         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs October 5, 2004

               BRIAN K. MITCHELL v. TONY PARKER, WARDEN

                         Appeal from the Circuit Court for Lake County
                          No. 04-CR-8561     R. Lee Moore, Jr., Judge



                   No. W2004-01246-CCA-R3-HC - Filed December 10, 2004


The petitioner, Brian K. Mitchell, appeals pro se from the Lake County Circuit Court’s dismissal of
his petition for habeas corpus relief. The petitioner attacks his conviction for especially aggravated
burglary, a Class B felony, for which he received a thirty-year sentence. He contends that his
sentence is illegal because, although he is a Range I, standard offender, the sentence he received is
the maximum within Range III. We affirm the trial court’s dismissal of the petition.

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

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which DAVID G. HAYES and JAMES
CURWOOD WITT , JR., JJ., joined.

Brian K. Mitchell, Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; and
C. Phillip Bivens, District Attorney General.

                                               OPINION

        The record reflects that on October 2, 1998, the petitioner pled guilty to one count of
especially aggravated burglary. See T.C.A. § 39-14-404(c). The plea agreement stipulated that the
petitioner’s sentence would be thirty years, the maximum sentence within Range III, but that his
release eligibility status would be thirty percent as a Range I, standard offender. The petitioner
subsequently filed a petition for habeas corpus relief alleging that his conviction was void because
his sentence was illegal, and the trial court dismissed the petition. On appeal, the petitioner contends
that the trial court erred in dismissing his petition. The state contends that the trial court’s dismissal
was proper because the petitioner’s sentence was not void. We agree with the state.

        The trial court may summarily dismiss a petition for writ of habeas corpus relief when the
petitioner does not state a cognizable claim. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim.
App. 1994). A petition for the writ of habeas corpus may only be brought if the judgment is void
or the sentence has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). However, if the
claimed illegality renders the judgment or sentence voidable, rather than void, no relief can be
granted. Id. at 161. “If the face of the record shows that the court did not have jurisdiction, then the
judgment is void.” Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998). The determination of
whether relief should be granted is a question of law which this court reviews de novo. Hart v. State,
21 S.W.3d 901, 903 (Tenn. 2000).

        The petitioner contends that his thirty-year sentence as a Range I offender exceeds the
maximum sentence in that range for a Class B felony, which is twelve years. See T.C.A § 40-35-
112(a)(2). He argues that although he agreed to this sentence, the trial court lacked jurisdiction to
impose a sentence that exceeded the statutory penalty for his range. The state notes that a hybrid
sentence may include the length of incarceration in one range and the release eligibility percentage
in another. It argues that as long as the term of years does not exceed the term allowed for the felony
class, a defendant may lawfully agree to its imposition.

        Our supreme court has held that offender classification and release eligibility are non-
jurisdictional and legitimate bargaining tools in plea negotiations under the Criminal Sentencing
Reform Act of 1989. McConnell v. State, 12 S.W.3d 795, 798 (Tenn. 2000); Hicks v. State, 945
S.W.2d 706, 709 (Tenn. 1997). In Hicks, the petitioner pled guilty to voluntary manslaughter, a
Class C felony, and agreed to a hybrid sentence involving a Range II length of incarceration of ten
years and a Range I release eligibility of thirty percent. See T.C.A. § 40-35-112(a)(3), -(b)(3). He
subsequently petitioned for post-conviction relief, contending that his ten-year sentence was in
contravention of the 1989 Sentencing Act when coupled with his thirty percent release eligibility
status. The court concluded that such hybrid sentences were permissible under the 1989 Act and
held that “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 upon McConnell and State v. Cutwright, No. 92C01-9108-CC-00175,
Henderson County (Tenn. Aug. 31, 1992) (order), and argues that his sentence cannot exceed the
maximum sentence in the range that establishes the release eligibility status. In both cases, the
petitioners pled guilty and agreed to sentences under the 1982 Sentencing Act, although the 1989 Act
had already taken effect. In Cutwright, the petitioner was sentenced to fifty years as a Range II
offender with a forty percent release eligibility status under the 1982 Act. The supreme court
observed that the 1989 Act applied and that the maximum sentence for a Range II offender under
the 1989 Act was forty years, as opposed to fifty years under the 1982 Act. Cutwright, slip op. at
1. The court held that the sentence was void and remanded the case to the trial court for correction
of the sentence or withdrawal of the guilty plea. Id. at 2. In Hicks, the supreme court explained that
it did not disapprove of the mixing of offender classifications and release eligibility percentages in
Cutwright. 945 S.W.2d at 709 n.9. Instead, it deemed the judgment facially void because the
defendant was sentenced under the 1982 Act and forty percent release eligibility status did not exist
under the 1989 Act. Id.




                                                  -2-
        In McConnell, the petitioner pled guilty to second degree murder, a Class A felony, and six
counts of robbery with a deadly weapon, a Class B felony. He agreed to a sentence of thirty-five
years as a Range I offender under the 1982 Sentencing Act for the murder conviction, to concurrent
ten-year sentences for five of the robbery counts, and to a thirty-five year sentence for the sixth
robbery count to run consecutively to the murder sentence. The court held that the trial court’s
jurisdiction to sentence the petitioner was limited by the 1989 Sentencing Act, which sets the limits
within which the state and the accused can negotiate. 12 S.W.3d at 798-99. It stated that the thirty-
five-year sentences imposed pursuant to the 1982 Act exceeded the maximum twenty-five-year and
twelve-year sentences for a Range I offender under the 1989 Act. Id. at 800.

        The petitioner relies upon McConnell to argue that the trial court did not have jurisdiction
to impose a sentence that exceeded the maximum statutory penalty for his range although he agreed
to the sentence. Yet, we note that the McConnell court cited Hicks with approval and affirmed that
its decision did not alter “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. In light
of McConnell’s affirmation of Hicks, this court has concluded that the plea agreement in McConnell
was nullified because it was expressed in terms of the 1982 Act, not because the number of years
was outside the range. Bland v. Dukes, 97 S.W.3d 133, 135-36 (Tenn. Crim. App. 2002).

        The judgment form used in this case provides boxes to check that, relevant to the case, are
designated “Standard 30% Range 1,” “Multiple 35% Range 2,” and “Persistent 45% Range 3.” It
has no boxes that would reflect the particulars of the petitioner’s agreement, although it does state
as a special condition that the plea was entered under Hicks. We note that the judgment form now
being provided pursuant to Tenn. Sup. Ct. R. 17 has a set of boxes for offender status and another
set of boxes for release eligibility which would allow the judgment to reflect an agreement like the
petitioner’s.

       In the present case, the petitioner negotiated his plea agreement using the terms of the 1989
Act. The mixing of length of incarceration and the release eligibility status was permitted under
Hicks. Thus, the petitioner’s judgment reflects a guilty plea and a hybrid sentence, which do not
contravene the 1989 Sentencing Act. The petitioner is not entitled to relief.

        Based upon the foregoing and the record as a whole, we affirm the trial court’s dismissal of
the petition for habeas corpus relief.



                                                       ___________________________________
                                                       JOSEPH M. TIPTON, JUDGE




                                                 -3-
