Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs October 25, 2016 at Knoxville
from the Criminal Court for Davidson County No. 98-C-2056
Seth W. Norman, Judge
Castanon, Hartsville, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Brent
C. Cherry, Senior Counsel; Victor S. Johnson, III, District
Attorney General; and Dan Hamm, Assistant District Attorney
General, for the appellee, State of Tennessee.
L. Holloway, Jr., J., delivered the opinion of the court, in
which James Curwood Witt, Jr., and J. Ross Dyer, JJ., joined.
L. HOLLOWAY, JR., JUDGE
2000, the Petitioner was convicted of four counts of
aggravated rape and one count of aggravated burglary and was
sentenced to twenty years for each of the aggravated rape
convictions and three years for aggravated burglary. Three of
the aggravated rape convictions were ordered to be served
consecutively, and the fourth aggravated rape conviction and
the aggravated burglary conviction were ordered to be served
concurrently, for an effective sentence of sixty years. The
Petitioner appealed, claiming there was insufficient evidence
to support his convictions and that the consecutive alignment
of the three aggravated rape convictions was improper. In the
direct appeal, this court affirmed the convictions and the
consecutive sentences. State v. Luis Castanon, No.
M2003-01491-CCA-R3-CD, 2005 WL 544724, *1 (Tenn. Crim. App.
Mar. 8, 2005), perm. app. denied (Tenn. Aug. 22,
March 2016, the Petitioner filed pro se a document titled
"Rule 36.1 Correction of Illegal Sentence"
("the motion") in which he asked for relief
pursuant to both Tenn. R. Crim. P. 36.1 and the
Post-Conviction DNA Analysis Act of 2001, Tenn. Code Ann.
§ 40-30-301, et seq. ("the DNA Analysis Act").
The Petitioner claimed that his sentences are "void and
illegal" because they were imposed in "direct
contravention" of the DNA Analysis Act. The Petitioner
"request[ed] DNA analysis be performed so that he could
attack his prior convictions." Additionally, the Petitioner
claimed that the length of his sentence and the consecutive
alignment of three of his aggravated rape sentences were
imposed in direct violation of Tennessee Code Annotated
section 40-35-102(1) ("Every defendant shall be punished
by the imposition of a sentence justly deserved in relation
to the seriousness of the offense[.]") and section
40-35-103(2) ("The sentence imposed should be no greater
than that deserved for the offense committed[.]").
written order, the trial court found that the
Petitioner's sentence was legal and summarily denied the
motion. The trial court did not address the request for DNA
analysis. This timely appeal followed.
appeal, the Petitioner argues that the trial court erred in
summarily denying his motion. In his brief, the Petitioner
claims that his sentence is illegal (1) because of
"excessive prosecution, " (2) because he should
have been convicted of "recklessly entering a
habitation" instead of aggravated burglary,
because the rapes occurred within a two-hour period and
therefore the convictions "are without elements of a
subsequent crime, " and (4) because the sentence is
excessive as the victim never claimed the Petitioner
"stop[ped] and came back in [the] bedroom" after
the first aggravated rape.
failing to raise any issue concerning DNA in his brief, the
Petitioner has abandoned the DNA Analysis Act claims made in
State argues the "trial court properly and correctly
determined that the [Petitioner] failed to state a colorable
claim for relief under Tenn. R. ...