Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs February 19, 2015
Appeal from the Criminal Court for Hamilton County Nos. 181833, 181959 Barry A. Steelman, Judge, Rebecca J. Stern, Judge
Antonio J. Beasley, Sr., Atlanta, Georgia, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; and M. Neal Pinkston, District Attorney General, for the appellee, State of Tennessee.
Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and D. Kelly Thomas, Jr., JJ., joined.
ROBERT H. MONTGOMERY, JR., JUDGE
On May 5, 1989, the Defendant pleaded guilty to grand larceny in case number 175235. The Defendant received a six-year sentence to be served at the penal farm, which was suspended to probation for ten years. On June 20, 1990, the Defendant pleaded guilty to attempt to commit arson in case number 181959 and to possession of cocaine in case number 181833. The trial court sentenced the Defendant to concurrent terms of four years' confinement for attempted arson and eleven months, twenty-nine days' probation for drug possession. The court recommended the Defendant for the boot camp program and advised the Defendant that if he was accepted and successfully completed the ninety-day program, he would serve the remainder of his sentences on probation. The prosecutor informed the trial judge that the Defendant was on probation for grand larceny in case number 175235 at the time he committed the offenses in case numbers 181959 and 181833, and the judge said he would write a letter to the boot camp program recommending the Defendant for acceptance.
In 2008, the Defendant filed a motion to correct the judgments in case numbers 181959 and 181833. He alleged in his motion that on June 22, 1990, he pleaded guilty to drug possession, attempted arson, and grand larceny in case numbers 181833, 181959, and 4106415, respectively. He alleged that in 1996, his six-year sentence in case number 4106415 expired, that the judgments in case numbers 181833 and 181959 did not reflect a conviction in case number 4106415, and that the federal probation officer "used" the attempted arson conviction against him.
On January 20, 2009, the trial court entered an order. The court found that on May 5, 1989, the Defendant pleaded guilty to grand larceny in case number 175235 and received a six-year sentence to the penal farm and that the sentence was suspended to probation for ten years. The court also found that on June 22, 1990, the Defendant pleaded guilty to drug possession and attempted arson. It found that the Defendant received a sentence of eleven months, twenty-nine days to the county workhouse, which was suspended for one year, for the drug possession conviction and four years' confinement for the attempted arson conviction. The court found that neither judgment in case numbers 181833 and 181959 referred to a conviction in case number 175235, that the transcript from the guilty plea hearing in case numbers 181833 and 181959 did not describe the sentence in case number 175235 as concurrent or consecutive to the sentences in case numbers 181833 and 181959, and that the trial judge at the guilty plea hearing did not make findings of fact regarding the order of the sentences with respect to the sentence in case number 175235. The court noted that the prosecutor informed the sentencing judge the Defendant was on probation at the time he committed the offenses in case numbers 181833 and 181959 and found that the "parties and the judge did not intend for the sentences" in case numbers 181833 and 181959 to be consecutive to the sentence in case number 175235. The court ordered the State to file a response to the Defendant's motion and stated that if no response was filed, the court would find that the failure to reference case number 175235 on the judgments in case numbers 181833 and 181959 was a clerical error subject to correction pursuant to Tennessee Criminal Procedure Rule 36.
On March 10, 2009, the trial court entered an order noting that the Defendant's probation in case number 175235 was reinstated before he entered his guilty pleas in case numbers 181833 and 181959. The order stated that the State conceded the failure to describe the concurrent sentences was a clerical error and ordered the judgments in case numbers 181833 and 181959 be corrected to reflect concurrent sentences with case number 175235.
On August 20, 2014, the Defendant filed a subsequent motion to correct an illegal sentence in case numbers 175235, 181833, and 181959. However, the Defendant also alleged errors in the judgments in case numbers 221828, 221830, 222998, 224140, 224141, 224136, 224137, and 224139. The substance of the motion, though, focused solely on case numbers 175235, 181833, and 181959. He alleged that the concurrent sentences in case numbers 175235, 181833, and 181959 were in direct contravention of Tennessee Code Annotated sections 36-16-605(c) and 40-20-111(b) and Tennessee Criminal Procedure Rule 32(c)(3)(B)-(C), which all required consecutive sentences. He argued that because he committed the attempted arson and drug possession offenses while on probation for larceny, the trial court's imposing concurrent sentences was illegal. The trial court denied the motion on the ground that the motion failed to state an illegality in any of the sentences and noted that consecutive sentences for an offense committed while on probation was not mandatory. This appeal followed.
The Defendant contends that the trial court erred by denying his motion for corrected judgments in case numbers 175235, 181833, and 181959. He argues that the imposition of consecutive sentences was required pursuant to Tennessee Code Annotated section 40-20-111(b) and Criminal Procedure Rule 32(c)(3). He argues that at the time of the offenses in case numbers 181833 and 181959, he was released on probation for case number 175235. The State responds that the trial court properly denied the motion. We agree with the State.
Tennessee Criminal Procedure Rule 36.1 states, in relevant part, that
(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 ...