Assigned on Briefs December 6, 2016
from the Criminal Court for Shelby County Nos. 95-03053,
95-03054, 95-03055 J. Robert Carter, Jr., Judge
Wallace ("the Defendant") filed a Motion to Correct
Illegal Sentence under Rule 36.1 of the Tennessee Rules of
Criminal Procedure, alleging that his sentences for first
degree felony murder and attempted first degree murder were
illegal because the trial court constructively amended the
corresponding indictments by instructing the jury on
"alternative theories for felony murder." The trial
court summarily denied relief, and this appeal followed. Upon
review, we affirm the judgment of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
D. Wallace, Tiptonville, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Sophia
S. Lee, Senior Counsel; Amy P. Weirich, District Attorney
General; and Carrie Shelton-Bush, Assistant District Attorney
General, for the appellee, State of Tennessee.
L. Holloway, Jr., J., delivered the opinion of the court, in
which Norma McGee Ogle and Robert H. Montgomery, Jr., JJ.,
L. HOLLOWAY, JR., JUDGE
1995, a Shelby County jury convicted the Defendant of first
degree felony murder and attempted first degree murder, for
which the Defendant received a sentence of life plus fifteen
years in the Department of Correction. The Defendant
appealed, and this court affirmed the Defendant's
convictions and sentence. See State v. Eric D.
Wallace, No. 02-C-01-9604-CR-00125, 1997 WL 421011, at *
1 (Tenn. Crim. App. July 28, 1997), perm. app.
denied (Tenn. Apr. 6, 1998). Thereafter, the Defendant
filed a pro se petition for post-conviction relief, which was
denied by the post-conviction court and affirmed by this
court on appeal. See Eric Wallace v. State, No.
W2000-02854-CCA-R3-CD, 2002 WL 1483204, at *7 (Tenn. Crim.
App. Feb. 19, 2002), perm. app. denied (Tenn. Sept.
9, 2002); see also Eric Dewayne Wallace v. State,
No. W2008-00867-CCA-R3-PC, 2009 WL 321294, at *2 (Tenn. Crim.
App. Feb. 6, 2009) (affirming the denial of the
Defendant's motion to re-open post-conviction
Defendant subsequently filed four separate petitions for writ
of habeas corpus, all of which were summarily dismissed by
the respective habeas corpus courts, and the dismissals were
affirmed on appeal. See Eric D. Wallace v. James M.
Dukes, Warden, No. W2002-00882-CCA-R3-CO, 2002 WL
31895727, at *2 (Tenn. Crim. App. Dec. 31, 2002), perm.
app. denied (Tenn. Mar. 10, 2003); Eric D. Wallace
v. Stephen Dotson, Warden, No. W2006-00908-CCA-R3-HC,
2007 WL 852173, at *2 (Tenn. Crim. App. Mar. 22, 2007),
perm. app. denied (Tenn. Aug. 13, 2007); Eric D.
Wallace v. Stephen Dotson, Warden, No.
W2010-01784-CCA-R3-HC, 2011 WL 2120103, at *11 (Tenn. Crim.
App. May 17, 2011); Eric D. Wallace v. Arvil Chapman,
Warden, No. M2012-00749-CCA-R3-HC, 2012 WL 5543055, at
*1 (Tenn. Crim. App. Nov. 9, 2012), perm. app.
denied (Tenn. Mar. 5, 2013); see also Eric DeWayne
Wallace v. State, No. W2013-02761-CCA-R3-PC, 2014 WL
6634436, at *1 (Tenn. Crim. App. Nov. 24, 2014) (affirming,
pursuant to Rule 20 of the Rules of the Court of Criminal
Appeals, the trial court's denial of the Defendant's
second petition for post-conviction relief).
April 5, 2016, the Defendant filed a pro se Motion to Correct
Illegal Sentence and/or Illegal Conviction pursuant to Rule
36.1 of the Tennessee Rules of Criminal Procedure. In the
motion, the Defendant alleged that his sentences and
convictions were void and illegal because the trial court
constructively amended the indictments for first degree
felony murder and attempted first degree murder based on its
instructions to the jury. Specifically, he asserted that he
was indicted for "recklessly killing . . . Venita Swift
during an attempt to perpetrate murder first
degree" and for the attempted first degree murder
of Jimmy Weddle. He alleged, however, that at trial the court
instructed the jury that the State must have proven
"[t]hat the [D]efendant unlawfully killed [Ms. Swift];
and . . . [t]hat the killing was committed in the
perpetration or the attempt to perpetrate the alleged murder
first degree[.]" The Defendant contended that the
trial court's instruction was based on "alternative
theories for felony murder, " thereby allowing the jury
"to convict the [Defendant] on . . . elements not
charged in the indictments." He further argued that the
jury instruction for first degree felony murder
"provided insufficient evidence to enable the
[Defendant] to know the accusation to which he had to
answer[.]" The trial court summarily denied the
Defendant's motion, and this timely appeal followed.
appeal, the Defendant asserts that his sentences are illegal
based on the trial court's constructive amendment of the
indictments at trial. He contends that the trial court
erroneously instructed the jury on the charge of first degree
felony murder, thereby allowing the jury to convict the
Defendant on "elements not found by the grand jury"
and resulting in a void sentence and conviction. The State
responds that the trial court ...