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Kenner v. State

Court of Criminal Appeals of Tennessee, Nashville

June 5, 2015

JAMES E. KENNER
v.
STATE OF TENNESSEE

Assigned on Briefs November 12, 2014

Direct Appeal from the Criminal Court for Davidson County No. 94-B-694 J. Randall Wyatt, Jr., Judge

James E. Kenner, Only, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General & Reporter; Sophia Lee, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Amy Hunter, Assistant District Attorney General, for the appellee, State of Tennessee.

Norma McGee Ogle, J., delivered the opinion of the court, in which Camille R. McMullen and Robert H. Montgomery, Jr., JJ., joined.

OPINION

Norma McGee Ogle, J.

I. Factual Background

On August 30, 1994, the appellant was convicted in Davidson County of five counts of aggravated burglary, five counts of theft over $1000, and one count of unlawful possession of a weapon. He was sentenced as a career offender to fifteen years for each aggravated burglary conviction, twelve years for each theft conviction, and eleven months and twenty-nine days for the unlawful possession of a weapon conviction. The sentences for the theft convictions and the unlawful possession of a weapon conviction were ordered to be served concurrently with each other. The aggravated burglary sentences were to be served consecutively to each other but concurrently with the theft sentences, for a total effective sentence of seventy-five years at sixty percent. On direct appeal, this court affirmed the appellant's convictions and sentences. State v. James E. Kenner, No. 01C01-9503-CR-00052, 1996 WL 63868 (Tenn. Crim. App. at Nashville, Feb. 13, 1996)

Much aggrieved, the appellant has repeatedly, albeit unsuccessfully, pursued relief from his convictions and sentences. See James E. Kenner v. State, No. M2011-01131-CCA-R3-CO, 2012 WL 1417230 (Tenn. Crim. App. at Nashville, Apr. 23, 2012) (post-conviction); James Earl Kenner v. Ricky J. Bell, Warden, No. M2005-00622-CCA-R3-HC, 2007 WL 2702786 (Tenn. Crim. App. at Nashville, Sept. 13, 2007) (habeas corpus); James Earl Kenner v. Ricky J. Bell, Warden, No. M2005-00622-CCA-R3-HC, 2005 WL 2139402 (Tenn. Crim. App. at Nashville, Aug. 31, 2005) (habeas corpus); James E. Kenner v. State, No. 01C01-9709-CR-00424, 1999 WL 333097 (Tenn. Crim. App. at Nashville, May 26, 1999) (post-conviction).

The instant appeal concerns the appellant's January 29, 2014 motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. In the motion, the appellant alleged that he was on parole for offenses in Montgomery County at the time the 1994 Davidson County offenses were committed; therefore, the trial court should have ordered the Davidson County sentences to be served consecutively to the Montgomery County sentences. In support of this contention, the appellant quotes the following short excerpts from the trial court's ruling at the sentencing hearing:

[In 1989, the appellant was arrested for] drugs, grand larceny, burglaries. He was convicted and sent away in 1990 on those charges. And a matter of months after being paroled on those, he is back out again in 1993 again continuing to burglarize and take and steal from people who try to work and earn a living.
It's also the judgment of the Court that you are an offender whose record of criminal activity is extensive. You were on parole.
This section of the Code refers for some reason to probation, [i]t doesn't mention parole, unless this is an amended copy that I have. So ...

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