Terrance Lavar Davis v. State of Tennessee

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

February 11, 2010 Session

TERRANCE LAVAR DAVIS v. STATE OF TENNESSEE

Appeal by Permission from the Court of Criminal Appeals

Circuit Court for Hickman County

No. 07-5033C Timothy Easter, Judge

No. M2009-00011-SC-R11-HC - FILED MAY 7, 2010

We granted permission to appeal in this habeas corpus case to address the legality of a plea-

bargained sentence requiring the defendant, being sentenced for two cocaine offenses

committed in a school zone, to serve twenty-two years of a Range I sentence at “100%.” The

defendant alleges that his sentence is illegal because it makes no provision for the possibility

of early release on parole. The trial court denied relief. On appeal, the Court of Criminal

Appeals reversed the trial court and remanded for further proceedings. We hold that the

defendant’s sentence is not illegal, and he is therefore not entitled to habeas corpus relief.

We reverse the judgment of the Court of Criminal Appeals.

Tenn. R. App. P. 11; Judgment of the

Court of Criminal Appeals Reversed

C ORNELIA A. C LARK, J., delivered the opinion of the Court, in which W ILLIAM C. K OCH, J R.,

and S HARON G. L EE, JJ., joined. S HARON G. L EE, J., filed a concurring opinion. G ARY R.

W ADE, J., filed an opinion concurring separately, in which J ANICE M. H OLDER, C.J., joined.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General;

and Mark A. Fulks, Senior Counsel, for the appellant, the State of Tennessee.

Jay Norman, Nashville, Tennessee, for the appellee, Terrance Lavar Davis.

OPINION

Factual and Procedural Background

The defendant Terrance Lavar Davis (“Defendant”) was charged with (1) felonious

possession of over twenty-six grams of cocaine in a school zone; (2) possession of a firearm

by a convicted felon; (3) delivery of .5 grams or more of cocaine in a school zone; and (4)

delivery of .5 grams or more of cocaine.1 Defendant pleaded guilty to the first and third of

these charges and was sentenced to concurrent sentences of twenty-two years;2 the remaining

two counts were dismissed. In conjunction with entering his pleas, Defendant signed two

petitions to enter a plea of guilty in which he acknowledged that he was subject to being

sentenced as a Range II offender. Pursuant to his plea agreement, however, Defendant was

actually sentenced as a Range I offender. Each of the petitions to enter a plea of guilty bears

the notation “(EFFECTIVE SENTENCE 22 YRS @ 100%).” Further, each of the two

judgments of conviction bears the notation “100%” entered by hand in the same line

indicating that Defendant was sentenced to incarceration in the Tennessee Department of

Correction (“TDOC”).

Although the transcript of the plea hearing is not in the record,3 we have gleaned some

additional background from the Court of Criminal Appeals’ opinion denying the petition for

post-conviction relief Defendant filed after entering his pleas. See Davis v. State, No.

M2005-01902-CCA-R3-PC, 2006 WL 3290822 (Tenn. Crim. App. Nov. 13, 2006). During

the post-conviction hearing, Defendant “admitted that when he entered his pleas the trial

judge told him his sentence was twenty-two years at 100%.” Id. at *2. Defendant’s counsel

also testified at the hearing and stated that “he told [Defendant] he would have to serve 100%

of his sentence.” Id. Following the hearing, “the post-conviction court found that

[Defendant] was informed by counsel and the [trial] court that he was receiving a sentence

of twenty-two years that must be served at 100%.” Id. at *5. The post-conviction court also

“noted that [Defendant] had above average intellect, was familiar with criminal proceedings,

was represented by a competent attorney, was aware of the charges against him and the

potential penalties, and avoided federal prosecution[,] and received concurrent sentences as

1

The indictments are not included in the record. We base our recitation of the charges brought against

Defendant on the copies of two petitions to enter a plea of guilty included in the record.

2

The twenty-two-year sentences are concurrent to each other and to a previous sentence Defendant was

serving.

3

As the appealing party before this Court, the State had the duty to prepare the record so as to convey a fair,

accurate, and complete account of what occurred below with respect to the issues forming the basis of its

appeal. State v. Taylor, 992 S.W.2d 941, 944 (Tenn. 1999); Tenn. R. App. P. 24(b). Although this is a

habeas corpus proceeding, we may consider “the record of the proceedings upon which the judgment was

rendered.” Smith v. Lewis, 202 S.W.3d 124, 128 (Tenn. 2006).

2

a result of his pleas.” Id. The trial court denied post-conviction relief and the Court of

Criminal Appeals affirmed. Id. at *6.

Following his unsuccessful effort to obtain post-conviction relief, Defendant filed a

petition for writ of habeas corpus on May 9, 2007. Defendant admits in his petition that,

pursuant to his plea agreement, “his sentences are to be served with a release eligibility set

at one hundred percent,” but contends that a 100% release eligibility renders his judgments

and sentences void and illegal. The trial court denied relief, but the Court of Criminal

Appeals determined that Defendant’s sentences are illegal and remanded. Davis v. State, No.

M2007-01729-CCA-R3-HC, 2008 WL 1958174, at *3 (Tenn. Crim. App. May 6, 2008).

This Court granted the State’s application for permission to appeal and remanded the matter

to the Court of Criminal Appeals for reconsideration in light of our decision in Edwards v.

State, 269 S.W.3d 915 (Tenn. 2008). Davis v. State, No. M2007-01729-SC-R11-HC (Tenn.

Jan. 5, 2009). Following remand and reconsideration, the Court of Criminal Appeals again

reversed the trial court and remanded. Davis v. State, No. M2009-00011-CCA-RM-HC,

2009 WL 961777, at *4 (Tenn. Crim. App. April 8, 2009). We granted the State’s

application for permission to appeal.

STANDARD OF REVIEW

Whether to grant relief upon review of a petition for habeas corpus is a question of

law. Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000). Accordingly, our review is de novo

with no presumption of correctness given to the conclusions of the court below. Hogan v.

Mills, 168 S.W.3d 753, 755 (Tenn. 2005).

ANALYSIS

This case requires us once again to examine a particular sentence and determine

whether it is beyond a trial court’s jurisdiction to impose and therefore requires us to grant

habeas corpus relief. A brief review of our statutory sentencing scheme and the principles

of habeas corpus jurisprudence as applied to sentences is helpful to our analysis.

I. Statutory Sentencing Scheme

A. Range Classification

Under the Criminal Sentencing Reform Act of 1989, Tenn. Code Ann. §§ 40-35-101

to -505 (2006 & Supp. 2009), a trial court’s first obligation in imposing sentence is to

“determine the appropriate range of sentence.” Id. § 40-35-210(a). Two alternatives exist

for determining a defendant’s appropriate range of sentence. One alternative requires the

trial court to make findings of fact about how many prior felony convictions the defendant

has and to determine the felony classes to which those prior convictions belong. See id. §§

3

40-35-105 to -109. On that basis, the trial court determines that the defendant is either a

standard Range I offender, id. § 40-35-105; a multiple Range II offender, id. § 40-35-106;

a persistent Range III offender, id. § 40-35-107; a career Range III maximum offender, id.

§ 40-35-108; or an especially mitigated Range I reduced offender, id. § 40-35-109. The other

alternative allows the defendant and the State to negotiate a plea bargain that includes a range

classification.4 Thus, as in the present case, a defendant who would otherwise be classified

as a multiple Range II offender may negotiate a plea bargain which includes a standard

Range I offender classification instead.

The classification of a defendant for sentencing range purposes is significant because

the higher ranges carry longer sentence terms. For instance, the Range I sentence for a Class

A felony is fifteen to twenty-five years. Tenn. Code Ann. § 40-35-112(a)(1). The Range II

sentence for a Class A felony is twenty-five to forty years. Id. at (b)(1). The Range III

sentence for a Class A felony is forty to sixty years. Id. at (c)(1). It therefore benefits

defendants to seek the lowest possible range classification, either through contesting the

State’s proof about prior convictions or through plea negotiations.

Once the appropriate range is determined, and after considering any mitigating and

enhancement factors that apply, the trial court imposes a specific term of years within that

range. Id. § 40-35-210(c). Alternatively, a plea bargain may include both a range

classification and an agreed-upon term of years. The trial court (or plea bargaining parties)

must also determine (1) the manner in which the defendant will serve his or her sentence, for

example, incarcerated in the TDOC or on probation, id. at (b), and (2) if the defendant is

being sentenced for more than one conviction (or is currently serving another sentence),

whether the terms imposed for each conviction are to be served concurrently or

consecutively, id. § 40-35-115.

B. Early Release

1. Parole

The sentencing range is important for another reason. For most felonies, a defendant

ordered to serve his or her sentence incarcerated in the TDOC becomes eligible for early

4

We have previously observed that “the 1989 [Sentencing] Act contemplates that its provisions will govern

plea bargain agreements” and “permits a court to impose a plea bargain sentence without a specific

sentencing hearing or presentence report.” McConnell v. State, 12 S.W.3d 795, 799 n.7 (Tenn. 2000) (citing

Tenn. Code Ann. §§ 40-35-203(b), -205(d) (1997)). Of course, all plea bargains are subject to the trial

court’s review and acceptance or rejection. See Tenn. R. Crim. P. 11(c)(3).

4

release on parole5 upon reaching his or her “release eligibility date” (“RED”). Id. § 40-35-

501(a)(1). A defendant’s RED is expressed as a percentage of his or her sentence and is

generally determined by reference to the defendant’s sentencing range classification. Thus,

“[r]elease eligibility for each defendant sentenced as a Range I standard offender shall occur

after service of thirty percent (30%) of the actual sentence imposed less sentence credits

earned and retained by the defendant.” Id. at (c) (emphasis added). And, “[r]elease

eligibility for each defendant sentenced as a Range II multiple offender shall occur after

service of thirty-five percent (35%) of the actual sentence imposed less sentence credits

earned and retained by the defendant.” Id. at (d) (emphasis added). The RED is based on

service of a progressively greater percentage of the defendant’s sentence as his or her

sentencing range increases. A defendant’s RED is indicated on his or her uniform judgment

document by checking a box labeled, e.g., “Mitigated 20%,” “Standard 30%,” or “Multiple

35%.” As is clear from the term “shall occur” in section -501, felony inmates are generally

entitled to be considered for parole after a date certain.6

As with most general rules, however, there are exceptions. For instance, our

legislature has specified that, for a few enumerated violent offenses, “[t]here shall be no

release eligibility.” Id. at (i)(1). That is, defendants convicted of these particular violent

offenses are not eligible for early release on parole.7 These violent offenses include first and

second degree murder; especially aggravated and aggravated kidnapping; especially

aggravated robbery; aggravated rape and rape; aggravated sexual battery; rape of a child and

aggravated rape of a child; aggravated arson; aggravated child abuse; and certain offenses

involving the sexual exploitation of a minor. Id. at (i)(2).8 On the uniform judgment

document completed for each conviction offense, release eligibility for most of these

offenses9 is indicated by a box labeled “Violent 100%.”

5

A defendant’s eligibility for early release on parole is no guarantee that he or she will be granted parole.

See Hopkins v. Tenn. Bd. of Paroles & Prob., 60 S.W.3d 79, 82 (Tenn. Ct. App. 2001). Parole is a privilege,

not a right. Tenn. Code Ann. § 40-35-503(b); State v. Turner, 297 S.W.3d 155, 162 (Tenn. 2009). A release

eligibility date simply, and merely, provides a date after which a defendant is entitled to be considered for

early release on parole. The Board of Probation and Parole makes the decision whether to grant parole.

Tenn. Code Ann. § 40-28-118(a) (2006).

6

A defendant’s RED “is conditioned on the inmate’s good behavior while in prison” and may be deferred

by the TDOC for infractions of institutional rules. Tenn. Code Ann. § 40-35-501(m).

7

This provision applies to defendants who have committed these offenses on or after July 1, 1995. Tenn.

Code Ann. § 40-35-501(i)(1).

8

Additionally, release eligibility is limited for certain offenses committed while the defendant is in

possession of a firearm, Tenn. Code Ann. § 40-35-501(j), and for certain defendants convicted of aggravated

robbery, id. at (k)(1).

9

For reasons set forth below, there are separate boxes for multiple rapists and child rapists.

5

Significantly to this case, a defendant’s RED may also be determined by plea bargain.

As we observed in McConnell v. State, “the legislature’s failure to limit the use of offender

classification and release eligibility as plea bargaining tools evinced the legislature’s intent

to permit the practice.” 12 S.W.3d 795, 798 (Tenn. 2000) (citing Hicks v. State, 945 S.W.2d

706, 709 (Tenn. 1997)). And, this Court has made clear that a defendant may plea bargain

for a RED that is inconsistent with the sentencing range agreed to. Hicks, 945 S.W.2d at

706. Thus, a defendant may agree to a “hybrid” sentence which combines, for instance, a

Range I offender classification with a Range II RED. Id.

2. Sentence Reduction Credits

In addition to the possibility of early release on parole, most felony offenders

sentenced to serve their sentences incarcerated in the TDOC have the opportunity to obtain

sentence reductions based on sentence credits earned for, e.g., “good institutional behavior.”

See generally Tenn. Code Ann. § 41-21-236 (2006 & Supp. 2009). Sentence reduction

credits operate distinctly from eligibility for parole. Sentence reduction credits actually

reduce a defendant’s sentence such that his or her term of imprisonment expires earlier than

it would without the credits. Sentence reduction credits may also hasten a defendant’s RED.

See id. at (b) (“The allowances which can be awarded pursuant to this section shall be

referred to as inmate sentence reduction credits and shall affect release eligibility and

sentence expiration dates in the same manner as time credits affected parole eligibility and

sentence expiration dates prior to September 1, 1980.”). Parole, on the other hand, allows

a defendant to continue serving his sentence outside the walls of the prison; parole does not

actually reduce the parolee’s sentence.

Defendants serving sentences for most of the statutorily-enumerated violent offenses

listed above are eligible to earn sentence reduction credits, although they are limited to

thereby reducing their sentence by no more than 15%. Id. § 40-35-501(i)(1). However, our

General Assembly has designated a few offenses for which neither parole nor sentence

reduction credits are available. Persons meeting the definition of “child sexual predator,”

“multiple rapist,” or “child rapist” are not eligible for early release on the basis of either

parole or sentence reduction credits. Id. § 39-13-523(b), (c) (Supp. 2009); see also id. § 40-

35-501(i)(3). These defendants must serve their entire sentences. The uniform judgment

document designates these sentences by boxes labeled “Child Rapist 100%” and “Multiple

Rapist 100%,” respectively. Our legislature has also provided that a defendant determined

to be a “repeat violent offender” shall, upon conviction of any of certain enumerated

offenses, be sentenced “to imprisonment for life without possibility of parole.” Id. § 40-35-

120(g). The uniform judgment document designates these sentences by a box labeled

6

“Repeat Violent 100%.”10 Repeat violent offenders sentenced to life without the possibility

of parole are, obviously, not entitled to a RED or early sentence expiration on the basis of

sentence reduction credits.11

B. Sentencing and Habeas Corpus

Article I, section 15 of the Tennessee Constitution guarantees that “the privilege of

the writ of Habeas Corpus shall not be suspended, unless when in case of rebellion or

invasion, the General Assembly shall declare the public safety requires it.” While arising

from the constitution, the writ has nevertheless been regulated by statute for more than 150

years. Ussery v. Avery, 432 S.W.2d 656, 657 (Tenn. 1968). The statute applicable at the

time Defendant filed his habeas corpus petition provides that “[a]ny person imprisoned or

restrained of liberty, under any pretense whatsoever, except in cases [in which federal courts

have exclusive jurisdiction], may prosecute a writ of habeas corpus, to inquire into the cause

of such imprisonment and restraint.” Tenn. Code Ann. § 29-21-101 (2000).

In spite of the statute’s broad language, “the grounds upon which habeas corpus relief

will be granted are narrow.” Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004) (citing

Dixon v. Holland, 70 S.W.3d 33, 36 (Tenn. 2002)). Specifically, this Court has held that the

writ may be granted “only when it appears upon the face of the judgment or the record of the

proceedings upon which the judgment is rendered that a court lacked jurisdiction or

authority to sentence a defendant12 or that the sentence has expired.” Stephenson v. Carlton,

28 S.W.3d 910, 911 (Tenn. 2000) (citing Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993))

(emphasis and footnote added); see also State v. Galloway, 45 Tenn. (5 Cold.) 326, 336-37

(1868). It is well-settled “that a petition for writ of habeas corpus may not be used to review

or correct errors of law or fact committed by a court in the exercise of its jurisdiction.” State

ex rel. Holbrook v. Bomar, 364 S.W.2d 887, 888 (Tenn. 1963). Furthermore, “the writ of

habeas corpus cannot be used to serve the purpose of an appeal or writ of error.” Id.

With respect to sentencing, we have recognized that “[s]entencing is jurisdictional and

must be executed in compliance with the [applicable Sentencing] Act.” McConnell, 12

10

The designation “100%” for violent offenders, child rapists, multiple rapists, and repeat violent offenders

refers to the defendant’s RED. A “100%” RED indicates that the defendant is not eligible for early release

on parole.

11

Defendants with no previous criminal history who are convicted of first degree murder may also be

sentenced to life imprisonment without the possibility of parole, Tenn. Code Ann. § 39-13-204(a) (2006 &

Supp. 2009), for which there is no release eligibility, id. § 40-35-501(h)(2).

12

In habeas corpus proceedings, we construe the term “jurisdiction” as synonymous with the term

“authority.” See Lynch v. State ex rel. Killebrew, 166 S.W.2d 397, 398-99 (Tenn. 1942).

7

S.W.3d at 798. Thus, a trial court lacks the jurisdiction or authority to impose on a defendant

a sentence that (1) is not authorized by the applicable statutes, see, e.g., May v. Carlton, 245

S.W.3d 340, 348-49 (Tenn. 2008) (granting habeas corpus relief to convicted felon declared

infamous for a crime not listed as infamous under the statute); Stephenson, 28 S.W.3d at 912

(holding habeas corpus attack proper where defendant’s sentence of life without parole was

not statutorily authorized and was therefore illegal), or (2) directly contravenes an applicable

statute, see, e.g., Smith v. Lewis, 202 S.W.3d 124, 127-28 (Tenn. 2006) (holding sentence

illegal because it provided for a RED where the applicable statute expressly prohibited early

release eligibility); State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978) (holding sentence

imposed in direct contravention of express statutory provisions “a nullity”). This Court

considers unauthorized sentences, including those that are in direct contravention of an

applicable statute, to be illegal as opposed to merely erroneous. See Summers v. State, 212

S.W.3d 251, 256 (Tenn. 2007) (recognizing that a judgment rendered without statutory

authority is void and that “[a] sentence imposed in direct contravention of a statute is void

and illegal”). Habeas corpus relief may be granted on illegal sentences but not on those that

are merely erroneous. Archer, 851 S.W.2d at 161.

Examples of illegal sentences include (1) a sentence imposed pursuant to an

inapplicable statutory scheme, see McConnell, 12 S.W.3d at 796, 799-800; (2) a sentence

designating a RED where a RED is specifically prohibited by statute, see Lewis, 202 S.W.3d

at 127-28; (3) a sentence ordered to be served concurrently where statutorily required to be

served consecutively, see Burkhart, 566 S.W.2d at 873; and (4) a sentence not authorized for

the offense by any statute, see Stephenson, 28 S.W.3d at 912. In each of these cases, relief

was appropriate because the trial court did not have the statutory authority (or jurisdiction)

to impose the challenged sentence.

With regard to allegedly improper sentences arising from plea bargains, we have

stated repeatedly that offender range classification and release eligibility are “non-

jurisdictional.” See, e.g., Hoover v. State, 215 S.W.3d 776, 780 (Tenn. 2007). Thus, “a

knowing and voluntary guilty plea waives any irregularity as to offender classification or

release eligibility.” Id.; Hicks, 945 S.W.2d at 709; see also State v. Mahler, 735 S.W.2d 226,

228 (Tenn. 1987). Accordingly, the parties may agree to a “hybrid” sentence that “mixes and

matches” range assignment, term of years, and release eligibility without regard to what our

sentencing scheme might call for absent a plea bargain so long as (1) the term of years is

within the overall range of years specified for the offense, see Hoover, 215 S.W.3d at 779,

and (2) the RED is not less than the minimum allowable for the offense, see Lewis, 202

S.W.3d at 128. See also McConnell, 12 S.W.3d at 799 (“The 1989 [Sentencing] Act

establishes the outer limits within which the State and a defendant are free to negotiate, and

the courts are bound to respect those limits.”).

8

Examples of sentences which might contain “errors” but would not entitle the

defendant to habeas corpus relief include (1) a plea-bargained sentence including a range

classification that is greater than would be assigned on the basis of the defendant’s prior

convictions, see Mahler, 735 S.W.2d at 227-28; (2) a plea-bargained sentence including a

term of years that was incompatible with the range designation, see Hoover, 215 S.W.3d at

780-81; and (3) a plea-bargained sentence including a RED that was incompatible with the

range designation, see Hicks, 945 S.W.2d at 706. In each of these cases, this Court held that

the challenged sentence was not illegal.13 Relief from legal sentences that contain alleged

errors must be sought through an appeal as of right or through a petition for post-conviction

relief.

III. Defendant’s Sentence

In this case, Defendant pleaded guilty to one count of delivering .5 grams or more of

cocaine and one count of felonious possession of more than twenty-six grams of cocaine.

Each of these offenses is ordinarily a Class B felony. Tenn. Code Ann. § 39-17-417(c)(1),

(i)(5) (2003). When the offenses occur within 1000 feet of a school zone, however, they are

Class A felonies. Id. § 39-17-432(b) (2003). Thus, Defendant pleaded guilty in this case to

two Class A felonies. The authorized term of imprisonment for a Class A felony is “not less

than fifteen (15) nor more than sixty (60) years.” Id. § 40-35-111(b)(1) (2003).

Because he possessed and delivered cocaine in a school zone, Defendant’s plea-

bargained sentence was imposed pursuant to the Drug-Free School Zone Act, Tenn. Code

Ann. § 39-17-432 (2003) (“the Act”).14 Similar to child rapists and multiple rapists, for

13

Since Defendant filed his habeas corpus petition in this case, the General Assembly has acted to limit

habeas corpus relief on plea-bargained sentences further by adding the following language to the habeas

corpus statute:

(b) Persons restrained of their liberty pursuant to a guilty plea and negotiated

sentence are not entitled to the benefits of this writ on any claim that:

(1) The petitioner received concurrent sentencing where there was a statutory

requirement for consecutive sentencing;

(2) The petitioner’s sentence included a release eligibility percentage where the

petitioner was not entitled to any early release; or

(3) The petitioner’s sentence included a lower release eligibility percentage than the

petitioner was entitled to under statutory requirements.

Tenn. Code Ann. § 29-21-101 (Supp. 2009). This language applies to all habeas corpus petitions filed on

or after June 11, 2009. Act of June 2, 2009, ch. 420, § 3, 2009 Tenn. Pub. Acts ___. We do not address the

efficacy of this amendment to the habeas corpus statute in this case.

14

We cite to the 2003 version of the statute because Defendant pleaded guilty in December 2003. The

statute has since been amended to expand the drug-free zone to include preschools, child care agencies,

public libraries, recreational centers, and parks. See Tenn. Code Ann. § 39-17-432(b)(1) (2006).

9

whom no early release on parole or from sentence reduction credits is available, the

legislature has also created a specific sentencing provision precluding early release on any

basis for defendants convicted of dealing drugs within a school zone. The Act provides as

follows:

(a) It is the intent of this section to create Drug-Free School Zones for

the purpose of providing all students in this state an environment in which they

can learn without the distractions and dangers that are incident to the

occurrence of drug activity in or around school facilities. The enhanced and

mandatory minimum sentences required by this section for drug offenses

occurring in a Drug-Free School Zone are necessary to serve as a deterrent to

such unacceptable conduct.

(b) A violation of § 39-17-417 [prohibiting the manufacture, delivery,

sale, or possession with intent to manufacture, deliver, or sell, a controlled

substance], or a conspiracy to violate such section, that occurs on the grounds

or facilities of any school or within one thousand feet (1,000') of the real

property that comprises a public or private elementary school, middle school

or secondary school shall be punished one (1) classification higher than is

provided in § 39-17-417(b)-(i) for such violation.

(c) Notwithstanding any other provision of law or the sentence imposed

by the court to the contrary, a defendant sentenced for a violation of subsection

(b) shall be required to serve at least the minimum sentence for such

defendant’s appropriate range of sentence. Any sentence reduction credits

such defendant may be eligible for or earn shall not operate to permit or allow

the release of such defendant prior to full service of such minimum sentence.

(d) Notwithstanding the sentence imposed by the court,15 the provisions

of title 40, chapter 35, part 5, relative to release eligibility status and parole,

shall not apply to or authorize the release of a defendant sentenced for a

violation of subsection (b) prior to service of the entire minimum sentence for

such defendant’s appropriate range of sentence.

(e) Nothing in the provisions of title 41, chapter 1, part 5 [regarding

early release for prison overcrowding] shall give either the governor or the

board of probation and parole the authority to release or cause the release of

a defendant sentenced for a violation of subsection (b) prior to service of the

15

We recognize the legislature’s desire to emphasize its intent that defendants sentenced for dealing drugs

in school zones will not be released on parole prior to a certain time. Nevertheless, the TDOC is not at

liberty, even pursuant to a legislative directive, to ignore a trial court’s judgments. See Burkhart, 566 S.W.2d

at 873 (“The [Tennessee] Department of Correction may not alter the judgment of a court, even if that

judgment is illegal.”).

10

entire minimum sentence for such defendant’s appropriate range of sentence.

(f) Nothing in this section shall be construed as prohibiting the judge

from sentencing a defendant who violated subsection (b) to any authorized

term of incarceration in excess of the minimum sentence for the defendant’s

appropriate range of sentence. . . .

Tenn. Code Ann. § 39-17-432 (emphases and footnote added). The precise question before

us is whether Defendant’s sentence is illegal because, pursuant to the Act, the trial court

imposed a plea-bargained sentence requiring Defendant to serve more than the minimum

number of years in his agreed-upon range at “100%.”

Of course, our primary aim in construing any statute “is to ascertain and give effect

to the intent and purpose of the legislature.” Walker v. Sunrise Pontiac-GMC Truck, Inc.,

249 S.W.3d 301, 309 (Tenn. 2008). Whenever possible, we discern legislative intent “‘from

the natural and ordinary meaning of the language used, without forced or subtle construction

that would limit or extend the meaning of the language.’” Lipscomb v. Doe, 32 S.W.3d 840,

844 (Tenn. 2000) (quoting Hawks v. City of Westmoreland, 960 S.W.2d 10, 16 (Tenn.

1997)). Accordingly, when we are faced with clear, unambiguous language, “we must apply

its plain meaning in its normal and accepted use, without a forced interpretation that would

limit or expand the statute’s application.” Eastman Chem. Co. v. Johnson, 151 S.W.3d 503,

507 (Tenn. 2004). When construing a more recent statute in conjunction with pre-existing

legislation, “we presume that the legislature has knowledge of its prior enactments and is

fully aware of any judicial constructions of those enactments.” Hicks, 945 S.W.2d at 707.

We begin with subsection (c) of the Act, which, by its plain and unambiguous

language, requires a defendant being sentenced for committing a drug offense in a school

zone “to serve at least the minimum sentence for the defendant’s appropriate range of

sentence.” As explained above, a defendant’s “appropriate range of sentence” is determined

in one of two ways: by the trial court upon proof of the defendant’s prior convictions, or by

plea bargain. The final sentence of subsection (c) makes clear that a defendant sentenced

under the Act is not eligible for early release on the basis of sentence reduction credits before

“full service” of the minimum sentence in his or her range.

Subsection (d) provides plainly and unambiguously that the minimum sentence must

also be served with no eligibility for early release on parole. Accordingly, a defendant

sentenced under the Act to the minimum term in his or her range will have a RED of 100%.

Subsection (e) provides plainly and unambiguously that the minimum sentence must also be

served before a defendant can be released in order to relieve prison overcrowding. In sum,

a defendant being sentenced for committing a cocaine offense in a school zone will serve at

least the minimum sentence in his or her range in its entirey, with no prospect of eligibility

11

for early release on parole and no prospect of early release resulting from sentence reduction

credits or prison overcrowding.

Significantly, the Act does not place a maximum upon the number of years that a trial

court may order a defendant “to serve” for committing a drug offense within a school zone.

Indeed, two specific provisions within the Act clearly contemplate that a trial court may order

a defendant to serve more than the minimum sentence in his or her range. Subsection (c)

refers to “at least” the minimum sentence, and subsection (f) plainly and unambiguously

provides trial courts with the discretion to sentence defendants committing drug offenses in

school zones “to any authorized term of incarceration in excess of the minimum sentence for

the defendant’s appropriate range of sentence.” Accordingly, it is entirely permissible – and

legal – for a trial court, after considering mitigating and enhancement factors, to sentence a

defendant who committed a drug offense in a school zone to serve up to the maximum term

of years in the defendant’s range.

We acknowledge, however, that the final sentence of subsection (c), and the full text

of subsections (d) and (e), appear to contemplate that early release may become available

with respect to those years in excess of the minimum that the trial court orders the defendant

to serve in prison. A comparison to another statute limiting early release is helpful in this

analysis. Tennessee Code Annotated section 39-13-523(c) (2003) provides that “[t]he

provisions of title 40, chapter 35, part 5, relative to release eligibility status and parole shall

not apply to or authorize the release of a multiple rapist or child rapist . . . prior to service of

the entire sentence imposed by the court.” (Emphasis added).16 This language is

substantially identical to that used in subsection (d) of the Act relative to parole, with the

significant exception that it refers to the entire sentence imposed by the court. The

comparable subsection (d) of the Act refers instead to the minimum sentence in the

defendant’s appropriate range. The same difference exists with respect to sentence reduction

credits, compare § 39-13-523(b) with § 39-17-432(c), and prison overcrowding, compare §

39-13-523(d) with § 39-17-432(e).17 The clear implication of this difference in terminology

is that the possibility of early release may be accorded to defendants who are sentenced for

committing a drug offense in a school zone and who are sentenced to serve a term of years

greater than the minimum in their range, but only with respect to the years in excess of the

16

Section -523 has since been amended to include child sexual predators. See Tenn. Code Ann. § 39-13-

523(c) (Supp. 2009). We refer to the 2003 version because it is the version most comparable to the 2003

version of the Act.

17

See also Tenn. Code Ann. § 40-35-501(j) (requiring 100% service of the minimum mandatory sentence

for certain offenses committed with a firearm, less sentence reduction credits of no more than 15%); id. at

(k)(1) (requiring 100% service of sentence imposed by court for certain aggravated robberies, less sentence

reduction credits of no more than 15%).

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minimum term.18 Nothing in the Act requires the possibility of early release, however,

regardless of the term of years imposed.

Defendant argues in his brief to this Court that “[r]elease eligibility of 60% is the

maximum release eligibility permitted by statute” pursuant to Tennessee Code Annotated

section 40-35-501 and that, if he is “deemed to have agreed to a release eligibility of 100%,

then he has agreed to a release eligibility in excess of what is allowed or authorized by law

in regard to release eligibility.” He also asserts that the “punishment provided by the

legislature for [his] convicted offense does not include a provision for service of the sentence

without the possibility of parole and therefore [his] sentence is void.”

In light of the express statutory provisions of the Act set forth above, Defendant’s

argument must fail. Contrary to his assertions, the General Assembly has declared

specifically and unambiguously that defendants being sentenced for committing drug

offenses in a school zone shall serve the entire minimum term of years in the defendant’s

sentencing range, without regard to parole eligibility or sentence reduction credits. While

we recognize that Tennessee Code Annotated section 40-35-501 states generally that “release

eligibility . . . shall occur” (emphasis added), that directive is overridden by the subsequent

language of subsection (d) of the Act19 which declares that the release eligibility provisions

of section 40-35-501 “shall not apply to or authorize the release” of defendants “prior to

service of the entire minimum sentence for such defendant’s appropriate range of sentence.”

Accordingly, defendants sentenced as Range I offenders to fifteen years for committing a

Class A drug offense in a school zone will serve their entire sentence with no possibility of

early release by virtue of either parole or sentence reduction credits. Like child rapists and

multiple rapists, defendants dealing drugs in school zones who are sentenced to the minimum

term in their sentencing range will serve literally 100% of their sentences.

We turn now to the actual sentence imposed on Defendant. In this case, Defendant

acknowledged that he was a multiple offender and therefore subject to a Range II sentence.

Id. § 40-35-106(c) (2003). The Range II sentence for a Class A felony is “not less than

twenty-five (25) nor more than forty (40) years.” Id. § 40-35-112(b)(1) (2003). Defendant

18

Thus, the Act allows a trial court to impose, for instance, a twenty-two-year sentence on a Range I offender

for a Class A felony, of which fifteen years must be served in their entirety. With respect to the remaining

term of seven years, absent a contrary plea bargain, the appropriate RED and sentence reduction credits

would apply.

19

The Act was originally enacted in 1995, see Act of May 26, 1995, ch. 515, 1995 Tenn. Pub. Acts 918,

whereas Tennessee Code Annotated section 40-35-501 was originally enacted in 1989, see Act of May 24,

1989, ch. 591, § 6, 1989 Tenn. Pub. Acts 1169, 1348.

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was therefore facing a potential sentence of forty years, with a minimum sentence of twenty-

five years to be served in its entirety on each count.

The two uniform judgment documents filled out for Defendant’s convictions each

indicate that Defendant is sentenced as a “Standard” (Range I) offender, that his release

eligibility is determined by reference to the Act (because the box labeled “School Zone” is

checked), that he is sentenced to the TDOC, that his sentence length is twenty-two years, and

that he is to serve “100%.” We construe the handwritten instruction of “100%” to mean that

Defendant is sentenced to serve his entire term of twenty-two years with no eligibility for

early release on parole. We reject the State’s characterization of the “100%” notation as

“random” and “ambiguous” and conclude, instead, that the uniform judgment documents

designate clearly and correctly the sentence to which the parties had, in fact, agreed. Had the

parties intended that Defendant be eligible for parole with respect to the last seven years of

his twenty-two-year term, the judgment documents would not bear the handwritten “100%”

designation. In that event, the remaining information on the judgment forms would have

alerted the TDOC that Defendant was eligible for early release on parole some time after he

had served the first fifteen years.

Defendant obtained significant concessions in exchange for his guilty plea. First, the

remaining two counts against him were dismissed. Second, the State agreed that Defendant’s

sentences be served concurrently, whereas he otherwise faced the possibility of consecutive

service. Third, Defendant avoided federal prosecution for these offenses. Finally, although

he qualified as a multiple Range II offender, the State and the trial court agreed that

Defendant be sentenced as a Range I offender and therefore subject to a sentencing range of

only fifteen to twenty-five years. The actual term of years imposed was twenty-two years for

each offense instead of the minimum twenty-five years that is applicable to Range II

offenders convicted of a Class A felony. In exchange for the lower range and reduced term

of years, Defendant agreed to a RED of 100%: that is, he agreed to forego any possibility

of early release on parole.

We turn, finally, to the crux of this case: whether a Range II defendant being

sentenced for drug offenses committed in a school zone who plea-bargains to be sentenced

as a Range I offender may be ordered to serve more than the minimum Range I sentence, but

less than the minimum Range II sentence, without the possibility of early release on parole.

Certainly, nothing in the language of the Act prevents or prohibits this result. And, in the

context of this habeas corpus proceeding, we reiterate that, with respect to plea-bargained

sentences, release eligibility is non-jurisdictional. A defendant may legally bargain for a

higher RED in exchange for a lower sentencing range. A defendant’s bargaining power

extends to the point that he or she may choose to forego entirely any entitlement to a RED.

That is precisely what happened here: to avoid a minimum sentence of twenty-five years to

be served in its entirety, with the possibility of a longer sentence, Defendant bargained for,

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and received, a sentence of only twenty-two years to be served with no RED. Nothing in the

Act, or elsewhere in our sentencing statutes, prohibits this result.

Nevertheless, the final sentence of subsection (c) of the Act appears to contemplate

that a defendant ordered to serve more than the minimum term in his or her appropriate range

is eligible for early release on the basis of sentence reduction credits applicable to that

portion of the sentence in excess of the minimum. That the judgment documents designate

the sentence to be served at “100%” does not preclude this result. As set forth above, several

of the “100%” designations on a uniform judgment document do not preclude the accrual of

sentence reduction credits. Accordingly, Defendant may inquire of the TDOC whether and

how it intends to calculate any sentence reduction credits to which he may become entitled

with respect to years sixteen through twenty-two of his sentence. If Defendant is not

satisfied with the TDOC’s response, he may file a proceeding pursuant to the Uniform

Administrative Procedures Act. See Hughley v. State, 208 S.W.3d 388, 395 (Tenn. 2006)

(quoting Carroll v. Raney, 868 S.W.2d 721, 723 (Tenn. Crim. App. 1993)).

Our interpretation of the Act allowing for the parties to agree on sentences that do not

allow for early release on parole is consistent with our position that sentencing range

classification and REDs are non-jurisdictional elements of sentencing. This interpretation

allows the parties the maximum flexibility to craft a particular sentence for a particular

defendant that still satisfies the overall legislative intent expressed in our sentencing scheme.

For instance, in this case Defendant received a sentence that was more favorable than any

sentence he would have received had he not agreed to the plea bargain and then been

convicted at trial of the charged offenses. The State’s ability to craft this distinct sentence

enabled it to avoid the cost and uncertainty of a trial and yet ensure that Defendant spends

a considerable amount of time incarcerated. Defendant’s sentence does not contravene the

Act or any other applicable provisions of our sentencing statutes. Further, the Act authorizes

this result. Accordingly, Defendant is not entitled to habeas corpus relief.

CONCLUSION

Defendant’s plea-bargained sentence requiring him to serve twenty-two years pursuant

to the Act with no possibility of early release on parole was within the trial court’s

jurisdiction to impose and is therefore a legal sentence. Because Defendant has failed to

show that the trial court was without jurisdiction to impose the challenged sentence, or that

he is presently held on an expired sentence, he is not entitled to habeas corpus relief. The

judgment of the Court of Criminal Appeals is reversed. The costs of this cause are taxed to

Terrance Lavar Davis and his surety, for which execution may issue if necessary.

____________________________________

CORNELIA A. CLARK, JUSTICE

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