State of Tennessee v. Fredrick Sledge

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs May 5, 2015

STATE OF TENNESSEE v. FREDRICK SLEDGE

Direct Appeal from the Criminal Court for Shelby County

No. 9204081 James M. Lammey, Jr., Judge

No. W2014-02305-CCA-R3-CD - Filed August 25, 2015

A Shelby County jury convicted the Defendant, Fredrick Sledge, of first degree felony

murder and especially aggravated robbery, and it imposed a sentence of death for the first

degree felony murder conviction. The trial court imposed a consecutive twenty-year

sentence for the especially aggravated robbery conviction. The Defendant appealed his

convictions and sentences, and we affirmed his conviction and sentence for the especially

aggravated robbery conviction. We also affirmed his conviction for first degree felony

murder but concluded that errors during the sentencing phase required reversal of the

death sentence. We remanded the case to the trial court for resentencing for the first

degree felony murder conviction. See State v. Fredrick Sledge, No. 02C01-9405-CR-

00089, 1997 WL 730245, at *1 (Tenn. Crim. App., at Jackson, Nov. 25, 1997). On

remand, the Defendant was sentenced to life for the first degree murder conviction to be

served consecutively to his twenty-year sentence for the especially aggravated robbery

conviction. State v. Fredrick Sledge, No. W2001-02402-CCA-R3-CD, 2003 WL 57313,

at *1 (Tenn. Crim. App., at Jackson, Jan. 6, 2003). The Defendant’s sentence was

affirmed by this court. Id. In 2014, the Defendant filed a motion pursuant to Tennessee

Rule of Appellate Procedure 36.1 seeking to correct an illegal sentence. The trial court

summarily denied the Defendant’s motion. On appeal, the Defendant contends that the

trial court erred when it denied his motion. After a thorough review of the record and

applicable authorities, we affirm the trial court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which NORMA MCGEE

OGLE and ROGER A. PAGE, JJ., joined.

Fredrick Sledge, Only, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;

Amy P. Weirich, District Attorney General; and Jessica Banti, Assistant District Attorney

General, for the appellant, State of Tennessee.

OPINION

I. Facts and Procedural History

This case arises from the robbery and shooting death of the victim, Johnny Harris,

in an apartment complex in Memphis on the night of December 10, 1991. The Defendant

was seen by witnesses near where the victim was shot, and the Defendant later told police

that he robbed the victim for his money and then shot him. Sledge, 1997 WL 730245, at

*1-6. At trial, the Defendant was convicted of first degree felony murder and especially

aggravated robbery. The jury imposed a sentence of death for the first degree felony

murder conviction, and the trial court imposed a consecutive twenty-year sentence for the

especially aggravated robbery conviction. On direct appeal, this court affirmed the first

degree felony murder conviction but reversed the Defendant’s death sentence and

remanded the case for resentencing. This court affirmed the especially aggravated

robbery conviction and corresponding sentence. Id. at *33. Our supreme court affirmed.

See State v. Sledge, 15 S.W.3d 93 (Tenn. 2000) (modified on other grounds), cert. denied,

531 U.S. 889 (2000).

On remand, the Defendant was resentenced to life imprisonment for the first

degree felony murder conviction to be served consecutively to his twenty-year sentence

for the especially aggravated robbery conviction. Sledge, 2003 WL 57313, at *1. The

Defendant challenged the imposition of consecutive sentencing on appeal, and we

affirmed the trial court’s judgment. Id. The Defendant subsequently filed a petition for

post-conviction relief claiming the ineffective assistance of counsel, which the post-

conviction court dismissed; this court affirmed the post-conviction court’s denial.

Fredrick Sledge v. State, No. W2004-02357-CCA-R3-PC, 2005 WL 2572364, at *1

(Tenn. Crim. App., at Jackson, Oct. 12, 2005), perm. app. denied (Tenn. March 27,

2006).

In 2014, the Defendant filed a motion pursuant to Tennessee Rule of Criminal

Procedure 36.1 to correct his illegal sentence. In the Defendant’s motion, he contended

that: (1) the judge during resentencing should have disclosed that he had previously been

employed by the district attorney’s office that prosecuted the Defendant’s case; (2) during

resentencing, the trial court erred when it failed to instruct the jury regarding parole

eligibility; (3) the Tennessee Department of Correction violated the law when it did not

allow the Defendant to meet with the parole board; and (4) the Defendant was not

awarded pretrial jail credit days pursuant to the judgment form for his life sentence. The

State responded that the Defendant’s life sentence was a “correct and statutorily

permissible sentence” and that the Defendant had not stated a colorable claim in his

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motion because he had not cited any grounds that amounted to the imposition of an

illegal sentence. The State argued that the Defendant’s motion should be dismissed

“under both habeas corpus review or Rule 36.1.”

The trial court subsequently issued an order denying the Defendant’s requested

relief. In its order, the trial court found:

Regardless of the fact that the statutes cited by [the Defendant] fail

to provide any grounds for relief, the motion should still be denied under

both habeas corpus review or Rule 36.1. [The Defendant] requests the

Court review the trial court’s sentencing procedures and Tennessee

Department of Corrections’ procedures in administering parole review.

Even taking [the Defendant’s] allegations as true, the judgment would be

voidable, not void, and thus [the Defendant] is not entitled to habeas corpus

relief. Further, under Rule 36.1, none of the grounds cited by [the

Defendant] amount to an imposition of an illegal sentence, and thus [the

Defendant] is not entitled to a correction of any sentence.

It is from this judgment that the Defendant now appeals.

II. Analysis

On appeal, the Defendant contends that: (1) the “reassignment of [his] case from

Division 10 to Division 5 casts a shadow of impropriety over these proceedings,” and

warrants the trial court’s recusal; (2) the trial court erred by treating the Defendant’s

motion to correct an illegal sentence as a petition for writ of habeas corpus; (3) the

resentencing judge should have disclosed his prior employment with the district

attorney’s office; and (4) the trial court erred when it failed to charge the jury with the

parole eligibility statute at Tennessee Code Annotated section 40-35-501. The State

responds that, because none of the Defendant’s claims render his sentence illegal, the trial

court properly dismissed his motion. We agree with the State.

Tennessee Rule of Criminal Procedure 36.1 provides in pertinent part that:

(a) 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.

(b) Notice of any motion filed pursuant to this rule shall be promptly

provided to the adverse party. If the motion states a colorable claim that

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the sentence is illegal, and if the defendant is indigent and is not already

represented by counsel, the trial court shall appoint counsel to represent the

defendant. The adverse party shall have thirty days within which to file a

written response to the motion, after which the court shall hold a hearing on

the motion, unless all parties waive the hearing.

Tenn. R. Crim. P. 36.1(a), (b) (2014). Rule 36.1 does not define the term “colorable

claim.” In interpreting Rule 36.1, this Court has adopted the definition for “colorable

claim” from the post-conviction context: “A colorable claim is a claim . . . that, if taken

as true, in the light most favorable to the [defendant], would entitle [defendant] 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) (citing Tennessee Supreme Court Rule 28,

§ 2(H)), no Tenn. R. App. P. 11 filed.

“Whether a sentence is illegal pursuant to Rule 36.1 is a question of law that we

review de novo with no presumption of correctness.” State v. Dusty Ross Binkley, No.

M2014-00173-CCA-R3-CD, 2015 WL 2148950, at *2 (Tenn. Crim. App., at Nashville,

May 7, 2015) (citing Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007) (stating that

the standard of review for a habeas corpus case is de novo with no presumption of

correctness)).

We first address the Defendant’s issues (1) and (3), in which the Defendant raises

the issue of the alleged bias of the trial judge. Considering these allegations in the light

most favorable to the Defendant, we conclude that he has not presented a colorable claim.

The Defendant’s claims regarding the trial court’s recusal are not related to the legality of

his sentence, and, therefore, the Defendant has failed to establish that his sentences are in

direct contravention of a statute. See Tenn. R. Crim. P. 36.1. Thus, no relief is available

to him.

Turning next to the Defendant’s issue (2), that the trial court erred by treating the

Defendant’s motion as a petition for writ of habeas corpus, the trial court addressed the

Defendant’s claims under Rule 36.1 and found no colorable claim. Specifically, the trial

court’s order states that it considered the Defendant’s motion to correct an illegal

sentence under “both habeas corpus review [and] Rule 36.1.” (Emphasis added). The

trial court merely widened the Defendant’s avenue for possible relief by considering his

motion as both a petition for habeas corpus relief and a motion pursuant to Tennessee

Rule of Criminal Procedure 36.1. The Defendant was not prejudiced by the trial court’s

consideration, and he is not entitled to relief on this issue.

Finally, we address the Defendant’s issue (4), that the trial court improperly failed

to instruct the jury as to his parole eligibility, pursuant to Tennessee Code Annotated

section 39-13-204(e)(2) (2014). The Defendant contends that, during resentencing, the

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jury asked the trial court for clarification about the Defendant’s parole eligibility.

According to the Defendant, the trial court responded that it could not answer the

question and advised the jury that parole eligibility was not an issue for its consideration.

There is no evidence in the record supporting the Defendant’s assertion. Further, the

Defendant’s assertion, even if true, does not render his sentence illegal. The Defendant is

not entitled to relief as to this issue.

III. Conclusion

In accordance with the aforementioned reasoning and authorities, we affirm the

trial court’s summary dismissal of the Defendant’s Rule 36.1 motion to correct an illegal

sentence.

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ROBERT W. WEDEMEYER, JUDGE

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