State of Tennessee v. Decornick Moore

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs August 4, 2015

STATE OF TENNESSEE v. DECORNICK MOORE

Appeal from the Circuit Court for Haywood County

No. 5153-B Clayburn L. Peeples, Judge

No. W2015-00169-CCA-R3-CD - Filed August 26, 2015

The Defendant, Decornick Moore, pleaded guilty to attempt to commit second degree murder

and received a ten-year sentence. More than ten years later, the Defendant filed a motion

pursuant to Tennessee Criminal Procedure Rule 36.1 requesting that the trial court correct an

illegal sentence because his sentence should have been served consecutively to a previously

imposed sentence. The trial court summarily dismissed the motion for failure to state a

colorable claim. On appeal, he contends that the trial court erred in dismissing his motion.

We affirm the judgment of the trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which ALAN E.

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

Decornick Moore, Memphis, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney

General; and Garry Brown, District Attorney General, Jerald M. Campbell, Jr., Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

In 2003, the Defendant and his codefendant were indicted for attempt to commit first

degree murder and especially aggravated burglary. On May 26, 2004, the Defendant pleaded

guilty pursuant to a negotiated agreement to attempt to commit second degree murder in

exchange for a ten-year sentence and a dismissal of the burglary-related charge.

On September 25, 2014, the Defendant filed a motion to correct an illegal sentence.

In the motion, the Defendant stated that on January 27, 2003, he pleaded guilty in Madison

County case number 02-632 to a burglary-related offense, theft, and possession of burglary

tools. He stated that he received an effective four-year sentence to be served on community

corrections. The Defendant said that on August 13, 2003, two months after the trial court

imposed sentencing, he was arrested in connection with the present case. He alleged that

defense counsel advised him that the State would agree to concurrent sentences if he pleaded

guilty. The Defendant argued that concurrent sentences violated Tennessee Code Annotated

section 40-28-123 (2012) and Tennessee Criminal Procedure Rule 32(c)(3), which required

consecutive service, and that he entered an involuntary and unknowing guilty plea because he

was unaware the law required consecutive sentences.

The State responded to the Defendant’s motion, arguing that the Defendant presented

no evidence supporting his claim that he was serving a previously imposed sentence on

community corrections at the time of the present case. Alternatively, the State argued that

even if the Defendant’s claim was accurate, his reliance on Code section 40-28-123 and

Tennessee Criminal Procedure Rule 32(c)(3) was misplaced because he was not on parole at

the time of the offenses. The State, likewise, treated the Defendant’s motion as a petition for

a writ of habeas corpus, arguing that the Defendant was not entitled to habeas corpus relief

because the judgment was valid and because his sentence expired on May 26, 2014. The trial

court summarily dismissed the Defendant’s motion “for good cause shown.” This appeal

followed.

The Defendant contends that the trial court erred by summarily dismissing his motion

for a corrected sentence. He argues that his concurrent sentences were in direct

contravention of Tennessee Criminal Procedure Rule 32(c)(3)(A) and (D) and Tennessee

Code Annotated section 40-28-123. He also argues that the trial court erred by treating his

motion as a petition for habeas corpus relief. The State responds that the trial court properly

denied the motion. We agree with the State.

Tennessee Criminal Procedure Rule 36.1 states, in relevant 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.

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Tenn. R. Crim. P. 36.1(a). A defendant is entitled to a hearing and the appointment of

counsel if the motion states a colorable claim for relief. Id. at 36.1(b). Further, the trial court

is required to file an order denying the motion if it determines that the sentence is not illegal.

Id. at 36.1(c)(1).

The record reflects that pursuant to a negotiated plea agreement, the Defendant

pleaded guilty to attempt to commit second degree murder in exchange for a ten-year

sentence. The plea agreement form and the judgment form do not reference the Madison

County convictions and sentences. Although the State notes that the Defendant did not attach

to his motion for a corrected sentence supporting documentation relative to his Madison

County convictions, a defendant who seeks correction of an illegal sentence is not required to

attach supporting documents to support a colorable claim. State v. Brandon Rollen, No.

W2012-01513-CCA-R3-CD, slip op. at 5 (Tenn. Crim. App. September 11, 2013); see

George William Brady v. State, No. E2013-00792-CCA-R3-PC, 2013 WL 6729908, at *6

(Tenn. Crim. App. Dec. 19, 2013) (“Under the liberal terms of Rule 36.1, the petitioner’s

raising a colorable claim would entitle him to the appointment of counsel and a hearing on

his claim, even without any documentation from the underlying record to support his

claim.”). In any event, the record contains the State’s notice of intent to impeach the

Defendant at a trial with his previous convictions from Madison County, which was filed on

October 31, 2003. The notice referenced the Defendant’s previous convictions for burglary,

theft, and possession of burglary tools and stated the conviction date for each offense was

January 27, 2004. Although the notice does not state the length and manner of service of the

sentences, the Defendant stated in his petition and in his appellate brief that he was sentenced

to an effective four years to be served on community corrections.

The Defendant relies on Tennessee Criminal Procedure Rule 32(c)(3), which states, in

relevant part,

When a . . . defendant has additional sentences not yet fully served as the result

of convictions in the same or other courts and the law requires consecutive

sentences, the sentence shall be consecutive whether the judgment explicitly so

orders or not. This rule shall apply:

(A) to a sentence for a felony committed while on parole for a felony;

...

(D) for any other ground provided by law.

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Tenn. R. Crim. P. 32(c)(3)(A), (D). The Defendant also relies on Tennessee Code Annotated

section 40-28-123, which addresses the board of parole’s authority relative to service of

sentences when a defendant commits a felony while on parole. See T.C.A. § 40-28-123(a),

(b)(1)-(2) (2012). The Defendant’s reliance is misplaced.

The Defendant states in his brief that he pleaded guilty in Madison County and

received a four-year sentence “in the Community Correction to a suspended sentence of four

years” and that he committed the present offense while in the “Community Correction

Program.” Community corrections is a form of alternative sentencing, and it is distinct from

release on parole. See State v. Anderson, 7 S.W.3d 100, 102 (Tenn. Crim. App. 1999)

(stating that our appellate courts “have recognized that community corrections is more

similar to probation” than work release and parole). A defendant serving a sentence on

community corrections is not a prisoner within the meaning of Code section 40-28-123. As

a result, Tennessee Criminal Procedure Rule 32(c)(3) and Code section 40-28-123 are

inapplicable.

However, Tennessee Criminal Procedure Rule 32(c)(2)(A)(i) states, in relevant part,

that

[i]f the defendant has additional sentences not yet fully served as the result of

convictions . . . in other courts of Tennessee and if this fact is made known to

the court prior to sentencing, the court shall recite this fact in the judgment

setting sentence, and the sentence imposed is deemed to be concurrent with the

prior sentence . . . , unless it affirmatively appears that the new sentence being

imposed is to be served consecutively to the prior sentence[.]

Although the judgment in the present case does not reference the Madison County

convictions, the trial court was aware of the convictions prior to the Defendant’s pleading

guilty in the present case because the notice of impeachment appears in the record. As a

result, the Defendant’s ten-year sentence is deemed to be served concurrently with his

effective four-year sentence in Madison County. Although a trial court may impose

consecutive sentences for an offense committed while a defendant is serving a sentence on

community corrections, consecutive service is not mandatory. See T.C.A. § 40-35-115

(2014); see also State v. Pettus, 986 S.W.2d 540, 544-45 (Tenn. 1999) (concluding that

although a community corrections sentence cannot be imposed consecutively pursuant to

Code section 40-35-115(6), nothing prevents a trial court from imposing consecutive

sentences when the record supports consecutive sentences based on the other statutory

factors). As a result, we conclude that the Defendant’s concurrent sentences are not illegal

and do not contravene any statute and that the Defendant has failed to state a colorable claim

for relief.

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Relative to the Defendant’s contention that the trial court erred by treating his motion

as a petition for a writ of habeas corpus, we conclude that no evidence reflects that the court

treated the motion as a petition for habeas corpus relief. The State, as an alternative

argument in its response to the Defendant’s motion, addressed the Defendant’s contentions in

the context of habeas corpus relief. The court’s order summarily dismissing the motion did

not state the court’s reasoning. In any event, the Defendant would not be entitled to habeas

corpus relief because the judgment form reflects that his ten-year sentence expired before he

filed his motion. See T.C.A. § 39-21-101 (2012); see also Hickman v. State, 153 S.W.3d 16,

22-24 (Tenn. 2004). We also note that the Defendant has not stated he is currently in

confinement pursuant to the relevant convictions.

Based on the foregoing and the record as a whole, we affirm the judgment of the trial

court.

____________________________________

ROBERT H. MONTGOMERY, JR., JUDGE

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