Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs August 9, 2016
from the Circuit Court for Perry County No. 747 Deanna B.
Johnny Lynn, appeals the trial court's denial of his
motion under Tennessee Rule of Criminal Procedure 36.1 to
correct an illegal sentence. Defendant contends that the
trial court erred by concluding that relief was not available
because his sentence was legal and, thus, he failed to state
a colorable claim under Rule 36.1. After a thorough review of
the record and applicable law, we affirm the judgment of the
trial court pursuant to Rule 20 of the Rules of the Court of
Criminal Appeals of Tennessee.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court is Affirmed Pursuant to Rule 20, Rules of the Court of
Lynn, Whiteville, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Robert
W. Wilson, Assistant Attorney General; and Kim R. Helper,
District Attorney General, for the appellee, State of
T. Woodall, P.J., delivered the opinion of the court, in
which Robert H. Montgomery, Jr. and J. Ross Dyer, JJ.,
T. WOODALL, PRESIDING JUDGE
August 2007, following the conclusion of a jury trial,
Defendant was convicted of two counts of rape of a child and
two counts of aggravated sexual battery. State v. Johnny
Lynn, aka Jerome Alvin Buss, No. M2008-00532-CCA-R3-CD,
2009 WL 1812419, at *3 (Tenn. Crim. App. June 25, 2009).
"At a subsequent sentencing, the trial court imposed
terms of ten years for each aggravated sexual battery
conviction [to be served concurrently] and twenty-two years
for each rape of a child conviction." Id.
"The twenty-two-year sentences were to be served
consecutively to each other and consecutively to the ten-year
sentence, resulting in an effective fifty-four-year sentence
with [one hundred percent] service required."
direct appeal, this court affirmed Defendant's
convictions and sentences, holding, in part, that "the
trial court properly sentenced the Defendant to consecutive
terms and was within its discretion to consider, but not
apply, his proposed mitigating factors." Id. at
*9. In a subsequent petition for post-conviction relief,
Defendant argued that trial counsel provided ineffective
assistance by failing to allow Defendant to be sentenced
under the 2005 amendments to the Sentencing Act. Johnny
Lynn v. State, No. M2012-01877-CCA-R3-PC, 2013 WL
5300676, at *2 (Tenn. Crim. App. Sept. 18, 2013). This court
affirmed the post-conviction court's denial of his
petition for post-conviction relief, noting that Defendant
could have been given a longer sentence under the 2005
amendments. Id. at *4.
29, 2014, Defendant filed a motion to correct an illegal
sentence pursuant to Tennessee Rule of Criminal Procedure
36.1. In the motion, Defendant argued that the trial court
should appoint counsel and allow the motion to be amended as
needed. He also argued that his convictions violated double
jeopardy protections in the United States and Tennessee
constitutions. The trial court dismissed the motion without
an evidentiary hearing and without appointing counsel,
finding that Defendant's sentences were legal and that
Defendant failed to state a colorable claim for relief under
appeal, Defendant argues that the trial court erred in
denying his Rule 36.1 motion to correct an illegal sentence.
Tennessee Rule of Criminal Procedure 36.1 provides, in part,
that a defendant may "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). Rule 36.1 defines
an illegal sentence as "one that is not authorized by
the applicable statutes or that directly contravenes an
applicable statute." Id. Pursuant to Rule 36.1,
a defendant would be entitled to a hearing and the
appointment of counsel if he or she stated a colorable claim
for relief. Tenn. R. Crim. P. 36.1(b). The Tennessee Supreme
Court has stated that a colorable claim pursuant to Rule 36.1
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).
asserts that his convictions for rape of a child and
aggravated sexual battery violate double jeopardy protections
and that as a result, his sentences are illegal. Because
Defendant did not state a colorable claim for relief, the
trial court was not obliged to appoint Defendant counsel,
allow for an amended motion, or hold an evidentiary hearing
on the issue. We hold that a Rule 36.1 motion is not the
proper avenue for challenging convictions based on double
jeopardy. State v. Samuel L. Giddens, Jr., No.
M2014-01505-CCA-R3-CD, 2015 WL 1472646, at *9 (Tenn. Crim.
App. Feb. 20, 2015).
case is an appeal from a judgment that was not a
determination of guilt, and the record does not preponderate
against the finding of the trial judge. No error of law
requiring a reversal of the judgment is apparent on the
record. Accordingly, the judgment of the trial court is