from the Circuit Court for Henderson County No. 05-082 Roy B.
Morgan, Jr., Judge
Appellant, Raymond Ross, appeals from the trial court's
denial of his motion to correct an illegal sentence pursuant
to Rule 36.1 of the Tennessee Rules of Criminal Procedure.
The State has filed a motion requesting that this Court
affirm the trial court's judgment pursuant to Rule 20 of
the Rules of the Court of Criminal Appeals. Following our
review, we grant the State's motion and affirm the
judgment of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed Pursuant to Rule 20 of the Rules of the Court
of Criminal Appeals
Raymond Deshun Ross, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter;
Benjamin A. Ball, Assistant Attorney General; Jerry Woodall,
District Attorney General; and Alfred Earls, Assistant
District Attorney General, for the appellee, State of
Everett Williams, J., delivered the opinion of the Court, in
which Alan E. Glenn and Camille R. McMullen, JJ., joined.
Everett Williams, Judge
Appellant was convicted by a Henderson County jury on March
15, 2006, for carjacking, aggravated assault, theft of
property over $1, 000 and a misdemeanor count of reckless
endangerment. After conviction, the Appellant was sentenced
to a total effective sentence of thirty (30) years as a Range
II offender. On appeal, this Court remanded the case to the
trial court for re-sentencing of the Appellant as a Range I
offender and merged the conviction of misdemeanor reckless
endangerment with the aggravated assault conviction.
State v. Raymond DeShun Ross, No.
W2006-01167-CCA-R3-CD, 2007 WL 3254436 (Tenn. Crim. App. Nov.
2, 2007), perm. app. denied (Tenn. June 30, 2008).
Upon resentencing on remand, the Appellant received an
effective 18 year sentence as a Range I offender.
30, 2009, the Appellant sought post-conviction relief from
the trial court alleging that he had received ineffective
assistance of counsel. After denial of the petition for
post-conviction by the trial court, the Appellate filed an
untimely notice of appeal. The appeal was dismissed by this
Court after concluding that the underlying claim lacked merit
and therefore the interests of justice did not excuse the
untimely filing of the notice of appeal. State v. Raymond
Ross, No. W2010-00875-CCA-R3-PC (Tenn. Crim. App. Sep.
appellant has now filed two separate motions to correct an
illegal sentence pursuant to Rule 36.1 of the Tennessee Rules
of Criminal Procedure. The first was filed on January 14,
2016, and alleged that his sentence was illegal due to errors
made by the sentencing court in the application of the
sentencing laws. The January 14, 2016 motion was denied by
the trial court and the ruling was affirmed on appeal.
See State v. Ross, No. W2016-01220-CCA-R3-CD (Tenn.
Crim. App. Aug. 24, 2017). The Appellant filed the present
motion in question on November 18, 2016, alleging that his
sentence is illegal due to the failure to properly award him
his pre-trial credits. The trial court summarily dismissed
this motion through entry of an order on December 6, 2016
which was timely appealed by the Appellant.
the timely filing of the notice of appeal, the appellate
record was compiled and submitted by the trial court clerk.
The Appellant has filed a brief in support of his appeal and
the State of Tennessee has responded with the filing of a
motion to affirm the ruling of the trial court pursuant to
Rule 20 of the Rules of the Court of Criminal Appeals.
Rule of Criminal Procedure 36.1 provides the following
mechanism for seeking the correction of an illegal sentence
by stating in part:
(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
movant shall attach to the motion a copy of each previous
motion and the court's disposition thereof or shall state
satisfactory reasons for the failure to do so. (2) For
purposes of this rule, an illegal sentence is one that is not
authorized by the applicable statutes or that directly
contravenes an applicable statute.
(b)(1) Notice of any motion filed pursuant to this rule shall
promptly be provided to the adverse party. The adverse party
shall have thirty days within which to ...