                                                                                         08/07/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs May 15, 2019

        STATE OF TENNESSEE v. DEMARCUS LAMONT GONNER

                Appeal from the Criminal Court for Davidson County
                     No. 2015-C-1857 Steve R. Dozier, Judge
                     ___________________________________

                           No. M2018-01969-CCA-R3-CD
                       ___________________________________

Pro se Petitioner, Demarcus L. Gonner, appeals from the Davidson County Criminal
Court’s summary denial of his motion to correct an illegal sentence pursuant to Rule 36.1
of the Tennessee Rules of Criminal Procedure. After review, we affirm the judgment of
the trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ROBERT H. MONTGOMERY, JR., JJ., joined.

Demarcus L. Gonner, Pikeville, Tennessee, Pro se.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant
Attorney General; Glenn Funk, District Attorney General; and Jennifer Charles, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

        In 2015, a Davidson County Grand Jury indicted the Petitioner with alternative
counts of first degree murder, felony murder, and especially aggravated robbery of the
same victim. In 2017, pursuant to a plea agreement, the Petitioner entered a guilty plea to
a single count of second degree murder and agreed upon a sentence of 43 years to be
served at one hundred percent. As relevant to this case, the special conditions section of
the judgment form provided that the guilty plea was “pursuant to State v. Hicks,” and that
the remaining counts in the indictment were dismissed. On August 31, 2018, the
Petitioner filed a “Motion to Correct Illegal Sentence,” pursuant to Rule 36.1 of the
Tennessee Rules of Criminal Procedure. In his motion, the Petitioner argued that he was
entitled to relief because his “43-year sentence as a Range I offender for second degree
murder [was] not permitted by the 1989 Act[.]” He further argued that his sentence
should be “corrected to 25-years (the maximum sentence for a [R]ange I offender for
second degree murder).” On October 11, 2018, by written order, the trial court denied
the Petitioner’s motion, reasoning, in pertinent part, that the Petitioner’s 43-year sentence
was within the overall sentencing range for a Class A felony; therefore, the Petitioner
failed to state a colorable claim for Rule 36.1 relief. It is from this order that the
Petitioner now timely appeals.

                                                ANALYSIS

       In this appeal, the Petitioner argues that the trial court erred in failing to find his
2017 sentence illegal because his 43-year sentence was beyond the maximum allowable
sentence for a Range I, Standard Offender under Tennessee Code Annotated section 40-
35-112(a)(1) (2010).1 He insists that the maximum allowable sentence for a Range I,
Standard Offender convicted of a Class A felony is 25 years, and that a 43-year sentence
is in contravention of section 40-35-112(a)(1) and therefore illegal. While the State
concedes that Petitioner’s 2017 sentence is beyond the range set by section 112 for a
Range I offender convicted of a Class A felony, it contends that plea-bargained sentences
are not illegal when they are below the overall statutory maximum sentence for the
convicted crime, regardless of the offender’s section 112 range classification. We agree
with the State.

        We resolve this case guided by Rule 36.1, which allows a petitioner or the State to
seek the correction of an unexpired illegal sentence. See Tenn. R. Crim. P. 36.1(a)(1);
State v. Brown, 479 S.W.3d 200, 211 (Tenn. 2015). “[A]n illegal sentence is one that is
not authorized by the applicable statutes or that directly contravenes an applicable
statute.” Tenn. R. Crim. P. 36.1(a)(2). To avoid summary denial of an illegal sentence
claim brought under Rule 36.1, the petitioner must establish a colorable claim that the
sentence is illegal. Tenn. R. Crim. P. 36.1(b)(2). A colorable claim is a claim “that, if
taken as true and viewed in a light most favorable to the moving party, would entitle the
moving party to relief under Rule 36.1.” State v. Wooden, 478 S.W.3d 585, 593 (Tenn.
2015). The determination of whether a Rule 36.1 motion states a colorable claim is a
question of law, which this court reviews de novo. Id. at 589 (citing Summers v. State,
212 S.W.3d 251, 255 (Tenn. 2007)).

      Relying on McConnell v. State, 12 S.W.3d 795 (Tenn. 2000), the Petitioner
contends that his 43-year sentence is illegal because it is outside the sentencing range for
a Range I, Standard Offender. However, the Petitioner’s reliance on McConnell is

        1
          In a subsequent filing entitled “Appellant’s Traverse to State’s Brief,” the Petitioner also argues
for the application for the rule of lenity. Because this issue was not raised in the Petitioner’s initial brief,
it is waived. See Tenn. R. App. P. 13(b).
                                                     -2-
misplaced. In McConnell, the Tennessee Supreme Court vacated and remanded a 35-
year sentence for a Range I offender convicted of a Class A felony because it was beyond
what was authorized by the Criminal Sentencing Reform Act of 1989, and therefore
illegal. Id. at 800. As our courts have since explained, the primary issue addressed in
McConnell was not that the defendant had been sentenced to an improper range, but
rather, that the sentence had been expressed in terms of the 1982 sentencing statute. See
Hoover v. State, 215 S.W.3d 776, 780 (Tenn. 2007) (noting that the sentence in
McConnell was determined to be illegal because the plea agreement was structured
pursuant to a wholly inapplicable statute); Bland v. Dukes, 97 S.W.3d 133, 135 (Tenn.
Crim. App. 2002) (noting that the judgment in McConnell was deemed facially void
because the defendant was sentenced under the 1982 Act and the forty percent release
eligibility status did not exist under the 1989 Act); State v. James Sellars, No. M2013-
02380-CCA-R3-PC, 2014 WL 2884546, at * 2 (Tenn. Crim. App. June 24, 2014) (same).
McConnell 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, and a plea-bargained sentence remains legal so long as it
does not exceed the overall maximum punishment for the authorized offense. Hoover,
215 S.W.3d at 781.

        Here, the record shows that the Petitioner entered a guilty plea to second degree
murder, a Class A felony. For a Range I, Standard Offender, the penalty for a Class A
felony is between 15 and 25 years imprisonment, see Tenn. Code Ann. § 40-35-
112(a)(1), and the overall maximum sentence authorized for a Class A felony is 60 years’
imprisonment, see Tenn. Code Ann. § 40-35-111 (b)(1). Although the Petitioner was
designated as a standard offender for offender status purposes, he was sentenced outside
the range to 43 years’ imprisonment. Significantly, the judgment form notes that his
guilty plea was pursuant to Hicks v. State, 945 S.W.2d 706, 709 (Tenn. 1997), which
reflects that the Petitioner entered “a knowing and voluntary guilty plea [and] waive[d]
any irregularity as to offender classification or release eligibility.” As such, even though
the agreed upon 43-year sentence exceeds the maximum available penalty for a Range I,
Standard Offender, it does not exceed the overall maximum punishment authorized by
law for the offense. Because the Petitioner’s 43-year sentence is within the permissible
statutory limits for a Class A felony, his sentence is not illegal. See e.g., State v.
Donquise Tremonte Alexander, No. M2015-02098-CCA-R3-CD, 2016 WL 768894, at *2
(Tenn. Crim. App. Feb. 29, 2016) (affirming denial of Rule 36.1 relief upon concluding
that the defendant’s plea-bargained sentence did not exceed the maximum punishment
authorized for second degree murder and therefore was not illegal); State v. Kari Diane
Speck, No. M2016-00254-CCA-R3-CD, 2016 WL 4199204, at *1 (Tenn. Crim. App.
Aug. 8, 2016) (same). Accordingly, the Petitioner has failed to state a cognizable claim
under Rule 36.1, and he is not entitled to relief.

                                           -3-
                                        CONCLUSION

         Based on the above reasoning and authority, we affirm the judgment of the trial
court.


                                            ____________________________________
                                            CAMILLE R. MCMULLEN, JUDGE




                                           -4-
