The opinion
12/11/2024
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs December 10, 2024
STATE OF TENNESSEE v. BOBBY DANIEL PETTIE
Appeal from the Circuit Court for Bedford County
No. 17678 Forest A. Durard, Jr., Judge
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No. M2024-00558-CCA-R3-CD
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A Bedford County jury found the Defendant, Bobby Daniel Pettie, guilty of possession of
a firearm with the intent to go armed during the commission of a dangerous felony, among
other offenses. The court then imposed a six-year sentence for this conviction after
implicitly finding that the Defendant had a qualifying prior felony conviction. Thereafter,
the Defendant sought to have his sentence declared illegal pursuant to Tennessee Rule of
Criminal Procedure 36.1, arguing that the jury did not find that he had a qualifying prior
felony conviction. The trial court denied the motion, finding that the Defendant waived
the jury’s determination of the issue. The Defendant appealed to this court. Upon our
review, we respectfully affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right;
Judgment of the Circuit Court Affirmed
TOM GREENHOLTZ, J., delivered the opinion of the court, in which TIMOTHY L. EASTER
and KYLE A. HIXSON, JJ., joined.
Bobby D. Pettie, Pro Se, Hartsville, Tennessee.
Jonathan Skrmetti, Attorney General and Reporter; G. Kirby May, Assistant Attorney
General; Robert J. Carter, District Attorney General; and Richard Aron Cawley, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
In June 2013, a Bedford County grand jury charged the Defendant with the unlawful
possession of a firearm with the intent to go armed during the commission of a dangerous
felony, among other offenses. The grand jury also alleged that the Defendant had a
qualifying prior felony conviction, which, if proven, would result in a mandatory minimum
five-year sentence to be served in the Tennessee Department of Correction (“the
Department”). See Tenn. Code Ann. § 39-17-1324(g)(2) (2010).1
At trial, the Defendant affirmatively waived the jury’s determination of whether he
had a qualifying prior felony conviction, choosing to submit that issue to the court instead.
The jury found the Defendant guilty of the charged offense. The court imposed a sentence
of six years, with the first five years to be served in the Department. This court upheld the
conviction and sentence on direct appeal. See State v. Pettie, No. M2014-00113-CCA-R3-
CD, 2015 WL 351229 (Tenn. Crim. App. Jan. 28, 2015), perm. app. denied (Tenn. May 14,
2015).
On July 15, 2019, the Defendant filed a motion to have his sentence for unlawful
possession of a firearm declared illegal pursuant to Tennessee Rule of Criminal Procedure
36.1. In this motion, the Defendant represented that “there was an agreement made for the
trial court to decide on a later date if Defendant had a qualifying prior dangerous felony
conviction for sentencing purposes on the firearm charge.” However, the Defendant argued
that the sentencing court did not properly compare the elements of the Alabama crimes to
Tennessee offenses to determine whether his out-of-state convictions were qualifying prior
felonies. The trial court denied relief, finding that the Defendant’s claim, even if true, did
not render the sentence illegal. The Defendant did not seek an appeal from this order.
On February 6, 2024, the Defendant filed a second motion to have his sentence for
unlawful possession of a firearm declared illegal pursuant to Tennessee Rule of Criminal
Procedure 36.1. In his motion, the Defendant alleged that the sentencing court could not
impose the mandatory minimum sentence because the question of whether he had a
qualifying prior felony conviction was not submitted to the jury. He also argued that the
1
As we discuss below, a violation of Tennessee Code Annotated section 39-17-1324(a) “is
punishable by a mandatory minimum three-year service term unless, at the time of the offense, a defendant
has a qualifying prior felony conviction, in which case the violation is punishable by a mandatory minimum
five-year service term.” See State v. Moutry, No. E2022-01076-CCA-R3-CD, 2023 WL 3736435, at *3
(Tenn. Crim. App. May 31, 2023), no perm. app. filed.
2
mandatory five-year sentence was illegal because his Alabama convictions did not qualify
as prior felony convictions.
On March 7, 2024, the trial court summarily dismissed the motion without a hearing.
The court held that the Defendant had raised this claim in his previous Rule 36.1 motion
and that the issue could not be relitigated in a renewed motion. 2 The Defendant filed a
timely notice of appeal.
STANDARD OF APPELLATE REVIEW
With respect to every issue on appeal, our supreme court has recognized that a
reviewing court must ask, “[W]hat is the appropriate standard of review?” State v. Enix,
653 S.W.3d 692, 698 (Tenn. 2022). The sole issue in this case is whether the trial court
correctly found that the Defendant failed to state a colorable claim for correction of an
illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. This question is
one of law that we review de novo on appeal. See State v. Wooden, 478 S.W.3d 585, 589
(Tenn. 2015); State v. Watson, No. E2022-01321-CCA-R3-CD, 2023 WL 5925717, at *8
(Tenn. Crim. App. Sept. 12, 2023) (“Whether a sentence is illegal is a question of law that
we review de novo.”), no perm. app. filed.
ANALYSIS
In this appeal, the Defendant argues that his mandatory minimum five-year sentence
is illegal. He asserts that the sentence should have instead been three years because neither
the jury nor the sentencing court was presented with the elements of his Alabama
convictions to determine whether they were qualifying prior felonies. The State responds
that the Defendant does not present a colorable claim for Rule 36.1 relief. It contends that
the Defendant’s claim strikes only at the methodology by which the sentencing court
imposed the sentence and that the Defendant has not shown that his sentence is illegal and
void. We agree with the State.
2
Recognizing that this March 7, 2024, order contained factual errors in its analysis, the trial
court issued a corrected order sua sponte on June 11, 2024. In this corrected order, the court held that the
Defendant waived his right to have the jury determine whether he had a qualifying prior felony conviction.
It also held that the sentencing court made an implicit finding that the Defendant’s Alabama convictions
were qualifying prior felonies. It is to the court’s credit that it recognized and attempted to correct the issue.
However, it lost jurisdiction to issue a corrected order after the Defendant filed his notice of appeal. See,
e.g., State v. Carlton, No. M2018-01474-CCA-R3-CD, 2019 WL 3814726, at *8 (Tenn. Crim. App. Aug.
14, 2019), no perm. app. filed.
3
Tennessee Rule of Criminal Procedure 36.1 provides that a defendant “may seek to
correct an illegal sentence by filing a motion . . . in the trial court in which the judgment of
conviction was entered.” Tenn. R. Crim. P. 36.1(a)(1). An 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)(2).
Our supreme court has observed that “few sentencing errors render sentences
illegal.” Wooden, 478 S.W.3d at 595. Sentencing errors may be classified as clerical,
appealable, or fatal errors, but “only fatal errors render sentences illegal.” State v. Reid,
620 S.W.3d 685, 689 (Tenn. 2021) (citation and internal quotation marks omitted). These
fatal errors may include “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.” Wooden, 478
S.W.3d at 595. On the other hand, “attacks on the correctness of the methodology by which
a trial court imposed sentence” amount to appealable errors only and do not render a
sentence illegal. Id.
In this case, the Defendant first argues that his five-year sentence is illegal because
his prior felony convictions were not presented to the trier of fact, or his trial jury, as
required by section 39-17-1324(f). A defendant who has been convicted of possessing a
firearm with the intent to go armed during the commission of a dangerous felony faces a
three-year sentence. See Tenn. Code Ann. § 39-17-1324(g)(1). However, if the defendant
has a qualifying prior felony conviction, he or she faces a mandatory minimum sentence
of five years. See id. § 39-17-1324(g)(2).
The General Assembly has required that the “jury shall determine the innocence or
guilt of the defendant [under section 39-17-1324(a)] unless the defendant and the state
waive the jury.” Tenn. Code Ann. § 39-17-1324(d). It has also required that the trier of
fact first determine whether the defendant possessed the firearm in question. If so, “proof
of a qualifying prior felony conviction pursuant to this section shall then be presented to
the trier of fact.” Id. § 39-17-1324(f).
The Defendant has not raised a colorable claim under Rule 36.1. On a number of
occasions, this court has recognized that a “claim that the sentence was enhanced based
upon factors not found by the jury is not a colorable claim for relief under Rule 36.1.” See,
e.g., State v. Bradfield, No. W2017-01328-CCA-R3-CD, 2018 WL 2228193, at *2 (Tenn.
Crim. App. May 15, 2018), no perm. app. filed; cf. also State v. McDougle, No. W2022-
01103-CCA-R3-CD, 2023 WL 2968224, at *3 (Tenn. Crim. App. Apr. 17, 2023) (“Because
a Blakely violation does not meet the Rule 36.1 definition of an illegal sentence and does
not establish a void or otherwise illegal judgment, the petitioner has failed to state a
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colorable claim for relief and is, therefore, not entitled to relief.”), perm. app. denied (Tenn.
June 28, 2023). At best, the Defendant raises only an appealable error with respect to his
sentence, not a fatal error. See State v. Johnson, No. W2018-00950-CCA-R3-CD, 2018
WL 6528698, at *3 (Tenn. Crim. App. Dec. 11, 2018), perm. app. denied (Tenn. Feb. 22,
2019). As such, he is not entitled to relief under Rule 36.1.
Moreover, even if the Defendant had presented a colorable claim for relief under
Rule 36.1—and he has not—his claim enjoys no factual support in the record. We have
recognized the possibility that a defendant may waive the jury’s consideration of whether
he or she has a qualifying prior felony conviction. See, e.g., State v. Dobson, No. M2015-
00818-CCA-R3-CD, 2016 WL 7212574, at *15 (Tenn. Crim. App. Dec. 13, 2016), perm.
app. denied (Tenn. Feb. 24, 2017); State v. Trusty, No. W2012-02445-CCA-R3-CD, 2013
WL 3488150, at *6 (Tenn. Crim. App. July 11, 2013), no perm. app. filed. It is clear that
he did so in this case, choosing instead to submit that issue to the trial court to decide.
The transcripts from the Defendant’s trial confirm that he waived his right to have
the jury determine whether he had qualifying prior felony convictions.3 Moreover, in his
first Rule 36.1 motion, the Defendant represented to the trial court that “there was an
agreement made for the trial court to decide on a later date if Defendant had a qualifying
prior dangerous felony conviction for sentencing purposes on the firearm charge.” As such,
because the Defendant affirmatively waived the jury’s consideration of whether he had
qualifying prior felony convictions, the sentencing court’s consideration of those prior
convictions did not affect the legality of his mandatory minimum sentence. This argument
is without merit.
Finally, the Defendant asserts that his sentence is illegal because the sentencing
court did not properly compare the elements of the Alabama crimes to Tennessee offenses
to determine whether the out-of-state convictions were qualifying prior felonies. However,
the Defendant raised this precise claim in his first Rule 36.1 motion, and the trial court
denied the claim, finding that any error in the offender classification was an appealable
error only. The Defendant did not appeal that decision. As we have observed in a score of
cases, “Rule 36.1 may not be used to relitigate those issues that have been previously
determined.” State v. Brown, No. M2015-01754-CCA-R3-CD, 2016 WL 987641, at *2
3
The Defendant did not include these transcripts for reference in the present appeal.
However, we have taken judicial notice of the trial records involved in the Defendant’s direct appeal. See,
e.g., Anderson v. State, 692 S.W.3d 94, 102 (Tenn. Crim. App. 2023) (“[W]e would note that this [c]ourt
can take judicial notice of the [c]ourt records in an earlier proceeding of the same case and the actions of
the courts thereon.”).
5
(Tenn. Crim. App. Mar. 15, 2016), perm. app. denied (Tenn. Aug. 18, 2016). Respectfully,
this argument is also without merit.
CONCLUSION
In summary, we hold that the Defendant’s sentence for possessing a firearm during
the commission of a dangerous felony is not illegal. Accordingly, we respectfully affirm
the judgment of the trial court denying the Defendant’s motion for relief under Tennessee
Rule of Criminal Procedure 36.1.
S/ Tom Greenholtz
TOM GREENHOLTZ, JUDGE
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