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State v. Hardy

Court of Criminal Appeals of Tennessee, Nashville

August 15, 2017

STATE OF TENNESSEE
v.
ATLANTA PEARL HARDY

          ASSIGNED ON BRIEFS JULY 19, 2017

         Appeal from the Davidson County Criminal Court No. 2002-D-1927 J. Randall Wyatt, Judge

         Defendant, 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 Rule 36.1.

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

          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 Tennessee.

          Timothy L. Easter, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and John Everett Williams JJ., joined.

          OPINION

          TIMOTHY L. EASTER, JUDGE

         Factual and Procedural Background

         Over 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. 16, 2014).

         On 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.

         Analysis

         A. Timeliness

         As a 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 ...


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