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State v. Gaines

Court of Criminal Appeals of Tennessee, Jackson

February 23, 2017

STATE OF TENNESSEE
v.
KENNETH GAINES

          Assigned on Briefs November 1, 2016

         Appeal from the Criminal Court for Shelby County No. 98-02267, 98-02268, 98-02270 James M. Lammey, Jr., Judge

         The Petitioner, Kenneth Gaines, appeals the Shelby County Criminal Court's summary denial of his motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. Because the motion failed to state a colorable claim for relief, we affirm the judgment of the trial court.

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

          Kenneth Gaines, Nashville, Tennessee, pro se.

          Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Glen C. Baity, 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 February 29, 2000, the Petitioner entered an Alford or "best interest" plea to one count of second degree murder and two counts of especially aggravated kidnapping. See North Carolina v. Alford, 400 U.S. 25, 37 (1970). Pursuant to the plea agreement, the trial court sentenced the Petitioner as a violent offender with one hundred percent release eligibility to a twenty-five-year sentence for the second degree murder conviction and to two twenty-year sentences for the especially aggravated kidnapping convictions. The court then ordered the two kidnapping sentences served concurrently and the murder sentence served consecutively to those sentences, for an effective sentence of forty-five years.

         On April 20, 2016, more than sixteen years after entering his plea, the Petitioner filed a pro se motion to correct an illegal sentence under Tennessee Rule of Criminal Procedure 36.1 and to correct a clerical error under Tennessee Rule of Criminal Procedure 36. In this motion, the Petitioner alleged that his sentences were illegal because the trial court ordered the sentence for his murder conviction served consecutively to the sentences for his two kidnapping convictions without finding one or more of the statutory criteria set forth in Tennessee Code Annotated section 40-35-115(b).

         On April 28, 2016, the trial court entered an order summarily denying the motion. In it, the trial court interpreted the Petitioner's motion as alleging that his sentence was illegal because the trial court ordered the kidnapping sentences served concurrently to one another, rather than consecutively. The court, noting that Petitioner had not alleged that these sentences were required to be served consecutively pursuant to Tennessee Rule of Criminal Procedure 32(c)(3), denied the motion for failure to state a colorable claim. The Petitioner, still proceeding pro se, filed a timely appeal from this order.

         ANALYSIS

         On appeal, the Petitioner argues that the trial court erred in dismissing his motion and reiterates his claim that his sentences are illegal because the trial court imposed a partially consecutive sentence without finding one or more of the statutory criteria set forth in Tennessee Code Annotated section 40-35-115(b). The State responds that the Petitioner failed to present a colorable claim for relief under Rule 36.1. We agree with the State.

         Pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure, "[e]ither the defendant or the state may seek to correct an illegal sentence." Tenn. R. Crim. P. 36.1(a)(1). "[A] motion to correct an illegal sentence must be filed before the sentence set forth in the judgment order expires." Id. "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." Tenn. R. Crim. P. 36.1(a)(2). A petitioner is only entitled to a hearing and appointment of counsel "[i]f the motion states a colorable claim that the unexpired sentence is illegal." Tenn. R. Crim. P. 36.1(b)(3); see State v. Brown, 479 S.W.3d 200, 211 (Tenn. 2015). A colorable claim is "a claim that, if taken as true and viewed in a light most favorable to the moving party, would entitle the moving party to relief under Rule 36.1." State v. Wooden, 478 S.W.3d 585, 593 (Tenn. 2015). Whether a motion ...


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