Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs June 21, 2016
Appeal from the Criminal Court for Davidson County No.
2005-B-1113 Seth Norman, Judge
Appellant, Mack Jeffery Thompson, filed a motion to correct
an illegal sentence pursuant to Tennessee Rule of Criminal
Procedure 36.1. The trial court denied the motion, and the
Appellant timely filed a notice of appeal. Based upon our
review of the record and the parties' briefs, we affirm
the trial court's denial of the motion but remand the
case for correction of a clerical error on the judgment of
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Jeffery Thompson, Pikeville, Tennessee, Pro se.
Herbert H. Slatery III, Attorney General and Reporter;
Caitlin Smith, Assistant Attorney General, Glenn R. Funk,
District Attorney General; and Renee R. Erb, Assistant
District Attorney General, for the Appellee, State of
McGee Ogle, J., delivered the opinion of the court, in which
John Everett Williams and Timothy L. Easter, JJ., joined.
MCGEE OGLE, JUDGE
record reflects that on May 20, 2005, the Appellant was
indicted for premeditated first degree murder, felony murder,
and theft. On March 6, 2006, the Appellant pled guilty to
second degree murder, a Class A felony, in exchange for the
dismissal of the felony murder and theft charges. The written
plea agreement provided that the Appellant would receive a
Range II sentence of forty years with one hundred percent of
the sentence to be served in confinement. The judgment of
conviction reflects the terms of the plea agreement; however,
a box on the judgment of conviction was marked to designate
the Appellant as a repeat violent offender.
April 30, 2015, the Appellant filed a pro se motion to
correct an illegal sentence pursuant to Tennessee Rule of
Criminal Procedure 36.1. He attached a copy of the written
plea agreement and the judgment of conviction to his motion.
In the motion, he alleged that "[t]he plea agreement
does not reflect the same as the judgement [sic] sheet, [the
Appellant] signed for range Two sentence." He further
alleged that the State's notice of intent to sentence him
to life without parole as a repeat violent offender pursuant
to Tennessee Code Annotated section 40-35-120, was
"erroneous" and "mis-applied" because he
did not meet the requirements of the statute. He also alleged
that Tennessee Code Annotated section 40-35-202(a) required
the State to notify a defendant that he was subject to more
than the "standard" sentencing range in order to
facilitate plea agreements, to enable a defendant to make an
informed plea, and to assist in trial strategy and that he
was not properly notified. The Appellant provided no argument
in support of the foregoing contentions.
24, 2015, the trial court entered an order summarily denying
the motion. The trial court noted that it had reviewed the
plea agreement and a transcript of the guilty plea hearing
and found that the Appellant was sentenced in accordance with
the terms of the plea agreement. The court further found that
the Appellant's forty-year sentence was within the range
for a Range II offender. The court found that the Appellant
did not qualify as a repeat violent offender under Tennessee
Code Annotated section 40-35-120(a)(1), which was cited by
the State in the notice, but that he did qualify under
subsections (a)(5)-(6). Further, the court stated that the
Appellant was not prejudiced by the "defective
notice." The court held that the Appellant's
contention that "he was incorrectly classified as a
'repeat violent offender'" was without merit.
The Appellant appeals the trial court's ruling.
"two distinct procedural avenues [were] available [in
Tennessee] to collaterally attack a final judgment in a
criminal case-habeas corpus and post- conviction
petitions." Hickman v. State, 153 S.W.3d 16, 19
(Tenn. 2004). However, "Rule 36.1 was adopted, effective
July 1, 2013, with its express purpose 'to provide a
mechanism for the defendant or the State to seek to correct
an illegal sentence.'" State v. ...