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State v. Johnson

Court of Criminal Appeals of Tennessee, Jackson

May 9, 2018

STATE OF TENNESSEE
v.
TOBIAS JOHNSON

          Assigned on Briefs April 3, 2018

          Appeal from the Criminal Court for Shelby County Nos. 03-07370, 03-07371, 04-00221, 04-00733, 05-02372 Carolyn W. Blackett, Judge

         The petitioner, Tobias Johnson, appeals from the Shelby County Criminal Court's denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. The petitioner contends his sentence for life with parole eligibility at thirty percent is illegal pursuant to Tennessee Code Annotated sections 40-35-501(i)(1), (i)(2)(A). The petitioner bargained for and received a life sentence pursuant to his plea agreement. The judgment of conviction contains a clerical error because "standard 30%" rather than "violent 100%" was checked for "release eligibility." The petitioner's concurrent sentences for rape and incest have expired. Discerning no error, we affirm the judgment of the trial court summarily dismissing the motion for failure to state a colorable claim, but remand for correction of the clerical error pursuant to Tennessee Rule of Criminal Procedure 36.

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

          Tobias Johnson, Mountain City, Tennessee, pro se.

          Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel; Amy P. Weirich, District Attorney General; and Paul Goodman, Assistant District Attorney General, for the appellee, State of Tennessee.

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

          OPINION

          J. ROSS DYER, JUDGE

         Facts and Procedural History

         The petitioner appeals the dismissal of his motion to correct an illegal sentence. From 2003 to 2005, Shelby County grand juries indicted the petitioner in five cases. Tobias Johnson v. State, No. W2009-01365-CCA-R3-PC, 2011 WL 334275, at *1 (Tenn. Crim. App. Jan. 28, 2011), perm. app. denied (Tenn. June 3, 2011). In case number 03-07370, the grand jury indicted him for the rape of a child, A.H., a Class A felony.[1] Id. In case number 03-07371, the grand jury indicted the petitioner for the aggravated rape of M.M., a Class A felony. Id. In case number 04-00221, the grand jury indicted the petitioner for (1) the murder of T.K. in the perpetration of a kidnapping; (2) the murder of T.K. in the perpetration of child abuse; (3) especially aggravated kidnapping, a Class A felony; and (4) aggravated child abuse, a Class B felony. Id. In case number 04-00733, the grand jury indicted the petitioner for the aggravated rape of C.J., a Class A felony. Id. In case number 05-02372, the grand jury indicted the petitioner for incest, a Class C felony. Id.

         On May 25, 2007, pursuant to a negotiated plea agreement and under the authority of North Carolina v. Alford, 400 U.S. 25 (1970), the petitioner entered best interest guilty pleas in case number 04-00221, to murder in the perpetration of a kidnapping, for which he received a life sentence, "with the possibility of parole;" in case numbers 03-07370 and 03-07371, to the reduced charges of rape, Class B felonies, for which he received eight years as a Range I, standard offender for each; in case number 05-02372 to incest and received three years as a Range I, standard offender. The court ran all the sentences concurrently. Id. The State dismissed counts two through four of case number 04-00221 and dismissed case number 04-00733. Id. The plea agreement for case number 04-00221 indicates release eligibility at "Standard 30%."

         On March 24, 2017, the petitioner filed a motion to correct an illegal sentence, pursuant to Tennessee Rule of Criminal Procedure 36.1. The petitioner argued the judgment form for felony murder reflected an illegal sentence because it showed thirty-percent release eligibility for his life sentence. Additionally, he argued that rape was not a lesser-included offense of rape of a child, and thus these convictions, and their eight-year sentences, were illegal, as were the thirty-percent release eligibilities for these sentences.

         The trial court dismissed the motion on July 10, 2017, finding the petitioner received a legal sentence of life pursuant to his plea agreement, and that his sentences for rape had expired, thus not entitling him to relief. The petitioner initially filed his notice of appeal with the trial court clerk on July 26, 2017. On August 8, 2017, his notice of appeal was returned to him with a note, dated July 28, 2017, informing the petitioner to file his notice directly with the ...


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