Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs August 9, 2016
from the Circuit Court for Maury County No. 17884 Stella L.
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.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
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
T. Woodall, P.J., delivered the opinion of the court, in
which Robert H. Montgomery, Jr., and J. Ross Dyer, JJ.,
T. WOODALL, PRESIDING JUDGE
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).
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.
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
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.
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