        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON         FILED
                        MARCH 1995 SESSION
                                                 September 27, 1995

                                                 Cecil Crowson, Jr.
                                                 Appellate Court Clerk

RONALD LATURE McCRAY,     *     C.C.A. # 02C01-9412-CC-00277

          APPELLANT,      *     FAYETTE COUNTY

VS.                       *     Hon. Jon Kerry Blackwood, Judge

STATE OF TENNESSEE,       *     (Post-Conviction)

          APPELLEE.       *




For the Appellant:               For the Appellee:

Shana C. McCoy                   Charles W. Burson
Asst. Dist. Public Defender      Attorney General and Reporter
P.O. Box 700                     450 James Robertson Parkway
Somerville, TN 38068-0700        Nashville, TN 37243-0493

                                 Cyril V. Fraser
                                 Counsel for the State
                                 Criminal Justice Division
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493

                                 Elizabeth T. Rice
                                 District Attorney General
                                 and
                                 Christopher Marshburn
                                 Asst. District Attorney General
                                 302 Market Street
                                 Somerville, TN 38068




OPINION FILED:




REVERSED AND REMANDED
Gary R. Wade, Judge
                             OPINION

            The petitioner, Ronald Lature McCray, appeals the

trial court's denial of post-conviction relief.   The single

issue presented for our review is whether the trial court

should have granted relief due to the illegality of the

sentence.



            We find that the trial court committed error by

denying relief and remand the cause for further proceedings.



            Originally charged with first degree murder,

possession of a firearm with intent to use it in the

commission of a felony, and especially aggravated robbery, the

petitioner pled guilty to second degree murder and, pursuant

to agreement, received a Range I sentence of 60 years.

Thereafter, the petitioner filed a motion to correct or reduce

the sentence and the trial court denied relief.   The

petitioner appealed and this court affirmed.   State of

Tennessee v. Ronald McCray, No. 02C01-9309-CC-00220 (Tenn.

Crim. App., at Jackson, October 5, 1994).    The supreme court

denied the application for permission to appeal on January 3,

1995.



            In his petition for post-conviction relief, the

petitioner complained that his counsel was ineffective for,

among other things, having failed to conduct an adequate

investigation and allowing the defendant to agree to a

sentence greater than the statutory range.   See Tenn. Code

Ann. § 40-35-112(a)(1).   The petitioner testified that before


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this incident he had not been previously charged with a crime.

He complained that he had entered his plea only because of his

fear of the death penalty or life imprisonment and because his

counsel had failed to advise him that, as a Range I offender,

the statutory sentence was between l5 and 25 years.



           The petitioner's trial counsel testified that he

believed a first degree murder conviction was likely because

the death of the victim had been "execution style" while in

the course of a robbery.   He testified that the petitioner had

been advised that his 60-year sentence could be served in l8

years.   Trial counsel also stated that he had assured the

state that the petitioner was likely to plead guilty and had,

by doing so, convinced the state not to file notice of its

intention to seek the death penalty.



           At the conclusion of the hearing, the trial court

ruled that the petitioner had not been denied the effective

assistance of counsel.   It specifically found that trial

counsel had not been ineffective by suggesting a plea

agreement of sixty years with a release eligibility date at

30%.   It is implicit in the ruling that the trial court found

nothing illegal about the sentence.



           In State v. Mahler, 735 S.W.2d 226 (Tenn. 1987), our

supreme court held that a defendant who had entered a knowing

and voluntary plea of guilt to a sentence within the statutory

range could accept classification as a Range II offender, even

though he did not technically qualify above Range I.    See


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Tenn. Code Ann. §§ 40-35-105 through -109.   The sentence was

affirmed on the basis that the defendant could legitimately

enter a plea agreement within a range of punishment provided

by law, even if the defendant did not have a sufficient prior

record to warrant the higher classification within the range.

In Mahler, however, the supreme court made a distinction

regarding the length of the sentence.   It ruled that "a

judgment imposed by a trial court in direct contravention of

express statutory provisions ... is illegal and is subject to

being set aside at any time, even if it has become final."

735 S.W.2d at 228 (emphasis added).



          More recently, this court set aside as illegal a

plea agreement similar to that made in this case.   In George

Cheairs v. State, No. 02C01-9304-CC-00070 (Tenn. Crim. App.,

at Jackson, October 26, 1994), this court made the following

observation:

               If the parties can agree that a
          defendant be sentenced to a term of years
          exceeding the maximum for his range, then
          logically by agreement he could be
          sentenced to a term less than the minimum.
          The release eligibility date would then be
          determined by the agreement rather than
          the Range. Thus, the statutory ranges and
          the corresponding release eligibility
          percentages would be virtually
          meaningless, with sentencing structure
          governed by contract rather than by
          statute.

Although we cannot distinguish the holding in Cheairs from

that in Darnell Gentry v. State, No. 02C01-9304-CC-00052

(Tenn. Crim. App., at Jackson, June 29, 1994), perm. to app.

denied, (Tenn. 1994), the decision in Cheairs appears to be in

compliance with an order entered by our supreme court in State


                              5
v. Joseph Harvey Cutright, No. 02C01-9108-CC-00175 (Tenn., at

Jackson, March 25, 1992).       Because the range classification is

based upon fact (prior criminal history of the defendant) and

therefore is subject to plea negotiation, an arrangement such

as that made in Mahler is permissible.         Once range is

established, however, the statute provides specific legal

boundaries within which the determinative sentence must fall.

Here, that would have been from fifteen to twenty-five years

for a Range I offender.1



            Based upon the greater weight of the authorities

available, we are constrained to set aside this sentence as

illegal and remand the cause to the trial court.           Because the

sentence proposed in the plea agreement exceeds the statutory

limits, the trial court must reject the original, recommended

sentence.    Thereafter, the proceedings shall be governed by

Tenn. R. Crim. P. 11(e)(2) or 11(e)(4).         See State v. Hodges,

815 S.W.2d 151 (Tenn. 1991).



            It is so ordered.



                             _____________________________________
                             Gary R. Wade, Judge

CONCUR:



_________________________________
Joe B. Jones, Judge



     1
       The state's offer of 60 years at 30% would have provided a release
eligibility date of l8 years. It could have accomplished the same l8-year
result with a Range III (45%), 40-year sentence. See Tenn. Code Ann. § 40-
35-101, et seq.

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_________________________________
John K. Byers, Senior Judge




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