Assigned on Briefs April 3, 2018
from the Criminal Court for Shelby County Nos. 03-07370,
03-07371, 04-00221, 04-00733, 05-02372 Carolyn W. Blackett,
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.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Court Affirmed; Case Remanded
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.
Ross Dyer, J., delivered the opinion of the court, in which
D. Kelly Thomas, Jr. and Robert L. Holloway, Jr., JJ.,
ROSS DYER, JUDGE
and Procedural History
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. 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.
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%."
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.
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