FILED

April 23, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

JANUARY SESSION, 1997

DARNELL GENTRY, ) C.C.A. NO. 02C01-9604-CC-00115

)

Appellant, )

) GIBSON COUNTY

V. )

) HON. DICK JERMAN, JR., JUDGE

STATE OF TENNESSEE, )

)

Appellee. ) (DENIAL OF MOTION TO CORRECT)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF GIBSON COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

DARNELL GENTRY, PRO SE CHARLES W. BURSON

N.C.S.C. #144927 Attorney General & Reporter

7466 Centennial Blvd.

Nashville, TN 37209-1052 CLINTON J. MORGAN

Assistant Attorney General

450 James Robertson Parkway 

Nashville, TN 37243-0493

CLAYBURN PEEPLES

District Attorney General

110 South College Street

Suite 200

Trenton, TN 38382

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
-2-

OPINION

The Appellant appeals as of right from the trial court’s denial of his pro se

Motion to Correct Illegal Sentence. The Appellant pled guilty to second degree

murder in the Gibson County Criminal Court. He was sentenced to forty (40)

years as a Standard Range I offender. The Appellant argues that this sentence

is illegal. We affirm the trial court’s denial of the Appellant’s motion.

The Appellant has previously presented a petition for post-conviction relief

to the trial court, which was denied. He unsuccessfully appealed this denial to

our court. Darnell Gentry v. State, No. 02C01-9304-CC-00052, Gibson County

(Tenn. Crim. App., Jackson, filed Jun. 29, 1994). The issue in the case sub

judice was argued in the Appellant’s post-conviction appeal. This court held that

Appellant’s sentence was not an illegal sentence. Our supreme court denied the

Appellant’s application to appeal this decision on October 3, 1994.

When an issue is determined in a prior appeal in the same case, the

decision becomes the law of the case, precluding the issue’s relitigation, so long

as the prior decision is not clearly erroneous. State v. Delk, 692 S.W.2d 431, 438

(Tenn. Crim. App. 1985).

We agree with the prior holding of this court. This court stated:

In his final issue, appellant contends that his sentence of 40

years is an illegal sentence because it is outside the range of

punishment for a Range I offender convicted of a Class A felony.

The present case is sim ilar to that of State v. Terry, 755 S.W.2d 854

(Tenn. Crim. App. 1988), in which the defendant was sentenced to
-3-

10 years as a Range I offender for kidnapping. At that time, a

Range I offender could receive 2 to 6 years for the offense of

kidnapping. This Court held that the 10-year sentence, which was

within the possible statutory penalty for kidnapping was not illegal.

We further held that any irregularity as to classification or release

eligibility was waived by a knowing and voluntary plea of guilty.

Terry, 755 S.W.2d at 855.

In the present case, appellant entered into a plea bargain

agreement for a 40-year sentence as a Range I offender. Seconddegree murder is a Class A offense and the possible range of

punishment is 15 to 60 years. T.C.A. § 40-35-111(b)(1). Range I

for a Class A offense is 15 to 25 years. T.C.A. § 40-35-112(a)(1).

As in Terry, the sentence appellant received is not illegal, but rather,

falls within the permissible statutory range of punishm ent.

Furthermore, any irregularity as to classification was waived by

appellant’s guilty plea. This issue is without merit.

Gentry, No. 02C01-9304-CC-00052, slip. op. at 6-7. This court’s prior decision

is not clearly erroneous as it is supported by prior court decisions.

Therefore, this issue is without merit. We affirm the judgment of the trial

court. 

____________________________________

THOMAS T. WOODALL, JUDGE

CONCUR:

___________________________________

JOE B. JONES, PRESIDING JUDGE

___________________________________

PAUL G. SUMMERS, JUDGE