Assigned on Briefs July 07, 2015
Appeal from the Circuit Court for Lauderdale County No. 7691 Joe H. Walker, III, Judge
Tony Samuel, Whiteville, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter; and Jonathan H. Wardle, Assistant Attorney General, for the Appellee, State of Tennessee.
John Everett Williams, J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., and D. Kelly Thomas, Jr., J., joined.
JOHN EVERETT WILLIAMS, JUDGE
The petitioner was convicted of one count of aggravated rape, a Class A felony, and one count of aggravated kidnapping, a Class B felony. On direct appeal, this court affirmed the petitioner's convictions and effective thirty-five-year sentence. State v. Samuel, 243 S.W.3d 592, 595 (Tenn. Crim. App. 2007). Recognizing that neither the petitioner nor the State had raised the issue of substantive due process in regard to the petitioner's aggravated kidnapping conviction, this court sua sponte noted that the petitioner's due process rights under State v. Anthony were not affected so as to necessitate plain error review. Id. at 603 n.2. The petitioner subsequently filed a petition for post-conviction relief, alleging that the trial court did not have subject matter jurisdiction over the case and that trial counsel was ineffective. Tony Samuel v. State, No. W2008-02346-CCA-R3-PC, 2009 WL 3832695 (Tenn. Crim. App. Nov. 16, 2009). On appeal, this court affirmed the denial of the petition. Id. at *1.
On July 1, 2014, the petitioner filed a "Motion for Correction of Clerical Errors and Motion to Correct Illegal Sentence." The motion raised a litany of claims, including that he did not receive pretrial jail credit; that his sentence was excessive; that his sentence was illegal under Blakely v. Washington because a jury did not find the applicable enhancement factors; and numerous claims of ineffective assistance of counsel. The petitioner also filed several "Judicial Notice[s] of Law, " including a July 7, 2014 notice that he would later copy and submit as his appellate brief.
The trial court denied the motion without appointing counsel or conducting a hearing after finding that the petitioner failed to state a colorable claim for relief. The petitioner's sentences were to be served consecutively to a prior sentence, and the trial court found that pretrial jail credits were properly applied to the prior sentence. The trial court found that the issue of the petitioner's sentence was addressed on appeal and that he failed to state a colorable claim. The court also found that the petitioner had a post-conviction hearing in which trial counsel was found to be effective and that this finding was affirmed on appeal. The order denying the motion was entered on August 15, 2014.
On October 22, 2014, the petitioner filed a "Motion to File Delayed Notice of Appeal and Notice of Appeal." In the motion, the petitioner contended that he mailed his motion for permission to appeal to the Court of Criminal Appeals on September 15, 2014. He wrote a letter to the clerk of this court on October 1, 2014, inquiring about the status of his appeal. This letter is included in the record and was file stamped by the trial court clerk on October 8, 2014. The petitioner stated that this court returned his notice of appeal to the trial court. He claimed that the trial court then notified him on October 15, 2014, that it received the notice of appeal and informed him that he needed to file his notice in the trial court. He requested that he be permitted to file a delayed appeal. The petitioner attached a document titled "Permission to Appeal" to his motion, and that document has a handwritten date of September 15, 2014.
On February 24, 2015, the petitioner filed a "Judicial Notice of Law" as his appellate brief. On February 25, 2015, the petitioner filed a motion to waive the timely filing of his notice of appeal. He contended that he erroneously filed his "original appeal" before filing his notice of appeal in the trial court. He requested that this court accept his appeal as filed. He also attached a memorandum from the warden at the Hardeman County Correctional Facility that addressed the "Lockdown Status" of the facility. The memorandum is dated February 12, 2015, and contains a handwritten notation next to the words "Lockdown Status" that reads "Still Effective 2/14/2015." It appears that the petitioner intended this memorandum to explain why his brief, which was due February 16, 2015, was not submitted until February 24, 2015. This court deferred consideration of the motion because the petitioner had already filed his appellate brief.
The petitioner filed several motions "for Court to Take Judicial Notice" in this court. This court issued an order stating that it would "take judicial notice of the law in accordance with Rule 202 of the Tennessee Rules of Evidence."
It appears that the petitioner argues that his sentence is illegal, in addition to a host of other claims. The State contends that the appeal should be dismissed for a failure to timely file a notice of appeal and that the ...