea,
reiterated “‘that offender classification and release eligibility are non-jurisdictional,’” id. at
923 (quoting Hoover, 215 S.W.3d at 780-81 (first emphasis added)), and ultimately denied
relief:

       [O]ffender classification is a non-jurisdictional element of sentencing. Thus,
       errors and/or irregularities in offender classification are waived by a guilty
       plea, and are not grounds for habeas corpus relief if the sentence is imposed
       by a trial court after a jury conviction. Simply stated, habeas corpus relief is
       not available to correct errors or irregularities in offender classification.

Id. at 924 (emphasis added).

       I continue to be unable to reconcile with established precedent the majority’s decision
in Edwards to deny habeas corpus relief where “the trial court imposed the Petitioner’s
sentence in direct contradiction of a sentencing statute after a jury verdict, [unlike] those in
which the judgment has been entered through a guilty plea.” 269 S.W.3d at 929 (Wade &
Holder, JJ., dissenting); see also Davis, 313 S.W.3d at 771 (Wade & Holder, JJ., concurring)
(“[A] sentence imposed by a trial court after conviction or an open plea of guilt (absent any
negotiated term) that qualifies as illegal under our statutory scheme [sh]ould be subject to a
meritorious [habeas corpus] attack.”).


                                               -6-
                                            Analysis
        In the case before us, neither the State nor the petitioner asked this Court to address
the propriety of Edwards. In my view, however, Edwards stands for the proposition that after
a guilty verdict (or an open plea of guilt), a sentence in contravention of statute is “non-
jurisdictional” – merely voidable,6 not void – and thus not subject to habeas relief. 269
S.W.3d at 924. For this reason, I believe that the majority’s decision today and the ruling in
Edwards are indistinguishable. Both involve a sentence imposed by the trial court after a jury
trial that contained the very kind of error that this Court identified in Edwards as “non-
jurisdictional.” If habeas corpus relief was unavailable to Edwards, then it should likewise
be unavailable in this instance and the sentence, even though in contravention of statute,
should remain unchanged. Conversely, because the majority here has granted “relief” and
remanded for correction by ordering 100% service of the sentence, we should have also
granted relief in Edwards by ordering the appropriate, lesser sentence. Only by expressly
overruling the expansion of the concept of “non-jurisdictional” errors in Edwards can we
bring greater harmony to our habeas corpus decisions in the context of illegal sentences.

        The majority submits that Edwards does not apply to this case because the trial court
in Edwards had jurisdiction to make the error in offender classification, whereas the trial
court here lacked jurisdiction to impose a sentence at 35% even though the petitioner was
convicted as a multiple rapist, requiring 100% service of the sentence. The majority further
states that “[t]he actual impact of Edwards . . . is limited to its unsurprising holding that an
allegedly erroneous offender classification does not create an illegal sentence so long as the
offender classification is available under the Sentencing Act.” Even if the holding in
Edwards is so limited, I see no logic in differentiating between offender classification and
release eligibility determinations for purposes of discerning whether a sentence imposed by
a trial court is illegal. The 1989 Act refers to the types of errors the majority classifies as
“appealable errors,” specifically mentioning appeals of “the length, range or the manner of
service of the sentence imposed by the sentencing court,” as well as “the imposition of
consecutive sentences.” Tenn. Code Ann. § 40-35-401(a) (2010). Both offender
classification and release eligibility determinations involve “the length, range or the manner
of service” of a sentence. Moreover, this Court has repeatedly ruled that both offender
classification and release eligibility determinations are “non-jurisdictional.” See Davis, 313
S.W.3d at 765; Edwards, 269 S.W.3d at 924; Hoover, 215 S.W.3d at 780; McConnell, 12
S.W.3d at 798. If, as the majority suggests, Edwards is limited in its reach to cases involving
erroneous offender classifications, did this Court err in Davis, Edwards, Hoover, and


        6
         This Court has defined “a voidable judgment [a]s one that is facially valid and requires proof
beyond the face of the record or judgment to establish its invalidity.” Summers, 212 S.W.3d at 256 (citing
Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998)).

                                                   -7-
McConnell by also referring to release eligibility determinations as “non-jurisdictional?”

        I am also concerned about the majority’s suggestion that habeas corpus is not
available to challenge a sentence, like the one in Edwards, that was imposed due to a trial
court’s erroneous findings of fact. On this point, the majority explores uncharted territory.
I know of no prior rulings by this Court stating that the availability of habeas relief turns on
whether the illegality of the sentence is based upon a finding of fact or a mistake in the law.
Both Edwards and the case at issue involved errors in the application of facts (the number
of prior convictions and the number of rape convictions, respectively) to the law (the relevant
statutes governing sentencing). The majority’s distinction between sentencing errors based
upon findings of fact and those based upon mistakes of law is nowhere to be found in
Edwards or in any of our prior decisions involving illegal sentences.7 My concern is that the
decision today further clouds this troublesome area of the law.

         As I stated in the concurring opinion in Davis, I believe that it is essential for this
Court to set forth a workable rule for the trial courts addressing “illegal sentences” in habeas
corpus petitions. Today’s majority opinion properly reiterates the long-held principle, first
enumerated in Burkhart, that a sentence is illegal and void, and thus may form a basis for
habeas relief, if it is imposed “in direct contravention of a governing sentencing statute” or
if it is a sentence “not available under the sentencing statutes governing the case.” See
Edwards, 269 S.W.3d at 921. Because offender classification is determined by reference to
a statutory scheme, see Tenn. Code Ann. §§ 40-35-105 to -109 (2010), I believe that a
sentence which is not a part of a plea agreement and which includes an offender
classification, either unavailable under or in direct contravention of the governing statutes,
qualifies as illegal. It is difficult to fathom how any sentence imposed by the trial court could
contain “errors and/or irregularities in offender classification” resulting in a term of
imprisonment beyond legislative authority and not “directly contravene[] a governing
statute.” Edwards, 269 S.W.3d at 924.

        Expressly overruling Edwards would not, of course, affect the waiver rule first set


        7
          Indeed, the Edwards majority defines “non-jurisdictional” errors as “factual or legal errors a court
makes in the exercise of its jurisdiction.” 269 S.W.3d at 924 (emphasis added). The majority justifies its
unprecedented distinction between findings of fact and conclusions of law by asserting that it is “rely[ing]
upon the plain language of” Tennessee Code Annotated section 40-35-401(a). That provision, however,
makes no distinction between findings of facts and conclusions of law, but merely states that there is no
appellate review of a sentence in a post-conviction or habeas proceeding. If an error as to “the length, range
or the manner of service of the sentence” or “the imposition of consecutive sentences” results in an illegal
sentence because the trial court did not have the jurisdiction to impose it, that error may form the basis for
habeas relief. Such an error could be based upon incorrect findings of fact, erroneous conclusions of law,
or both.

                                                     -8-
forth in Mahler and followed in McConnell, Hoover, and Davis – all cases in which the
sentence was agreed to by guilty plea. Offender classification and release eligibility
determinations should still be the subject of plea negotiations provided that the agreed
sentence is within the statutory minimum and maximum for the particular offense. A
knowing and voluntary guilty plea may serve as a waiver of irregularities in offender
classification or release eligibility; if, however, a trial court, after a conviction or upon an
open plea of guilt, imposes a sentence in contravention of our statutory scheme, including
an erroneous offender classification or release eligibility determination, a petitioner would
be entitled to habeas corpus relief.

                                         Conclusion
      Applying this standard to the circumstances before us, I can concur with the majority.
Because the petitioner’s sentences for his four aggravated rape convictions, all of which were
imposed by the trial court after verdicts of guilt, are in direct contravention of Tennessee
Code Annotated section 39-13-523(b) (Supp. 1995), his petition for writ of habeas corpus
should be granted and the cause remanded for entry of amended judgment orders in
compliance with that statute.

       I am authorized to state that Justice Holder joins in this concurring opinion.


                                                    ______________________________
                                                    GARY R. WADE, JUSTICE




                                              -9-
