Assigned on Briefs August 1, 2017
from the Circuit Court for Henderson County No. 05-082-1 Roy
B. Morgan, Jr., Judge
defendant, Raymond Deshun Ross, appeals the dismissal of his
motion, filed pursuant to Tennessee Rule of Criminal
Procedure 36.1, to correct what he believes to be an illegal
sentence imposed for his 2005 Henderson County Circuit Court
jury convictions of aggravated assault, carjacking, felony
theft, and misdemeanor reckless endangerment. Discerning no
error, we affirm.
R. App. P. 3; Judgment of the Circuit Court Affirmed
Michael Thorne, Lexington, Tennessee, for the appellant,
Raymond Deshun Ross.
Herbert H. Slatery III, Attorney General and Reporter;
Benjamin A. Ball, Assistant Attorney General; Jerry Woodall,
District Attorney General; and Angela R. Scott, Assistant
District Attorney General, for the appellee, State of
Curwood Witt, Jr., J., delivered the opinion of the court, in
which Robert W. Wedemeyer and Timothy L. Easter, JJ., joined.
CURWOOD WITT, JR., JUDGE.
October 2005, the Henderson County Grand Jury charged the
defendant with aggravated assault, carjacking, felony theft,
and attempted second degree murder. A Henderson County
Circuit Court jury convicted the defendant as charged of the
first three offenses and convicted him of the lesser included
offense of reckless endangerment. State v. Raymond Deshun
Ross, No. W2006-01167-CCA-R3-CD, slip op. at 1 (Tenn.
Crim. App, Jackson, Nov. 2, 2007). Following a sentencing
hearing, the trial court sentenced the defendant as a Range
II offender and imposed an effective sentence of 30
years' incarceration. Id., slip op. at 10. This
court remanded the case to the trial court with instructions
to merge the convictions of reckless endangerment and
aggravated assault and to resentence the defendant as a Range
I offender. Id., slip op. at 1. On remand, the trial
court properly effectuated the merger and resentenced the
defendant to an effective sentence of 18 years'
30, 2009, the defendant filed a timely petition for
post-conviction relief, alleging that his trial counsel had
performed deficiently by, inter alia, "failing
to raise and preserve a claim pursuant to" Apprendi
v. New Jersey, 530 U.S. 466 (2000), and Blakely v.
Washington, 542 U.S. 296 (2004), and their progeny and
"by permitting the trial court to sentence [him]
pursuant to the 2005 amendments to the Sentencing Act without
[his] executing a waiver of his ex post facto
protections." Raymond Ross v. State, No.
W2010-00875-CCA-R3-PC, slip op. at 2 (Tenn. Crim. App.,
Jackson, Sept. 29, 2010). The post-conviction court denied
the petition, and the defendant filed an untimely notice of
appeal, based solely on the argument that the imposition of
consecutive sentencing violated the tenets of
Blakely. Id., slip op. at 3. This court
dismissed the appeal, finding that "the interests of
justice [did] not excuse the untimely filing of the notice of
appeal" because the defendant had waived the
Blakely issue by failing to raise it on direct
appeal and because "the claim itself is without
merit." Id., slip op. at 3, 4.
January 14, 2016, the defendant, acting pro se, moved the
trial court pursuant to Rule 36.1 to correct his sentence,
again arguing that he had been illegally sentenced under the
amended 2005 Sentencing Act without a waiver of his ex post
facto protections and that his sentence had been improperly
enhanced in violation of Blakely. Following the
appointment of counsel, the trial court conducted a hearing
on the motion, at which hearing the parties presented no
proof or testimony but merely presented argument to the
court. On March 29, 2016, the trial court dismissed the
defendant's motion for failing to state a colorable
claim. The defendant again filed an untimely notice of
appeal, but this court waived the timely-filing requirement
in the interest of justice.
appeal, the defendant reiterates his claim of entitlement to
Rule 36.1 relief, arguing that his sentence was illegally
enhanced under Blakely and that he had never waived
his ex post facto protections. In the alternative, the
defendant requests that this court review his sentence for
36.1 provides the defendant and the State an avenue to
"seek the correction of an illegal sentence, "
defined as a sentence "that is not authorized by the
applicable statutes or that directly contravenes an
applicable statute." Tenn. R. Crim. P. 36.1; see
also State v. Wooden, 478 S.W.3d 585, 594-95 (Tenn.
2015) (holding that "the definition of 'illegal
sentence' in Rule 36.1 is coextensive with, and not
broader than, the definition of the term in the habeas corpus
context"). To avoid summary denial of an illegal
sentence claim brought under Rule 36.1, a defendant must
"state with particularity the factual allegations,
" Wooden, 478 S.W.3d at 594, establishing
"a colorable claim that the sentence is illegal, "
Tenn. R. Crim. P. 36.1(b). "[F]or purposes of Rule 36.1
. . . 'colorable claim' means a claim that, if taken
as true and viewed in a light most favorable to the moving
party, would entitle the moving party to relief under Rule
36.1." Wooden, 478 S.W.3d at 593. The
determination whether a Rule 36.1 "motion states a
colorable claim for correction of an illegal sentence under
Rule 36.1 is a question of law, to which de novo review
applies." Id. at 589 (citing Summers v.
State, 212 S.W.3d 251, 255 (Tenn. 2007)).
instant case, even if the defendant's claim of improper
sentencing enhancement under Blakely were true, it
would not render the sentence illegal or the judgment void.
"[A] Blakely violation does not meet the Rule
36.1 definition of an illegal sentence and does not establish
a void or otherwise illegal judgment." State v.
Rafael Antonio Bush, No. M2014-01193-CCA-R3-CD, slip op.
at 6 (Tenn. Crim. App., Nashville, Dec. 18, 2014), perm.
app. denied (Tenn. Mar. 12, 2015). Moreover, as
previously discussed, this court addressed the
defendant's Bla ...