         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                        June 2000 Session

                    WILLIAM BOYD v. STATE OF TENNESSEE

                       Appeal from the Criminal Court for Knox County
                        No. 68808    Richard R. Baumgartner, Judge



                                  No. E1999-02179-CCA-R3-PC
                                       November 6, 2000

The petitioner, William Boyd, appeals from the trial court’s denial of his petition for post-conviction
relief. Boyd alleges that his eight-year sentence for the offense of especially aggravated sexual
exploitation of a minor, which is to be served at 100 percent, is illegal. We agree that the sentence
is illegal and therefore reverse the trial court’s dismissal of the post-conviction petition, vacate the
conviction of especially aggravated sexual exploitation of a minor and the dismissal of the charge
of aggravated rape, and remand to the trial court for further proceedings.


  Tenn. R. App. P. 3; Judgment of the Criminal Court Reversed, Conviction Vacated and
                                       Remanded.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which DAVID G. HAYES and
NORMA MCGEE OGLE , JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, William Boyd.

Paul G. Summers, Attorney General & Reporter, Clinton J. Morgan, Nashville, Tennessee, Randall
E. Nichols, District Attorney General, Leland Price, Assistant District Attorney General, for the
appellee, State of Tennessee.

                                              OPINION

                The petitioner, William Boyd, appeals from the Knox County Criminal Court’s
dismissal of his petition for post-conviction relief. Originally charged with one count of aggravated
rape and one count of especially aggravated sexual exploitation of a minor, Boyd accepted a plea
agreement whereby the aggravated rape count was dismissed; he pleaded guilty to especially
aggravated sexual exploitation of a minor, and he accepted a sentence of eight years to be served at
100 percent. He now claims that the sentence is illegal because especially aggravated sexual
exploitation of a minor is not one of the offenses enumerated in Code sections 40-35-501(i) or 39-
13-523 for which 100 percent service is required. Boyd seeks modification of his eight-year sentence
to 30 percent service before parole eligibility. While we agree that the sentence imposed is illegal,
we disagree that the remedy is sentence modification. Accordingly, we reverse the trial court’s
dismissal of the post-conviction petition, vacate the conviction of especially aggravated sexual
exploitation of a minor, vacate the dismissal of the aggravated rape charge, and remand to the trial
court with instructions to reject the illegal plea agreement and for disposition of the charges via a
new plea agreement or a trial on the merits.

                 The petitioner was charged with aggravated rape, a Class A felony1 which carries an
authorized term of imprisonment from fifteen to 60 years2 and a mandatory service rate of 100
percent,3 and with especially aggravated sexual exploitation of a minor, a Class B felony4 which
carries an authorized term of imprisonment from eight to 30 years5 and a potential service rate before
parole eligibility ranging from twenty to 60 percent.6 He entered into a plea agreement whereby the
aggravated rape charge was dropped; he pleaded guilty to especially aggravated sexual exploitation
of a minor, and he accepted a sentence of eight years at 100 percent service. The trial court accepted
the plea and entered judgment.

                 Sometime thereafter, the petitioner became disenchanted with his bargain with the
state and filed this post-conviction action alleging various claims related to the 100 percent service
portion of his sentence. Counsel was appointed, and the matter was considered by the trial court.
That court found that the petitioner’s sentence was not illegal in that he waived any objection to the
100 percent service requirement of his sentence by entry of his knowing and voluntary guilty plea.
The trial court further found that he had received the effective assistance of counsel in the plea
process. On appeal, the petitioner raises only the issue of the legality of his sentence.

                We must initially consider whether this court may review the trial court’s dismissal
of the post-conviction petition. Tennessee Code Annotated section 40-30-203 authorizes post-
conviction proceedings only for the purpose of redressing a constitutional deprivation. Tenn. Code
Ann. § 40-30-203 (1997) (“[r]elief . . . shall be granted when the conviction or sentence is void or
voidable because of the abridgment of [a constitutional right]”). The petitioner’s claim that the trial
court lacked statutory subject matter jurisdiction to impose the current sentence is not per se a
constitutional claim. However, we believe the petition as filed alleged a justiciable, constitutional
issue, the ineffective assistance of trial counsel. See Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052 (1984). Furthermore, we acknowledge that our supreme court has said that an illegal

       1
           Tenn. Code Ann. § 39-13-50 2(b) (1997).

       2
           Tenn. Code Ann. § 40-35-11 1(b)(1) (1997).

       3
           Tenn. Code Ann. § 40-35-50 1(i) (Supp. 1999).

       4
           Tenn. Code Ann. § 39-17-11 05 (1997).

       5
           Tenn. Code Ann. § 40-35-11 1(b)(2) (1997).

       6
           Tenn. C ode Ann . § 40-35 -501(b) -(f) (Supp. 1 999).

                                                            -2-
sentence may be corrected “at any time, even if it has become final.” State v. Mahler, 735 S.W.2d
226, 228 (Tenn. 1987). Assuming that “any time” refers to any time when the defendant is properly
before the court which is empowered to hear his complaint, the petitioner was properly before the
post-conviction court with his complaint regarding the effective assistance of counsel. See Hicks
v. State, 945 S.W.2d 706, 706 n.2 (Tenn. 1997) (supreme court reviews post-conviction attack on
“illegal” sentence but comments that the post-conviction petition alleged “counsel was ineffective
because counsel allowed Hicks to receive an ‘illegal’ sentence”). We are uncertain of our supreme
court’s rationale in entertaining a post-conviction proceeding appeal which challenges only the
illegal sentence per se, but because that court has allowed such appeals, at least when the petition
alleged constitutional deprivations, we shall not quibble. See id. at 706; McConnell v. State, 12
S.W.3d 795, 797 (Tenn. 2000). That said, we note in passing, however, that claims of illegal
sentence are now clearly cognizable in habeas corpus proceedings. See Jonathan Stephenson v.
Howard Carlton, — S.W.3d —,—, No. E1998-00202-SC-R11-CD, slip op. at 2-3 (Tenn., Knoxville,
Sept. 21, 2000) (writ will issue when the court “lacked jurisdiction or authority to sentence a
defendant,” and “a sentence imposed in direct contravention of a statute . . . is void and illegal” and
is subject to habeas corpus challenge). In the future, prisoners aggrieved of “illegal” sentences may
well be advised to present their claims via the habeas corpus form of action.7

                 Generally, the Criminal Sentencing Reform Act of 1989 provides that the length of
an offender’s sentence is determined by the class of offense he has committed and his classification
within various ranges, as determined by his prior criminal record. See Tenn. Code Ann. § 40-35-111
(1997) (authorized terms of imprisonment); Tenn. Code Ann. § 40-35-112 (1997) (sentence ranges);
Tenn. Code Ann. § 40-35-105 to -109 (1997) (range classification of offender); Tenn. Code Ann.
§ 40-35-501(b) - (f) (Supp. 1999) (release eligibility calculation by percentage). Certain exceptions
to this general scheme exist. One such exception is the one provided by Code section 40-35-501(i),
which mandates that individuals serving sentences for enumerated offenses shall serve 100 percent
of their sentences and may have no more than fifteen percent of their sentences reduced by sentence
credits. Tenn Code Ann. § 40-35-501(i) (Supp. 1999). The enumerated offenses are

         (A)      Murder in the first degree;
         (B)      Murder in the second degree;
         (C)      Especially aggravated kidnapping;
         (D)      Aggravated kidnapping;
         (E)      Especially aggravated robbery;
         (F)      Aggravated rape;
         (G)      Rape;
         (H)      Aggravated sexual battery;
         (I)      Rape of a child;
         (J)      Aggravated arson; or


         7
           We ar e aware that su ch claims are occasiona lly addressed to trial courts in the form of “motions” to correct
illegal sentences. However, when the “mo tion” is denied , the movan t has no app eal as of right. See Tenn. R. App. P.
3(b); J.D. Hickman, No. E1999-0275 6-CCA-R3-PC, slip op. at 4-5 (Tenn. Crim. App., Sept. 27, 2000).

                                                           -3-
        (K)     Aggravated child abuse.

Id. Another of the exceptions to the general rule is found in Code section 39-13-523(b), which
mandates that individuals with multiple convictions of rape of a child or multiple convictions of
rape, aggravated rape, or a combination of rape and aggravated rape, shall serve 100 percent of their
sentences without any reductions whatsoever. See Tenn. Code Ann. § 39-13-523(b) (Supp. 1999).

                Notwithstanding the sentencing scheme of the Code, a so-called “hybrid” sentence,
whereby a defendant accepts a plea agreement in which the length of incarceration is set within one
range, while the release eligibility percentage is set within another range, is permissible under
Tennessee law. See generally Hicks v. State, 945 S.W.2d 706 (Tenn. 1997); State v. Mahler, 735
S.W.2d 226 (Tenn.1987). For example, a defendant whose prior criminal history qualifies him for
Range I sentencing might agree in exchange for reduced or dismissed charges on some counts to
accept a sentence on another count with a Range II length but a Range I release eligibility percentage.
See Hicks, 945 S.W.2d at 706. Likewise, a defendant who is eligible for Range I classification might
agree to plead guilty to a reduced charge with a Range II sentence and release eligibility date. See
Mahler, 735 S.W.2d at 226-27. So long as a defendant’s acceptance of such agreement is knowing
and voluntary, the courts will uphold the agreement. See Hicks, 945 S.W.2d at 709. The defendant
is said to have waived any objection to the irregularity “as to offender classification [(sentencing
range)] or release eligibility [percentage]” by his knowing and voluntary guilty plea. See id. In both
Mahler and Hicks, the defendant pleaded guilty to sentences which were within the total prescribed
sentencing limits for the offense class. See Hicks, 945 S.W.2d at 707 (commenting that, in Mahler,
the sentence length was within statutory limits).

                  On the other hand, an illegal sentence results when the parties agree that the defendant
will serve a sentence which is outside the statutorily authorized punishment for a crime. McConnell
v. State, 12 S.W.3d 795, 798 (Tenn. 2000); State v. Hamlin, 655 S.W.2d 200, 201 (Tenn. Crim. App.
1983). The cases applying this rule have generally dealt with a sentence in which the number of
years imposed is too great or too few in relation to the prescribed punishment under the statute. See,
e.g., McConnell, 12 S.W.3d at 797, 800 (number of years greater than statute allowed for Range I
offender); Hamlin, 655 S.W.2d at 201 (number of years less than statute mandated). In McConnell,
a proceeding under the 1989 Sentencing Act, the high court vacated the sentence which, according
to the the plea agreement, was structured under the 1982 Sentencing Act. The court held that 35-
year sentences each for second degree murder and robbery with a deadly weapon were “outside the
trial court’s jurisdiction” because the maximum Range I sentences under the 1989 Act were 25 years
and twelve years, respectively.

                 We find it difficult to reconcile McConnell with Hicks. McConnell’s sentences did
not, in fact, exceed the total range of possible sentences within the applicable offense classes. Under
the 1989 Act, McConnell’s conviction of second degree murder is a Class A felony and his
conviction of robbery via a deadly weapon is a Class B felony. See Tenn. Code Ann. §§ 40-35-118,
-111(b)(1), (2), -112(a)(1), (2) (1997). Although the maximum sentence for Range I, Class A is 25
years, the maximum sentence for a Class A offense is 60 years. See Tenn. Code Ann. §§ 40-35-


                                                   -4-
111(b)(1), -112(c)(1) (1997). Although the maximum sentence for Range I, Class B is twelve years,
the maximum sentence for a Class B offense is 30 years. See Tenn. Code Ann. § 40-35-111(b)(2),
-112(c)(2) (1997). McConnell’s sentences, by result, would have passed muster under Hicks, which
authorized plea-bargaining with respect to the “offender classification [(range)] or release
eligibility.” Hicks, 945 S.W.2d at 709. McConnell even recognizes that the elements of “offender
classification and release eligibility” are proper issues for plea-bargaining and “still are properly
characterized as non-jurisdictional.” McConnell, 12 S.W.3d at 798. Nevertheless, the McConnell
court did not sanction a Hicks, non-jurisdictional result. Curiously, it said that parties are not free
to negotiate beyond the “other limits” imposed by the 1989 Act. Id. at 799. The court never
mentioned that McConnell’s sentence could have been identically structured under the 1989 Act via
a “non-jurisdictional” range reclassification.8

                 The McConnell court cited Hicks with approval. Id. at 797-98. We, therefore,
assume that the high court views the two cases to be in harmony. We see only one possibility for
harmonizing them. That is, it is immaterial if the resulting sentence is supportable as an offender-
classification/release-eligibility function when the parties expressed their agreement in extra-
jurisdictional terms. Under this view, McConnell’s sentence was flawed because the parties couched
the computation as an illegal function of the 1982 Act, and Boyd’s sentence would be invalid
because the parties below couched their agreement in terms of Code section 40-35-501(i), which is
inapplicable to especially aggravated sexual exploitation of a minor.

                Frankly, this distinction we draw seems illusory, but McConnell is the later case and
must be considered controlling. Boyd’s acceptance of a sentence to be served at 100 percent could
arguably be viewed as a waiver of any release eligibility date, as opposed to a joinder of especially
aggravated sexual exploitation of a minor to Code section 40-35-501(i), and thereby it would be
supportable as a plea bargain with respect to the non-jurisdictional matter of release eligibility.
However, the parties did not articulate this approach. Under McConnell, the “no release eligibility”
for the offenses enumerated in section 40-35-501(i)(2) is beyond the “outer limits within which the
State and a defendant are free to negotiate.” McConnell, 12 S.W.3d at 799.

                At any rate, applying McConnell to invalidate the sentence in the present case is
supported by the language of Code section 40-35-501. A felony sentence “to the department of
correction or to a local jail or workhouse shall be served according to this chapter.” Tenn. Code
Ann. § 40-35-501(a) (1997) (emphasis added). That section then mandates that “[r]elease eligibility
for each defendant sentenced as a career offender[, Range III maximum,] shall occur after service
of sixty percent (60%) of the actual sentence imposed.” Tenn. Code Ann. § 40-35-501(f) (1997)
(emphasis added). Under these statutory mandates, Boyd was not free to waive the establishment



         8
          On the other han d, it dismissed the state’s argument that the sentences could have been similarly structured
under the 1989 Act b y altering the use of consecutive and concurrent sentencing. Id. at 799-800. The court reasoned that
consecutive sentencing using 1989 Range I sentences would have yielded a 37-year, as opposed to a 70-year, effective
sentence.

                                                          -5-
of a release eligibility date, and the parties were not free to extend the date beyond the maximum
provided by statute.

                In the present case, even though the petitioner’s eight-year sentence is within the eight
to 30 year range for a Class B felony, see Tenn. Code Ann. § 40-35-111(b)(2) (1997), and indeed is
within the eight to twelve year range for a Range I offender,9 see Tenn. Code Ann. § 40-35-112(a)(2)
(1997), the 100 percent service requirement is contrary to the general rule that sentences shall be
served within a range of twenty to 60 percent before parole eligibility. See Tenn. Code Ann. § 40-
35-501(b) - (f) (Supp. 1999). No provision of the Code enumerates especially aggravated sexual
exploitation of a minor as an offense to which the general rule does not apply.

              We therefore conclude that the petitioner’s sentence is invalid, notwithstanding the
plea agreement.10

                In the wake of our holding that the petitioner’s sentence is illegal, the question which
arises is that of the proper remedy.11 The defendant claims that he does not desire for his plea
agreement to be set aside and advocates that we modify his sentence to 30 percent service. The state,
on the other hand, argues that we should set aside the conviction and either remand to the trial court
for further proceedings or remand with instructions for the court to proceed in accord with Tennessee
Rule of Criminal Procedure 11(e)(4).

               First, we consider the defendant’s argument that we should merely modify his eight-
year sentence to 30 percent service. Plea agreements are often called “plea bargains,” and this term

         9
         Although not reflected in the trial court’s judgment, we discern from the written Waiver of Trial by Jury and
Request for Acceptance of Plea of Guilty that the parties agreed that the defendant was a Range I offender for purposes
of determining the length of sentence.

         10
           In so holding, we are not unmindful that the petitioner’s plea agreement disposed of a second charge against
him, aggravated rape, which is an enumerated offense for which 100 percent sentence service is mandated by Code
section 40-35-5 01(i)(2). H owever, the defendan t’s guilty plea was no t to that offense or any o f the other offens es to
which 100 percent service applies. We believe that the proper focus is upon the offense to which a plea was actually
entered, not the offense charged. This is not to say that the desired result could not be reached through other, legal
means. For example, if the agreement had called for a guilty plea on the aggravated rape count to the lesser-included
offense of aggravated sexual battery, a Class B felony, with an eight-year sentence at 1 00 percent, we would have no
problem holding that the sentence was legal. Aggravated sexual battery is one of the offenses listed in Code section 40-
35-501(i)(2). However, we are constrained to analyze the p lea as it exists, not as it m ight have existed . See McC onnell,
12 S.W.3d at 799-800 (examining sentence as actually structured by plea agreement, rather than whether the same resu lt
could be reached through other, permissible means).

         11
            On order of this court, the parties submitted supplemental briefs addressing the propriety of three alternative
dispositions: (1) setting aside the petitioner’s plea agree ment, vacating the conviction of especially aggravated sexual
exploitation of a minor, and remand ing to the trial court for further proceedings, (2) vacating the petitioner’s conviction
of especially aggravated sexual exploitation of a minor and remanding to the trial court for further proceedings pursuant
to Tenness ee Rule of C riminal Pro cedure 1 1(e)(4), o r (3) mod ifying the petitioner ’s sentence to eight years at 30 percent
service befo re release eligib ility.



                                                              -6-
is indicative of the nature of such agreements. As a general proposition, a plea agreement is a
bargained-for exchange between the state and the defendant. In exchange for the defendant’s plea
of guilty, the state often agrees to drop additional charges, to reduce the charge to which the
defendant is to plead guilty, and/or to agree to a sentencing structure that is more favorable than the
defendant might otherwise expect. See generally Tenn. R. Crim. P. 11(e)(1) (concessions which
may be made in plea bargaining); State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999) (nature of plea
bargaining is “give and take” in order to reach resolution of pending charge(s)). In exchange for the
state’s concession(s), the defendant may agree to accept a conviction and/or sentence which is
different than that which he might have received had the charge(s) proceeded to trial. In the present
case, the defendant’s bargain with the state resulted in the more serious aggravated rape charge being
dismissed in exchange for the defendant’s guilty plea and acceptance of an increased punishment for
the less-serious charge of especially aggravated sexual exploitation of a minor. Thus, it is apparent
that the plea agreement benefitted both the state and the defendant. To modify the defendant’s
sentence to 30 percent service would deprive the state of the great majority of its bargain and would
confer an unjust benefit on the defendant. Thus, we reject this alternative.12

                 In choosing the proper disposition, we are guided by the procedure that should have
occurred in the trial court. Upon presentation of the plea agreement, the trial court should have
recognized that the proposed sentence was illegal. Thus, the court should have rejected the
agreement for the reasons we have explained above. The court would then be obligated to advise
the defendant of his right to withdraw the plea and that if he should chose not to withdraw his guilty
plea, the disposition of his case may be less favorable than that for which the agreement called. Tenn.
R. Crim. P. 11(e)(4). In the present case, if the defendant maintains his guilty plea to especially
aggravated sexual exploitation of a minor count, the court could then sentence him to any acceptable
alternative under the Criminal Sentencing Reform Act of 1989. Because the court will have rejected
the proposed agreement, the state would not be required to move for dismissal of the aggravated rape
count as required under the terms of the proposed agreement. See generally Tenn. R. Crim. P.
11(e)(1)(A) (state may move for dismissal of other charges as part of plea agreement). The
defendant would then face further prosecution for the aggravated rape count, which could be
disposed of by another plea agreement or trial. On the other hand, if the defendant chooses to
withdraw his plea, he would be free to enter into a different plea agreement with the state as to the
two charges against him, or he could go to trial on the charges stated in the indictment. See Tenn.
R. Crim. P. 11(e)(2) (procedure upon parties reaching a plea agreement).

               Accordingly, we believe the proper course is to reverse the trial court’s denial of the
defendant’s petition for post-conviction relief, to vacate the defendant’s conviction of especially
aggravated sexual exploitation of a minor and its dismissal of the aggravated rape charge, and to
remand to the trial court with instructions that the court reject the plea agreement disposing of both

         12
             W e believe the remed y of sentence m odification is more appropriate where the defendant’s conviction is the
result of a trial on the merits, rather than a p lea agreem ent. See, e.g., State v. Smith , 891 S.W.2d 922 (Tenn. Crim App.
1994). But cf. State v. Bruce Huffstetler, No. 212 (Tenn. Crim. App., Knoxville, Feb. 22, 1988) (illegal percentage of
service of sentence modified on direct appeal where defendant was convicted pursuant to “o pen” guilty ple a in which
trial court determined manner of service of eight-year sentence).

                                                            -7-
charges based upon the illegality of the sentence. The trial court should then proceed in accord with
Tennessee Rule of Criminal Procedure 11(e)(4) on the offense to which the defendant has pleaded
guilty. Because the present plea agreement cannot be the basis for a valid judgment, it likewise
cannot be the basis for dismissal of the aggravated rape charge. In this alternative, the aggravated
rape charge would be resolved by plea agreement or trial. If the defendant does not wish to persist
in his plea of guilty to especially aggravated sexual exploitation of a minor, then the matter may
proceed with both the aggravated rape and especially aggravated sexual exploitation of a minor
charges intact and subject to disposition by a new plea agreement or trial on the merits. Accord
McConnell, 12 S.W.3d at 800; Dixon v. State, 934 S.W.2d 69, 74 (Tenn. Crim. App. 1996).


                                                      ___________________________________
                                                      JAMES CURWOOD WITT, JR., JUDGE




                                                -8-
