Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

State v. Thompson

Court of Criminal Appeals of Tennessee, Knoxville

April 1, 2015

STATE OF TENNESSEE
v.
KEVIN M. THOMPSON A.K.A. KEVIN M. ALBERT

Assigned on Briefs December 9, 2014

Appeal from the Criminal Court for Hamilton County Nos. 222104, 222105, 222353, 231805, 205561, 205489 Barry A. Steelman, Judge

Kevin M. Thompson, Pro Se.

Herbert H. Slatery, III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant Attorney General; and William H. Cox, III, District Attorney General, for the appellee, the State of Tennessee.

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

OPINION

THOMAS T. WOODALL, PRESIDING JUDGE

Procedural history

In March, 1995, Defendant was indicted by the Hamilton County Grand Jury in case number 205488 and 205489 for the sale and delivery of cocaine on December 29, 1994, and in case number 205561 for the sale and delivery of marijuana on December 30, 1994. We note that, for some unknown reason, there are two cases numbers (205488 and 205489) on a single two-count indictment. We will refer to the charges in that indictment as case number 205489, as reflected in the judgment. On January 17, 1996, Defendant signed a petition to enter guilty pleas to: selling cocaine in an amount less than 0.5 grams in case number 205489, in exchange for an agreed upon sentence of four years to be served consecutive to a prior sentence (in case number 196078); and selling marijuana in case number 205561, in exchange for an agreed upon sentence of "1 year Range I concurrent." Judgments reflect that Defendant pleaded guilty: in case number 205489 to the Class C felony offense of sale of cocaine in an amount less than 0.5 grams and received a sentence of four years to be served consecutive to a prior sentence (in case number 196078); and in case number 205561, Defendant pleaded guilty to the Class E felony offense of selling marijuana and received a sentence of one year. In case number 205561, the judgment is silent as to whether Defendant's sentence should run concurrent with or consecutive to his sentence in case number 205489. Likewise, the judgment in case number 205489 is silent as to whether the sentence is to be served consecutive to, or concurrent with the sentence in case number 205561.

In July, 1998, Defendant was indicted by the Hamilton County Grand Jury in case number 222104, for possession of marijuana on March 18, 1998, with intent to sell; in case number 222105, for possession of 0.5 grams or more of cocaine on March 18, 1998, with intent to sell; and in case number 222353, for possession of 0.5 grams or more of cocaine on January 19, 1998, with intent to sell. In February, 2000, Defendant was indicted in case number 231805 for possession of 0.5 grams or more of cocaine on October 26, 1999, with intent to sell. On June 13, 2000, Defendant signed a petition to enter guilty pleas to: possession of marijuana with intent to sell in case number 231805, in exchange for an agreed upon sentence of two years; possession of cocaine with intent to sell in case number 222105, in exchange for an agreed upon sentence of eight years; possession of cocaine with intent to sell in case number 222353, in exchange for an agreed upon sentence of eight years; and possession of cocaine with intent to sell in case number 231805, in exchange of an agreed upon sentence of eight years. The plea agreement states that "[a]ll sentences are concurrent" and were to be served on intensive probation.

Judgments reflect that Defendant pleaded guilty in case number 222104 to the Class E felony offense of possession of marijuana with intent to sell, and he received a sentence of two years to be served on probation; in case number 222105, Defendant pleaded guilty to the Class B felony offense of possession of cocaine with intent to sell, and he received a sentence of eight years to be served on probation; in case number 222353, Defendant pleaded guilty to the Class B felony offense of possession of cocaine with intent to sell, and he received a sentence of eight years to be served on probation; and in case number 231805, Defendant pleaded guilty to the Class B felony offense of possession of cocaine with intent to sell, and he received a sentence of eight years to be served on probation. All four judgments are silent as to whether Defendant's sentences would run concurrent with or consecutive to each other. An amended judgment was subsequently entered in case number 222104. The only difference between the amended judgment and original judgment that we perceive is that the amended judgment requires Defendant to submit a DNA sample, and there is a slight difference in the amount of fines and the dates of Defendant's pretrial jail credits.

On May 22, 2014, Defendant filed a motion pursuant to Tennessee Rule of Criminal Procedure 36.1, arguing that his sentences were illegal because the trial court ordered them to be served concurrently rather than consecutively in direct contravention of Tennessee Rule of Criminal Procedure 32(c)(3) and Tennessee Code Annotated section 40-30-111(b). On June 5, 2014, the trial court summarily denied Defendant's motion because Defendant's "sentences have expired . .., even if one or more of the sentences were illegal under T.C.A. § 40[-]30[-]11[1](b) or Tenn. R. Crim. P. 32(c)(3)(C), the Court could not find that one or more of them are illegal, as Rule 36.1 requires."

Analysis

The State contends that Defendant's appeal should be dismissed because his notice of appeal was untimely filed. An appeal as of right is initiated by filing a notice of appeal within thirty days of the entry of the judgment. Tenn. R. App. P. 3(e) and 4(a). In the case of a pro se appellant who is incarcerated, "filing shall be timely if the papers were delivered to the appropriate individual at the correctional facility within the time fixed for filing." Tenn. R. App. P. 20(g). "Should timeliness of filing or service become an issue, the burden is on the pro se litigant to establish compliance with this provision." Id. The Petitioner bears the responsibility to properly perfect his appeal or to demonstrate that the "interests of justice" merit waiver of an untimely filed notice of appeal. Tenn. R. App. P. 4(a).

The trial court's order denying Defendant's motion was entered on June 5, 2014. The notice of appeal was filed on July 10, 2014. We note, however, that Defendant is a pro se, incarcerated appellant, and his handwritten notice of appeal is dated June 30, 2014. At the time he drafted his notice of appeal, the filing deadline had not passed. Nothing is in the record that would show Defendant's compliance with Tennessee Rule of Appellate Procedure 20(g). Even if Defendant's July 10, 2014, filing is late, it is only three days late. Thirty days from June 5, 2014, was Saturday, July 5, 2014. The notice did not have to be filed until the next business day, Monday, July 7, 2014. Being at most only three days late, we waive the timely filing of the notice of appeal. See Tenn. R. App. P. 4(a).

Defendant filed the motion that is the subject of this appeal pursuant to Tennessee Rule of Criminal Procedure 36.1 on May 22, 2014. In the motion, Defendant argued that by aligning his sentences concurrently, the trial court imposed an illegal sentence under Tennessee Code Annotated section 40-20-111(b) because he was released on bail in case number 205489 when he committed the offense in case number 205561. He also alleges that he committed the offense in case number 231805 while he was on bail for the offenses in case numbers 222104, 222105, and 222353. He argued that the trial court should have aligned his sentences consecutively because Tennessee Code Annotated section 40-20-111(b) and Tennessee Rule of Criminal Procedure 32(c) mandate consecutive sentences when a defendant commits a felony while the defendant is released on bail and the defendant is convicted of both offenses. As noted above, the trial court summarily dismissed Defendant's Rule 36.1 motion.

In 2012, the Tennessee Supreme Court promulgated and adopted Rule 36.1, which was ratified and approved by the Tennessee General Assembly and became effective on July 1, 2013. The rule provides, in part:

(a)Either the defendant or the state may, at any time, seek the correction of an illegal sentence by filing a motion to correct an illegal sentence in the trial court in which the judgment of conviction was entered. For purposes of this rule, an illegal sentence is one that is not authorized by the applicable statutes or that directly contravenes an applicable statute.
(b) Notice of any motion filed pursuant to this rule shall be promptly provided to the adverse party. If the motion states a colorable claim that the sentence is illegal, and if the defendant is indigent and is not already represented by counsel, the trial court shall appoint counsel to represent the defendant. The adverse party shall have thirty days within which to file a written response to the motion, after which the court shall hold a hearing on the motion, unless all parties waive the hearing.
(c)(1) If the court determines that the sentence is not an illegal sentence, the court shall file an order denying the motion.
(2)If the court determines that the sentence is an illegal sentence, the court shall then determine whether the illegal sentence was entered pursuant to a plea agreement. If not, the court shall enter an amended uniform judgment document, see Tenn. Sup. Ct. R. 17, setting forth the correct sentence.
(3) If the illegal sentence was entered pursuant to a plea agreement, the court shall determine whether the illegal provision was a material component of the plea agreement. If so, the court shall give the defendant an opportunity to withdraw his or her plea. If the defendant chooses to withdraw his or her plea, the court shall file an order stating its finding that the illegal provision was a material component of the plea agreement, stating that the defendant withdraws his or her plea, and reinstating the original charge against the defendant. If the defendant does not withdraw his or her plea, the court shall enter an amended uniform judgment document setting forth the correct sentence.
(4) If the illegal sentence was entered pursuant to a plea agreement, and if the court finds that the illegal provision was not a material component of the plea agreement, then the court shall enter an amended uniform judgment document setting forth the correct sentence.

Tenn. R. Crim. P. 36.1.

The legislature also approved a proposed amendment to Tennessee Rule of Appellate Procedure 3(b) to provide both the State and a defendant with an appeal as of right from "an order or judgment entered pursuant to Rule 36 or Rule 36.1, Tennessee Rules of Criminal Procedure." Therefore, Rule 36.1 provided a new appeal as of right for individuals who had received an illegal sentence. Pursuant to Rule 36.1, an appellant would be entitled to a hearing and appointment of counsel if he stated a colorable claim for relief. Tenn. R. Crim. P. 36.1(b); see Marcus Deangelo Lee v. State, No. W2013-01088-CCA-R3-CO, 2014 WL 902450, at *6 (Tenn. Crim. App., Mar. 7, 2014). Because Rule 36.1 does not define "colorable claim, " this court has adopted the definition of a colorable claim used in the context of post-conviction proceedings from Tennessee Supreme Court Rule 28 § 2(H): "A colorable claim is a claim . . . that, if taken as true, in the light most favorable to the [appellant], would entitle [appellant] to relief. . . ." State v. Mark Edward Greene, No. M2013-02710-CCA-R3-CD, 2014 WL 3530960, at *3 (Tenn. Crim. App., July 16, 2014) (quoting Tenn. Sup. Ct. R. 28 § 2(H)).

On appeal, the State agrees that the trial court erred by summarily dismissing Defendant's motion without appointing counsel. The State concedes that Defendant presented a colorable claim for relief from an illegal sentence because Defendant alleges: (1) that he committed the felony offense in case number 205561 while he was on bail for the offense in case number 205489; and (2) because Defendant alleges that he committed the felony offense in case number 231805 while he was on bail for the offenses in case numbers 222104, 222105, and 222353. We agree with the State. Defendant stated a colorable claim. Rule 36.1, by its explicit terms, states that a defendant may "at any time" seek correction of an illegal sentence. The trial court's analysis that Rule 36.1 is not applicable because the sentences have expired is misplaced. First, the rule does not exempt its applicability to "expired" sentences. Second, if the facts are as alleged by Defendant, the sentences for two of his convictions, which were supposed to be served consecutive to rather than concurrent with other sentences, have never been served; therefore, they could not have expired.

The judgment of the trial court is reversed and this case is remanded to the trial court for further proceedings in compliance with all the provisions of Tennessee Rule of Criminal Procedure 36.1.

Timothy L. Easter, J., dissenting.

I respectfully dissent with the conclusions of the majority that Defendant's late filing of his notice of appeal should be waived and that Defendant has stated a colorable claim for relief, entitling him to the appointment of counsel and a hearing.

The majority states that Defendant's filing "is only three days late." I agree that Defendant is a pro se litigant and thus entitled to lenity. The Rules of Appellate Procedure provide for such. However, the rules place on an incarcerated pro se litigant the burden of establishing compliance with the filing requirements of the notice of appeal if the timeliness of filing becomes an issue. See Tenn. R. App. P. 20(g). The State has made timeliness an issue and Defendant has failed to meet his burden, even if "only three days late." I fail to see how waiver of timeliness of the notice of appeal can serve the interests of justice, particularly when the offenses at issue occurred over fifteen years ago.

Further, Defendant alleges that the sentences in two of his cases-case numbers 205561 and 231805-are illegal because he committed the underlying offenses while on bail and the trial court contravened applicable law by ordering his sentences to be served concurrent to, rather than consecutive to, the sentences for which he was on bail. Notably in this case, the record contains the plea petitions and, more significantly, the judgment forms in each case. While Defendant was not required to attach such documentation to support his claim under the requirements of Rule 36.1, see George William Brady v. State, No. E2013-00792-CCA-R3-PC, 2013 WL 6729908, at *6 (Tenn. Crim. App. Dec. 19, 2013), there is nothing in the Rule that prohibits the trial court-or this Court-from taking those documents into account when determining whether Defendant has presented a colorable claim.

Defendant is correct that Tennessee Rule of Criminal Procedure 32(c)(3)(C) and Tennessee Code Annotated section 40-30-111(b) mandate that sentences be served consecutively when the defendant is on bail for one offense at the time he commits the second offense. If we take Defendant's allegations as true-that he was released on bail at the time he committed the offenses in case numbers 205561 and 231805-then it would appear from the plea petitions in the record that he negotiated concurrent sentences in these two cases in direct contravention of the statute and rule. However, when we examine the judgment forms for case numbers 205561 and 231805, we observe that they are silent as to whether those sentences should run concurrently or consecutively to any other sentence. Tennessee Rule of Criminal Procedure 32(c)(3) explicitly states that "[w]hen a defendant is convicted of multiple offenses . . . and the law requires consecutive sentences, the sentence shall be consecutive whether the judgment explicitly so orders or not" (emphasis added). Because the respective judgments are silent, then by rule the sentence in case number 205561 would run consecutively to the sentence in case number 205489 and the sentence in case number 231805 would run consecutively to case numbers 222104, 222105, and 222353. See Kevin Daws v. State, No. W2014-01002-CCA-R3-CO, 2015 WL 112787, at *2 (Tenn. Crim. App. Jan. 8, 2015) (quoting Hogan v. Mills, 168 S.W.3d 753, 756 (Tenn. 2005)). Therefore, Defendant has not made out a colorable claim that his sentences are illegal. I would affirm the trial court's summary dismissal of the petition.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.