Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs May 15, 2019
from the Criminal Court for Davidson County No. 2015-C-1857
Steve R. Dozier, Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
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
Camille R. McMullen, J., delivered the opinion of the court,
in which Norma McGee Ogle and Robert H. Montgomery, Jr., JJ.,
CAMILLE R. MCMULLEN, JUDGE.
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
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). 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.
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)).
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 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.
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 ...