Assigned on Briefs March 7, 2017
from the Criminal Court for Shelby County Nos. 01-04380,
01-04381, 01-04382, 01-04383, 01-04384, 01-04385, 01-04386,
01-04387, 01-04388, 01-04389, 01-04390, 01-04391, 01-04392 J.
Robert Carter, Jr., Judge
Peterson ("the Defendant") appeals the summary
denial of his Tennessee Rule of Criminal Procedure 36.1
motion to correct an illegal sentence. Discerning no error,
we affirm the trial court's summary denial of the motion.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Spencer Peterson, Whiteville, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter;
Alexander C. Vey, Assistant Attorney General; Amy P. Weirich,
District Attorney General; and Carrie Shelton-Bush, Assistant
District Attorney General, for the appellee, State of
L. Holloway, Jr. J., delivered the opinion of the court, in
which Thomas T. Woodall, P.J., and James Curwood Witt, Jr.,
L. HOLLOWAY, JR., JUDGE
and Procedural Background
April 26, 2001, the Shelby County Grand Jury charged the
Defendant with nineteen offenses spread across thirteen
separate indictments including one count of first degree
premeditated murder, two counts of first degree felony
murder, two counts of attempted first degree murder, eight
counts of aggravated robbery, one count of aggravated
burglary, three counts of attempted especially aggravated
robbery, and two counts of attempted aggravated robbery. The
cases were consolidated for trial. The Defendant was
convicted as charged with the exception of the three first
degree murder counts and the two attempted first degree
murder counts, in which he was convicted, respectively, of
second degree murder and attempted second degree murder.
After merging the three second degree murder convictions and
the separate convictions of aggravated robbery involving the
same victim, the trial court sentenced the Defendant to
consecutive terms of twenty years for the second degree
murder conviction and eight years for each of the four
aggravated robbery convictions. The remaining convictions
were ordered to be served concurrently for an effective
sentence of fifty-two years in the Department of Correction.
The Defendant's convictions were affirmed on direct
appeal, but the case was remanded for the trial court to
"set out its basis for consecutive sentencing."
State v. Spencer Peterson, No.
W2003-02939-CCA-R3-CD, 2004 WL 2791621, at *1 (Tenn. Crim.
App. Dec. 6, 2004), perm. app. denied (Tenn. Mar.
21, 2005). In the subsequent appeal, this court affirmed the
consecutive sentences. State v. Spencer Peterson,
No. W2005-01701-CCA-R3-CD, 2006 WL 1215138, at *1 (Tenn.
Crim. App. May 5, 2006), perm. app. denied (Tenn.
Oct. 2, 2006).
unsuccessfully pursuing post-conviction relief and relief
under Rule 36.1, the Defendant filed a "Motion to
Correct Illegal Sentence" claiming that his sentences
were illegal because second degree murder was not a
lesser-included offense of felony murder and because his
arrest warrants were void. In its written order summarily
denying the motion, the trial court stated:
Murder second is a lesser[-]included offense of first degree
murder (premeditated or in perpetration of a felony). T.C.A.
Any procedural defect in an arrest warrant was cured by the
action of the grand jury in returning an indictment. Further,
any complaints about Petitioner's arrest have long been
"waived" or "previously determined" and
do not operate to render Petitioner's sentence void.
Rule 36.1 applies to motions where there is a "colorable
claim that the sentence is illegal[.]" Tennessee Rules
Criminal Procedure 36.1(b). The sentence in these cases i[s]
not illegal, and therefore, the Motion to ...