State v. PettusState v. Pettus
- Reporters:
- , ,
- Before:
- Birch
OPINION
BIRCH, J.
Jabbaul Pettus, the appellant, pleaded guilty to the unlawful possession of a Schedule II substance (cocaine) with intent to sell.
1
Omitted from the indictment, however, was any reference to the amount of substance possessed.
2
This omission notwithstanding, the offense was treated as a Class B felony and Pettus acquiesced in an eight-year sentence to community corrections — a term well within the range provided for Class B felonies. While on community corrections for the drug offense, Pettus committed additional offenses which resulted in his guilty plea to attempted aggravated robbery. For this new offense, the trial court imposed a six-year sentence to the Department of Correction. During the same hearing, the trial court revoked the community corrections sentence and replaced it with a ten-year term to the Department of Correction.
3
Based on
On appeal, Pettus contends that the indictment failed to specify 0.5 grams or more as the amount of substance possessed and that the indictment therefore describes a Class C felony.
5
Thus, he insists that a Class B felony sentence was illegally imposed. He also contends that the imposition of consecutive sentences pursuant to
I
The indictment against Pettus for possession of cocaine with intent to sell provides:
that Jabbaul L. Pettus of [Montgomery] County, heretofore, to wit, on or about the 24th day of August, 1994, and prior to the finding of this indictment, ... unlawfully and knowingly did possess, with intent to sell, a controlled substance, to wit: Cocaine ... in violation of TCA 39-17-417 and against the peace and dignity of the State of Tennessee.
Interestingly enough, Pettus neither claims that his guilty plea to this indictment was involuntarily entered nor does he seek to set it aside. Essentially, he contends that he did not agree to the lengthier sentence for a Class B felony.
The principle is well-settled in Tennessee jurisprudence that the voluntary entry of an informed and counseled guilty plea constitutes an admission of all facts necessary to convict and waives all non-jurisdictional defects and constitutional irregularities which may have existed prior to the entry of the guilty plea. See Hicks v. State, 945 S.W.2d 706, 709 (Tenn.1997); Wallen v. State, 863 S.W.2d 34, 38-39 (Tenn.1993). In our thorough examination of the record, we have been unable to find any jurisdictional irregularity or defect in the proceedings leading to the entry of the guilty plea.
The cases of Boykin v. Alabama and State v. Mackey are the landmark constitutional cases for analyses of guilty pleas. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (federal standard); State v. Mackey, 553 S.W.2d 337 (Tenn.1977) (state standard). In Boykin, the United States Supreme Court held that before a trial judge can accept a guilty plea, there must be an affirmative showing that it was given intelligently and voluntarily. Id. at 242, 89 S.Ct. at 1711, 23 L.Ed.2d at 279. In order to find that the plea was entered “intelligently” or “voluntarily,” the court must “canvass[ ] the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequences.” Id. at 244, 89 5.Ct. at 1712, 23 L.Ed.2d at 280 (emphasis added).
Likewise, in
Mackey,
this Court held that “the record of acceptance of a defendant’s plea of guilty must affirmatively demonstrate that his decision was both voluntary and knowledgeable, i.e., that he has been made aware of the significant consequences of such a plea_” 553 S.W.2d at 340. Based upon the foregoing, we have no hesitation in concluding that Pettus’s guilty plea met both the
The nature of the plea-bargain process in general, and the trial court’s order in particular, supports this conclusion. First, it is commonly known that the plea-bargain process involves a certain amount of “give and take” so as to reach a resolution that is acceptable to both the State and the defendant. Often, this process includes exaggeration or understatement of the facts and circumstances of the offense. Specifically, we have upheld plea-bargain agreements and resultant sentences in cases where the defendant has accepted a sentence in a range higher than called for by the indicted offense. See State v. Mahler, 735 S.W.2d 226, 228 (Tenn.1987); accord Hicks, 945 S.W.2d at 706.
In Hicks, the defendant entered a guilty plea and was convicted of voluntary manslaughter, a Class C felony. Id. at 706. In exchange for the plea, Hicks received a “hybrid” sentence of Range II incarceration (ten years) coupled with Range I release eligibility (thirty percent). 7 Id. Under the law at the time, the punishment for Range I was three to six years and for Range II was six to fifteen years. Id. In a post-conviction petition, Hicks argued that the sentence he received was invalid. Id. However, this Court held that a knowing and voluntary guilty plea waives any irregularity as to offender classification or release eligibility. Id. at 709.
Likewise, in Wallen, the defendant entered guilty pleas but later claimed that his sentence was illegal because one of the convictions used to justify especially aggravated offender status had, in the interim, been reversed. 863 S.W.2d at 36. We stated:
In this case, the petitioner with full knowledge of his rights, voluntarily took the benefits of the plea bargain. In accepting those benefits ... he waived any irregularity or defect in the proceedings including the possibility that the prior convictions used to enhance his punishment might be set aside.
Id. at 38-39.
Similarly, in the case under review, Pet-tus’s plea bargain included the district attorney general’s promise to forgo prosecution on several other offenses in exchange for the guilty plea. Additionally, Pettus was well into service of the sentence when he raised this issue.
Based on the foregoing discussion, Pettus, with full knowledge of his rights, voluntarily accepted the plea bargain. By accepting it, he waived his right to contest any non-jurisdictional defect in the sentencing process. Accordingly, this issue is without merit.
II
The second issue concerns Pettus’s contention that the trial court erred by imposing consecutive sentences which is governed by
When there is a challenge to the length, range, or manner of service of a sentence, it is the duty of the reviewing court to conduct a
de novo
review with a presumption that the determinations made by the lower court from which the appeal is taken are correct.
We begin by recognizing that probation and community corrections sentences are alternatives to incarceration, each of which includes a suspension of incarceration.
See
To determine whether the legislature intended a community corrections sentence to be equivalent to a probation sentence, we must examine the language of the relevant statutes. An elementary principle of statutory construction requires that we ascertain and give effect to the legislature’s intent without unduly restricting or expanding a statute’s coverage beyond its intended scope. Carter, 952 S.W.2d at 419; Hicks, 945 S.W.2d at 707. Legislative intent and purpose are to be ascertained primarily from the natural and ordinary meaning of the language used, without a forced or subtle construction that would limit or extend the meaning of the statute. Hawks v. City of Westmoreland, 960 S.W.2d 10, 16 (Tenn. 1997); Carter, 952 S.W.2d at 419. If the legislative intent is expressed in a manner devoid of contradiction and ambiguity, there is no room for interpretation or construction, and courts are not at liberty to depart from the words of the statute. Hawks, 960 S.W.2d at 16.
A review of the language of the relevant statutes reveals a clear distinction between community corrections and probation. For example, the Sentencing Commission Comments to
The court ... has the power to terminate an offender from the [community corrections] program and to place the offender on supervised or unsupervised probation upon a showing that the offender did abide by the conditions imposed on the original sentence and that the offender’s placement on probation presents no substantial risk to public safety....
In reading these provisions together, we find that the legislature did not intend a community corrections sentence and a probation sentence to be equivalents for purposes of consecutive sentencing under
In the case at hand, we must vacate the consecutive sentence, which was imposed
Ill
In conclusion, we find that by entry of the guilty plea to the drug offense, Pettus waived the right to contest the defect alleged in the indictment. Accordingly, we approve the sentence imposed by the trial court for the drug offense. We find, also, that the trial court’s treatment of community corrections and probation as one and the same for consecutive sentencing purposes was erroneous. The sentence shall, nevertheless, remain consecutive because Pettus’s record of criminal activity is extensive.
ANDERSON, C.J., DROWOTA and HOLDER, JJ., concur. BARKER, J., not participating
Notes
.
.
. The court has the authority to impose a longer sentence for violations of community correction sentences pursuant to
.
.
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. The release eligibility for Range II offenses was normally thirty-five percent.
. A trial court may impose consecutive sentencing if it finds by a preponderance of the evidence that one or more of the required statutory criteria exist. Furthermore, the court is required to determine whether consecutive sentencing is (1) reasonably related to the severity of the offenses committed; (2) serves to protect the public from further criminal conduct by the offender; and (3) consistent with general principles of sentencing. State v. Wilkerson, 905 S.W.2d 933 (Tenn.1995).
. We note also that