Assigned on Briefs February 03, 2015
Appeal from the Criminal Court for Shelby County No. 8808249, 9004544, 9006943 James M. Lammey, Judge
Philander Butler, Memphis, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Bryce Phillips, Assistant District Attorney General, for the Appellee, State of Tennessee.
John Everett Williams, delivered the opinion of the Court, in which Alan E. Glenn, J., joined. Camille R. McMullen, J., filed a dissenting opinion.
JOHN EVERETT WILLIAMS, JUDGE
Facts and Procedural History
The defendant pled guilty in 1989 in Case Number 88-08249 to sale of a controlled substance and was sentenced to one hundred twenty days confinement followed by five years of probation. Philander Butler v. State, No. W2009-00451-CCA-R3-HC, 2009 Tenn. Crim. App. LEXIS 968 (Tenn. Cirm. App. Dec. 1, 2009). In 1990, he pled guilty in Case Numbers 90-04544 and 90-06943 to possession of a controlled substance with intent to sell and attempted possession of a controlled substance with intent to sell for which he received concurrent sentences of eight and four years respectively. Id. They were also imposed concurrently with the 1989 conviction. No direct appeal was taken, and the sentences were completed by the petitioner. In 1999, the petitioner was convicted in federal court of aiding and abetting the possession of crack cocaine with intent to distribute and was sentenced to life imprisonment and ten years of supervised release. Id. The enhancement to a life sentence was predicated upon the defendant's earlier 1989 and 1990 Tennessee convictions. The defendant remains incarcerated in a federal prison in Memphis.
Following his federal conviction, the defendant began challenging the legality of his Tennessee convictions and has continued to do so, resulting in a long and arduous history before this court. He has challenged the sentences in post-conviction, habeas corpus, and writ of error coram nobis settings. He has been denied relief in all instances. Philander Butler v. State, No. W2012-01512-CCA-R3-CO, 2013 Tenn. Crim. App. LEXIS 293, *3-5 (Tenn. Crim. App. Mar. 28, 2013).
After gaining no relief, the petitioner filed the instant motion to correct an illegal sentence pursuant to Tenn. R. Crim. P. 36.1. The thrust of the defendant's argument in the motion is that his sentences are illegal because they were ordered to be served concurrently rather than consecutively, as statutorily mandated, because he committed the 1990 offense in Case Number 90-06943 while released on bail for the 1989 offense in Case Number 88-08249 and the 1990 offense in Case Number 90-04554 . See T.C.A. § 40-20-111(b) (2010); Tenn. R. Crim. P. 32(c)(3)(C). The trial court summarily dismissed the petition. In its written order, the trial court stated the following reasons for the dismissal:
It appears to the court that the [defendant] was on bond in indictment 90-04544, when arrested for the offense in indictment 90-06943. The court finds that pursuant to [Tennessee Code Annotated section] 40-20-111 and Tennessee Rule of Criminal Procedure 32, the sentences should have run consecutively, rather than concurrently. Notwithstanding, the court finds that the [defendant] is not entitled to relief under Rule 36.1. The sentence for which the [defendant] seeks relief expired in 1994. Therefore, the [defendant] is no longer a defendant to seek relief. A defendant is a person defending or denying the party against whom relief or recovery is sought in an action of suit or the accused in a criminal case. See Black's Law Dictionary; Fifth Edition. Pursuant to [Tennessee Code Annotated section] 39-11-106(7), "Defendant" means a person accused of an offense under this title and includes any person who aids or abets the commission of such offense.
The court is also aware that the State Legislature amended the [h]abeas [c]orpus [s]tatute, [Tennessee Code Annotated section] 29-21-101(b)(1) to deny relief to defendants who received concurrent sentencing when consecutive sentencing was required by law. The court finds that the intent of Rule 36.1 was not to revive old cases where the sentences have expired. The sentences at issue are twenty years old and the [defendant] has served those sentences. The court cannot maintain indefinite jurisdiction over such sentences. The [defendant's] motion is hereby denied.
The defendant has timely appealed the trial ...