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State v. Reed

Court of Criminal Appeals of Tennessee, Jackson

February 28, 2017

STATE OF TENNESSEE
v.
RICKIE REED

         Assigned on Briefs February 7, 2017

          Appeal from the Criminal Court for Shelby County No. 00-04751, 00-04753 James C. Beasley, Jr., Judge

          The pro se appellant, Rickie Reed, appeals as of right from the Shelby County Criminal Court's summary denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. The defendant contends his motion stated a colorable claim for relief, so the trial court erred in summarily denying it. Discerning no error, we affirm the judgment of the trial court.

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

          Rickie Reed, Hartsville, Tennessee, Pro Se.

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Karen Cok, Assistant District Attorney General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Camille R. McMullen, J., joined.

          OPINION

          J. ROSS DYER, JUDGE

         Facts and Procedural History

         In 2001, a Shelby County Criminal Court jury convicted the defendant of one count of second degree murder, one count of attempted second degree murder, and one count of reckless aggravated assault. The reckless aggravated assault and attempted second degree murder convictions were merged. Following a sentencing hearing, the trial court ordered consecutive, Range I sentences of twenty-three years for the second degree murder conviction and twelve years for the attempted second degree murder conviction.

         On July 15, 2016, the defendant filed a motion to correct an illegal sentence alleging: (1) his sentences violated the Fourteenth Amendment to the United States Constitution because he was sentenced as a standard offender rather than a mitigated offender; (2) he had no prior convictions, so he should have been sentenced as an especially mitigated offender; (3) alternatively, he should have received the maximum Range I sentence of eight years for attempted second degree murder; (4) alternatively, he should have received a sentence of fifteen years for second degree murder; (5) the trial court enhanced his sentences in violation of Tennessee Code Annotated section 40-35-202(b)(1); and (6) his sentences should have run concurrently instead of consecutively. The trial court denied the motion, finding the defendant failed to state a colorable claim. This timely appeal followed.

         On appeal, the defendant raises the same arguments asserted before the trial court. The State argues the defendant's claims do not entitle him to relief under Tennessee Rule of Criminal Procedure 36.1. Upon review of the record and the briefs, we agree with the State.

         Analysis

         Whether a motion states a colorable claim for correction of an illegal sentence under Tennessee Rule of Criminal Procedure 36.1 is a question of law so de novo review applies. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007). Rule 36.1 provides that the defendant "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." Tenn. R. Crim. P. 36.1(a). A sentence is illegal if it is not authorized by the applicable statutes or directly contravenes an applicable statute. Id. If the motion states a colorable claim, the trial court shall appoint counsel if the defendant is indigent and not already represented by counsel and hold a hearing on the motion, unless the parties waive the hearing. Tenn. R. Crim. P. 36.1(b). A "'colorable ...


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