Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs April 24, 2018
from the Criminal Court for Hamilton County Nos. 196241,
196244, 196247 Tom Greenholtz, Judge No.
Defendant, Leonard Ross, appeals the Hamilton County Criminal
Court's summary denial of his pro se motion to correct an
illegal sentence for his 1993 convictions for especially
aggravated robbery, attempted second degree murder, and
burglary and his effective thirty-five-year sentence. The
Defendant contends that the trial court court erred by
summarily dismissing his motion. We affirm the judgment of
the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Leonard Ross, Wartburg, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter;
Jeffrey D. Zentner, Assistant Attorney General; and Neal
Pinkston, District Attorney General, for the appellee, State
H. Montgomery, Jr., J., delivered the opinion of the court,
in which Alan E. Glenn and Timothy L. Easter, JJ., joined.
H. MONTGOMERY, JR., JUDGE.
Defendant received consecutive sentences of twenty-two years
for especially aggravated robbery, ten years for attempted
second degree murder, and three years for burglary. The
Defendant appealed his convictions, and this court denied
relief. See State v. Leonard Lebron Ross, No.
03C01-9404-CR-00153, 1995 WL 357821 (Tenn. Crim. App. June
15, 1995). The supreme court granted the Defendant's
application for permission to appeal and remanded his case to
this court for reconsideration in light of the then-recent
decision in State v. Wilkerson, 905 S.W.2d 933
(Tenn. 1995). See State v. Leonard Lebron James, No.
03C01-9404-CR-00153 (Tenn. Nov. 27, 1995) (order). Upon
remand, this court affirmed the effective thirty-five-year
sentence and denied relief. See State v. Leonard Lebron
Ross, No. 03C01-9404-CR-00153, 1996 WL 467690 (Tenn.
Crim. App. Aug. 15, 1996).
Defendant sought post-conviction relief on the grounds that
he received the ineffective assistance of counsel and that
the trial court had committed various errors. The
post-conviction court denied relief, and this court affirmed
the post-conviction court's determinations. See
Leonard Lebron Ross v. State, No. 03C01-9802-CR-00077,
1999 WL 357339 (Tenn. Crim. App. June 4, 1999), perm.
app. denied (Tenn. Nov. 22, 1999). In 2003, the
Defendant sought to "correct [an] erroneous
sentence." He alleged that his effective
thirty-five-year sentence violated the "sentencing
guidelines" and that his enhanced sentence was imposed
without notice from the prosecution. The trial court treated
the motion as a petition for a writ of habeas corpus and
denied relief. The Defendant did not appeal but later
unsuccessfully sought error coram nobis relief. See
Leonard Lebron Ross v. State, No. E2007-01133-CCA-R3-PC,
2007 WL 3245422 (Tenn. Crim. App. Nov. 5, 2007) (mem.).
August 23, 2017, the Defendant filed the instant "motion
to correct an illegal sentence" pursuant to Tennessee
Criminal Procedure Rule 36.1. The Defendant contended that
the judgments were illegal because double jeopardy principles
were violated and because he was deprived of his right to a
trial by jury at sentencing. He alleged that his protection
against double jeopardy was violated because the trial court
unlawfully modified the especially aggravated burglary
conviction to burglary without his consent and after jeopardy
attached. He argued that the trial court denied him the right
to a trial by jury at the sentencing hearing because the
court "pronounced the charge burglary, never declaring
the defendant guilty in open court." He requested the
entry of amended judgments reflecting concurrent sentences
for burglary and attempted second degree murder.
trial court entered a written order summarily denying relief.
Relative to the Defendant's argument that the judgments
were void because he did not consent to the
"amendment" from especially aggravated burglary to
burglary, the trial court determined that the Defendant's
contention "depende[d] entirely upon the underlying
conviction being vacated." T he court found that the
Defendant's allegation was not that his burglary sentence
was imposed in contravention of any statutory authority. As a
result, the court determined that the Defendant had failed to
state a cognizable claim for relief.
trial court also treated the Defendant's motion as a
petition for a writ of habeas corpus on the basis that the
trial court lacked jurisdiction to convict and sentence the
Defendant. The court determined that the Defendant's
motion did not state a cognizable claim for habeas corpus
relief. The court determined that the indictment count
charging especially aggravated burglary was not improperly
amended to burglary. The court stated that even if it
determined that the indictment had been improperly amended,
an improper amendment would have only rendered the judgment
voidable, not void. This appeal followed.
Defendant states in his appellate brief that "[t]his is
the appellant[']s second habeas corpus petition. The
[trial court] elected to treat a misplaced Rule 36.1 motion
as a habeas corpus [petition]. However, the issues at bar
have yet to . . . [be] adjudicated." The legal authority
cited by the Defendant is related to habeas corpus relief,
not relief pursuant to Tennessee Criminal Procedure Rule