             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                         Assigned on Briefs at Knoxville February 17, 2016

        STATE OF TENNESSEE v. DONQUISE TREMONTE ALEXANDER

                       Appeal from the Criminal Court for Davidson County
                           No. 2011-A-317 Mark J. Fishburn, Judge


                     No. M2015-02098-CCA-R3-CD – Filed February 29, 2016


The Defendant, Donquise Tremonte Alexander, pleaded guilty pursuant to a negotiated plea
agreement to second degree murder and received a thirty-year sentence. More than three
years later, the Defendant filed a motion pursuant to Tennessee Criminal Procedure Rule 36.1
requesting that the trial court correct an illegal sentence because his sentence exceeds the
sentencing range for a Range I offender convicted of a Class A felony. The trial court
summarily dismissed the motion after determining that the Defendant knowingly and
voluntarily pleaded guilty and agreed to a sentence outside the appropriate sentencing range
pursuant to Hicks v. State, 945 S.W.2d 706 (Tenn. 1997). On appeal, the Defendant contends
that the trial court erred in dismissing his motion. We affirm the judgment of the trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and ROBERT W. WEDEMEYER, J., joined.

Donquise Tremonte Alexander, Tiptonville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Glenn
Funk, District Attorney General; and Janice Norman, Assistant District Attorney General, for
the appellee, State of Tennessee.

                                                     OPINION

       In 2011, the Defendant was indicted for premeditated first degree murder, first degree
felony murder, attempt to commit especially aggravated robbery, and possession of a weapon
during the commission of a dangerous felony.1 On July 26, 2012, the Defendant pleaded

1
    This case originated in juvenile court but was transferred to criminal court on December 8, 2010.
guilty pursuant to a negotiated plea agreement to second degree murder as a lesser included
offense of first degree premeditated murder in exchange for a thirty-year sentence at 100%
service and for the dismissal of the remaining charges. The petition to enter a guilty plea
reflects the Defendant’s signature and requests the trial court accept his guilty plea to second
degree murder in exchange for a thirty-year sentence at 100% service “pursuant to State v.
Hicks.”

        On August 21, 2015, the Defendant filed a motion to correct an illegal and void
sentence pursuant to Tennessee Criminal Procedure Rule 36.1. In the motion, the Defendant
stated that the sentencing range for a Range I offender convicted of a Class A felony is
fifteen to twenty-five years and that as a result, his thirty-year sentence is illegal. See T.C.A.
§ 40-35-112(a)(1) (stating that “a Range I sentence . . . [f]or a Class A felony [is] not less
than fifteen (15) nor more than twenty-five (25) years”).

        On September 23, 2015, the trial court summarily dismissed the Defendant’s motion.
In its written order, the court found that the Defendant pleaded guilty and accepted an out-of-
range sentence of thirty years at 100% service pursuant to the plea agreement. The court
noted that the Defendant signed the petition to enter a guilty plea and that the petition
reflected the Defendant was pleading guilty to second degree murder in exchange for a thirty-
year sentence pursuant to Hicks. The trial court also found that at the guilty plea hearing, the
Defendant told the trial court that he was voluntarily entering his guilty plea and that he knew
the consequences of his guilty plea. This appeal followed.

       The Defendant contends that the trial court erred by summarily dismissing his motion
to correct an illegal sentence. He argues that his thirty-year sentence is illegal because it
exceeds the possible sentence for a Range I offender convicted of a Class A felony. The
State responds that the trial court properly dismissed the motion. We agree with the State.

       Tennessee Criminal Procedure Rule 36.1 states, in relevant part, that

       (a) Either the defendant or the state may, at any time, seek the correction of an
       illegal sentence by filing a motion to correct an illegal sentence in the trial
       court in which the judgment of conviction was entered. For purposes of this
       rule, an 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). A defendant is entitled to a hearing and the appointment of
counsel if the motion states a colorable claim for relief. Id. at 36.1(b). Further, the trial court
is required to file an order denying the motion if it determines that the sentence is not illegal.
Id. at 36.1(c)(1).
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        The record reflects that the Defendant was indicted for first degree premeditated
murder, first degree felony murder, attempt to commit especially aggravated robbery, and
possession of a weapon during the commission of a dangerous felony. Pursuant to a
negotiated plea agreement, the Defendant pleaded guilty to second degree murder, a lesser
included offense of first degree premeditated murder, in exchange for a thirty-year sentence
and for the dismissal of the remaining charges. The petition to enter a plea agreement
reflects the Defendant’s signature and that the agreement was pursuant to Hicks v. State.

        In Hicks, our supreme court determined that “a knowing and voluntary guilty plea
waives any irregularity as to offender classification or release eligibility.” 945 S.W.2d at
709. Likewise, in Hoover v. State, 215 S.W.3d 776 (Tenn. 2007), the petitioner pleaded
guilty to second degree murder pursuant to a negotiated plea agreement in exchange for a
thirty-five-year sentence at 100% service as Range I offender. In denying habeas corpus
relief, our supreme court concluded that “[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.” Id. at 780. The authorized
punishment for a Class A felony is not less than fifteen years nor more than sixty years.
T.C.A. § 40-35-111 (2014).

        In the present case, the Defendant received a sentence that exceeded the possible
sentence for a Range I offender for a Class A felony, but the sentence was less than the
maximum permitted by law. Although the guilty plea hearing transcript is not included in the
appellate record, the trial court reviewed the record and found that the Defendant entered a
knowing and voluntary guilty plea. See State v. James D. Wooden, --- S.W.3d ---, ---, No.
E2014-01069-SC-R11-CD, 2015 WL 7748034, at *6 (Tenn. Dec. 2, 2015) (“[W]hen
determining whether a Rule 36.1 motion sufficiently states a colorable claim, a trial court
may consult the record of the proceedings from which the allegedly illegal sentence
emanated.”). As a result, we conclude that the Defendant’s sentence is not illegal because
the plea-bargained sentence does not exceed the maximum punishment authorized for second
degree murder. Therefore, the trial court properly dismissed the Defendant’s motion, and he
is not entitled to relief on this basis.

         Based on the foregoing and the record as a whole, we affirm the judgment of the trial
court.


                                             ____________________________________
                                             ROBERT H. MONTGOMERY, JR., JUDGE



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