Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Cohen

Court of Criminal Appeals of Tennessee, Jackson

June 28, 2017

STATE OF TENNESSEE
v.
JARVIS D. COHEN

         Appeal from the Criminal Court for Shelby County Nos. 98-10932-35; 98-05756-60; 98-10946 John W. Campbell, Judge

         The Defendant, Jarvis D. Cohen, appeals the trial court's denial of his motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. After review, we affirm the denial of the Defendant's Rule 36.1 motion.

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

          Terrell L. Tooten, Cordova, Tennessee, for the appellant, Jarvis D. Cohen.

          Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel; Amy P. Weirich, District Attorney General; and Kirby May, Assistant District Attorney General, for the appellee, State of Tennessee.

          Alan E. Glenn, J., delivered the opinion of the court, in which Robert L. Holloway, Jr. and J. Ross Dyer, JJ., joined.

          OPINION

          ALAN E. GLENN, JUDGE

         FACTS

         The Defendant confessed to killing Mr. Choong Rau while in the process of robbing Bryan's Grocery Store on February 6, 1998. See Jarvis D. Cohen v. State, No. W2002-00828-CCA-R3-PC, 2003 WL 21339278, at *1 (Tenn. Crim. App. May 15, 2003), perm. app. denied (Tenn. Oct. 6, 2003). At the same time that he pled guilty to felony murder for the killing of Mr. Rau, the Defendant pled guilty to attempted first degree murder, two counts of especially aggravated robbery, eight counts of aggravated robbery, two counts of attempted aggravated robbery, two counts of aggravated assault, and one count of possession of marijuana with the intent to sell or deliver, arising from other indictments. Id. The Defendant was sentenced to life for the felony murder conviction, twenty years for the attempted first degree murder, twenty years for each count of especially aggravated robbery, twelve years for each count of aggravated robbery, six years for each count of attempted aggravated robbery, six years for each count of aggravated assault, and one year for possession of marijuana with the intent to sell or deliver, with all sentences to run concurrently for an effective life sentence. Id.

         On August 24, 2015, the Defendant filed a motion to correct an illegal sentence pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure. In his motion, the Defendant contended that he was released on bond when he committed some of the offenses, and, therefore, the trial court was required to impose consecutive sentencing on those sentences.

         On January 11, 2016, the State filed a response to the Defendant's motion. In its response, the State gave a detailed recitation of the facts underlying the Defendant's numerous charges and acknowledged that eight of the indictments against the Defendant related to incidents occurring when the Defendant was out on bond and that those sentences should have been run consecutively to one another. However, the State asserted that the Defendant failed to show that the concurrent sentencing was a material component of the plea agreement. The State later filed an amended response on March 28, 2016, asserting the same argument.

         The trial court held a hearing on May 20, 2016, at which the Defendant testified that concurrent sentencing in all of his cases was a material part of why he entered into the plea agreement.

         After the hearing, the trial court issued an order denying the Defendant's motion. The trial court reviewed the history and timeline of the numerous offenses to which the Defendant pled guilty on August 27, 1999. The court acknowledged that it appeared that the Defendant was on bond when he committed some of his crimes and, therefore, the Defendant received an illegal sentence with regard to the offenses committed while on bond. However, the court noted that the Tennessee Supreme Court had recently, in State v. Wooden, 478 S.W.3d 585 (Tenn. 2015), applied habeas corpus analysis to Rule 36.1 claims. The court held that under habeas corpus rules, a claim that a defendant had received a concurrent sentence when consecutive sentencing was required was not an actionable claim. The court denied the Defendant's Rule 36.1 motion because his alleged illegal sentences had either expired or because habeas corpus law "does not allow for the attack of an illegal sentence when it is received as a result of a negotiated plea agreement and [the Defendant] received concurrent sentencing when consecutive sentencing was required by law."

         It appears that the State filed a motion to consider post-judgment facts contemporaneously with its brief in this appeal. With that motion, the State included an affidavit from the Sentence Information Services Manager of the Tennessee Department of Correction, which indicated that all ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.