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State v. Hubbard

Court of Criminal Appeals of Tennessee, Jackson

January 20, 2017

STATE OF TENNESSEE
v.
CHRISTOPHER HUBBARD

          Assigned on Briefs November 1, 2016

         Appeal from the Criminal Court for Shelby County No. 10-04027 James C. Beasley, Jr., Judge

         Pro se Petitioner, Christopher Hubbard, appeals from the Shelby County Criminal Court's dismissal of his motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. On appeal, the Petitioner argues that the trial court erred by summarily dismissing his motion. Upon review, we affirm the judgment of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed.

          Christopher Hubbard, Whiteville, Tennessee, Pro Se.

          Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Pamela Diane Fleming, Assistant District Attorney General, for the Appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which John Everett Williams and J. Ross Dyer, JJ., joined.

          OPINION

          CAMILLE R. McMULLEN, JUDGE

         On November 15, 2010, the Petitioner was convicted by a Shelby County Jury of aggravated kidnapping and aggravated assault. The trial court sentenced the Petitioner as a repeat violent offender to life without the possibility of parole for the aggravated kidnapping conviction. The Petitioner was also sentenced to ten years for the aggravated assault conviction and the sentences were ordered to run concurrently. The Petitioner's conviction was affirmed on direct appeal, see State v. Christopher Hubbard, No. W2011-01078-CCA-R3-CD, 2012 WL 2196303 (Tenn. Crim. App. June 15, 2012), and his petition for post-conviction relief was subsequently denied by this court. See Christopher Hubbard v. State, No. W2014-01716-CCA-R3-PC, 2015 WL 5683092 (Tenn. Crim. App. Sep. 25, 2015). On April 26, 2016, the Petitioner filed a motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1, essentially arguing that his sentence was illegal due to an error in the State's pretrial notice of intent to seek enhanced punishment. The trial court summarily dismissed the motion on May 3, 2016, specifically finding that:

The [P]etitioner was properly put on notice of his prior conviction. The applicable information was provided. Even if it was not sufficient, which the Court finds that it was, the [P]etitioner has failed to state a colorable claim upon which relief could be granted. The issue he raises should have been raised at the time of trial, sentencing and appeal of the original conviction.

         It is from this order that the Petitioner timely appeals.

         ANALYSIS

         On appeal, the Petitioner asserts that his sentence is illegal because the State's omission of the Petitioner's dates of prior incarceration on its notice of intent to seek enhanced punishment "rendered the State's notice a nullity as [a] matter of law and fact as the Tennessee Supreme Court held in[ ] State v. Cooper, 321 S.W.3d 501 (Tenn. 2010)." The State responds that the trial court properly denied the motion because the Petitioner's claim merely constitutes an "'appealable error, ' not a 'fatal error' as required to allege a colorable claim for relief." We agree with the State.

         Under Rule 36.1 of the Tennessee Rules of Criminal Procedure, "[e]ither the defendant or the [S]tate may, at any time, seek the correction of an illegal sentence[.]" Tenn. R. Crim. P. 36.1(a). "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." Id. A petitioner is only entitled to a hearing and appointment of counsel "[i]f the motion states a colorable claim that the sentence is illegal." Tenn. R. Crim. P. 36.1(b); see Marcus Deangelo Lee v. State, No. W2013-01088-CCA-R3-CO, 2014 WL 902450, at *6 (Tenn. Crim. App. Mar. 7, 2014). This court has stated that a colorable claim "is a claim . . . that, if taken as true, in the light most favorable to the [petitioner], would entitle [the petitioner] to relief[.]" State v. David A. Brimmer, No. E2014-01393-CCA-R3-CD, 2014 WL 201759, at ...


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