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Owens v. Genovese

Court of Criminal Appeals of Tennessee, Nashville

June 26, 2018

CHARLES OWENS
v.
KEVIN GENOVESE, WARDEN

          Assigned on Briefs April 18, 2018

          Appeal from the Circuit Court for Hickman County No. 16-CV-49 James G. Martin, III, Judge

         Pro se Petitioner, Charles Owens, appeals the dismissal of his petition for writ of habeas corpus by the Hickman County Circuit Court. On appeal, the Petitioner argues that his convictions for aggravated sexual battery are void because (1) the trial court announced his sentence through written order, without the Petitioner present, in violation of Tennessee Rule of Criminal Procedure 43(a)(3); and (2) the trial court ordered partial consecutive sentencing in violation of Tennessee Code Annotated section 40-20-111(a). Following our review, we affirm the dismissal of the petition, pursuant to Rule 20, Rules of the Court of Criminal Appeals.

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

          Charles Owens, Only, Tennessee, pro se.

          Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant Attorney General; Kim R. Helper, District Attorney General; and Brian Holmgren, Assistant District Attorney General, for the appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which John Everett Williams and Robert W. Wedemeyer, JJ., joined.

          MEMORANDUM OPINION

          CAMILLE R. McMULLEN, JUDGE

         Following a jury trial, the Petitioner was convicted of six counts of aggravated sexual battery involving a minor. State v. Charles Owens, No. M2005-02571-CCA-R3-CD, 2007 WL 1094136, at *1 (Tenn. Crim. App. Apr. 12, 2007), perm. app. denied (Tenn. Aug. 20, 2007). After a sentencing hearing, the trial court took the case under advisement and subsequently issued its ruling by written order. The trial court sentenced the Petitioner to eight years for each aggravated sexual battery conviction. Counts two and three were to be served consecutively with each other and to his conviction in count one, and counts four, five, and six were to be served concurrently with his sentence in count one, for an effective sentence of twenty-four years. Id. In his direct appeal, which was affirmed by this court, the sole issue presented for review concerned prosecutorial misconduct. The Petitioner then filed a petition for post-conviction relief, alleging ineffective assistance of counsel, the denial of which was also affirmed by this court. Charles Owens v. State, No. M2009-00558-CCA-R3-PC, 2010 WL 1462529, at *1 (Tenn. Crim. App. Apr. 13, 2010), perm. app. denied (Tenn. Sept. 22, 2010).

         Later, the Petitioner filed a Rule 36.1 motion arguing for the first time that his sentence was illegal and void because he was not present at his sentencing in violation of Rule 43(a)(3) of the Tennessee Rules of Criminal Procedure. State v. Charles Owens, No. M2015-01361-CCA-R3-CD, 2016 WL 943935, at *1 (Tenn. Crim. App. Mar. 14, 2016), perm. app. denied (Tenn. June 23, 2016). This court affirmed the trial court's dismissal of the motion and explained:

The [Petitioner] could have pursued by direct appeal or petition for post-conviction relief his complaint that he was not present at his sentencing. Since his claim, even if true, goes to the methodology of his sentencing but would not result in his sentence being illegal, his motion failed to present a colorable claim for relief and was properly dismissed without a hearing.

Id. at *2.

         The Petitioner filed the instant petition for writ of habeas corpus on August 26, 2016, alleging once more that his sentence was illegal and void pursuant to Rule 43(a)(3). He filed an amended petition for writ of habeas corpus on January 20, 2017, which was substantially similar to the prior petition except that it asserted a second error by the trial court in ordering partial consecutive sentences. The State filed a motion to dismiss the petition asserting that the Petitioner stated no cognizable claims for relief and the trial court granted the dismissal. In its written order, the trial court, noting this court's prior decision, concluded that the Petitioner's first claim attacked the "methodology by which the trial court imposed its sentence rather than alleging that the sentence itself was illegal or erroneous." The trial court reasoned that attacks on methodology do not qualify as fatal errors, but are instead ...


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