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State v. Vick

Court of Criminal Appeals of Tennessee, Knoxville

March 19, 2018

STATE OF TENNESSEE
v.
TRACY LEBRON VICK

          Assigned on Briefs February 27, 2018

         Appeal from the Criminal Court for Hamilton County No. 215412 Don W. Poole, Judge

         The Defendant, Tracy Lebron Vick, pleaded guilty to second degree murder and received a forty-year, Range II sentence to be served at 85%. Nineteen years after his sentencing, he filed a motion pursuant to Tennessee Rule of Criminal Procedure 36.1 alleging that his sentence was illegal because 100% service was statutorily mandated but that the trial court imposed 85% service in his case. The trial court summarily dismissed the motion on the basis that it failed to state a colorable claim. We affirm the trial court's judgment.

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

          Tracy Lebron Vick, Wartburg, Tennessee, Pro Se.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; M. Neal Pinkston, 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 D. Kelly Thomas, Jr., JJ., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE

         The Defendant's conviction relates to the September 20, 1996 death of Melva Moore, whom the Defendant shot as he attempted to enter Ms. Moore's home to rob her boyfriend. The Defendant was charged with first degree murder and agreed to plead guilty to second degree murder as a Range II offender. The court imposed a maximum, forty-year sentence to be served consecutively to the sentence for a prior conviction. A handwritten notation on the judgment states that the Defendant is to serve his sentence "at at least 85% pursuant to [Tennessee Code Annotated section] 40-35-501." The transcript of the guilty plea hearing reflects that the trial court advised the Defendant that he was a Range II offender, that he would "have to serve eighty-five percent of that sentence before [his] release-eligibility date, " and that the Defendant acknowledged his understanding. The transcript of the sentencing hearing reflects the court's comment, "The law says you're required to serve 35 percent of that [sentence] but another section of the law that was enacted in TCA 40-35-501 says that you will serve 85 percent of that sentence."

         The Defendant appealed the length of his sentence and the imposition of consecutive sentencing, and this court affirmed the trial court's judgment. See State v. Tracy Lebron Vick, No. 03C01-9803-CR-00100, 1999 WL 652452 (Tenn. Crim. App. Aug. 27, 1999), perm. app. denied (Tenn. Feb. 28, 2000). The Defendant later pursued post-conviction relief, which was denied. See Tracy Lebron Vick v. State, No. E2002-01761-CCA-R3-PC, 2003 WL 21172319 (Tenn. Crim. App. May 20, 2003), perm. app. denied (Tenn. Oct. 6, 2003).

         In May 2017, the Defendant filed a petition for post-conviction DNA analysis pursuant to Tennessee Code Annotated sections 40-30-301 to -313. The trial court denied the petition, and the Defendant's appeal is pending in this court. See Tracy Lebron Vick v. State, No. E2017-01333-CCA-R3-PC (Tenn. Crim. App. docketed February 27, 2018).

         In June 2017, the Defendant filed the present motion for correction of an illegal sentence. See Tenn. R. Crim. P. 36.1. He alleged that although 100% service was statutorily mandated for his conviction offense, the sentence he received required 85% service and was, therefore, illegal. The trial court summarily denied the motion on the basis that Rule 36.1 relief was unavailable to a defendant whose plea agreement contained a material component that was illegal but "to the defendant's benefit." See id. On appeal, the Defendant contends that the trial court erred in summarily denying his motion without a response from the State, appointment of counsel, and a hearing and that Rule 36.1, Tennessee Code Annotated section 29-21-101, and other unspecified Tennessee laws are unconstitutional because they do not provide him with an avenue for relief.

         Tennessee Rule of Criminal Procedure 36.1 provides:

(a)(1) Either the defendant or the state may seek to correct an illegal sentence by filing a motion to correct an illegal sentence in the trial court in which the judgment of conviction was entered. Except for a motion filed by the state pursuant to subdivision (d) of this rule, a motion to correct an illegal sentence must be filed before the sentence set forth in the judgment order expires. The movant must attach to the motion a copy of each judgment order at issue and may attach other relevant documents. The motion shall state that it is the first motion for the correction of the illegal sentence or, if a previous motion has been made, the ...

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