### IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT NASHVILLE
HAROLD O LI VER McGE E v . STATE OF TENNESS EE

Crim inal Cou rt for Davidson Coun ty

No. 2000-A- 344

No. M2009- 00156-CCA -R3-P C - F iled Augu st 25, 2009

The Appe llant appea ls the trial court' s dismis sal of his petition for post conviction re lief. The Appellant filed his petition outside the statute of limitations. According ly , the judg ment of the trial court is af

firmed. Tenn. R. App . P . 3; Judgme nt of th e Trial Court Affirm ed P ursuan t to Rule 20, Rules of the Court of Crim inal Ap peals
D A V I D H. W E L L E S , delivere d the opinion of the cour t, in which J E R R Y L

. S M I T H , and R O B E R T W. W E D E M E Y E R , J .J ., joined.
Har old Oliver McGe e, pro se
. Robert E. Cooper, Jr., Attorney Gene ral & Reporter ; Sophia S. L ee, A ssistant Attorney Gene ral, for the a ppellee, State of

Tenne ssee. MEMORAN DUM OP INION The Appe llant pled g uilty to these drugrelated cha

rg es in J anuar

y of 2001. He was sentenc ed to an a g ree d forty y ear s in prison. The Appellant filed the instant petition for postconviction re lief on Oc tober 10, 2008. The trial court c oncluded that the pe tition was filed beyond the statute of limitations and summarily dismiss ed the same. The A ppellant appe aled. The State filed a

motion to affirm the judg ment of the trial c ourt pursuant to Court of Criminal Appea ls Rule 20. The Court finds this mot ion to be well-take n. The Appe llant's post-c onviction petition is clea rly barr ed by

the statute of limitations. Tenne ssee Code Annotated Section 40-30- 102(a) provides that a pe tition for post-conviction relief must be filed within one y ear of final judg ment. The Appe llant filed his petition well over seven year s after

the entry of his g uilty

pleas. The Post-Convi ction Procedur e Ac t enumerates few exceptions to thi s one y ear time limi t. See Tenn. Code Ann. § 40-30-102( b). In order to qualify , the claim in the petition must be based upon a new r ule of c onstitut ional law re quiring retrospe ctive application, mustbe base d upon new sc ientific evide nce e stablishing ac tualinnocenc e, or must asser t relief f rom sentenc es which w ere enhanc ed bec ause of a pre vious conviction that has subseque ntly found to be illeg al. I d. Prior to the g uilty

pleas in this case , the Appellant pled guilty to other drugrelated char g es in 1998. After

servingsix months, the Appellant was plac ed on community corr ections which wa s ultim ately

revoke d based upon the char g es in this case. The Appellant subseque ntly challeng ed both the 1998 and 2001 c onvictions in a habea s corpus pe tition. Thi s Court ag ree d with the trial court that the c oncurr ent sentenc es imposed in the 1998 ca ses wer e illeg al bec ause the Appellant wa s relea sed on bond at the time of the commission of the crimes. Ha rold Oliver McGe e v. State, No. M2005-00944- CCA-R3-HC, 2006 WL 3337141 (Tenn. Crim. App., Nov. 17, 2006). Howe ver, this Court disag ree d with the trial court r eg ardingthe 2001 ca ses and reve rsed the grant of ha

beas r elief w ith respec t to those. I d. The Court stated that the pr oper w ay to challeng e those guilty

pleas wa s throug h a post-convic tion action, but also noted that the statute of limitations already expired. I d. Contrary to the Appellant' s contention, the last exception to the statute of limitations bar does not apply

in this case. I f a pr evious conviction is later inva lidated, and that c onviction was used to enha

nce the sentenc e in the ca se which is the subjec t of the post-convic tion action, then a petitioner has one y ear

from date the pre vious conviction is invalidated in which to file the petition. Tenn. Code Ann. § 40-30- 102(b)( 3). Howe ver, the act spe cifica lly excludes from this exception case s in which a pe titioner pled guilty to an agree d sentenc e. I d. The Appe llant ag ree d to the sentenc es for

which he ple d g uilty

in 2001. Thus, he ca

nnot benef

it from this ex ception. Moreove r, as we observe d in the Appellant' s habea s corpus a ppeal, " offe nder c lassifications ' are non-jurisdictional and leg itimate barg ainingtools in pl ea ne g otiations.'" McGe e, supra (quoting Bla nd v. Dukes, 97 S.W.3d 133, 134 (Tenn. Crim. App. 2002)). See also Wallen v. State, 863 S.W .2d 34, 38-39 (Te nn. 1993) (" In this case, the pe titioner, with full knowledg e of his rig hts, voluntarily

took the benef

its of the plea ba

rg ain. In acc eptingthose bene fits . . . he waive d any irregularity

or def ect in the pr ocee dings, inc luding the possibility that the prior c onvictions used to enhanc e his punishment might be se t aside." ). Ther efor e, ther e ar e no due pr ocess c oncer ns conce rningthe application of the statute of limitations in t his case.
For the re asons stated a

bove, the judg ment of the trial c ourt is affir med in acc ordanc e with Rule 20.

____________________________________ DAVI D H. WEL L ES, J UDGE

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