Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs February 27, 2018
from the Criminal Court for Hamilton County No. 215412 Don W.
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.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
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.
H. Montgomery, Jr., J., delivered the opinion of the court,
in which James Curwood WItt, Jr., and D. Kelly Thomas, Jr.,
H. MONTGOMERY, JR., JUDGE
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."
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).
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).
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.
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