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State v. Thompson

Court of Criminal Appeals of Tennessee, Nashville

May 18, 2017

STATE OF TENNESSEE
v.
MACK JEFFERY THOMPSON

          Assigned on Briefs June 21, 2016

         Direct Appeal from the Criminal Court for Davidson County No. 2005-B-1113 Seth Norman, Judge

         The 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 conviction.

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

          Mack 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 Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which John Everett Williams and Timothy L. Easter, JJ., joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE

         I. Factual Background

         The 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.

         On 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.[1] 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.

         On July 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.

         II. Analysis

         Historically, "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. ...


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