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Washington v. State

Court of Criminal Appeals of Tennessee, Jackson

January 10, 2018

BRANDON WASHINGTON
v.
STATE OF TENNESSEE

          Assigned on Briefs October 3, 2017

         Appeal from the Criminal Court for Shelby County Nos. 10-04054, 10-05254, 15-04455 J. Robert Carter, Jr., Judge

         The Petitioner, Brandon Washington, appeals the Shelby County Criminal Court's denial of his petition for a writ of habeas corpus, seeking relief from his convictions of aggravated assault, evading arrest, and various drug offenses. Based upon our review of the record and the parties' briefs, we affirm the judgment of the habeas corpus court.

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

          Brandon Washington, Memphis, Tennessee, Pro se.

          Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Eric Christenson, Assistant District Attorney General, for the appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which John Everett Williams and Alan E. Glenn, JJ., joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE.

         I. Factual Background

         On August 1, 2011, the Petitioner pled guilty in case number 10-04054 to aggravated assault, a Class C felony, intentionally evading arrest in a motor vehicle, a Class D felony, and possession of marijuana with intent to sell, a Class E felony, and received respective sentences of three years, two years, and one year as a Range I, standard offender. He also pled guilty in case number 10-05254 to possession of oxycodone with intent to sell, a Class C felony, possession of Alprazolam with intent to sell, a Class D felony, and possession of marijuana with intent to sell, a Class E felony, and received respective sentences of three years, two years, and one year as a Range I, standard offender. Pursuant to the plea agreement, the Petitioner was to serve the sentences in each case concurrently but was to serve the effective three-year sentences consecutively for a total effective sentence of six years. On September 21, 2011, the trial court filed a probation order, suspending the Petitioner's sentences and placing him on supervised probation for six years. The order specified that the probationary sentence would expire on September 21, 2017. Subsequently, the Petitioner filed and withdrew a petition for post-conviction relief.

         On June 9, 2015, a probation violation warrant was issued. The trial court held a hearing, revoked the Petitioner's probation on July 17, 2015, and ordered that he serve his six-year probation sentence in the Department of Correction with jail credits for the time he spent in confinement. The Petitioner filed a petition for a writ of habeas corpus on October 1, 2015, arguing that his first three-year sentence had expired by the time the probation violation warrant was issued, and therefore, that his probation could not be revoked. He also argued that he had not received proper jail credits. On October 29, 2015, the habeas corpus court denied the petition because the Petitioner "was not on three years of probation to be followed by a second probationary period" and because "[s]upplemental orders were entered ensuring the Petitioner would receive jail credit for the time he had previously been in custody." The Petitioner did not appeal the ruling of the habeas corpus court. In January 2016, the Petitioner filed a motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1, arguing that his sentences were illegal because his pretrial jail credits should have been applied to the sentences for both of his cases. He also maintained that his first three-year sentence had expired and that he should have to serve only one three-year sentence in confinement. On February 3, 2016, the trial court denied the motion, stating that "[t]hese allegations do not require 'correction' of his sentence." This court affirmed the trial court's denial of the motion. State v. Brandon D. Washington, No. W2016-00413-CCA-R3-CD, 2017 WL 2493685 (Tenn. Crim. App. at Jackson, June 9, 2017), perm. app. denied, (Tenn. Oct. 4, 2017).

         On March 24, 2016, the Petitioner pled guilty in case number 15-04455 to possession of Alprazolam with intent to sell, a Class D felony, and possession of marijuana with intent to sell, a Class E felony, and received respective sentences of four years and one year as a Range II, multiple offender. The sentences were to be served concurrently with each other but consecutively to the sentences in case numbers 10-04054 and 10-05254.

         On July 13, 2016, the Petitioner filed a second petition for a writ of habeas corpus, which is the subject of this appeal, arguing for the first time that when he pled guilty in case numbers 10-04054 and 10-05254, he was to receive an effective four-year sentence, not an effective six-year sentence. He asserted that the judgment sheets for his convictions of aggravated assault and possession of oxycodone with intent to sell had been altered "to change those number 2's to number 3's" and, therefore, were facially invalid. He also argued that he did not receive the proper amount of pretrial and post-judgment jail credits; that trial counsel lied to him on September 21, 2011, by telling him that he was being released on probation because his family could no longer pay his bills; and that he was entitled to habeas corpus relief in case number 15-04455 as "fruit of the poisonous tree." On August 8, 2016, the habeas corpus court filed a written order, stating that "[b]y agreement, [the Petitioner] was sentenced to an aggregate sentence of six years" and that "[a] variety of supplemental orders were entered ensuring that Petitioner received jail credit for the time he had previously served in custody on these cases." The court found that the second habeas corpus petition had alleged no grounds for relief and summarily denied the petition.

         II. ...


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