James E. Kenner v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 12, 2014

JAMES E. KENNER v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Davidson County

No. 94-B-694 J. Randall Wyatt, Jr., Judge

No. M2014-00613-CCA-R3-CD - Filed June 5, 2015

The appellant, James E. Kenner, filed in the Davidson County Criminal 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 appealed this ruling. Upon review, we affirm

the judgment of the trial court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which C AMILLE R.

M CM ULLEN and R OBERT H. M ONTGOMERY, J R., JJ., joined.

James E. Kenner, Only, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General & Reporter; Sophia Lee, Senior Counsel; Victor S.

Johnson, III, District Attorney General; and Amy Hunter, Assistant District Attorney General,

for the appellee, State of Tennessee.

OPINION

I. Factual Background

On August 30, 1994, the appellant was convicted in Davidson County of five counts

of aggravated burglary, five counts of theft over $1000, and one count of unlawful possession

of a weapon. He was sentenced as a career offender to fifteen years for each aggravated

burglary conviction, twelve years for each theft conviction, and eleven months and

twenty-nine days for the unlawful possession of a weapon conviction. The sentences for the

theft convictions and the unlawful possession of a weapon conviction were ordered to be

served concurrently with each other. The aggravated burglary sentences were to be served

consecutively to each other but concurrently with the theft sentences, for a total effective

sentence of seventy-five years at sixty percent. On direct appeal, this court affirmed the

appellant’s convictions and sentences. State v. James E. Kenner, No. 01C01-9503-CR-00052,

1996 WL 63868 (Tenn. Crim. App. at Nashville, Feb. 13, 1996)

Much aggrieved, the appellant has repeatedly, albeit unsuccessfully, pursued relief

from his convictions and sentences. See James E. Kenner v. State, No. M2011-01131-CCA-

R3-CO, 2012 WL 1417230 (Tenn. Crim. App. at Nashville, Apr. 23, 2012) (post-conviction);

James Earl Kenner v. Ricky J. Bell, Warden, No. M2005-00622-CCA-R3-HC, 2007 WL

2702786 (Tenn. Crim. App. at Nashville, Sept. 13, 2007) (habeas corpus); James Earl Kenner

v. Ricky J. Bell, Warden, No. M2005-00622-CCA-R3-HC, 2005 WL 2139402 (Tenn. Crim.

App. at Nashville, Aug. 31, 2005) (habeas corpus); James E. Kenner v. State, No.

01C01-9709-CR-00424, 1999 WL 333097 (Tenn. Crim. App. at Nashville, May 26, 1999)

(post-conviction).

The instant appeal concerns the appellant’s January 29, 2014 motion to correct an

illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. In the motion, the

appellant alleged that he was on parole for offenses in Montgomery County at the time the

1994 Davidson County offenses were committed; therefore, the trial court should have

ordered the Davidson County sentences to be served consecutively to the Montgomery County

sentences. In support of this contention, the appellant quotes the following short excerpts

from the trial court’s ruling at the sentencing hearing:

[In 1989, the appellant was arrested for] drugs, grand larceny,

burglaries. He was convicted and sent away in 1990 on those

charges. And a matter of months after being paroled on those, he

is back out again in 1993 again continuing to burglarize and take

and steal from people who try to work and earn a living.

....

It’s also the judgment of the Court that you are an

offender whose record of criminal activity is extensive. You

were on parole.

....

This section of the Code refers for some reason to

probation, [i]t doesn’t mention parole, unless this is an amended

copy that I have. So I’m going to ignore that parole thing.

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(Emphasis added by the appellant removed).

The appellant further alleged that the trial court erred by finding that he was a career

offender due to prior convictions in Montgomery County. He claimed that the Montgomery

County convictions were void and illegal and could not be used to determine his offender

classification. He maintained that the Nineteenth Judicial District encompassed both

Montgomery and Robertson Counties and that the trial court was required to select members

of the grand jury and the petit jury from both counties, not just Montgomery County.

On March 3, 2014, the trial court denied the motion, saying that the appellant’s “legal

argument is largely incomprehensible” and “obviously frivolous.” The court further noted

that the appellant’s sentences were examined and affirmed on direct appeal. On March 25,

2014, the appellant filed a “Motion to Alter or Amend Order Dismissing Rule 36.01 Motion

to Correct an Illegal Sentence,” reiterating the arguments in his January 29 motion. On March

25, 2014, in anticipation of the trial court’s denying the second motion, the appellant filed a

“Premature Notice of Appeal.” On March 26, 2014, the trial court denied the March 25

motion. On appeal, the appellant challenges the trial court’s rulings.

II. Analysis

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 with the addition of Rule 36.1(a), which provides:

Either the defendant 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.

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.

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E2014-00673-CCA-R3-CD, 2014 WL 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 claims that Tennessee Rule of Criminal Procedure 32 mandated that his

Davidson County sentences be served consecutively to the Montgomery County sentences for

which he was on parole at the time he committed the Davidson County offenses. We agree

that “Rule 32(c)(3)(A) requires that the sentence imposed for the offense committed while on

parole run consecutively to the sentence for the felony for which the offender was on parole.”

Hogan v. Mills, 168 S.W.3d 753, 755-56 (Tenn. 2005). However, we note that the judgments

of conviction are silent as to whether the instant sentences are to be served consecutively to

the Montgomery County sentences. Rule 32(c)(3) expressly provides that “the sentence shall

be consecutive whether the judgment explicitly so orders or not.” Accordingly, we conclude

that the judgments are not illegal or in need of correction. See Kevin Daws v. State, No.

W2014-01002-CCA-R3-CO, 2015 WL 112787, at *2 (Tenn. Crim. App. at Jackson, Jan. 8,

2015).

In connection with the aforementioned claim, the appellant asserts that the trial court’s

statement that it was “going to ignore that parole thing” reflects an intention by the trial court

to violate Rule 32(c)(3)(A), which mandates consecutive sentencing for “a sentence for a

felony committed while on parole for a felony.” We disagree. The trial court was clearly

referring to Tennessee Code Annotated section 40-35-115(6) (1993), which provided for

permissive consecutive sentencing when an offender is “sentenced for an offense committed

while on probation.” However, this court has previously explained that “[t]he term

‘probation’ is not synonymous with the term ‘parole’ for purposes of Tennessee Code

Annotated section 40-35-115.” State v. Tracy Thomas Hepburn, No. M2008-01979-CCA-R3-

CD, 2010 WL 2889101, at *10 (Tenn. Crim. App. at Nashville, July 23, 2010).

As an alternative to his claim that the trial court should have ordered his Davidson

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County sentences to be served consecutively to the Montgomery County sentences, the

appellant argues that his Montgomery County convictions, which were used to enhance his

Davidson County sentences, were void. He complains that members of the Montgomery

County Grand Jury that indicted him were chosen from residents of Montgomery County, not

from both of the counties comprising the Nineteenth Judicial District. He contends 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 deprives

the trial court of subject matter jurisdiction and renders the indictment and resulting

convictions 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 Nineteenth

Judicial District was comprised of Montgomery and Robertson 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 Courts.’” We note, however, that the legislature specifically provided that the

reorganization of the trial court system did “not have as its purpose the abolition of any court

or judicial office.” Tenn. Code Ann. § 16-2-501(a). Therefore, the long-standing process for

trying an offender in the county in which a crime was committed by a jury that was selected

from that county was not abolished by the creation of judicial districts. See also Tenn. Const.

art. I, § 9; Tenn. Code Ann. §§ 22-2-201, 40-1-108. Therefore, the appellant’s argument is

unavailing.

Regardless, we conclude that the appellant’s assertions do not constitute a colorable

claim for relief under Rule 36.1. Joe Clark Mitchell v. State, No. M2014-00754-CCA-R3-

CD, 2015 WL 2400239, at *3 (Tenn. Crim. App. at Nashville, May 20, 2015). The

appellant’s challenge to the process of choosing members of grand juries or petit juries in

Montgomery County, even if taken as true, would affect his Montgomery County convictions.

A challenge to the validity of a conviction is more properly addressed in a petition for a writ

of habeas corpus. Accordingly, the appellant is not entitled to relief.

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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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