Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs February 26, 2019
from the Circuit Court for McMinn County Nos. 87-262 through
-268 Andrew M. Freiberg, Judge
Appellant, Roger Clayton Davis, filed a pro se motion to
correct an illegal sentence pursuant to Tennessee Rule of
Criminal Procedure 36.1, and the trial court summarily denied
the motion. On appeal, the Appellant contends that the trial
court erroneously imposed consecutive sentencing and that the
sentences imposed by the trial court are illegal because the
trial court enhanced his sentences based upon facts not
determined by a jury in violation of Blakely v.
Washington, 542 U.S. 296 (2004). Upon review of the
record and the parties' briefs, we affirm the judgment of
the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Clayton Davis, Pikeville, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter;
Garrett D. Ward, Assistant Attorney General; Stephen Davis
Crump, District Attorney General, for the Appellee, State of
McGee Ogle, J., delivered the opinion of the court, in which
D. Kelly Thomas, Jr., J., joined. James Curwood Witt, Jr.,
J., not participating.
MCGEE OGLE, JUDGE
1988, the Appellant was convicted of five counts of rape and
one count of aggravated kidnapping. State v. Davis,
825 S.W.2d 109, 110 (Tenn. Crim. App. 1991). Originally, the
trial court imposed consecutive sentences that totaled life
plus one hundred years. Id. On appeal, this court
remanded for resentencing. Id. (citing State v.
Roger Clayton Davis, No. 170, 1989 WL 112748, at *1
(Tenn. Crim. App. at Knoxville, Sept. 29, 1989)). The trial
court resentenced the Appellant as a Range II, multiple
offender to consecutive sentences of forty years for the
aggravated kidnapping conviction and twenty years for each
rape conviction for a total effective sentence of one hundred
and forty years. Id. On appeal, the Appellant again
challenged the sentences imposed by the trial court,
including the imposition of consecutive sentencing.
Id. This court held that the Appellant should have
been sentenced as a Range I, standard offender and reduced
the individual sentences to twenty-five years for the
aggravated kidnapping conviction and twelve years for each
rape conviction. Id. at 113. However, this court
upheld the imposition of consecutive sentencing, resulting in
a total effective sentence of eighty-five years. Id.
the Petitioner filed a petition for post-conviction relief,
which was summarily dismissed because the issues raised had
been waived or previously determined. Roger Clayton Davis
v. State, No. 03C01-9308-CR-00265, 1993 WL 523654, at *1
(Tenn. Crim. App. at Knoxville, Dec. 16, 1993). The
Petitioner filed a second petition for post-conviction relief
in which he rehashed his previous claims and raised a claim
of ineffective assistance of counsel. Roger Clayton Davis
v. State, No. 03C01-9409-CR-00323, 1995 WL 509422, at *2
(Tenn. Crim. App. at Knoxville, Aug. 29, 1995). The
post-conviction court summarily dismissed the petition.
Id. On appeal, this court agreed that the Appellant
could not relitigate the claims raised in the first petition
but held that the post-conviction court should have allowed
him to present proof regarding his allegations of ineffective
assistance of counsel. Id. After a hearing, the
post-conviction court denied relief, which this court
affirmed on appeal. Roger Clayton Davis v. State,
No. 03C01-9902-CR-00076, 2000 WL 21307, at *1 (Tenn. Crim.
App. at Knoxville, Jan. 14, 2000).
on May 16, 2018, the Appellant filed a motion to correct an
illegal sentence pursuant to Tennessee Rule of Criminal
Procedure 36.1. In the motion, the Appellant alleged that the
trial court imposed consecutive sentencing based upon
abduction and rape charges that were pending in Monroe County
and later were dismissed and on abduction and sexual assault
charges in Florida that resulted in a conviction for false
imprisonment. The Appellant further alleged that the trial
court illegally enhanced his sentences based upon facts not
determined by a jury in violation of Blakely v.
Washington, 542 U.S. 296 (2004), and State v.
Gomez, 239 S.W.3d 733 (Tenn. 2007).
trial court summarily dismissed the motion, finding that
although the claims raised by the Appellant "were
potentially appealable[, ] . . . [t]here is nothing
'illegal about [the] Petitioner's sentence at
bar." Therefore, the trial court held that the Appellant
had not presented a colorable claim for relief under Rule
36.1. Moreover, the trial court noted that the Appellant had
previously challenged the trial court's imposition of
consecutive sentencing, but this court upheld the trial
court's determinations. On appeal, the Appellant
challenges the trial court's summary dismissal of his