The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs February 9, 2016
STATE OF TENNESSEE v. RICKY FLAMINGO BROWN
Appeal from the Criminal Court for Davidson County
No. 86-F-1484 Cheryl Blackburn, Judge
No. M2015-01754-CCA-R3-CD – Filed March 15, 2016
The defendant, Ricky Flamingo Brown, appeals the summary dismissal of his motion,
filed pursuant to Tennessee Rule of Criminal Procedure 36.1, to correct what he believes
to be an illegal sentence. Because the grounds for relief raised by the defendant have
been previously determined and because the defendant failed to state cognizable grounds
for relief under Rule 36.1, the interests of justice do not require the waiver of the timely
filing of the notice of appeal in this case. Accordingly, the appeal is dismissed.
Tenn. R. App. P. 3; Appeal Dismissed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ALAN E.
GLENN and ROBERT L. HOLLOWAY, JR., JJ., joined.
Ricky Flamingo Brown, Whiteville, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Megan King, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
In August 1987, a Davidson County Criminal Court jury convicted the
defendant of the aggravated rape of his 12-year-old daughter. See Ricky Flamingo Brown
v. State, No. M2007-00158-CCA-R3-HC, slip op. at 1-4 (Tenn. Crim. App., Nashville,
Feb. 11, 2008) (affirming the denial of a previous habeas corpus petition and detailing the
procedural history of the conviction), perm. app. denied (Tenn. Aug. 25, 2008). The
defendant escaped from custody following the trial and was sentenced in absentia to a
life sentence for his Class X felony conviction. The defendant finally began service of
his life sentence following his 1990 apprehension. It was at that point that the petitioner
commenced a more than two-decade siege against his conviction and sentence. See Ricky
Flamingo Brown v. State, No. M2009-02056-CCA-R3-HC, slip op. at 1-2 (Tenn. Crim.
App. Oct. 22, 2010) (detailing the defendant‟s many unsuccessful attempts to assail his
convictions); see also Ricky Flamingo Brown v. State, No. M2007-00158-CCA-R3-HC,
slip op. at 2 (Tenn. Crim. App., Nashville, Feb. 11, 2008), perm. app. denied (Tenn. Aug.
25, 2008) (noting that this court had “encountered some difficulty in determining exactly
how many collateral writs and appeals the [defendant] has pursued”).
On January 12, 2015, the defendant filed in the Davidson County Criminal
Court a Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence.
The type-written motion itself, as the State points out, is barely legible. We glean,
however, that the defendant contends that his life sentence is illegal because the trial
court failed to place on the record the enhancement factors that it relied on to reach that
sentence, because he lacked the requisite number of prior convictions to qualify as a
Range II offender, because the State failed to file a notice of enhancement factors prior to
the sentencing hearing, and because the trial court imposed the sentence after making
factual findings more properly made by a jury. He also claimed entitlement to relief on
the basis that Tennessee Rule of Criminal Procedure 43, regarding the presence of the
defendant, is unconstitutional. Finally, the defendant, claiming that he did not, in fact,
escape from custody but was instead “erroneously released through no fault of his own,”
argued that he should have been given “credit for time at liberty.” The trial court
summarily dismissed the motion on July 20, 2015, finding that the defendant had failed to
state a cognizable ground for relief under the terms of Rule 36.1.
The defendant filed an untimely notice of appeal of the trial court‟s order
on September 8, 2015, more than 30 days following his receipt of the trial court‟s July
20, 2015 order. The original notice of appeal document, like the original motion filed in
this case, is barely legible. The appellant refers to his filing a motion to reconsider the
summary dismissal, but no such motion appears in the record on appeal. Moreover, the
filing of a motion to reconsider does not toll the time for filing a notice of appeal in this
court. See Tenn. R. App. P. 4(c) (“In a criminal action, if a timely motion or petition
under the Tennessee Rules of Criminal Procedure is filed in the trial court by the
defendant: (1) under Rule 29(c) for a judgment of acquittal; (2) under Rule 32(a) for a
suspended sentence; (3) under Rule 32(f) for withdrawal of a plea of guilty; (4) under
Rule 33(a) for a new trial; or (5) under Rule 34 for arrest of judgment, the time for appeal
for all parties shall run from entry of the order denying a new trial or granting or denying
any other such motion or petition.”). In criminal cases, however, the notice of appeal
document is not jurisdictional and may be waived by this court in the interests of justice.
Tenn. R. App. P. 4. For the reasons set forth more fully below, the interests of justice do
not require the waiver of the timely filing of the notice of appeal in this case.
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As indicated above, the defendant has mounted every conceivable attack
upon his conviction and sentence in this case. In the past 25 years, he has filed more than
one of every form of collateral attack available under the law, raising dozens of possible
claims for relief. It is not surprising, then, that the claims raised in his most recent Rule
36.1 motion are identical to claims previously considered and rejected by this court. See,
e.g., Ricky Flamingo Brown, No. M2007-00158-CCA-R3-HC, slip op. at 4-5 (“On
appeal, the [p]etitioner raises the following issues: (1) he was sentenced by the trial court
in contravention of existing law because the trial court failed to place on the record the
factual basis for the sentence; (2) he was sentenced improperly because the State did not
prove he was a persistent offender; (3) the State failed to properly comply with the
requirements associated with the sought after enhanced punishment; and (4) he was
denied Sixth Amendment rights by being sentenced in contravention of the rule
established in Apprendi v. New Jersey, 530 U.S. 466 (2000).”). Rule 36.1 may not be
used to relitigate those issues that have been previously determined.
Moreover, the defendant‟s claims, even if true, would not entitle him to
Rule 36.1 relief. Rule 36.1 provides the defendant and the State an avenue to “seek the
correction of an illegal sentence,” defined as a sentence “that is not authorized by the
applicable statutes or that directly contravenes an applicable statute.” Id.; see also State
v. James D. Wooden, ___ S.W.3d ___, No. E2014-01069-SC-R11-CD, slip op. at 11
(Tenn. 2015) (holding that “the definition of „illegal sentence‟ in Rule 36.1 is coextensive
with, and not broader than, the definition of the term in the habeas corpus context”). To
avoid summary denial of an illegal sentence claim brought under Rule 36.1, a defendant
must “state with particularity the factual allegations,” Wooden, ___ S.W.3d at ___, slip
op. at 10, establishing “a colorable claim that the sentence is illegal,” Tenn. R. Crim. P.
36.1(b). “[F]or purposes of Rule 36.1 . . . „colorable claim‟ means a claim that, if taken
as true and viewed in a light most favorable to the moving party, would entitle the
moving party to relief under Rule 36.1.” Wooden, ___ S.W.3d at ___, slip op. at 9. None
of the claims presented, even if true, would establish that the defendant‟s sentence was
not authorized at the time of his conviction or was imposed in contravention of any
statute.
Because the defendant‟s claims have been previously determined and, in
any event, are not cognizable in a Rule 36.1 proceeding, the interests of justice do not
require that we waive the timely filing of the notice of appeal in this case. Accordingly,
the appeal is dismissed.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
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