Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs November 18, 2014.
Appeal from the Criminal Court for Bradley County No. 14CR083 Carroll L. Ross, Judge.
Levar O. Williams, pro se, Atlanta, Georgia.
Herbert H. Slatery III, Attorney General and Reporter; Deshea Dulany Faughn, Senior Counsel; R. Stephen Bebb, District Attorney General; and Andrew D. Watts, Assistant District Attorney General, for the appellee, State of Tennessee.
John Everett Williams, J., delivered the opinion of the Court, in which Robert W. Wedemeyer and Timothy L. Easter, JJ., joined.
JOHN EVERETT WILLIAMS, JUDGE.
Facts and Procedural History
On August 14, 1998, the petitioner pled guilty in case number 97-513 to one count of the sale of less than 0.5 grams of cocaine, a Class C felony, and he received a three-year sentence. On that same day, he also pled guilty in case number 98-311 to one count of possession of more than 0.5 grams of cocaine for resale, a Class B felony, and received a twelve-year sentence. The sentences were to be served concurrently for an effective sentence of twelve years.
On January 22, 2014, the petitioner filed a pleading styled "28 U.S.C. § 2254 Void Sentence/Invalid Convictions/Unconstitutional Sentence." He alleged that his August 14, 1998 plea agreement was void because his "1997-1998" convictions were run "concurrent[ly] together, " which he contended was illegal. The pleading contained no explanation as to why the concurrent sentences were illegal. In its Motion to Dismiss the pleading, the State asserted that the petition "appear[ed] to be a hybrid combination of a Post-Conviction Relief petition, a Habeas Corpus petition, and a Motion to Correct an Illegal Sentence under Tenn. R. Crim. P. 36.1." The State contended that the statute of limitations for seeking post-conviction relief had expired and that the petition did not allege any cognizable grounds for habeas corpus relief. The State also contended that the petition did not state a colorable claim for relief pursuant to Tenn. R. Crim. P. 36.1 because the petition did not describe why the petitioner's sentence was illegal. The trial court granted the State's motion to dismiss the petition on March 2, 2014.
On March 24, 2014, the petitioner filed a "Motion to Reconsider Rule 36.1 Motion to Correct an Illegal Sentence." He contended that the imposition of concurrent sentences was illegal in contravention of Tennessee Code Annotated section 40-20-111(b). On May 6, 2014, the trial court denied the motion to reconsider. The petitioner subsequently filed his notice of appeal on May 27, 2014.
On appeal, the petitioner argues that his concurrent sentences were illegally imposed in contravention of Tennessee Code Annotated section 40-20-111(b) because he committed the felony offense in case number 98-311 while released on bail. In response to the State's argument that his notice of appeal was untimely filed, the petitioner contends that the thirty-day time period in which to file a notice of appeal did not begin until the trial court denied the motion to reconsider on May 6, 2014.
As the State correctly notes, the petitioner's notice of appeal was filed nearly three months after the trial court denied the petitioner's motion. Tennessee Rule of Appellate Procedure 4(a) states that the notice of appeal "shall be filed with and received by the clerk of the trial court within 30 days after the date of entry of the judgment appealed from." Upon the filing of certain motions, such as a motion for a judgment of acquittal, a suspended sentence, the withdrawal of a guilty plea, a new trial, or arrest of judgment, "the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion or petition." Tenn. R. Crim. P. 4(c). However, the Tennessee Rules of Criminal Procedure do not recognize a motion to reconsider. State v. Turco, 108 S.W.3d 244, 245 n.2 (Tenn. 2003). The filing of a motion to reconsider does not toll the time for filing a notice of appeal. State v. Lock, 839 S.W.2d 436, 440 (Tenn. Crim. App. 1992).
However, in criminal cases, "the 'notice of appeal' document is not jurisdictional and the filing of such document may be waived in the interest of justice." Tenn. R. App. P. 4(a). "In determining whether waiver is appropriate this Court shall consider the nature of the issues for review, the reasons for the delay in seeking relief, and other relevant factors presented in each case." Michelle Pierre Hill v. State, No. 01C01-9506-CC-00175, 1996 WL 63950, at *2 (Tenn. Crim. App. Feb. 13, 1996). "Waiver is not automatic ...