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State v. Schelfe

Court of Criminal Appeals of Tennessee, Nashville

August 29, 2019

STATE OF TENNESSEE
v.
JONATHAN DAVID SCHELFE

          Assigned on Briefs July 24, 2019

          Appeal from the Criminal Court for Sumner County Nos. 659-2012, 681-2012 Dee David Gay, Judge

         Pro se Petitioner, Jonathan David Schelfe, appeals from the denial of his motion for correction of an illegal sentence pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure. Following our review, we affirm.

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

          Jonathan David Schelfe, Clifton, Tennessee, Pro Se.

          Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant Attorney General; Ray Whitley, District Attorney General; and Tara Wyllie, Assistant District Attorney General, for the Appellee, State of Tennessee.

          Camille R. MCMULLEN, J., delivered the opinion of the court, in which Robert L. Holloway, Jr., and Timothy L. Easter, JJ., joined.

          OPINION

          CAMILLE R. McMULLEN, JUDGE

         In September 2012, the Petitioner was charged in a 42-count indictment of rape of a child, aggravated sexual battery, rape, solicitation of a minor under 13 years of age to observe sexual conduct, and solicitation of a minor to observe sexual conduct in case numbers 681-2012 and 659-2012. On May 23, 2013, the Petitioner entered a guilty plea and received an effective sentence of forty years, to be served at 100%. At issue in this appeal is case number 659-2012, and our review is limited to the Petitioner's convictions of rape of a child in counts 1, 4, 5, and 8. For each of those counts, the Petitioner was ordered to concurrent terms of fifteen years at 100%, to be served consecutively to counts 13, 16, 17, 20 (all rape of a child with an offense date after 2010), counts 21 and 24 (aggravated sexual battery), count 25 (rape of child with an offense date in 2011), counts 26, 31, 32, 37 (rape), counts 38 and 41(solicitation of minor/sexual content), and count 42 (rape of a child with an offense date of January 2008 to August 2010).

         Significantly, at the Petitioner's May 23, 2013 guilty plea hearing, the State advised the trial court as follows:

[The Petitioner] will be pleading guilty to Counts 1, 4, 5, and 8, rape of a child. Your Honor, these counts occurred sometime between 2007 and 2009. There was a change in the statutory scheme on the sentencing for rape of a child July 1st, 2007. Accordingly, I believe, the [Petitioner] has the right to select which sentencing scheme he wants to be sentenced under….We have agreed that he will be sentenced under the sentencing scheme prior to July 1st, 2007. In that situation, rape of a child carried 15 to 25 years at 100 percent.

         The State then provided the following factual basis in support of the Petitioner's guilty pleas to rape of a child in counts 1, 4, 5, and 8:

From the time that [the victim] was about seven years old, beginning in 2007, sometime in 2007, the initial encounter involved her walking in, seeing her father, the [Petitioner], watching pornography. He encouraged her to continue to stay there and watch the pornography with him.
Within a relatively short period of time, he began to molest her. He would do so on a regular basis. At least weekly or every other week he would touch her on her vaginal area, he would have her touch his penis, he would digitally penetrate her, and he would perform oral sex on ...

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