Court of Criminal Appeals of Tennessee, Nashville
ASSIGNED ON BRIEFS JULY 19, 2017
from the Davidson County Criminal Court No. 2002-D-1927 J.
Randall Wyatt, Judge
Atlanta Pearl Hardy, was convicted of second degree murder in
2004 and now appeals the trial court's denial of her
motion to correct an illegal sentence under Tennessee Rule of
Criminal Procedure 36.1. Upon review of the record, this
Court affirms the trial court's denial of relief under
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Atlanta Pearl Hardy, Nashville, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter;
Breanne N. Hataway, Assistant Attorney General; Glenn R.
Funk, District Attorney General; and Amy M. Hunter, Assistant
District Attorney General, for the appellee, State of
Timothy L. Easter, J., delivered the opinion of the court, in
which James Curwood Witt, Jr., and John Everett Williams JJ.,
TIMOTHY L. EASTER, JUDGE
and Procedural Background
thirteen years after Defendant was convicted of second degree
murder, she appeals the trial court's denial of relief
under Tennessee Rule of Criminal Procedure Rule 36.1. On May
4, 2004, Defendant was sentenced as a career offender to
sixty years at 100 percent for her role in the 2002 murder of
Brian Hunter. This Court affirmed the judgment on direct
appeal. State v. Carlos Hardy and Atlanta Hardy, No.
M2004-02249-CCA-R3-CD, 2006 WL 359677, at *1 (Tenn. Crim.
App. Feb. 10. 2006), perm. app. denied (Tenn. July
3, 2006). Defendant filed a timely petition for
post-conviction relief that was denied by the trial court.
Atlanta Hardy v. State, No. M2007-01498-CCA-R3-CD,
2008 WL 2924530, at *1 (Tenn. Crim. App. July 20, 2008),
perm. app. denied (Tenn. Dec. 8, 2008). This Court
affirmed the post-conviction court's ruling. Id.
at *14. Defendant attempted to reopen her petition for
post-conviction relief but failed to properly perfect an
appeal in this Court after her petition was denied in the
trial court. Atlanta P. Hardy v. State, No.
M2013-01809-CCA-R3-PC (Tenn. Crim. App. Sept. 4, 2013) (Order
Dismissing Appeal), perm. app. denied (Tenn. Jan.
April 20, 2015, Defendant filed a pro se motion to correct an
illegal sentence under Tennessee Rule of Criminal Procedure
36.1. Defendant argued that her sentence was illegal due to
the State's failure file a notice of intent to seek
career offender status before trial and that her sentence was
illegally enhanced in violation of Blakely v.
Washington, 542 U.S. 296 (2004). On January 31, 2017,
the trial court summarily dismissed the motion for failure to
state a colorable claim. Defendant subsequently filed an
untimely notice of appeal to this Court.
preliminary matter, the State argues that this appeal should
be dismissed due to Defendant's failure to file a timely
notice of appeal. Generally, the notice of appeal must be
filed within thirty days from the date the final order was
entered. Tenn. R. App. P. 4(a). The notice of appeal was
received eleven days late on March 13, 2017. On the notice of
appeal, however, Defendant claimed that it was
"delivered to prison authorities for mailing on March 2,
2017." Tennessee Rule of Appellate Procedure 20(g)
provides that a filing is deemed timely for incarcerated pro
se litigants who "delivered their papers to the
appropriate individual at the correctional facility within
the time fixed for filing." Even though Defendant's
notice of appeal was unsigned, it ...