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State v. Brimmer

Court of Criminal Appeals of Tennessee, Knoxville

December 18, 2014

STATE OF TENNESSEE
v.
DAVID A. BRIMMER

Assigned on Briefs December 9, 2014

Appeal from the Circuit Court for Anderson County No. B4C00252 Donald Ray Elledge, Judge

David A. Brimmer, pro se, Mountain City, Tennessee.

Herbert H. Slatery III, Attorney General & Reporter; Lacy Wilber, Senior Counsel; David S. Clark, District Attorney General; and Sandra N.C. Donaghy, Assistant District Attorney General, for the appellee, State of Tennessee

Timothy L. Easter, J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., and Alan E. Glenn, J., joined.

OPINION

TIMOTHY L. EASTER, JUDGE

Factual and Procedural Background

Appellant's case has had a relatively long and complicated procedural history, which was succinctly set forth by this Court in our most recent opinion:

This case arises from the October 22, 1989 disappearance and death of Rodney Compton. In 1991, an Anderson County Circuit Court jury convicted [Appellant] of first degree murder and sentenced [Appellant] to death. The supreme court affirmed [Appellant's] conviction and death sentence on direct appeal. State v. Brimmer, 876 S.W.2d 75 (Tenn. 1994). [Appellant] filed a timely petition for post-conviction relief that was denied by the trial court. On appeal, however, this [C]ourt granted [Appellant] a new sentencing hearing based upon counsels' ineffective assistance relative to the presentation of mitigating evidence. Brimmer v. State, 29 S.W.3d 497, 522 (Tenn. Crim. App. 1998).
On May 7, 1999, [Appellant] pleaded guilty by information to one count of aggravated kidnapping, receiving an agreed sentence of 60-years' incarceration to be served as a violent offender consecutively to a life sentence in the first degree murder case in exchange for the State's agreeing not to seek the death penalty at the resentencing hearing. [Appellant] then filed a petition for post-conviction relief, which the trial court denied, challenging the voluntariness of the guilty plea as well as the legality of sentence imposed. This [C]ourt affirmed the trial court's denial of relief. David Brimmer v. State, E2005-02328-CCA-R3-PC, [2006 WL 3455219] (Tenn. Crim. App. Nov. 30, 2006), perm. app. denied (Tenn. Apr. 23, 2007).[1]
On May 8, 2013, [Appellant] filed a petition for writ of habeas corpus alleging that the judgment of conviction for aggravated kidnapping is void because the 60-year sentence was not an available sentence at the time of the offense. On July 29, 2013, the trial court summarily denied habeas corpus relief. [Appellant] filed a timely notice of appeal on August 28, 2013. On appeal, [Appellant] asserts that his sentence is illegal because it was not an available sentence at the time of the offense—October 22, 1989.

David Allen Brimmer v. David Sexton, Warden, E2013-01987-CCA-R3-HC, 2014 WL 1759096, at *1 (Tenn. Crim. App. Apr. 30, 2014) (memorandum opinion) (footnote added). This Court affirmed the denial of habeas corpus relief, holding that Appellant's sentence was not illegal under Tennessee Code Annotated section 40-35-117.[2] Id. at *2.

On June 24, 2014, Appellant filed a pro se motion to correct an illegal sentence pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure. Appellant argues that his sentence of 60 years for aggravated kidnapping is illegal because aggravated kidnapping is a Class B felony for which the sentence cannot exceed 30 years. On July 9, 2014, the trial court entered an order denying ...


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