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State v. Holland

Court of Criminal Appeals of Tennessee, Jackson

December 21, 2017

STATE OF TENNESSEE
v.
TORRY HOLLAND Charged Offense Conviction Offense Charged Offense Conviction Offense

          Assigned on Briefs November 7, 2017

         Appeal from the Criminal Court for Shelby County No. 12-00532, 13-00791 Lee V. Coffee, Judge

         The defendant, Torry Holland, appeals the summary dismissal of his petition, filed pursuant to Tennessee Rule of Criminal Procedure 36.1, to correct what he believes to be an illegal sentence imposed for his convictions of drug and firearms possession. Discerning no error, we affirm the trial court's order of summary dismissal. Although we affirm the order dismissing the defendant's motion, we do notice a clerical error in the judgment form for count 3 in case number 12-00532 that requires entry of a corrected judgment in that count.

         Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed; Remanded

          Torry Holland, Tiptonville, Tennessee, pro se.

          Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Aland Dwyer, Assistant District Attorney General, for the appellee, State of Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Robert L. Holloway, Jr., JJ., joined.

          OPINION

          JAMES CURWOOD WITT, JR., JUDGE

         In case number 12-00532, the Shelby County Grand Jury charged the defendant via an 11-count indictment with alternative counts of possession with intent to sell or deliver 26 grams or more of cocaine, alternative counts of possession with intent to sell or deliver methylenedioxymethamphetamine, alternative counts of possession with intent to sell or deliver oxycodone, alternative counts of possession with intent to sell or deliver dihydrocodeinone, alternative counts of possession with intent to sell or deliver alprazolam, and one count of possession with intent to sell one-half ounce or more of marijuana. In case number 13-00791, the Shelby County Grand jury charged the defendant via a 13-count indictment with alternative counts of possession with intent to sell or deliver .5 grams or more of cocaine, alternative counts of possession with intent to sell or deliver methylenedioxymethamphetamine, alternative counts of possession with intent to sell or deliver dihydrocodeinone, possession of a firearm with the intent to go armed during the commission of a dangerous offense after having been previously convicted of possession of a controlled substance, possession of a firearm by a convicted felon, possession of a handgun after having been previously convicted of driving following designation as a Motor Vehicle Habitual Offender, alternative counts of the possession with intent to sell or deliver marijuana, and alternative counts of possession with intent to sell or deliver promethazine/codeine. In March 2014, the defendant entered into a plea agreement with the State that provided for the following disposition:

Charged Offense
Conviction Offense

possession with intent to sell 26 grams or more of cocaine

possession with intent to sell less than .5 grams cocaine

possession with intent to deliver 26 grams or more of cocaine

dismissed

possession with intent to sell methylenedioxymethamphetamine

criminal attempt to possess with intent to sell methylenedioxymethamphetamine

possession with intent to deliver methylenedioxymethamphetamine

dismissed

possession with intent to sell oxycodone

same

possession with intent to deliver oxycodone

dismissed

possession with intent to sell dihydrocodeinone

same

possession with intent to deliver dihydrocodeinone

dismissed

possession with intent to sell alprazolam

same

possession with intent to deliver alprazolam

dismissed

possession with intent to sell one-half ounce or more of marijuana

possession with intent to sell marijuana

Charged Offense
Conviction Offense

possession with intent to sell .5 grams or more of cocaine

same

possession with intent to deliver .5 grams or more of cocaine

dismissed

possession with intent to sell methylenedioxymethamphetamine

same

possession with intent to deliver methylenedioxymethamphetamine

dismissed

possession with intent to sell dihydrocodeinone

dismissed

possession with intent to deliver dihydrocodeinone

dismissed

possession of a firearm with the intent to go armed during a dangerous felony having been previously convicted of a drug offense

possession of a firearm

possession of a firearm by a convicted felon

dismissed

possession of a handgun having previously been declared a motor vehicle habitual offender

dismissed

possession with intent to sell one-half ounce or more of marijuana

dismissed

possession with intent to deliver one-half ounce or more of marijuana

dismissed

possession with intent to sell promethazine/codeine

dismissed

possession with intent to deliver promethazine/codeine

dismissed

         The agreement provided for a total effective sentence in case number 12-00532 of five years' incarceration with a 30 percent release eligibility percentage. In case number 13-00791, the agreement provided for a total effective sentence of 11 years' incarceration, with the three years of the sentence attributable to the defendant's firearm conviction to be served at 100 percent and the remaining eight years to be served at 30 percent. Because the agreement also provided that the effective sentences in case number 12-00532 and case number 13-00791 are to be served consecutively, the total effective sentence is 16 years with three years to be served at 100 percent and 13 years to be served at 30 percent.

          In December 2016, the defendant moved the court to correct what he believed to be an illegal sentence imposed pursuant to his plea agreement. The defendant claimed that the trial court had ordered that he serve 100 percent of his entire 16-year total effective sentence in violation of his plea agreement and in direct contravention of the applicable law. The defendant also claimed that the trial court had imposed concurrent sentences where consecutive sentence alignment was required by law. The trial court summarily dismissed the motion, finding that the defendant had "grossly and intentionally" misstated the terms of Code section 39-17-1324 relative to the possession of a firearm during the commission of a dangerous felony as well as "grossly misinterpreting the judgments that were entered on these convictions." The court pointed out that a corrected judgment had been entered in August 2014 to clearly effectuate the agreed sentence of 16 years, three years of which was to be served at 100 percent.

         In this appeal, the defendant asserts that the trial court erred by summarily dismissing his motion. He also adds that the trial court erred by entering a corrected judgment form without holding a ...


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