State of Tennessee v. Charles Owens

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 9, 2016

STATE OF TENNESSEE v. CHARLES OWENS

Appeal from the Criminal Court for Davidson County

No. 2003-D-2592 J. Randall Wyatt, Jr., Judge

No. M2015-01361-CCA-R3-CD – Filed March 14, 2016

The defendant, Charles Owens, filed an unsuccessful Tennessee Rule of Criminal

Procedure 36.1 motion to correct an illegal sentence, the alleged illegality being that he

was not present, either in person or by video, at his sentencing. He asks that his

conviction and sentence be declared illegal and void. The trial court concluded, without a

hearing, that the motion failed to state a colorable claim for relief, and this appeal

followed. Following our review, we affirm the dismissal of the motion, pursuant to Rule

20, Rules of the Court of Criminal Appeals.

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

Pursuant to Rule 20, Rules of the Court of Criminal Appeals

ALAN E. GLENN, J., delivered the opinion of the court, in which JAMES CURWOOD WITT,

JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.

Charles Owens, Only, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;

Glenn R. Funk, District Attorney General; and Amy Hunter, Assistant District Attorney

General, for the appellee, State of Tennessee.

MEMORANDUM OPINION

The defendant was convicted by a jury of six counts of aggravated sexual battery

and received an effective sentence of twenty-four years. The only claim raised in his

direct appeal was that prosecutorial misconduct prevented his receiving a fair trial. This

court concluded otherwise and affirmed the judgments. State v. Charles Owens, No.

M2005-02571-CCA-R3-CD, 2007 WL 1094136, at *1 (Tenn. Crim. App. Apr. 12, 2007),

perm. app. denied (Tenn. Aug. 20, 2007). He then filed a petition for post-conviction

relief, claiming that his trial counsel had been ineffective. Both the post-conviction court

and this court concluded that he had failed to show that he had been prejudiced by the

action of trial counsel. Charles Owens v. State, No. M2009-00558-CCA-R3-PC, 2010

WL 1462529, at *1 (Tenn. Crim. App. Apr. 13, 2010), perm. app. denied (Tenn. Sept. 22,

2010). Subsequently, he filed a Rule 36.1 motion, arguing, for the first time, that his

2004 sentencing had been illegal and void because, contrary to the requirements of Rule

43(a)(3) of the Tennessee Rules of Criminal Procedure, his rights had been violated

because he was not present at his sentencing, either in person or by video conference.

In his Rule 36.1 motion, the defendant relies upon Tennessee Rule of Criminal

Procedure 43(a), which provides, in part, that a defendant’s presence is required at the

imposition of sentence, unless excused by the court upon the defendant’s motion. The

defendant asserts that he did not waive his right to be present at the sentencing, as

allowed by subsection (b). He does not explain why he did not present this claim in his

earlier unsuccessful petition for post-conviction relief. As we will explain, Rule 36.1

cannot provide relief to the defendant, even if his claims were true.

As we have set out, Tennessee Rule of Criminal Procedure 43(a) provides that a

criminal defendant shall be present at court for important proceedings, including the

imposition of the sentence. However, subsection (b) permits a defendant to waive his

presence at the imposition of sentence.

In Cantrell v. Easterling, 346 S.W.3d 445, 449-52 (Tenn. 2011), our supreme court

explained that there are three general categories of sentencing errors, consisting of

clerical, appealable, and fatal errors. In State v. Adrian R. Brown, --- S.W.3d ---, 2015

WL 7748275, at *5 (Tenn. Dec. 2, 2015), our supreme court noted that “[c]laims of

appealable error generally involve attacks on the correctness of the methodology the trial

court used to impose sentence.” Cited in Adrian R. Brown to further explain this point

was the opinion of this court in State v. Jonathan T. Deal, No. E2013-02623-CCA-R3-

CD, 2014 WL 2802910, at *2 (Tenn. Crim. App. June 17, 2014), where we concluded

that:

[T]he Defendant’s initial assertions concerning the methodology used by

the trial court in imposing sentence did not set forth a colorable claim

cognizable under Rule 36.1. 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.” Tenn. R. Crim. P. 36.1(a). See also

Cantrell, 346 S.W.3d at 452-53 (setting forth the definition, and examples,

of illegal sentences). Thus, the Rule is directed at the sentence finally

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imposed, not the methodology by which it is imposed.

The defendant could have pursued by direct appeal or petition for post-conviction

relief his complaint that he was not present at his sentencing. Since his claim, even if

true, goes to the methodology of his sentencing but would not result in his sentence being

illegal, his motion failed to present a colorable claim for relief and was properly

dismissed without a hearing.

When an opinion would have no precedential value, the Court of Criminal

Appeals may affirm the judgment or action of the trial court by memorandum opinion

when the judgment is rendered or the action taken in a proceeding without a jury and

such judgment or action is not a determination of guilt, and the evidence does not

preponderate against the finding of the trial judge. See Tenn. Ct. Crim. App. R. 20. We

conclude that this case satisfies the criteria of Rule 20. The judgment of the trial court is

affirmed in accordance with Rule 20, Rules of the Court of Criminal Appeals.

_________________________________

ALAN E. GLENN, JUDGE

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