        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs September 28, 2004

                   TONY HOPKINS v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Morgan County
                            No. 8938    E. Eugene Eblen, Judge



                   No. E2003-01691-CCA-R3-HC - Filed October 25, 2004


The petitioner, Tony Hopkins, appeals the dismissal of his petition for writ of habeas corpus,
contending that, following his guilty plea, he was wrongfully sentenced to a fifteen-year
sentence as a Range I offender on a Class B felony. After careful review, we affirm the
dismissal of the petition.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
DAVID H. WELLES, JJ., joined.

Joe H. Walker, District Public Defender, and Walter B. Johnson, II, Assistant Public Defender,
for the appellant, Tony Hopkins.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; J.
Scott McCluen, District Attorney General; and D. Roger Delp, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                           OPINION

                                 Facts and Procedural History

        The petitioner was indicted on two counts of aggravated robbery and two counts of
especially aggravated kidnapping. Pursuant to a negotiated plea agreement, the petitioner was
convicted of two counts of aggravated robbery, a Class B felony, and two counts of the reduced
charge of kidnapping; he was classified as a Range I, standard offender. The potential sentence
for such an offender convicted of a Class B felony is eight to twelve years. Tenn. Code Ann. §
40-35-112(a)(2) (2004). However, as a condition of his plea to the counts of aggravated robbery,
the petitioner agreed to a “hybrid” sentence of fifteen years, which is a Range II sentence, with a
Range I release eligibility date. The judgment further corroborated the terms of the agreement
by noting “RED is negotiated with Range II sentence.” In October 2002, the petitioner filed a
pro se petition for writ of habeas corpus. Thereafter, counsel was appointed and a hearing was
held, in which the petitioner argued that the length of his sentence was illegal because it fell
outside the maximum penalty for a Range I offender. The court denied the petition because the
judgment was not void and, therefore, was not appropriate grounds for habeas relief. The
petitioner then filed a timely appeal to this Court.

        On appeal, the State argues that the judgment is not void on its face because the agreed
upon sentence of fifteen years was within the statutory range for a Class B felony and because
the petitioner knowingly and voluntarily agreed to the hybrid sentence as a condition of his plea
agreement. The appellant reiterates that the judgment is void because the sentence issued falls
outside the statutory maximum penalty for a Range I offender. Further, he argues that any
notation on the judgment, reflecting an agreement to such terms, does not cure the illegality of
the sentence.

                                              Analysis

        The grounds upon which habeas corpus relief can be sought are decidedly narrow; 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).
Further, a sentence in direct contravention of a statute is illegal and void. Stephenson v. Carlton,
28 S.W.3d 910, 911 (Tenn. 2000) (citing State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978).
In order to prevail, the petitioner must “prove that a jurisdictional defect appears in the record of
the original trial.” Dixon v. Holland, 70 S.W.3d 33, 36 (Tenn. 2002).

       Offender classifications 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. 2002) (citing McConnell v. State, 12
S.W.3d 795, 798 (Tenn. 2000); Hicks v. State, 945 S.W.2d 706, 709 (Tenn. 1997)). Moreover,
our supreme court held in Hicks that hybrid sentences are permissible because “a knowing and
voluntary guilty plea waives any irregularity as to offender classification or release eligibility.”
Hicks, 945 S.W.2d at 709.

        The petitioner relies primarily on McConnell to support the proposition that the trial
court did not have jurisdiction to impose a sentence outside the maximum statutory penalty for
his range, pursuant to his plea agreement. However, the petitioner’s reliance on the reasoning in
McConnell is misplaced; in that case, the court nullified the plea agreement not because the
number of years was outside the range, but because it was expressed in terms of the 1982
Sentencing Act rather than the 1989 Act. Bland, 97 S.W.3d at 135 (citations omitted). In fact,
McConnell cited Hicks with approval and noted that its decision did not disturb “the ability of
the State and defendants to use offender classification and release eligibility as subjects of plea
bargain negotiations.” McConnell, 12 S.W.3d at 798.

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        In the case at bar, the petitioner’s plea agreement was negotiated under the terms of the
1989 Sentencing Act. Moreover, the sentencing range for Class B felonies is between eight and
thirty years; the petitioner’s sentence of fifteen years is properly within this range. Tenn. Code
Ann. § 40-35-111(b)(2) (2004). Finally, pursuant to Hicks and its progeny, the agreed upon
hybrid sentence, which mixed the range of incarceration and the range of release eligibility,is
permissible. Therefore, because the petitioner executed a knowing and voluntary guilty plea and
because his sentence was issued in compliance with applicable statutory and case law, the trial
court’s denial of the petitioner’s writ of habeas corpus is affirmed.

                                          Conclusion

        Based on the foregoing, and the record as a whole, the trial court’s dismissal of the
petitioner’s habeas corpus petition is affirmed.




                                                     ___________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE




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