Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs May 13, 2015
Appeal from the Criminal Court for Davidson County No. 97-B-788 Seth Norman, Judge
James Gordon Freeman, Wartburg, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the Appellee, State of Tennessee.
James Curwood Witt, Jr., J., delivered the opinion of the court, in which Robert L. Holloway, Jr., and Robert H. Montgomery, Jr., JJ., joined.
JAMES CURWOOD WITT, JR., JUDGE
A Davidson County Criminal Court jury convicted the defendant of one count of theft of property valued at $1, 000 or more but less than $10, 000 and one count of especially aggravated kidnapping, and, on July 15, 1998, the trial court imposed a total effective sentence of 38 years' incarceration. See State v. James Gordon Freeman, No. M1998-00182-CCA-R3-CD, slip op. at 2 (Tenn. Crim. App., Nashville, Nov. 29, 1999). The trial court applied a 35-percent release eligibility percentage to the four-year sentence imposed for the theft conviction given the defendant's status as a Range II, multiple offender and applied a 100-percent release eligibility percentage to the especially aggravated kidnapping as required by Code section 40-35-501. This court affirmed the convictions and, following a de novo review based upon the trial court's failure to make appropriate factual findings at sentencing, the 38-year sentence imposed by the trial court.
On August 27, 2014, the defendant moved pursuant to Tennessee Rule of Criminal Procedure 36.1 to correct the 34-year sentence imposed for his especially aggravated kidnapping conviction, claiming that the trial court erred by imposing a Range II sentence without "designating his offender classification as a multiple offender." He also claimed that the trial court erred by imposing consecutive sentences without "making the findings required for consecutive sentencing" and that the imposition of an 85-percent release eligibility percentage for the especially aggravated kidnapping conviction "removed him from the sentencing scheme for the purpose of determining the percentage of sentence that must be served."
The trial court summarily dismissed the defendant's motion finding that this court had considered and rejected the defendant's claims related to his range classification and the imposition of consecutive sentences and that the defendant's assertion with regard to the release eligibility percentage for the especially aggravated kidnapping conviction was "actually incorrect." The court observed that the judgment form for this conviction reflected a 100-percent release eligibility percentage as required by Code section 40-35-501(i)(2) and suggested that the petitioner's claim might have arisen from his reading of Code section 40-35-501(i)(1), which permits a defendant sentenced to serve 100-percent of his sentence as a violent offender to earn sentence reduction credits equal to 15-percent of his sentence. In any event, the court found that the petitioner's sentence was not illegal.
In this appeal, the defendant reiterates his claims that his sentences are illegal because the trial court failed to indicate on the face of the judgment for his conviction of especially aggravated kidnapping that he was a Range II offender, failed to make the necessary factual findings before imposing consecutive sentences, and erroneously ordered a 15-percent release eligibility percentage for his conviction of especially aggravated kidnapping in contravention of Code section 40-35-501(i)(2). The State asserts that summary dismissal of the defendant's motion was appropriate because he failed to state a colorable claim for relief under Tennessee Rule of Criminal Procedure 36.1.
Prior to July 1, 2013, a properly filed petition for writ of habeas corpus was the sole mechanism for pursuing an illegal sentence claim. See Moody v. State, 160 S.W.3d 512, 516 (Tenn. 2005) ("[T]he proper procedure for challenging an illegal sentence at the trial level is through a petition for writ of habeas corpus, the grant or denial of which can then be appealed under the Rules of Appellate Procedure."). Our supreme court then created new Rule 36.1, which became effective on July 1, 2013, and which provides:
(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 ...