Court of Criminal Appeals of Tennessee, Knoxville
from the Criminal Court for Greene County No. 05CR193 Thomas
J. Wright, Judge.
se appellant, David Wayne Hearing, appeals as of right from
the Greene County Criminal Court's order denying his
motion for correction of clerical mistake. Tenn. R. Crim. P.
36. The State has filed a motion requesting that this court
affirm the trial court's denial of relief pursuant to
Rule 20 of the Rules of the Tennessee Court of Criminal
Appeals. Following our review, we conclude that the
State's motion is well-taken and affirm the judgment of
the Greene County Criminal Court.
R. App. P. 3; Judgment of the Criminal Court Affirmed
Pursuant to Rule 20, Rules of the Court of Criminal Appeals.
Wayne Hearing, Clifton, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Clark
B. Thornton, Senior Counsel; Dan E. Armstrong, District
Attorney General, for the appellee, State of Tennessee.
McGee Ogle, J., delivered the opinion of the Court, in which
James Curwood Witt, Jr., and Robert H. Montgomery, Jr., JJ.,
MCGEE OGLE, JUDGE.
court has detailed previously the procedural history of the
appellant's challenges to his first degree murder
The Appellant pleaded guilty to two counts of first degree
murder and pursuant to a plea agreement, was sentenced to
serve a life sentence of incarceration. Less than thirty days
after accepting a guilty plea, the Appellant filed a motion
to withdraw his guilty plea. The trial court interpreted this
motion as a petition for post-conviction relief, and denied
the motion. This court reversed and remanded for the trial
court to view the motion as a motion to withdraw a guilty
plea. David Wayne Hearing v. State, No.
E2006-00362-CCA-R3-PC, 2006 WL 3813625, at *1 (Tenn. Crim.
App. December 28, 2006). Following a hearing, the trial court
denied the Appellant's motion to withdraw his guilty
plea, and this court affirmed the trial court's decision.
David Wayne Hearing v. State, No.
E2007-00778-CCA-R3-PC, 2008 WL 481781, at *1 (Tenn. Crim.
App. February 22, 2008), perm. app. denied (Tenn.
June 23, 2008).
Next, the Appellant filed a petition for post-conviction
relief, which the trial court denied. This court affirmed the
trial court's denial of the Appellant's petition for
post-conviction relief. David Wayne Hearing v.
State, No. E2009-02430-CCA-R3-PC, 2010 WL 3837535, at *1
(Tenn. Crim. App. October 4, 2010), perm. app.
denied (Tenn. March 9, 2011).
Thereafter, the Appellant filed a petition for a writ of
error coram nobis. The trial court denied this petition and
the Appellant appealed. Before this court issued its opinion
affirming the denial of error coram nobis relief, 1 the
Appellant filed a motion to correct an illegal sentence under
Rule 36.1 (first Rule 36.1 motion). The trial court appointed
counsel, and the State filed a response arguing "that
the trial court should dismiss the motion without a hearing
because the issue had been previously raised and determined
and because the appellant's judgments of conviction
showed that he pled guilty to two counts of first degree
murder and received life sentences." Thereafter, the
trial court dismissed the Appellant's motion finding that
the motion failed to state a colorable claim. On appeal, this
court affirmed the dismissal. State v. David Wayne
Hearing, No. E2014-01908-CCA-R3-CD, 2015 WL 2128600, at
*1 (Tenn. Crim. App. May 6, 2015).
On September 29, 2014, nineteen days after the trial court
denied the Appellant's first Rule 36.1 motion and seven
days after counsel for Appellant filed the notice of appeal
in the Appellant's first Rule 36.1 case, the Appellant
filed pro se a second Rule 36.1 motion. On January 9, 2015,
the trial court summarily dismissed the Appellant's
motion finding the motion was "a rehash of the same
issue about release eligibility that has been litigated in
this Court before." The Appellant filed his notice of
appeal on January 23, 2015.
State v. Hearing, No. E2015-00173-CCA-R3-CD, 2015 WL
4710393, at *1-2 (Tenn. Crim. App. Aug. 7, 2015),
perm. app. denied (Dec. 10, 2015). On
appeal, this court affirmed the trial court's summary
dismissal of the appellant's second Rule 36.1 motion,
The Appellant in his second Rule 36.1 motion argues that his
sentence was illegal because he bargained for life with
possibility of parole but was sentenced to life. That is the
same argument he made in the first Rule 36.1 motion. That
argument has no more merit now than it did when his first
Rule 36.1 motion was denied by the ...