        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE

         MICHAEL TYRONE GORDON v. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Davidson County
                        No. 93-D-1629 Seth Norman, Judge




                             No. M2010-02000-CCA-R3-HC - Filed July 20, 2011


Petitioner, Michael Tyrone Gordon, has appealed from the trial court’s dismissal of the
pleading he designated as a “Motion to Correct Illegal Sentence,” and which the trial court
treated as a petition for writ of habeas corpus. The State has filed a motion for this Court to
affirm the judgment by Memorandum Opinion pursuant to Rule 20 of the Rules of the Court
of Criminal Appeals of Tennessee. Upon review of Petitioner’s brief, the State’s motion and
the entire record, we grant the State’s motion and affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Davidson County Criminal
 Court Affirmed Pursuant to Rule 20 of the Tennessee Court of Criminal Appeals

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J ERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.

Michael Tyrone Gordon, pro se.

Robert E. Cooper, Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District
Attorney General, for the appellee, State of Tennessee.

                               MEMORANDUM OPINION

         On June 15, 2001, Petitioner entered guilty pleas in the Criminal Court of Davidson
County to two offenses. He pled guilty to the Class A felony of facilitation of first degree
murder and to the Class A felony of especially aggravated robbery. Pursuant to the
negotiated plea agreement which precipitated his guilty pleas, Petitioner received an “out of
Range” sentence of thirty-five years as a Range I offender for the conviction of facilitation
of first degree murder, and an “in Range” sentence of twenty-five years as a Range I offender
for the especially aggravated robbery conviction. The sentences were also ordered to be
served concurrently with each other.

        On August 9, 2010, Petitioner filed his pleading which asserted that he was entitled
to relief as both convictions were void because of his “illegal” sentence which was in excess
of the range of fifteen to twenty-five years for a Class A felony Range I sentence. A Class
A felony conviction has a statutorily authorized punishment of not less than fifteen years nor
more than sixty years. T.C.A. § 40-35-111(b)(1).

       In Hoover v. State, 215 S.W.3d 776 (Tenn. 2007), our Supreme Court stated the issue
before the Court as follows:

       We granted permission to appeal in this case to consider the legality of a
       sentence imposed pursuant to a plea agreement. The agreed sentence exceeds
       the maximum available term in the offender Range but does not exceed the
       maximum punishment authorized for the offense.

Id. At 777

      Specifically, the petitioner in Hoover pled guilty pursuant to a negotiated plea
agreement to the Class A felony offense of second degree murder, and received an “out of
Range” sentence of thirty-five years as a Range I offender. Thus, except for the type of Class
A offense, the facts in Hoover are identical to Petitioner’s case.

       The Supreme Court in Hoover held,

       A plea-bargained sentence may legally exceed the maximum available in the
       offender Range so long as the sentence does not exceed the maximum
       punishment authorized for the plea offense. Hoover’s plea-bargained sentence
       is well below the maximum punishment authorized for the Class A felony
       offense of second degree murder. We reiterate that offender classification and
       release eligibility are non-jurisdictional and may be used as bargaining tools
       by the State and the defense in plea negotiations. Hoover waived any
       irregularity concerning his offender classification or release eligibility when
       he pleaded guilty. Thus, Hoover is not entitled to habeas corpus relief.

Id. at 780-81 (footnote omitted).

       Based upon Hoover, Petitioner is not entitled to relief in his appeal.
                                      CONCLUSION

        In this case, the trial court’s judgment dismissing Petitioner’s pleading was rendered
before the trial court without a jury. It was not a determination of guilty, the evidence does
not preponderate against the finding of the trial judge, and no error of law requiring the
reversal of the judgment is apparent in the record. Accordingly, the judgment of the trial
court is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals of Tennessee.


                                           _________________________________________
                                           THOMAS T. WOODALL, JUDGE
