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State v. Smith

Court of Criminal Appeals of Tennessee, Jackson

August 28, 2017


          Assigned on Briefs July 25, 2017

         Appeal from the Circuit Court for Hardeman County No. 6139 J. Weber McCraw, Judge

         The pro se defendant, Michael Smith, appeals the summary denial of his motion to correct clerical errors on the face of an order suspending a forty-month sentence for a felony escape conviction. The defendant argues the trial court actually resentenced him to one year, time served, and the order did not accurately reflect this ruling. The defendant further argues the trial court should have entered an amended judgment reflecting the resentencing. On review, we conclude the record is insufficient to support the defendant's arguments and affirm the trial court's denial of the motion.

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

          Michael W. Smith, Whiteville, Tennessee, Pro Se.

          Herbert H. Slatery III, Attorney General and Reporter; Caitlyn Smith, Assistant Attorney General; Mike Dunavant, District Attorney General, for the appellee, State of Tennessee.

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


          J. ROSS DYER, JUDGE

         Facts and Procedural History

         While unclear from the record presented by the defendant, this Court previously summarized the pertinent underlying facts and procedural history in a variety of opinions. Those opinions and our review of the present record indicate that on March 13, 1997, the defendant pled guilty to two counts of rape, two counts of aggravated burglary, and five misdemeanor offenses, receiving concurrent sentences of ten years for each rape conviction, six years for each aggravated burglary conviction, and eleven months, twenty-nine days for each misdemeanor conviction. Michael Wade Smith v. State, No. W1999-01817-CCA-R3-PC, 2000 WL 1664262, at *1 (Tenn. Crim. App. Oct. 23, 2000). In a subsequent petition for post-conviction relief, the defendant alleged he unknowingly and involuntarily entered into the guilty pleas after receiving ineffective assistance of counsel. Id. The post-conviction court denied the petition. Id.

         Upon review, this Court found other grounds for setting aside the defendant's guilty pleas. Id. Because the second rape and aggravated burglary offenses were committed while the defendant was out on bond for the initial charges, the guilty plea agreement violated Tennessee Code Annotated section 40-20-111(b), requiring the sentence for a felony committed while on bail to be served consecutive to the sentence for the initial felony charge. Id. This Court concluded, "[s]ince the [defendant] entered his pleas of guilty with the belief that all sentences would be served concurrently, we do not know whether he would have done so had he known the requirement regarding consecutive sentencing." Id. at *3. We, therefore, remanded the matter to the trial court with instructions it allow the petitioner to withdraw his guilty plea. Id.

         On July 26, 1997, after pleading guilty to the rape and aggravated burglary charges but prior to this Court's remand of his guilty pleas to the trial court, the defendant escaped from prison in Hardeman County and was found nearby several hours later. State v. Michael W. Smith, No. W1999-02413-CCA-R3-PC (Tenn. Crim. App. Oct. 11, 2000). The defendant then pled guilty to felony escape on May 8, 1998. Id. Due to his criminal record, the defendant was sentenced as a Range II multiple offender and received a sentence of forty months. Id. Following a hearing on October 5, 2001, the trial court entered an order on December 3, 2001, suspending the remainder of the defendant's sentence for felony escape. The language used in this order appears to be the basis for the defendant's current appeal.

         Following the remand of his aggravated burglary and rape convictions, on April 29, 2003, the defendant pled guilty to one count of rape and one count of attempted rape with consecutive sentences of eight years at 100% for the rape conviction and three years at 30% for the attempted rape conviction. Michael W. Smith v. State, No. W2005-00246-CCA-R3-PC, 2005 WL 3447679, at *1 (Tenn. Crim. App. Dec. 14, 2005) perm. app. denied (Tenn. Apr. 24, 2006). The remaining charges were dismissed. Id. On May 12, 2004, the defendant filed a petition for post-conviction relief alleging his second guilty plea to rape and attempted rape was unknowingly and involuntarily entered. Id. The post-conviction court denied this motion, and this Court affirmed the denial. Id. at *5.

         On December 6, 2006, the defendant was arrested for violation of probation in the felony escape matter. The defendant filed a petition for habeas corpus alleging "'the petitioner is not and has never been on probation as to this cause, ' and that 'the petitioner received time served from the Honorable [Jon] Kerry Blackwood, Judge, in open court in October 2001 per D.A. Office's request.'" Michael W. Smith v. Delphus Hicks, Sheriff, No. W2007-00320-CCA-R3-HC, 2007 WL 4146227, *1 (Tenn. Crim. App. Nov. 21, 2007). The defendant did not include copies of the judgments of conviction that caused his illegal detention, and, therefore, failed to comply with the ...

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