Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs at Knoxville February 19, 2015.
Appeal from the Circuit Court for Maury County No. 17884 Stella L. Hargrove, Judge.
Robert Guerrero, Henning, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; and Brent Cooper, 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.
The facts underlying the Defendant's convictions were summarized by this court in a previous appeal.
In 2008, the Petitioner participated in a shooting of a vehicle carrying eleven individuals, which resulted in the death of two victims and injury to other victims. The jury, after hearing the proof at trial, convicted the Petitioner of two counts of first degree murder and nine counts of attempted first degree murder. The trial court subsequently sentenced the Petitioner to two consecutive life sentences for the first degree murder convictions and nine fifteen-year sentences for the attempted first degree murder convictions, to be served consecutively to the life sentences, for an effective sentence of two life sentences plus 135 years.
Robert Guerrero v. Dwight Barbee, Warden, No. W2012-01873-CCA-R3-HC, 2013 WL 1189462, at *1 (Tenn. Crim. App. Mar. 22, 2013) (internal citations omitted); see State v. Robert A. Guerrero, No. M2008-02839-CCA-R3-CD, 2011 WL 2306078, at *1-5 (Tenn. Crim. App. June 8, 2011), perm. app. denied (Tenn. Sept. 21, 2011).
On August 11, 2014, the Defendant filed a pro se motion to correct an illegal sentence pursuant to Tennessee Criminal Procedure Rule 36.1. He argued that Tennessee statutes do not authorize "life with the possibility of parole" for a first degree murder conviction and that his life sentences "directly contravene" Tennessee Code Annotated sections 40-35-501(i)(1) and (i)(2)(A) (2010) (amended 2012, 2013, 2014). He asserted that because Code section 40-35-501(i) prohibits release eligibility for persons convicted of first degree murder and requires 100% service of sixty years less any sentence reduction credits up to 15%, the trial court imposed life sentences without the possibility of parole. He also argued that because he received two sentences of life that are effectively without the possibility of parole, the State was obligated to provide notice of its intent to seek such sentences and that it failed to do so, which created structural error requiring reversal of his first degree murder convictions. On August 13, 2014, the trial court summarily dismissed the motion for failure to state a colorable claim and noted that this court previously affirmed the Defendant's convictions and sentences. The court also treated the Defendant's motion as a petition for a writ of habeas corpus but found that the petition was not properly before the court. This appeal followed.
The Defendant contends that the trial court erred by dismissing his motion to correct the sentences. He raises the same argument on appeal that he raised in the trial court. The State responds that the trial court properly dismissed the Defendant's 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 the applicable statutes or that directly contravenes an applicable statute.
Tenn. R. Crim. P. 36.1(a). A defendant is entitled to a hearing and the appointment of counsel if the motion states a colorable claim for relief. Id. at 36.1(b). Further, the trial court is required to file an order denying the motion if it ...