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State v. Sanders

Court of Criminal Appeals of Tennessee, Nashville

February 20, 2018

STATE OF TENNESSEE
v.
TERRY SANDERS

          Assigned on Briefs February 14, 2018

         Appeal from the Circuit Court for Houston County No. 5130 Larry J. Wallace, Judge

         Terry Sanders, the Movant, filed a "Motion to Correct Illegal Sentence" pursuant Rule 36.1 of the Tennessee Rules of Criminal Procedure claiming that his sentence was illegal because the State failed to comply with the ten-day notice requirement of intent to seek enhanced punishment, the State intentionally filed an improper notice to interfere with the Movant's due process rights, and the trial court erred in calculating his prior felony convictions and sentencing him as a career offender. The trial court found that the Movant failed to state a colorable claim and summarily dismissed the motion. We affirm.

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

          Terry Sanders, Nashville, Tennessee, pro se.

          Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant Attorney General; Glenn Funk, District Attorney General; and Craig S. Monsue, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Robert W. Wedemeyer, J., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE

         Procedural History

         In case 5130, the Movant was convicted by a jury of two counts of the sale of less than 0.5 grams of cocaine, a Class C felony, in violation of Tennessee Code Annotated section 39-17-417 and was sentenced, as a career offender, [1] to fifteen years for each count, to be run consecutively with each other and consecutively to violations of community corrections in cases 4456, 4457, 4458, 4527, 4528, and 4693. On direct appeal, this court affirmed the convictions. State v. Terry Sanders, No. M2011-00426-CCA-R3-CD, 2012 WL 5948885, at *1 (Tenn. Crim. App. Nov. 15, 2012), perm. app. denied (Tenn. Mar. 5, 2013). The Defendant did not challenge his sentence on direct appeal.

         The Movant then filed a petition for post-conviction relief alleging that he received the ineffective assistance of counsel and various procedural errors at trial. After appointment of counsel an amended petition was filed. One of the grounds raised in the amended petition was that "[the Movant] was sentenced to an enhanced range, which was founded upon constitutionally infirm convictions, prior presentence reports and judgments." Following a hearing, the post-conviction court entered a thirty-four page memorandum opinion addressing every issue raised in the pro se petition and amended petition. As to the issue regarding sentencing, the post-conviction court stated:

[The Movant] has not specified why his '"convictions, prior presentence reports and judgments" were "constitutionally infirm". This Court can only speculate that he refers to the fact that the trial judge was also the trial judge on some of [the Movant's] previous convictions and that the said trial judge was the prosecuting attorney on others. As has been ruled upon hereinabove, these facts do not disqualify the trial judge from presiding in [the Movant's] present cases. Likewise, it does not prevent the trial judge from considering these prior convictions in sentencing [the Movant].
The issue is without merit.

         The post-conviction court denied relief and the Movant timely appealed. This court affirmed the judgment of the post-conviction court on appeal. Terry D. Sanders v. State, No. M2014-00236-CCA-R3-PC, 2014 WL 5502380, at *1 ...


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