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State v. Cunningham

Court of Criminal Appeals of Tennessee, Jackson

May 25, 2018

STATE OF TENNESSEE
v.
WILLIE JERMAINE CUNNINGHAM

          Assigned on Briefs May 2, 2018

          Appeal from the Criminal Court for Shelby County No. 97-01278, 97-01279 Glenn Ivy Wright, Judge

         Defendant, Willie Jermaine Cunningham, appeals from the dismissal of several attempts to receive relief from an "illegal sentence" under Tennessee Rule of Criminal Procedure 36.1. Because Defendant has failed to state a colorable claim for relief, we affirm the dismissal of the motion for relief.

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

          Lance R. Chism (on appeal) and Sean Muizers (at hearing), Memphis, Tennessee, for the appellant, Willie Jermaine Cunningham.

          Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Muriel Malone and Austin Scofield, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Timothy L. Easter, J., delivered the opinion of the court, in which Alan E. Glenn and J. Ross Dyer, JJ., joined.

          OPINION

          TIMOTHY L. EASTER, JUDGE

         Over two decades ago, Defendant robbed and kidnapped a female victim in a Shelby County store parking lot. See State v. Willie J. Cunningham, No. 02C01-9801-CR-00022, 1999 WL 395415, at *1 (Tenn. Crim. App. June 15, 1999), no perm. app. filed. As a result of the convictions, Defendant was sentenced to ten years for aggravated robbery and twenty years for especially aggravated kidnapping. Id. The trial court ordered the sentences to run consecutively on the basis that Defendant was a dangerous offender. Id. at *1, *5.

         Defendant appealed, arguing in part that his consecutive sentence were improper. This Court disagreed, noting that Defendant's actions of repeatedly threatening the victim's life and pointing a gun at the victim's head on multiple occasions evinced "little or no regard for human life" and a lack of "hesitation about committing a crime in which the risk to human life was high." Id. at *5. This Court also found that both factors in State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995), applied. The Court commented that consecutive sentences were "necessary in order to protect the public from further misconduct, " based on Defendant's "criminal history and his lack of concern for the life of his victim." Id. at *6. Ultimately, this Court concluded that the thirty-year sentence was reasonably related to the severity of the offenses. Id.

         In 2010, Defendant unsuccessfully sought habeas corpus relief. See Willie J. Cunningham v. State, No. W2010-00214-CCA-R3-HC, 2010 WL 4215147, at *1 (Tenn. Crim. App. Oct. 25, 2010), no perm. app. filed. Unsatisfied, Defendant filed a pro se motion to correct an illegal sentence under Tennessee Rule of Criminal Procedure 36.1 in November of 2015. In the motion, Defendant claimed that the trial court abused its discretion by imposing consecutive sentences without making the required finding of the Wilkerson factors. Counsel was appointed and a short hearing was held in July of 2015. The trial court determined that there was no "good faith basis [to determine] that his sentence would be illegal." The trial court acknowledged this Court's affirmance of Defendant's sentence on direct appeal and was unaware of any change in sentencing law that would render Defendant's sentence illegal. As a result, the trial court dismissed the motion.

         Defendant filed a second motion for relief under Rule 36.1 in April of 2016. The second motion merely recounted the issues presented in Defendant's 2015 motion. The trial court recognized the duplicitous nature of the second motion and promptly dismissed it for failing to state a colorable claim.

         Defendant filed an untimely notice of appeal and accompanying motion in which he asked this Court to waive the timely filing of the notice of appeal based on trial counsel's failure to inform Defendant that the trial court denied the second motion for relief under Rule ...


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