Court of Criminal Appeals of Tennessee, Knoxville
from the Circuit Court for Anderson County No. 99CR0137
Donald R. Elledge, Judge.
se Appellant, David A. Brimmer, appeals the Anderson County
Circuit Court's order summarily dismissing his motion to
correct an illegal sentence. See Tenn. R. Crim. P.
36.1. The State has filed a motion to affirm the trial
court's order pursuant to Tennessee Court of Criminal
Appeals Rule 20. Following our review, we conclude that the
State's motion is well-taken and affirm the order of the
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed Pursuant to Rule 20, Rules of the Court of
A. Brimmer, Pro Se, Mountain City, Tennessee.
Herbert H. Slatery III, Attorney General and Reporter;
Benjamin Ball, Assistant Attorney General; and David S.
Clark, District Attorney General, for the appellee, State of
H. Montgomery, Jr., J., delivered the opinion of the court,
in which James Curwood Witt, Jr., and Norma McGee Ogle, JJ.,
H. MONTGOMERY, JR., JUDGE.
1991, an Anderson County Circuit Court jury convicted the
Appellant of first degree murder and sentenced him to death
for the October 1989 death of Rodney Compton. On direct
appeal, the Tennessee Supreme Court affirmed the
Appellant's conviction and sentence. State v.
Brimmer, 876 S.W.2d 75 (Tenn. 1994), cert.
denied, 115 S.Ct. 585 (1994) (Brimmer I). The
Appellant filed a petition for post-conviction relief. On
appeal, this court reversed the judgment of the
post-conviction court and granted the Appellant a new
sentencing hearing based upon the ineffective assistance of
counsel at the penalty phase of the trial. Brimmer v.
State, 29 S.W.3d 497 (Tenn. Crim. App. 1998)
both the Appellant's and the State's applications for
permissive review were pending before the Tennessee Supreme
Court, the Appellant negotiated to plead guilty by
information to one count of aggravated kidnapping of the
victim in exchange for the State's withdrawing its notice
to seek the death penalty. Pursuant to the negotiated plea
agreement, the Appellant was sentenced to sixty years'
incarceration to be served as a violent offender for the
aggravated kidnapping conviction and to life for the first
degree murder conviction. By agreement, the life sentence was
ordered to be served consecutively to the sixty-year
Appellant filed a petition for post-conviction relief
challenging the voluntariness of his plea and the legality of
the sentence, the denial of which was affirmed by this court
on appeal. David Brimmer v. State, No.
E2005-02328-CCA-R3-PC, 2006 WL 3455219 (Tenn. Crim. App. Nov.
30, 2006), perm. app. denied (Tenn. Apr. 23, 2007)
(Brimmer III). The Appellant then challenged the
legality of the sixty-year sentence via a petition for a writ
of habeas corpus, alleging that the sentence was illegal
because it was not an available punishment at the time of the
offense. This court affirmed the habeas corpus court's
denial of relief. David Allen Brimmer v. David Sexton,
Warden, No. E2013-01987-CCA-R3-HC, 2014 WL 1759096
(Tenn. Crim. App. Apr. 30, 2014) (Brimmer IV).
Appellant then filed his first motion to correct an illegal
sentence pursuant to Tennessee Rule of Criminal Procedure
36.1, alleging that the sixty-year sentence for aggravated
kidnapping was illegal "because aggravated kidnapping is
a Class B felony for which the sentence cannot exceed 30
years." State v. David A. Brimmer, No.
E2014-01393-CCA-R3-CD, 2014 WL 7201795, at *2 (Tenn. Crim.
App. Dec. 18, 2014), perm. app. denied (Tenn. Apr.
10, 2015) (Brimmer V). This court affirmed the trial
court's denial of relief, concluding that the Appellant
had failed to state a colorable claim for Rule 36.1 relief.
Id. We concluded that the Appellant was convicted of
the offense of aggravated kidnapping as it existed at the
time of the offense, but he received the benefit of the more
lenient sentence provided by the 1989 Act. Id.
Further, this court noted that the Appellant's agreeing
to plead outside his sentencing range did not render the
sentence illegal. Id. at *4-5.
March 9, 2017, the Appellant filed the instant motion to
correct an illegal sentence, once again challenging the
legality of the sentence for aggravated kidnapping. In this
motion to correct an illegal sentence, however, the Appellant
alleged that the sixty-year sentence to be served at one
hundred percent as a Violent Offender for aggravated
kidnapping is illegal because the one hundred percent release
eligibility rendered the sentence under the 1989 Criminal
Sentencing Reform Act more onerous than a sentence of life
imprisonment with a release eligibility of twenty-five years
under the 1982 Criminal Sentencing Reform Act. On March 24,
2017, the trial court denied the Appellant's motion,
ruling that the Appellant had again failed to raise a
colorable Rule 36.1 claim.
appeal, the Appellant argues that the trial court's
summary denial was erroneous. The State argues that this
court should affirm the trial court's summary dismissal
by memorandum opinion because the Appellant failed to state a
colorable claim for relief pursuant to Rule 36.1 and that the