State of Tennessee v. Louis W. Alford

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned On Briefs August 14, 2012

STATE OF TENNESSEE v. LOUIS W. ALFORD

Appeal from the Circuit Court for Coffee County

No. 24,187 Vanessa A. Jackson, Judge

No. M2012-00114-CCA-R3-CO - Filed October 2, 2012

Appellant, Louis W. Alford, was convicted of second degree murder in Coffee County in

1990. As a result, Appellant received a forty-year sentence. On direct appeal, this Court

affirmed Appellant’s sentence and conviction. State v. Louis William Alford, No. 01C01-

9110CC00300, 1992 WL 50968, at *5 (Tenn. Crim. App., at Nashville, Mar. 19, 1992),

perm. app. denied, concurring in results only (Tenn. Jun. 15, 1992). In a separate case,

Appellant pled guilty to several charges and received a four-year sentence. This sentence

was ordered to be served consecutively to the second degree murder sentence. On direct

appeal from the burglary conviction, this Court remanded the matter for resentencing because

the judgment form failed to reflect the range of punishment. State v. Louis William Alford,

No. 01-C01-9007CR00170, 1991 WL 4951, at *2 (Tenn. Crim. App., at Nashville, Jan. 24,

1991). On remand, the trial court held a sentencing hearing and sentenced Appellant as a

Range II, multiple offender. Appellant again initiated an appeal, arguing that his five prior

felonies could not be used to enhance his sentence because they pre-dated the Sentencing

Reform Act of 1989. This Court affirmed the sentence on appeal. State v. Louis William

Alford, No. 01C01-9108CC00227, 1992 WL 50963, at *1 (Tenn. Crim. App., at Nashville,

Mar. 19, 1992), perm. app. denied, (Tenn. Jun. 8, 1992). Appellant filed a motion to correct

his sentence in September of 2011, in which he complained about the miscalculation of his

parole date and joinder of his sentences for burglary and second degree murder. The trial

court denied the motion. Appellant filed a motion for reconsideration or, in the alternative,

a notice of appeal. The trial court issued a second order in which it determined that it had

no authority to order the relief sought by Appellant. Appellant filed a notice of appeal. After

a review of the record and applicable authorities, we determine that Appellant does not have

an appeal as of right from the order under Rule 3 of the Tennessee Rules of Appellate

Procedure. Accordingly, the appeal is dismissed.

Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed.

J ERRY L. S MITH, J., delivered the opinion of the court, in which R OBERT W. W EDEMEYER and

C AMILLE R. M CM ULLEN, JJ., joined.

Louis W. Alford, Pro Se, Forrest City, Arkansas.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Assistant Attorney

General; and C. Michael Layne, District Attorney General, for the appellee, State of

Tennessee.

OPINION

I. FACTS

In June of 1989, Appellant was indicted by the Coffee County Grand Jury for attempt

to commit theft, burglary, petit larceny, assault, and resisting arrest. In May of 1990,

Appellant pled guilty to attempt to commit theft, burglary, theft of property valued at less

than $500, and resisting arrest. The remaining count was dismissed. From the record, it

appears that Appellant was sentenced to an effective sentence of six years, including a four-

year felony sentence for burglary.

Appellant appealed the conviction for burglary, insisting on appeal that there was no

indication on the judgment form as to his range of punishment. This Court remanded the

matter for resentencing because the judgment forms failed to reflect the range of punishment.

State v. Louis William Alford, 1991 WL 4951, at *2. On remand, the trial court held a

sentencing hearing and sentenced Appellant as a Range II, multiple offender on the burglary

conviction. Appellant again initiated an appeal, arguing that his five prior felonies could not

be used to enhance his sentence because they pre-dated the Sentencing Reform Act of 1989.

This Court affirmed the four-year sentence on appeal. State v. Louis William Alford, 1992

WL 50963, at *1.

In March of 1990, Appellant was indicted for the murder of Ray James Woessner in

Manchester, Tennessee. After a jury trial, Appellant was found guilty of second degree

murder and sentenced as a Range II, multiple offender to a sentence of forty years. State v.

Louis William Alford, 1992 WL 50968, at *5. Appellant’s conviction and sentence were

affirmed on direct appeal in March of 1992. Id.

The record on appeal also contains a Parole Violation Report form from the Tennessee

Board of Probation and Parole. The form indicates that Appellant has a “felony pending” in

a federal indictment for charges related to the manufacture, possession, and distribution of

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methamphetamine and lists his “original conviction” as second degree murder with an

“original sentence” of forty-four years.

On September 6, 2011, Appellant filed a motion to correct his sentence, in which he

argued that the “court made an error in a judgment imposing a consecutive sentence that had

already been served, which in turn caused the Parole commission to extend the length of

parole expiration by four years.” According to Appellant, he had already “served the

required percentage” of his four-year sentence for burglary and was being processed for

parole when the murder occurred. After a hearing, the trial court denied the motion, stating

that it “had no lawful authority to enter such an order.”

On January 3, 2012, Appellant filed a notice of appeal.

Analysis

On appeal, Appellant argues that the Parole Board has “illegally” calculated his

sentence by adding the four-year sentence for burglary onto the forty-year sentence for

second degree murder “a second time” thereby increasing his sentence. He insists that the

trial court improperly denied his motion to correct the sentence. The State contends that

Appellant has no right of appeal under Rule 3 of the Tennessee Rules of Appellate

Procedure.

Appellant sought to appeal pursuant to Tennessee Rule of Appellate Procedure 3(b).

Parties in criminal cases do not always have an appeal as of right under the Rules of

Appellate Procedure. According to Rule 3(b), a defendant’s ability to appeal as of right is

limited to the following:

[A]ny judgment of conviction entered by a trial court from which an appeal

lies to the Supreme Court or Court of Criminal Appeals: (1) on a plea of not

guilty; and (2) on a plea of guilty or nolo contendere, if the defendant entered

into a plea agreement but explicitly reserved the right to appeal a certified

question of law dispositive of the case pursuant to and in compliance with the

requirements of Rule 37(b)(2)(A) or (D) of the Tennessee Rules of Criminal

Procedure, or if the defendant seeks review of the sentence and there was no

plea agreement concerning the sentence, or if the issues presented for review

were not waived as a matter of law by the plea of guilty or nolo contendere and

if such issues are apparent from the record of the proceedings already had.

The defendant may also appeal as of right from an order denying or revoking

probation, an order of judgment entered pursuant to Rule 3(b), Tennessee

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Rules of Criminal Procedure, and from a final judgment in a criminal

contempt, habeas corpus, extradition, or post-conviction proceeding.

Tenn. R. App. P. 3(b). See Moody v. State, 160 S.W.3d 512, 516 (Tenn. 2005) (stating that

Rule 3(b) “does not authorize a direct appeal of a dismissal of a motion to correct an illegal

sentence”). A properly filed petition for the writ of habeas corpus is the appropriate method

for challenging an illegal sentence. Id. Our Supreme Court applied this rationale again in

State v. Lane, 254 S.W.3d 349 (Tenn. 2008), to determine that a defendant had no appeal as

of right from the denial of a motion to modify a condition of probation. See also State v.

Cedric Lamar Moses, No. W2011-01448-CCA-R3-CD, 2011 WL 6916487, at *1 (Tenn.

Crim. App., at Jackson, Dec. 28, 2011); State v. Joseph Michael Harden, No. E2010-02487-

CCA-R3-CD, 2011 WL 6883981, at *1 (Tenn. Crim. App., at Knoxville, Dec. 27, 2011);

State v. Jonathon C. Hood, No. M2009-00661-CCA-R3-PC, 2010 WL 3244877, at *1 (Tenn.

Crim. App., at Nashville, Aug. 18, 2010), perm. app. denied, (Tenn. Nov. 15, 2010).

Looking at the language of Rule 3(b), it does not specifically enumerate that a defendant may

appeal as of right a denial of a motion to correct an illegal sentence. Accordingly, Appellant

does not have an appeal as of right to challenge the trial court’s decision.

Conclusion

For the foregoing reasons, the appeal is dismissed.

___________________________________

JERRY L. SMITH, JUDGE

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