Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs November 14, 2019
from the Circuit Court for Bedford County No. 17189 Forest A.
Durard, Jr., Judge
Appellant, Andrew K. Johnston, filed a pro se motion to
correct an illegal sentence pursuant to Tennessee Rule of
Criminal Procedure 36.1, and the Bedford County Circuit Court
summarily denied the motion. On appeal, the Appellant
contends that the twenty-seven-year sentence he received
pursuant to his guilty plea to second degree murder is
illegal because it is outside the maximum range of punishment
for a Range I offender convicted of a Class A felony. Based
upon our 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
K. Johnston, Pro Se, Only, Tennessee.
Herbert H. Slatery III, Attorney General and Reporter; Renee
W. Turner, Senior Assistant Attorney General; Robert James
Carter, District Attorney General; and Michael David Randles,
Assistant District Attorney General, for the appellee, State
McGee Ogle, J., delivered the opinion of the court, in which
Alan E. Glenn and J. Ross Dyer, JJ., joined.
McGEE OGLE, JUDGE.
Appellant was indicted for first degree murder in April 2011
and entered a best interest guilty plea to second degree
murder, a Class A felony, in October 2011. Pursuant to the
plea agreement, he was sentenced as a Range I, violent
offender to twenty-seven years in confinement.
January 2019, the Appellant filed a pro se motion to correct
an illegal sentence pursuant to Tennessee Rule of Criminal
Procedure 36.1, arguing that his sentence was illegal because
the maximum punishment for a Range I offender convicted of a
Class A felony was twenty-five years. The trial court denied
the motion without a hearing, concluding that the
Appellant's sentence was not illegal because the
statutorily authorized punishment for a Class A felony was
fifteen to sixty years, and the Appellant's bargained-for
sentence of twenty-seven years was within that range.
appeal, the Appellant maintains that his twenty-seven-year
sentence is illegal because it falls outside the range of
punishment for a Range I offender convicted of a Class A
felony. The State argues that the trial court properly
dismissed the Appellant's Rule 36.1 motion. We agree with
36.1, Tennessee Rules of Criminal Procedure, permits a
defendant to seek correction of an unexpired illegal sentence
at any time. See State v. Brown, 479 S.W.3d 200, 211
(Tenn. 2015). "[A]n illegal sentence is one that is not
authorized by the applicable statutes or that directly
contravenes an applicable statute." Tenn. R. Crim. P.
36.1(a). As our supreme court has explained, only
"fatal" sentencing errors render sentences illegal.
State v. Wooden, 478 S.W.3d 585, 595 (Tenn. 2015).
"Included in this category are sentences imposed
pursuant to an inapplicable statutory scheme, sentences
designating release eligibility dates where early release is
statutorily prohibited, sentences that are ordered to be
served concurrently where statutorily required to be served
consecutively, and sentences not authorized by any statute
for the offenses." Id. Conversely,