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State v. Guerrero

Court of Criminal Appeals of Tennessee, Nashville

June 5, 2017

STATE OF TENNESSEE
v.
ROBERT GUERRERO

          Assigned on Briefs August 9, 2016

         Appeal from the Circuit Court for Maury County No. 17884 Stella L. Hargrove, Judge

         Defendant, Robert Guerrero, appeals from the trial court's summary denial of his Motion for Correction of Illegal Sentence filed pursuant to Tennessee Rule of Criminal Procedure (Tenn. R. Crim. P.) 36.1. In his motion and on appeal, Defendant asserts that his nine consecutive fifteen-year sentences for nine convictions of attempted first degree murder are illegal. He asserts that by imposing consecutive sentencing, the trial court failed to base its ruling on at least one of seven criteria found in Tennessee Code Annotated (T.C.A.) section 40-35-115. After a thorough review, we affirm the judgment of the trial court.

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

          Robert Guerrero, Only, Tennessee, Pro Se.

          Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; and Brent A. Cooper, District Attorney General, for the appellee, State of Tennessee.

          Thomas T. Woodall, P.J., delivered the opinion of the court, in which Robert H. Montgomery, Jr., and J. Ross Dyer, JJ., joined.

          OPINION

          THOMAS T. WOODALL, PRESIDING JUDGE

         Following a jury trial, Defendant was convicted of two counts of first degree murder and nine counts of attempted first degree murder. He was sentenced to life imprisonment for each conviction of first degree murder, and these two sentences were ordered to be served consecutively to each other and consecutively to the nine fifteen-year sentences set forth above. His effective sentence was therefore two life sentences plus 135 years. He appealed, and this Court affirmed the judgments. State v. Robert A. Guerrero, No. M2008-02839-CCA-R3-CD, 2011 WL 2306078 (Tenn. Crim. App. 2011), perm. app. denied (Tenn. Sept. 21, 2011). One of the issues raised by Defendant in his direct appeal was that the trial court erred by imposing consecutive sentencing. Robert A. Guerrero, 2011 WL 2306078 at *1. Defendant's challenge to consecutive sentencing in that appeal was that the trial court failed to make sufficient factual findings to support its conclusion that Defendant was a "dangerous offender, " one of the seven bases to impose consecutive sentencing pursuant to T.C.A. § 40-35-115. See id. at *16; see T.C.A. § 40-35-115(b)(4).

         This Court reviewed detailed portions of the trial court's ruling and concluded that even if the trial court erred by finding Defendant was a dangerous offender, the record showed, and Defendant conceded, that the trial court correctly found that he was on probation at the time he committed the offenses for which consecutive sentencing was imposed. Robert A. Guerrero, 2011 WL 2306078 at *17. The trial court concluded that this was an additional statutory factor pursuant to T.C.A. § 40-35-115(b)(6) which justified consecutive sentencing, and this Court agreed. Robert A. Guerrero, 2011 WL 2306078 at *17.

         Defendant admits in the case sub judice that consecutive sentencing was appropriate for the two life sentences. However, he asserts in his Rule 36.1 motion and on appeal that the trial court "was without statutory authority" to impose consecutive sentencing for the attempted first degree murder convictions. He argues that the trial court's sole basis for ordering the challenged consecutive sentences was a finding that "to do any less than to run these consecutive with each other and with the two life sentences would be depreciating the life of either one of the deceased, or the lives of one of these victims."

         Defendant's argument is misplaced as the quoted portion of the trial court's ruling is taken out of context. In the direct appeal, as noted above in our discussion of this Court's opinion, the trial court found that consecutive sentencing was justified pursuant to T.C.A. § 40-35-115(b)(6) due to Defendant being on probation when he committed the offenses. We held that ground justified consecutive sentencing for the attempted first degree murder convictions. Id.

         At the time Defendant filed his motion, and the trial court denied it, Tenn. R. Crim. P. 36.1 provided in pertinent part:

(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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