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State v. Brimmer

Court of Criminal Appeals of Tennessee, Knoxville

October 23, 2017

STATE OF TENNESSEE
v.
DAVID A. BRIMMER

         Appeal from the Circuit Court for Anderson County No. 99CR0137 Donald R. Elledge, Judge.

         The pro 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 trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed Pursuant to Rule 20, Rules of the Court of Criminal Appeals

          David 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 Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Norma McGee Ogle, JJ., joined.

          MEMORANDUM OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE.

         In 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) (Brimmer II).

         While 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 sentence.

         The 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).

         The 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.

         On 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.

         On 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 ...


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