Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs December 9, 2014.
Appeal from the Criminal Court for Hamilton County Nos. 253820, 259470 Don W. Poole, Judge
Terry E. Jackson, Atlanta, Georgia, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel; Neal Pinkston, 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 and Timothy L. Easter, JJ., joined.
THOMAS T. WOODALL, PRESIDING JUDGE
On October 5, 2005, Petitioner pled guilty in case number 253820 to possession of cocaine in an amount less than .5 grams with intent to sell or deliver with an agreed sentence of four years to be served on probation and simple trespass in case number 254804 with an agreed thirty-day suspended sentence to be served concurrently. On June 27, 2006, Petitioner pled guilty in case number 259470 to possession of cocaine in an amount less than .5 grams with intent to sell or deliver with an agreed sentence of eight years to be served in confinement. The plea agreement also provided that Petitioner "[a]dmit violation" of probation in case number 253820 and that the eight year sentence in case number 259470 would run concurrently with the probation violation.
On April 12, 2013, Petitioner filed a "Motion to Reopen State Judgment Orders." In the motion, Petitioner argued that there was a "clerical error" on the judgment for case number 259470 because the sentence should have run consecutively to "1131465." Petitioner also argued that his concurrent sentences were void because they violated Rule 32(c) of the Tennessee Rules of Criminal Procedure. On April 12, 2013, the trial court entered an order on the motion noting that case number 1131465 referenced in the motion to reopen was a general sessions court case. The trial court found:
Because the defendant does not seek the correction of the judgment in case 259470 to include a provision making the sentence in that case, contrary to the plea agreement, consecutive to the sentence in case 253820 the Court disregards the allegation of a clerical error and treats the subject "motion" as an application for the writ of habeas corpus.
Citing T.C.A. § 29-21-101, the trial court also held that an allegation in a habeas petition that a sentence is "illegally concurrent with a prior sentence is no longer a ground for the writ." The trial court then summarily dismissed the petition. However, the trial court "sua sponte" determined that the "omission from the judgment in case 259470 of a provision making the sentence in that case concurrent to the sentence in case 253820 . . . di[d] not accurately reflect the plea agreement between the parties and d[id] constitute a clerical error subject to correction at any time pursuant to Tenn. R. Crim. P. 36." The trial court ordered the judgment in "case 259470 to be corrected to reflect that the sentence in that case was concurrent with the sentence in case 253820 . . ."
On May 8, 2014, Petitioner filed a second "Motion to Reopen Judgments and Correct Clerical Errors that Renders [sic] Judgment Void." In the second motion, Petitioner argued that the trial court erred by ordering the sentence is case number 259470 to run concurrently with case number 253820. Petitioner argued concurrent sentences violated Rule 32 of the Tennessee Rules of Criminal Procedure which mandates a sentence to be run consecutively to a previous sentence if the second offense was committed while a defendant was on probation or parole for the first offense. Petitioner relied on Tennessee Rule of Criminal Procedure 36.1 in his motion. The trial court entered a subsequent order finding that Petitioner's motion was "basically the same argument and motion" that Petitioner had made in his first motion. The trial court summarily dismissed the second motion. Petitioner now appeals from the order dismissing the second motion, filed pursuant to Tennessee Rule of Criminal Procedure 36.1.
II. Standard of Review
In 2013, the Tennessee General Assembly promulgated Rule 36.1, ...