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State v. Kirkman

Court of Criminal Appeals of Tennessee, Nashville

June 2, 2017

STATE OF TENNESSEE
v.
PERRY MITCHELL KIRKMAN

          Assigned on Briefs April 26, 2017 at Knoxville

         Appeal from the Criminal Court for Davidson County No. 2009-A-404 Steve Dozier, Judge

         The Defendant, Perry Mitchell Kirkman, pleaded guilty to two counts aggravated sexual battery in 2010 and received a fifteen-year sentence as a Range II offender. Six years later, the Defendant filed a motion pursuant to Tennessee Criminal Procedure Rule 36.1 requesting that the trial court correct an illegal sentence because his sentence exceeds the sentencing range for a Range I offender convicted of a Class B felony. The trial court summarily dismissed the motion after determining that the Defendant knowingly and voluntarily pleaded guilty and agreed to a sentence outside the appropriate sentencing range pursuant to Hicks v. State, 945 S.W.2d 706 (Tenn. 1997).[1] On appeal, the Defendant contends that the trial court erred in dismissing his motion. We affirm the judgment of the trial court.

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

          Perry Mitchell Kirkman, Hartsville, Tennessee, Pro Se.

          Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel; and Glenn Funk, District Attorney General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Robert L. Holloway, Jr., JJ., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE.

         In 2009, the Defendant was indicted for ten counts of rape of a child, two counts of displaying sexual acts to a minor, and one count of solicitation of rape of a child. On April 22, 2010, the Defendant pleaded guilty pursuant to a negotiated plea agreement to two counts of aggravated sexual battery in exchange for a fifteen-year sentence at 100% service and for the dismissal of the remaining charges. The petition to enter a guilty plea reflects the Defendant's signature and requests the trial court accept his guilty plea to two counts of aggravated sexual battery in exchange for a fifteen-year sentence at 100% service. The judgment forms reflect that the Defendant pleaded guilty as a Range II offender pursuant to Hicks.

         On September 14, 2016, the Defendant filed a motion to correct an illegal sentence pursuant to Tennessee Criminal Procedure Rule 36.1. In the motion, the Defendant stated that he was a Range I offender based upon his previous criminal history, that his Range II sentence was illegal, and that the trial court lacked the authority and jurisdiction to impose a sentence outside the appropriate sentencing range. See T.C.A. § 40-35-112(a)(2) (stating that "[a] Range I sentence . . . [f]or a Class B felony, [is] not less than eight (8) years nor more than twelve (12) years[.]").

         On September 21, 2016, the trial court summarily dismissed the Defendant's motion. In its written order, the court found that the Defendant pleaded guilty to two counts of aggravated sexual battery and accepted an out-of-range sentence of fifteen years at 100% service pursuant to the plea agreement and pursuant to Hicks. After reviewing the guilty plea hearing transcript, the court determined that the Defendant entered his guilty pleas knowingly and voluntarily and that the Defendant had failed to state a colorable claim for relief. This appeal followed.

         The Defendant contends that the trial court erred by summarily dismissing his motion and that his sentence is illegal because he was erroneously sentenced as a Range II offender. He argues that the sentence is a nullity and that his due process rights were violated. The State responds that the trial court properly dismissed the motion. We agree with the State.

         Tennessee Criminal Procedure Rule 36.1 states, in relevant part, that

(a) Either the defendant or the state 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. For purposes of this rule, an illegal sentence is one that is not authorized by ...

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