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State v. Johnston

Court of Criminal Appeals of Tennessee, Nashville

December 23, 2019

STATE OF TENNESSEE
v.
ANDREW K. JOHNSTON

          Assigned on Briefs November 14, 2019

          Appeal from the Circuit Court for Bedford County No. 17189 Forest A. Durard, Jr., Judge

         The 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.

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

          Andrew 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 of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Alan E. Glenn and J. Ross Dyer, JJ., joined.

          OPINION

          NORMA McGEE OGLE, JUDGE.

         I. Factual Background

         The 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.

         In 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.

         II. Analysis

         On 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 the State.

         Rule 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, ...


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