           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE

            HAROLD OLIVER McGEE v. STATE OF TENNESSEE

                             Criminal Court for Davidson County
                                       No. 2000-A-344


                    No. M2009-00156-CCA-R3-PC - Filed August 25, 2009



The Appellant appeals the trial court's dismissal of his petition for post conviction relief. The
Appellant filed his petition outside the statute of limitations. Accordingly, the judgment of the
trial court is affirmed.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed Pursuant to Rule 20, Rules of
the Court of Criminal Appeals

DAVID H. WELLES, delivered the opinion of the court, in which JERRY L. SMITH , and ROBERT W.
WEDEMEYER, J.J., joined.

Harold Oliver McGee, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter; Sophia S. Lee, Assistant Attorney General,
for the appellee, State of Tennessee.

                                 MEMORANDUM OPINION

       The Appellant pled guilty to these drug related charges in January of 2001. He was
sentenced to an agreed forty years in prison. The Appellant filed the instant petition for post-
conviction relief on October 10, 2008. The trial court concluded that the petition was filed
beyond the statute of limitations and summarily dismissed the same. The Appellant appealed.
The State filed a motion to affirm the judgment of the trial court pursuant to Court of Criminal
Appeals Rule 20. The Court finds this motion to be well-taken.

        The Appellant's post-conviction petition is clearly barred by the statute of limitations.
Tennessee Code Annotated Section 40-30-102(a) provides that a petition for post-conviction
relief must be filed within one year of final judgment. The Appellant filed his petition well over
seven years after the entry of his guilty pleas. The Post-Conviction Procedure Act enumerates
few exceptions to this one year time limit. See Tenn. Code Ann. § 40-30-102(b). In order to
qualify, the claim in the petition must be based upon a new rule of constitutional law requiring
retrospective application, must be based upon new scientific evidence establishing actual
innocence, or must assert relief from sentences which were enhanced because of a previous
conviction that has subsequently found to be illegal. Id.

        Prior to the guilty pleas in this case, the Appellant pled guilty to other drug related
charges in 1998. After serving six months, the Appellant was placed on community corrections
which was ultimately revoked based upon the charges in this case. The Appellant subsequently
challenged both the 1998 and 2001 convictions in a habeas corpus petition. This Court agreed
with the trial court that the concurrent sentences imposed in the 1998 cases were illegal because
the Appellant was released on bond at the time of the commission of the crimes. Harold Oliver
McGee v. State, No. M2005-00944-CCA-R3-HC, 2006 WL 3337141 (Tenn. Crim. App., Nov.
17, 2006). However, this Court disagreed with the trial court regarding the 2001 cases and
reversed the grant of habeas relief with respect to those. Id. The Court stated that the proper way
to challenge those guilty pleas was through a post-conviction action, but also noted that the
statute of limitations already expired. Id.

        Contrary to the Appellant's contention, the last exception to the statute of limitations bar
does not apply in this case. If a previous conviction is later invalidated, and that conviction was
used to enhance the sentence in the case which is the subject of the post-conviction action, then a
petitioner has one year from date the previous conviction is invalidated in which to file the
petition. Tenn. Code Ann. § 40-30-102(b)(3). However, the act specifically excludes from this
exception cases in which a petitioner pled guilty to an agreed sentence. Id. The Appellant agreed
to the sentences for which he pled guilty in 2001. Thus, he cannot benefit from this exception.
Moreover, as we observed in the Appellant's habeas corpus appeal, "offender classifications 'are
non-jurisdictional and legitimate bargaining tools in plea negotiations.'" McGee, supra (quoting
Bland v. Dukes, 97 S.W.3d 133, 134 (Tenn. Crim. App. 2002)). See also Wallen v. State, 863
S.W.2d 34, 38-39 (Tenn. 1993) ("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."). Therefore, there are no due process concerns
concerning the application of the statute of limitations in this case.

       For the reasons stated above, the judgment of the trial court is affirmed in accordance
with Rule 20.


                                                     ____________________________________
                                                     DAVID H. WELLES, JUDGE




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