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Johnson v. State

Court of Criminal Appeals of Tennessee, Knoxville

November 7, 2016

MARCUS T. JOHNSON
v.
STATE OF TENNESSEE

          Assigned on Briefs October 25, 2016

         Appeal from the Criminal Court for Knox County No. 94097 Steven Wayne Sword, Judge

          Marcus T. Johnson, Pikeville, Tennessee, pro se.

          Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel; and Charme Allen, District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and J. Ross Dyer, JJ., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE

         I. Factual and Procedural Background

         On April 7, 2011, the Defendant pled guilty to sale of .5 grams or more of cocaine, a Class B felony. Pursuant to a plea agreement, the trial court sentenced the Defendant, as a Range I standard offender, to ten years and suspended the sentence to supervised probation. The trial court later revoked the Defendant's probation and ordered the Defendant to serve the remainder of his sentence in confinement.

         Since his probation revocation, the Defendant has filed a plethora of motions in the trial court. The Defendant filed his first Rule 36.1 Motion on October 16, 2013. The Defendant filed a second Rule 36.1 Motion on May 29, 2015, which the trial court denied.[1] The Defendant filed his third Rule 36.1 Motion on September 14, 2015, which the trial court denied. This court affirmed the trial court's denial on July 13, 2016. State v. Marcus T. Johnson, No. E2016-00004-CCA-R3-CD, 2016 WL 3912565, at *3 (Tenn. Crim. App. July 13, 2016), perm. app. denied (Tenn. Oct. 19, 2016). The Defendant filed his fourth and current Rule 36.1 motion on February 4, 2016. In this motion, the Defendant argued that his sentence of ten years with a thirty percent release eligibility for a Class B felony was illegal. The Defendant asserted that because trial counsel verbally informed him that he would be pleading to a Class C felony as a Range I standard offender and his plea agreement did not state that he was pleading to a Class B felony, his proper sentencing range was three to six years. The trial court denied this motion on February 23, 2016, finding that "the [D]efendant ha[d] failed to present any issues indicating that his judgment is illegal." This appeal followed.

         II. Analysis

         In 2013, the Tennessee General Assembly promulgated Rule 36.1, which provides, in part:

(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.
. . .
(c)(1) If the court determines that the sentence is not an illegal sentence, the court shall file an order ...

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