Assigned on Briefs May 2, 2018
from the Criminal Court for Shelby County No. 97-01278,
97-01279 Glenn Ivy Wright, Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
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.
TIMOTHY L. EASTER, JUDGE
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.
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.
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.
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.
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 ...