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State v. Gaye

Court of Criminal Appeals of Tennessee, Knoxville

October 7, 2019

STATE OF TENNESSEE
v.
DENNIS RASHEED GAYE

          Assigned on Briefs August 27, 2019

          Appeal from the Criminal Court for Knox County No. 100635 Bobby R. McGee, Judge

         Defendant, Dennis Rasheed Gaye, appeals from the dismissal of a motion to reduce his sentence, a motion to correct an illegal sentence, and a motion to correct a clerical error. For the following reasons, the judgment of the trial court is affirmed.

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

          Dennis Rasheed Gaye, Whiteville, Tennessee, Pro Se.

          Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant Attorney General; Charme P. Allen, District Attorney General; and Jennifer Welch, Assistant District Attorney General, for the appellee, State of Tennessee.

          Timothy L. Easter, J., delivered the opinion of the court, in which Camille R. McMullen and J. Ross Dyer, JJ., joined.

          OPINION

          TIMOTHY L. EASTER, JUDGE.

         On January 16, 2014, Defendant entered guilty pleas in several cases: 100635, 101271, and 96453A. From the transcript of the guilty plea hearing, we have gleaned that in case number 101271, Defendant pled guilty to conspiracy to possess with intent to sell less than .5 grams of cocaine in a drug-free zone, a Class C felony. In exchange for the guilty plea, the State dismissed several other counts in case number 101271. The trial court sentenced Defendant to six years to be served at 100%, imposed a $2000 fine, and charged Defendant with costs.

         In Count 1 of case number 100635, Defendant appears[1] to have been originally indicted for possession with intent to sell 26 grams or more of cocaine within 1000 feet of a drug-free childcare zone but pleaded guilty to possession with intent to sell .5 grams or more of cocaine within 1000 feet of a drug-free childcare zone, both Class B felonies. Dennis Rasheed Gaye v. State, E2017-00793-CCA-R3-PC, 2018 WL 287034, at *1 (Tenn. Crim. App. Jan. 4, 2018), perm. app. denied (Tenn. May 15, 2018). Defendant was sentenced to eight years at 100% to be served consecutively to the sentence in case number 101271. Defendant also received a fine of $2000 and was ordered to pay court costs. In Count 5 of case number 100635, Defendant pled guilty to simple possession and was sentenced to eleven months and twenty-nine days and a received $250 fine. This sentence was ordered to be served concurrently to the sentence in Count 1. In Count 6 of case number 100635, Defendant pled guilty to evading arrest in exchange for a sentence of eleven months and twenty-nine days to be served concurrently with the sentence in Count 1. Counts 2, 3, 4, 7, and 8 of case number 100635 were dismissed. Case number 100634 was dismissed.[2]

         In case number 96453A, Defendant pled guilty to robbery in exchange for a six-year sentence as a Range I, standard offender to be served consecutively to the sentence in case number 100635. As a result of the guilty pleas in all three cases, Defendant was sentenced to a total effective sentence 20 years.

         In April of 2014, Defendant filed a pro se motion for correction and reduction of his sentence pursuant to Tennessee Rule of Criminal Procedure 35 in case numbers 101271 and 100635. In the motion, Defendant argued that the trial court failed to make the proper findings prior to ordering consecutive sentencing. Defendant also argued that his sentence in case number 100635 should be eight years at 30% rather than eight years at 100% because the evidence did not show that he was in a drug-free zone at the time he committed the offense.

         In October of 2014, Defendant sought post-conviction relief. The post-conviction court held a hearing in April of 2017 at which Defendant alleged that "the indictment [in case 100635] should be dismissed because the judgment did not reflect the proper conviction offense." Id. The post-conviction court determined that the original judgment of conviction for Count 1 of case number 100635 reflected that Defendant was convicted of possession with intent to sell 26 grams or more of cocaine within 1000 feet of a drug-free childcare zone, and the State conceded that a clerical error occurred on the judgment. Id. As a result, the post-conviction court ordered correction of the judgment form to reflect a conviction of possession with intent to sell 0.5 grams or more of cocaine within 1000 feet of a drug-free childcare zone. Id. The post-conviction court denied further relief, finding that dismissal of the indictment was not warranted. Id. On appeal from the denial of post-conviction relief, this Court affirmed the post-conviction court's judgment. Id. at *2. The supreme court denied permission to appeal.

         On February 16, 2018, Defendant filed an amended motion for relief under Rule 35, asking the trial court to reduce his eight-year sentence in case number 100635 to 7.2 years at 100%, asserting that there was a discrepancy between his negotiated guilty plea and the plea agreement announced on the record at the sentencing hearing. In May of 2018, Defendant filed a second amended motion pursuant to Rule 35 in which he asked the trial court to remove the drug-free zone enhancement from his conviction in case number 100635 and order Defendant to serve his sentence on probation because the location of the traffic stop which gave rise to the charges was not within a drug-free zone. In July of 2018, Defendant again amended his Rule 35 motion, asking the trial court to reduce his sentence in case number 100635 to three years at 100%. In this amendment, Defendant ...


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