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Carpenter v. Ford

Court of Criminal Appeals of Tennessee, Jackson

June 6, 2018

JERMAINE RASHAD CARPENTER
v.
TAMARA FORD, WARDEN

          Assigned on Briefs December 5, 2017

          Appeal from the Circuit Court for Hardeman County No. CC-17-CR-103 Joe H. Walker, III, Judge

         The pro se Petitioner, Jermaine Rashad Carpenter, appeals the summary dismissal of his petition for writ of habeas corpus. Following our review, we affirm the dismissal of the petition.

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

          Jermaine Rashad Carpenter, Whiteville, Tennessee, Pro Se.

          Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant Attorney General, for the appellee, State of Tennessee.

          Alan E. Glenn, J., delivered the opinion of the court, in which John Everett Williams and J. Ross Dyer, JJ., joined.

          OPINION

          ALAN E. GLENN, JUDGE

         FACTS and PROCEDURAL HISTORY

         In 2004, a Sullivan County jury convicted the Petitioner in case number S47, 268 of possession of cocaine with intent to sell, possession with intent to sell or deliver a Schedule III controlled substance, driving with his license suspended, and driving a motor vehicle without operational brake lights. See State v. Jermaine Rashad Carpenter, No. E2006-00775-CCA-R3-CD, 2007 WL 596425, at *1 (Tenn. Crim. App. Feb. 27, 2007); see also State v. Jermaine Carpenter, No. E2016-00450-CCA-R3-CD, 2016 WL 5416350, at *1 (Tenn. Crim. App. Sept. 28, 2016). The Petitioner pled guilty to other drug-related offenses in other pending cases and was sentenced by the trial court for all the cases to an effective term of seventeen years in community corrections followed by four years of probation. The trial court later revoked the community corrections placement and ordered that the Petitioner serve his twenty-one-year sentence in confinement. Jermaine Carpenter, 2016 WL 5416350 at *1.

         Also in 2014, the Petitioner was convicted by a Sullivan County jury in case number S51, 080 with two counts of the sale and delivery of more than .5 grams of cocaine within 1000 feet of a school zone, a Class A felony, and simple possession of cocaine, a Class A misdemeanor, and was sentenced to an effective term of twenty-five years in the Department of Correction, to be served consecutively to his twenty-one-year effective sentence in the previous cases. His convictions and sentences were affirmed by this court on direct appeal, and our supreme court denied his application for permission to appeal. See State v. Jermaine Rashad Carpenter, No. E2007-02498-CCA-R3-CD, 2009 WL 331330, at *1 (Tenn. Crim. App. Feb. 11, 2009), perm. app. denied (Tenn. Aug. 17, 2009).

         In 2015 and 2016, the Petitioner filed a Tennessee Rule of Criminal Procedure 36.1 motion and an amended motion in which he alleged, among other things: that the one hundred percent sentencing required by the Drug-Free School Zone Act contravenes Tennessee Code Annotated section 40-35-501, which enumerates the offenses for which there is no release eligibility; that the Drug-Free School Zone Act is unconstitutional; and that possession with intent to sell cocaine in a drug-free school zone is "'not an actual charge[.]'" Jermaine Carpenter, 2016 WL 5416350, at *2. The trial court summarily dismissed the motions for failure to state cognizable claims for Rule 36.1 relief, and the Petitioner appealed to this court. On appeal, he added as additional arguments that there was a fatal variance between the indictments and the proof and that the grand jury lacked the authority to charge him with a violation of the Drug-Free School Zone Act. Id. This court affirmed the judgment of the trial court, writing:

The sentences imposed in both challenged cases were authorized by the Code at the time of the [Petitioner's] convictions. Challenges to the constitutionality and interpretation of sentencing statutes are not cognizable claims for relief under Rule 36.1. Similarly, challenges to the power of the grand jury and claims of variance ...

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