Joe Clark Mitchell v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 19, 2015 at Knoxville

JOE CLARK MITCHELL v. STATE OF TENNESSEE

Appeal from the Circuit Court for Maury County

Nos. 2311-12, 2314, 2316-18, 2320-22 Robert L. Holloway, Jr., Judge

No. M2014-00754-CCA-R3-CD – Filed May 20, 2015

The appellant, Joe Clark Mitchell, filed in the Maury County Circuit Court a motion to

correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. The

motion was summarily denied, and the appellant timely appealed the ruling. Upon

review, we affirm the judgment of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which D. KELLY

THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Joe Clark Mitchell, Only, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior

Counsel; and Brent A. Cooper, District Attorney General, for the appellee, State of

Tennessee.

OPINION

I. Factual Background

In 1986, the appellant was charged with offenses in Giles County; after a change

of venue was granted, he was tried in Maury County and convicted of two counts of

aggravated assault, two counts of armed robbery, two counts of aggravated kidnapping,

one count of arson, one count of first degree burglary, and two counts of aggravated rape.

State v. Joe Clark Mitchell, No. 87-152-III, 1988 WL 32362, at *1 (Tenn. Crim. App. at

Nashville, Apr. 7, 1988). The trial court imposed four consecutive life sentences for the

aggravated kidnapping and the aggravated rape convictions; the remaining sentences

were to be served concurrently with the four consecutive life sentences. Id. On direct

appeal, this court modified one of the aggravated rape convictions to rape, and the

sentence was reduced to thirteen years. Id.

Since his convictions, the appellant has repeatedly pursued relief from his

convictions and sentences. His most recent attempt, which is the subject of the instant

appeal, is a motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal

Procedure 36.1. In the motion, the appellant alleged that “the trial court in this case was

without jurisdiction to indict/convict and/or enter[] sentence . . . thus rendering the

judgments of conviction illegal and void.” The appellant argued that because the

Twenty-second Judicial District encompassed Giles, Lawrence, Maury, and Wayne

Counties, the trial court was required to select members of the grand jury and the petit

jury from all four counties. The appellant also alleged that the trial court erred by finding

the appellant to be both an especially aggravated offender and a persistent offender and

by failing to include the release eligibility percentage on the judgment as required by

Tennessee Code Annotated section 40-35-501.1 Finally, the appellant alleged that the

trial court erroneously sentenced him as a persistent offender in contravention of

Tennessee Code Annotated section 40-35-106(a)(1) (1982).2

The trial court entered an order summarily dismissing the motion, holding that the

appellant‟s claims regarding the trial court‟s jurisdiction and sentencing were without

merit. On appeal, the appellant challenges this ruling.

II. Analysis

1

Tennessee Code Annotated section 40-35-501 (1982) provided the release eligibility percentages for

especially mitigated, standard, multiple, and persistent offenders. Additionally, the statute provided that

“[t]he release eligibility date provided for herein shall be separately calculated for each offense for which

a defendant is convicted.” Tenn. Code Ann. ' 40-35-501(g) (1982).

2

At the time of the appellant‟s convictions, Tennessee Code Annotated section 40-35-106 (1982)

provided that for determination of sentencing ranges:

(a) A “persistent offender” is a defendant who has received:

(1) Two (2) or more prior felony convictions for offenses committed

within five (5) years immediately preceding the commission of the

instant offense; or

(2) Four (4) or more prior felony convictions for offenses committed

within ten (10) years immediately preceding the commission of the

instant offense.

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First, the appellant contends that the grand jury that indicted him was chosen

solely from citizens of Giles County, not from all of the counties comprising the Twenty-

second Judicial District. He maintains that selecting a jury from a single county within a

judicial district, instead of from the district as a whole, violates Tennessee Code

Annotated sections 16-2-506 and 16-2-510(c) and thereby deprives the trial court of

jurisdiction and renders the indictment and resulting convictions and sentences void.

Tennessee Code Annotated section 16-2-501(a), which was enacted in 1984,

explained that the purpose of the legislation was “to reorganize the existing trial court

system of this state in such a way that its growth occurs in a logical and orderly manner.”

Within Part 5, the legislature created thirty-one judicial districts. Tenn. Code Ann. ' 16-

2-506. The Twenty-second Judicial District was comprised of Giles, Lawrence, Maury,

and Wayne Counties. Tenn. Code Ann. ' 16-2-506(19)(A)(1)(i).

The appellant contends the establishment of judicial districts “stripped original

jurisdiction from the County courts [and] in the same stroke abolished and outlawed the

operation of County juries, (grand or petit) and replaced them with „District juries and

District Criminal/Circuit Courts . . . .‟”

Historically, “two distinct procedural avenues [were] available to collaterally

attack a final judgment in a criminal case - habeas corpus and post-conviction petitions.”

Hickman v. State, 153 S.W.3d 16, 19 (Tenn. 2004); see also State v. Donald Terrell, No.

W2014-00340-CCA-R3-CO, 2014 WL 6883706, at *2 (Tenn. Crim. App. at Jackson,

Dec. 8, 2014). However, effective July 1, 2013, the Tennessee Rules of Criminal

Procedure were amended by the addition of Rule 36.1, which provides, in part:

Either the appellant or the state may, at any time, seek the

correction of an illegal sentence by filing a motion to correct

an illegal sentence in the trial court in which the judgment of

conviction was entered. For purposes of this rule, 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(a); see Secdrick L. Booker v. State, No. M2014-00846-CCA-R3-

CD, 2014 WL 7191041, at *2 (Tenn. Crim. App. at Nashville, Dec. 18, 2014). If the

motion states a “colorable claim that the sentence is illegal,” the trial court shall appoint

counsel and hold a hearing on the motion. See Tenn. R. Crim. P. 36.1(b). “A sentence is

not illegal when it is „statutorily available but ordinarily inapplicable to a given

defendant‟; rather, an illegal sentence is one that is „simply unavailable under the

Sentencing Act.‟” State v. Adrian R. Brown, No. E2014-00673-CCA-R3-CD, 2014 WL

-3-

5483011, at *3 (Tenn. Crim. App. at Knoxville, Oct. 29, 2014) (quoting Cantrell v.

Easterling, 346 S.W.3d 445, 454 (Tenn. 2011)), application for perm. to appeal filed,

(Mar. 16, 2015).

Although Rule 36.1 does not define what constitutes a “colorable claim,” this

court has adopted the following definition: “[a] colorable claim is a claim . . . that, if

taken as true, in the light most favorable to the [appellant], would entitle [the appellant]

to relief.” State v. David Morrow, No. W2014-00338-CCA-R3-CO, 2014 WL 3954071,

at *2 (Tenn. Crim. App. at Jackson, Aug. 13, 2014) (internal quotation marks and citation

omitted). The requirements for a Rule 36.1 motion are more lenient than for a habeas

corpus petition; notably, in a Rule 36.1 motion, a defendant is required only to state a

colorable claim in his motion but is not required to attach supporting documents in order

to survive summary dismissal, and the motion may be filed “at any time.” See State v.

Sean Blake, No. W2014-00856-CCA-R3-CO, 2015 WL 112801, at *2 (Tenn. Crim. App.

at Jackson, Jan. 8, 2015); State v. John Talley, No. E2014-01313-CCA-R3-CD, 2014 WL

7366257, at *2 (Tenn. Crim. App. at Knoxville, Dec. 26, 2014).

The appellant‟s complaints, however, do not constitute a colorable claim for relief

under Rule 36.1. This court has explained that

Rule 36.1 provides an avenue for pursuing the correction of

illegal sentences, defined by the Rule as a sentence „not

authorized by the applicable statutes‟ or a sentence „that

directly contravenes an applicable statute.‟ Thus, the Rule is

directed at the sentence finally imposed, not the methodology

by which it is imposed.

State v. Jonathan T. Deal, No. E2013-02623-CCA-R3-CD, 2014 WL 2802910, at *2

(Tenn. Crim. App. at Knoxville, June 17, 2014) (citations omitted). In other words, Rule

36.1 provides “an avenue for correcting allegedly illegal sentences. The Rule does not

provide an avenue for seeking the reversal of convictions.” State v. Jimmy Wayne

Wilson, No. E2013-02354-CCA-R3-CD, 2014 WL 1285622, at *2 (Tenn. Crim. App. at

Knoxville, Mar. 31, 2014) (citing Cantrell v. Easterling, 346 S.W.3d 445, 455-56 (Tenn.

2011)), perm. to appeal denied, (Tenn. Nov. 19, 2014). The appellant‟s challenge to the

process of choosing members of grand juries or petit juries, even if taken as true, would

affect his convictions, not his sentences. Accordingly, the appellant is not entitled to

relief on this basis.

Next, the appellant alleges that the trial court erred by finding that the appellant

was subject to sentencing ranges for both an especially aggravated offender and a

persistent offender and by failing to “pronounce judgment on the percentage” as required

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by Tennessee Code Annotated section 40-35-501. The appellant also alleges that the trial

court‟s finding that he was a persistent offender for the purpose of sentencing ranges was

based upon an incorrect interpretation of Tennessee Code Annotated section 40-35-

106(a)(1).

The record belies the appellant‟s contentions. The trial court determined the

appellant‟s sentencing range based upon the finding that the appellant was a Range II,

especially aggravated offender, and the judgments of conviction clearly reflect the

appellant‟s designation as an especially aggravated offender. The trial court‟s finding

that the appellant was a persistent offender was for the purpose of consecutive

sentencing, not for the purpose of determining his sentencing range. Further, the failure

to pronounce judgment on release eligibility percentages does not entitle the appellant to

relief; the appellant‟s release eligibility was determined by statute. Tenn. Code Ann. '

40-35-501(e) (1982). Regardless, the appellant‟s claim is not one that falls under the

auspices of Rule 36.1. State v. Robert B. Ledford, No. E2014-01010-CCA-R3-CD, 2015

WL 757807, at *2 (Tenn. Crim. App. at Knoxville, Feb. 23, 2015) (stating that a trial

court‟s error in offender classification will generally not render the sentence illegal).

Accordingly, the appellant is not entitled to relief in this regard.

III. Conclusion

Finding no error, we conclude that the trial court did not err by dismissing the

appellant‟s motion to correct an illegal sentence.

_________________________________

NORMA McGEE OGLE, JUDGE

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