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State v. Cardenas

Court of Criminal Appeals of Tennessee, Nashville

April 17, 2018

STATE OF TENNESSEE
v.
ARTURO CARDENAS, JR.

          Assigned on Briefs April 3, 2018 at Jackson

          Appeal from the Criminal Court for Davidson County No. 2008-D-4177 Seth W. Norman, Judge

         Arturo Cardenas, Jr., filed a Tennessee Rule of Criminal Procedure 36.1 motion claiming that his sentence for a Class A felony drug offense was illegal because he was classified as a Range I standard offender but sentenced to serve his fifteen-year sentence at 100%. Finding that the Movant received the minimum mandatory sentence for a Class A felony drug offense committed in a drug free school zone, the trial court summarily dismissed the motion for failure to state a colorable claim. Discerning no error, we affirm.

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

          Arturo Cardenas, Jr., Clifton, Tennessee, pro se.

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

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and J. Ross Dyer, JJ., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE

         In 2008, the Movant, Arturo Cardenas, Jr., was indicted in Count 1 for knowingly "possess[ing] with intent to deliver three hundred (300) pounds (316, 050 grams) or more of a substance containing marijuana, a Schedule VI controlled substance within 1, 000 feet of the grounds of a child care agency and a public elementary school, in violation of Tennessee Code Annotated § 39-17-417, " a Class A felony.[1] The Movant was convicted by a Davidson County jury of the offense charged in Count 1 of the indictment. According to the judgment of conviction, the Movant was sentenced as a Range I standard offender to fifteen years. The box before "violent 100%" is checked.

         On July 14, 2017, the Movant filed a pro se "Motion for Correction of Illegal Sentence" pursuant to Tennessee Rules of Criminal Procedure 36.1. The Movant claimed that "his illegal sentence which has him classified as a standard, violent offender with a release eligibility of one-hundred percent . . . is in direct contravention of the express provision of Tenn. Code Ann. §§ 40-6-106 and 39-17-417[.]" In his supporting affidavit, the Movant averred:

that by the trial court increasing his felony classification to a "Class A" and by requiring service of the entire minimum sentence upon conviction for possession of three hundred (300) pound[s] of marijuana, a schedule VI controlled substance within 1, 000 feet of a school (Trevec[c]a Nazarene University) is illegal where the Tennessee Drug Free School Zone Act according to evidence and Tenn. Code Ann. [§] 39-17-432(b) did not apply based on the language of the statute.

         The affidavit also claimed that the warehouse in which the marijuana was located was more than 1, 000 feet from Trevecca Nazarene University, that the Movant "was not responsible for possession" of the marijuana, and that the affidavit of complaint, which Movant claimed was not notarized, "did not evolve into an arrest warrant and was insufficient to commence the prosecution."

         On July 19, 2017, the trial court filed a written order summarily dismissing the motion after finding that the Movant received "the minimum mandatory sentence per T.C.A. [§] 39-17-417 and T.C.A. [§]39-17-432, " that the sentence was not illegal, and that the motion failed to state a colorable claim. The order recognized "that there was a clerical error on the judgment form" and that "[a]lthough the [Movant]'s sentence is to be served at 100%, it is not a violent offense as indicated on the judgment form." The trial court ordered that a corrected judgment "be entered forthwith in accordance with this order."

         The corrected judgment provided that the Movant was sentenced as a standard offender to fifteen years. The number "15" was written in the blank after "Mandatory Minimum Sentence Length" and "39-17-417" was circled. "Drug Free School Zone. 15 yr @ 100%." was ...


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