         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs October 25, 2005

                STERLING POLLARD v. STATE OF TENNESSEE

                Direct Appeal from the Criminal Court for Hamilton County
                           No. 248161     Rebecca Stern, Judge



                    No. E2005-00888-CCA-R3-PC - Filed January 12, 2006


The petitioner appeals the denial of post-conviction relief, contending that: (1) the post-conviction
court erred in modifying the illegal probationary period rather than vacating it; and (2) his plea to
a violation of the Motor Vehicle Offender Act was not knowingly and voluntarily entered. Upon
thorough review, we affirm the denial of post-conviction relief but modify the petitioner’s
probationary period from five hundred fifty-two days to five years, one hundred eighty-seven days.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and
NORMA MCGEE OGLE, JJ., joined.

Brandon Raulston, Chattanooga, Tennessee, for the appellant, Sterling Pollard.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
William H. Cox, III, District Attorney General; and James A. Woods, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

                                   Facts and Procedural History

        On October 31, 2001, the petitioner, Sterling Pollard, pled guilty to one count of driving
under the influence (DUI) seventh offense, and one count of felonious operation of a motor vehicle
(both Class E felonies) in case number 237788. For the charge of DUI, the petitioner was sentenced
as a Range I, standard offender to two years, suspended, and six years probation after one hundred
seventy-eight days, day-for-day. For the remaining charge of felonious operation of a motor vehicle,
the petitioner was sentenced as a Range I offender to a concurrent sentence of one year. On
November 10, 2003, the petitioner pled guilty to violating the Habitual Motor Vehicle Offender Act
(a Class E felony) in case number 245774, after which his probation was revoked and he was
sentenced to two years, consecutive to the sentences imposed in the previous case.

        On February 23, 2004, the petitioner filed a pro se petition for post-conviction relief as to
both cases. One month later, the post-conviction court entered an order finding that the claims
arising from case number 237788 were time-barred and that those arising from the revocation
proceeding in that case were not cognizable in a post-conviction petition. T.C.A. §§ 40-30-201, -
202; see also Young v. State, 101 S.W.3d 430, 433 (Tenn. Crim. App. 2002). The court further
noted, however, that the petitioner’s claim of an illegal sentence for DUI seventh offense could be
corrected “at any time, even if it has become final.” See State v. Burkhart, 566 S.W.2d 871, 873
(Tenn. 1978). Specifically, the court made the following findings:
                Although the petitioner’s sentence for a seventh violation of [DUI] in case
        237788 does not exceed the maximum probationary term that Tenn. Code Ann. § 40-
        35-303(c) authorizes for offenses in general, it exceeds the maximum probationary
        term that Tenn. Code Ann. § 55-10-403(c) authorizes for such an offense. To the
        extent that § 303(c) conflicts with § 403(c), however, the latter controls. See State
        v. Palmer, 902 S.W.2d 391, 394 (Tenn. 1995)

                Under § 303(c), the only limits on the length of a probationary term for a
       particular offense is the maximum sentence for the offense classification. For a
       violation of § 401, however, § 403(c) mandates a probationary term equal to the
       difference between the period of actual confinement and the maximum sentences.
       In so doing, it effectively “mandates a maximum sentence for [violation of § 401],
       with the only function of the trial court being to determine what period above the
       minimum period of incarceration established by statute, if any, is to be suspended.”
       State v. Combs, 945 S.W.2d 770, 774 (Tenn. Crim. App. 1996).
                ....
                Although a defendant may waive a sentence range, the petitioner did not do
       so. See, e.g., Hicks v. State, 945 S.W.2d 706 (Tenn. 1997) (validating a sentence
       with a Range II length and a Range I release eligibility, where the defendant agreed
       to a hybrid sentence). Absent such a waiver, the maximum sentence to which he was
       subject under subsections (a)(1) and (c) of § 403 was two years. See McConnell v.
       State, 12 S.W.3d 795, 796-97 (invalidating sentences with a Range II length, where
       the defendant pled guilty as a Range I offender); Tenn. Code 40-35-112 [sic]
       (defining a Range I sentence for a Class E felony as “not less than one (1) nor more
       than two (2) years”). The six year probationary term in case 237788 is therefore
       illegal and should be reduced in accordance with § 403(c).

               . . . [The court] also finds . . . that the claims for relief from the judgment in
       case 245774 are timely. Because of the conflation of the various claims in the
       petition, however, the Court cannot determine which, if any, of the timely claims are
       colourable.



                                                  -2-
               The Court therefore ORDERS as follows:
               (1)   that, in case 237788, the judgment on count 3 be amended to reflect
                     a probationary term of the difference between the term of
                     confinement and two years;
               (2)   that, in case 248161, the claims arising from the original and
                     revocation proceedings in case 237788 be dismissed; and
               (3)   that, in case 248161, within fifteen (15) days of the entry of this
                     order, the petitioner file an amended petition that clearly states the
                     claims arising from the proceedings in case 245774 and their factual
                     bases.
After appointing counsel, an amended petition was filed and an evidentiary hearing was held.

        At the hearing, the petitioner testified that, after pleading guilty to both counts in case
number 237788, he “received [a sentence of] one year to run concurrent with the two year to serve,
178 days, the last 28 days could be served in CADAS and six years probation.” The petitioner
stated that he subsequently pled guilty to a violation of the Habitual Motor Vehicle Offender Act,
which resulted in a revocation of his probation and a sentence of two years as a Range I, standard
offender. The petitioner testified that at the time of that plea, counsel told him that “the six year
probation was gone and the two year sentence was up and I would start the other two year sentence
with an automatic kickout on it.” He further noted that it was his understanding that the sentence
would be ordered concurrently to the charges in the first case. The petitioner testified that he did
not receive an “automatic kickout” or a concurrent sentence and that he filed a pro se petition for
post-conviction relief as a result. Finally, the petitioner testified that the post-conviction court
amended the sentence for DUI seventh offense from six to two years probation on its own accord.

        On cross-examination, the petitioner testified that he recalled being under oath and
responding affirmatively when asked if he understood the plea. He further admitted that, although
given the opportunity to do so, he did not object to or question the plea agreement. Finally, the
petitioner testified that he understood that it is the Department of Correction’s job to determine the
“kickout date.”

         As the second and final witness at the post-conviction hearing, counsel testified that he
represented the petitioner on his 2003 plea to a violation of the Motor Vehicle Offender Act, a
charge the petitioner received while on probation. Counsel stated that in his experience, when
probation is revoked, any plea offer on the new violation is consecutive to the revocation. He
further stated that he tells all his clients that release dates are beyond his control and are determined
by the Department of Correction. In conclusion, counsel stated that he reviewed the plea offer and
felt that he secured the best deal possible for the petitioner.

       On cross-examination, counsel testified that he explained to the petitioner that he had a two-
year sentence on the revocation and a consecutive two-year sentence to serve on his new charge.
Counsel acknowledged that, at the time of the plea, he was not aware that the petitioner’s sentence
for DUI seventh offense was illegal. He testified that he met with the petitioner once prior to the


                                                  -3-
plea hearing. Finally, counsel stated that he did not specifically recall the discussions that he had
with the petitioner concerning release dates and further noted that he “may have” discussed the
standard kickout date. At the conclusion of the evidentiary hearing, the post-conviction court found
that:
               [Trial counsel] was effective in his representation, that there was nothing
       unusual about this. I also find that during the plea hearing when I discussed this, it
       was very clear. The DA stated specifically that he was being revoked, his sentences
       were ordered into execution and this new charge was to run consecutive to that.
       Neither [trial counsel] nor I have any control over how the DOC calculates the actual
       amount of time and I’m sure [the petitioner] and his attorney were hopeful that they
       would calculate it in a more favorable way.

                As to the issue about it being an illegal sentence, I disagree. It was an illegal
        probation period I believe but not an illegal sentence. Two year sentence is an E
        felony, one to two years, and the proper range, it was not what I would call an illegal
        sentence. I don’t think the proper remedy is vacating the sentence. I just reduced his
        probation period time down which was for his benefit and to be fair to him. For all
        of those reasons, the post-conviction petition is dismissed.

         The petitioner now appeals to this court, contending that: (1) the post-conviction court erred
in failing to vacate the illegal sentence; and (2) that the plea in case number 245774 (violation of
the Motor Vehicle Offender Act) was not knowing and voluntary. Upon thorough review, we
affirm the denial of post-conviction relief.

                                               Analysis

                                           Illegal Sentence

        The petitioner first contends that because the sentence issued for DUI in case number
237788 was illegal, the post-conviction court did not have the authority to modify it sua sponte but
should have vacated the judgment. We initially note that, while we agree with the post-conviction
court that the sentence exceeded the statutory maximum, we disagree with its reasoning. Tennessee
Code Annotated section 40-35-303 governs the eligibility and terms of sentences involving
probation and states in pertinent part that:
        If the court determines that a period of probation is appropriate, the court shall
        sentence the defendant to a specific sentence but shall suspend the execution of all
        or part thereof and place the defendant on supervised or unsupervised probation
        either immediately or after a period of confinement for a period of time no less than
        the minimum sentence allowed under the classification and up to and including the
        statutory maximum time for the class of the conviction offense.
T.C.A. § 40-35-303(c)(1) (2001). The sentence at issue in this appeal is for the charge of DUI
seventh offense, a Class E felony that carries a Range I penalty of between one and two years and
a class maximum penalty of six years. T.C.A. §§ 40-35-111(b)(5), -112(a)(5). The petitioner’s


                                                  -4-
imposed sentence was “2 years suspended for 6 years supervised probation after 178 days day for
day. Last 28 days may be served in CADAS.” The sentence, totaling six years, one hundred and
seventy-eight days, thus exceeded the maximum penalty for the offense class.

        Although it was permissible to sentence the petitioner to the maximum probationary period
of six years in order for the sentence to be valid, the confinement period and any pre-trial credits
should have been deducted from the maximum probationary period. Thus, a proper sentence in this
case would have been two years, all suspended except one hundred seventy-eight days, with
supervised probation to follow for a period of five years, one hundred eighty-seven days.

          As previously mentioned, although we agree that the sentence exceeded the statutory
 maximum, we disagree with the post-conviction court’s findings regarding the appropriate sentence.
 The order issued by the post-conviction court found the probationary period to be illegal because
 it was greater than the difference between the maximum sentence in the range (two years) and the
 period of confinement. That conclusion was in reliance on State v. Palmer and premised on a
 determination that the statutory provision setting the appropriate penalties for DUI trumped the
 Sentencing Guidelines. Particularly, the post-conviction court relied upon the following subsection
 to support its conclusion that the “maximum sentence” referred to the maximum in the range rather
 than the maximum for the offense class:
          Notwithstanding any other provision of law to the contrary, the fourth or subsequent
          conviction shall be a Class E felony punishable . . . by confinement for not less than
          one hundred and fifty (150) consecutive days, to be served day for day, nor more than
          the maximum punishment authorized for the appropriate range of a Class E felony;
          and the court shall prohibit the person from driving a motor vehicle for a period of
          five (5) years.
T.C.A. § 55-10-403(a)(1)(A) (emphasis supplied). The court reasoned that the aforementioned
subsection, read in context with the following, capped the petitioner’s maximum probationary period
at the difference between two years and the incarceration period one hundred and seventy-eight days:
         All persons sentenced under subsection (a) shall, in addition to service of at least the
         minimum sentence, be required to serve the difference between the time actually
         served and the maximum sentence on probation. The judge has the discretion to
         impose any conditions of probation which are reasonably related to the offense, but
         shall impose the following conditions:
                  (1)     Participation in an alcohol and drug safety DUI school, and/or
                          drug offender school program, if available; or
                  (2)     Upon the second or subsequent conviction for violating the
                          provisions of § 55-10-401 or § 39-17-418, involving the
                          possession of a controlled substance, participation in a
                          program of rehabilitation at an alcohol or drug treatment
                          facility, if available; and
                  (3)     The payment of restitution to any person suffering physical
                          injury or personal losses as a result of such offense if such
                          person is economically capable of making such restitution.


                                                 -5-
               (4)      Notwithstanding any other provision of law to the contrary, if
                        a person convicted of a violation of § 55-10-401 has a prior
                        conviction for a violation of § 55-10-401 within the past five
                        (5) years, the court shall order such person to undergo a drug
                        and alcohol assessment and receive treatment as appropriate.
                        Unless the court makes a specific determination that the
                        person is indigent, the expense of such assessment and
                        treatment shall be the responsibility of the person receiving it.
                        Notwithstanding the provisions of subdivision (a)(4)(B), if the
                        court finds that the person is indigent, the expense or some
                        portion of the expense may be paid from the alcohol and drug
                        addiction treatment fund established in § 40-33-211(c)(2)
                        pursuant to a plan and procedures developed by the
                        department of health.
T.C.A.§ 55-10-403(c) (2001) (emphasis supplied). While it may initially appear that the statutory
provisions governing DUI operate to lessen the maximum probationary period a defendant may
serve, when the policy considerations behind the provisions are taken into account, we must
determine that the result reached in this case is contrary to the intended effect of the statute. The
statutes themselves, along with the case law interpreting them, clearly indicate that DUI sentences
must rise to a mandatory minimum threshold, and are excluded from the provisions of the
Sentencing Act only if its provisions alter the sentence below the mandatory minimum set out in
the DUI statute. Our supreme court’s opinion in State v. Palmer illustrates this point:
        While DUI offenders must also be sentenced in accordance with the [Sentencing]
        Act, the legislature has specifically excluded DUI offenders from the provisions of
        the Act when the application fo the Act would serve to either alter, amend, or
        decrease the specific penalties provided for DUI offenders. A trial judge may
        designate a service percentage in a DUI case under Tennessee Code Annotated 40-
        35-302(d) but that percentage may not operate to reduce the mandatory minimum
        sentencing provisions of the DUI statute. Consequently, a DUI offender can be
        sentenced to serve the entire eleven month and twenty-nine day sentence imposed as
        the maximum punishment for DUI so long as the imposition of that sentence is in
        accordance with the principles and purposes of the Criminal Sentencing Reform Act
        of 1989.
902 S.W.2d at 394. Although Palmer dealt with a misdemeanor sentence, it stands for the
broader proposition that, as between the Sentencing Guidelines and the DUI statute, the most
rigorous punishment should apply. In the present case, the post-conviction court misapplied
the holding in Palmer by using it as a justification for lessening the petitioner’s sentence
below that of other Class E offenders.

        As we have noted, the DUI statute requires that the balance of any suspended sentence above
the mandatory minimum be served on probation with attendant conditions. Therefore, DUI
offenders are punished more rigorously and are eligible for fewer leniencies than are similarly
situated offenders. However, in this case, the statute was construed to alter the probationary range


                                                -6-
below that which is applicable to other offenders convicted of Class E felonies, leading to an
anomalous result. In our view, while the DUI statute sets a minimum standard by which offenders
can be punished, it should not operate to preclude trial courts from issuing longer probationary
periods in accordance with the Sentencing Act.

        Having concluded that the petitioner’s sentence for DUI seventh offense was illegal and
void, we must now determine whether the post-conviction court erred in modifying the sentence
rather than vacating it. Upon review of the record, it is our determination that the void probationary
period did not affect the petitioner in any way. Even after modifying the probationary term from
six years to five years, one hundred eighty-seven days, the petitioner’s new law violation remains
within the requisite time period and results in a revocation of his probation. Furthermore, the
probationary period does not alter the amount of time the petitioner must serve, either on the
revocation or the new charge. For these reasons, we conclude that a hearing was not necessary and
that a modification of the probationary period is not error. However, as aforementioned, we reject
the post-conviction court’s modification to five hundred fifty-two days probation and modify the
probationary period to five years, one hundred eighty-seven days.

                                   Knowing and Voluntary Plea

         In addition to an illegal sentence, the petitioner claims that his plea was not knowing or
voluntary. A post-conviction petitioner may successfully attack his conviction when his guilty plea
was unknowing or involuntary. See T.C.A. § 40-30-103 (2001); Boykin v. Alabama, 395 U.S. 238,
243, 89 S. Ct. 1709, 1712 (1969); State v. Wilson, 31 S.W.3d 189, 194 (Tenn. 2002). A plea is not
“voluntary” if it results from ignorance, misunderstanding, coercion, inducements, or threats.
Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The trial court must determine if the
guilty plea is “knowing” by questioning the petitioner to make sure he fully understands the plea
and its consequences. State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999); Blankenship, 858 S.W.2d
at 904.

         Because the plea must represent a voluntary and intelligent choice among alternatives
available to the petitioner, the trial court may look at a number of circumstantial factors in making
this determination. Blankenship, 858 S.W.2d at 904. These factors include: (1) the petitioner’s
relative intelligence; (2) his familiarity with criminal proceedings; (3) whether he was represented
by competent counsel and had the opportunity to confer with counsel about alternatives; (4) the
advice of counsel and the court about the charges against him and the penalty to be imposed; and
(5) the petitioner’s reasons for pleading guilty, including the desire to avoid a greater penalty in a
jury trial. Id. at 904-05.

        A review of the guilty plea proceedings in this case reveals that the petitioner was informed
of and waived his rights against self-incrimination, to a jury trial, and to confront and cross-examine
witnesses. Moreover, the petitioner answered negatively when asked if his plea had been induced
by any offers or promises and if he had any questions about the plea. Finally, at the post-conviction
hearing, the petitioner acknowledged that he was aware that release dates were at the discretion of


                                                 -7-
the Department of Correction. Therefore, we agree with the post-conviction court’s finding that the
petitioner’s plea was knowingly and voluntarily entered.

                                           Conclusion

       We affirm the denial of post-conviction relief; however, we modify the probationary period
from five hundred fifty-two days to five years, one hundred eighty-seven days.




                                                      ___________________________________
                                                      JOHN EVERETT WILLIAMS, JUDGE




                                                -8-
