State of Tennessee v. Christopher Hatcher

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

STATE OF TENNESSEE v. CHRISTOPHER HATCHER

Appeal from the Criminal Court for Shelby County

No. 01-09093 Glenn Ivy Wright, Judge

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No. W2016-01389-CCA-R3-CD - Filed January 25, 2017

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The Defendant, Christopher Hatcher, appeals from the trial court’s denial of his motion to

correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. The

State has filed a motion requesting that this court affirm the trial court’s judgment

pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following our

review, we grant the State’s motion and affirm the judgment of the trial court.

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

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS and CAMILLE R. MCMULLEN, JJ., joined.

Christopher Hatcher, Whiteville, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant

Attorney General; Amy Weirich, District Attorney General; and Austin B. Scofield,

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

OPINION

The Defendant was indicted on first degree premeditated murder, first degree

felony murder, and two counts of attempted first degree murder. See State v. Christopher

Hatcher, No. W2003-01867-CCA-R3-CD, 2004 WL 2058909, at *1 (Tenn. Crim. App.

Sept. 15, 2004), perm. app. denied (Tenn. Jan. 24, 2005). Following a jury trial, the

Defendant was convicted of first degree felony murder, second degree murder, attempted

first degree murder, and reckless endangerment. Id. at *10. The trial court merged the

second degree murder conviction into the felony murder conviction and sentenced the

Defendant to life imprisonment for felony murder. Id. The trial court sentenced the

Defendant to twenty years for attempted first degree murder and eleven months and

twenty-nine days for reckless endangerment and ordered the Defendant to serve his

sentences for the convictions concurrently to his life sentence for felony murder. Id.

This court upheld the Defendant’s convictions and sentences on direct appeal. Id. at *1.

The Defendant subsequently sought post-conviction relief, alleging that his trial

counsel was ineffective. The post-conviction court denied relief, and this court upheld

the post-conviction court’s judgment on appeal. See Christopher Hatcher v. State, No.

W2007-02275-CCA-R3-PC, 2009 WL 55951, at *1 (Tenn. Crim. App. Jan. 8, 2009),

perm. app. denied (Tenn. May 26, 2009).

On February 10, 2016, the Defendant filed a motion to correct an illegal sentence

pursuant to Tennessee Rule of Criminal Procedure 36.1. The Defendant maintained that

he was convicted of attempted felony murder and was sentenced to twenty years. He

argued that under State v. Kimbrough, 924 S.W.2d 888 (Tenn. 1996), attempted felony

murder is not a crime in Tennessee and that as a result, the trial court was without

jurisdiction to impose the twenty-year sentence. The Defendant also argued that the void

sentence rendered his concurrent life sentence void also. The State filed a response,

asserting that the Defendant was never indicted for or convicted of attempted felony

murder. On May 4, 2016, the trial court entered an order denying the Defendant’s

motion.

Rule 36.1 of the Tennessee Rules of Criminal Procedure permits a defendant to

seek correction of an unexpired illegal sentence at any time. See State v. Brown, 479

S.W.3d 200, 211 (Tenn. 2015). “[A]n illegal sentence is one that is not authorized by the

applicable statutes or that directly contravenes an applicable statute.” Tenn. R. Crim. P.

36.1(a). Our supreme court recently interpreted the meaning of “illegal sentence” as

defined in Rule 36.1 and concluded that the definition “is coextensive, and not broader

than, the definition of the term in the habeas corpus context.” State v. Wooden, 478

S.W.3d 585, 594-95 (Tenn. 2015). The court then reviewed the three categories of

sentencing errors: clerical errors (those arising from a clerical mistake in the judgment

sheet), appealable errors (those for which the Sentencing Act specifically provides a right

of direct appeal) and fatal errors (those so profound as to render a sentence illegal and

void). Id. Commenting on appealable errors, the court stated that those “generally

involve attacks on the correctness of the methodology by which a trial court imposed

sentence.” Id. In contrast, fatal errors include “sentences imposed pursuant to an

inapplicable statutory scheme, sentences designating release eligibility dates where early

release is statutorily prohibited, sentences that are ordered to be served concurrently

where statutorily required to be served consecutively, and sentences not authorized by

any statute for the offenses.” Id. The court held that only fatal errors render sentences

illegal. Id.

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On appeal, it appears that the Defendant concedes that he was convicted of felony

murder and not attempted felony murder. Rather, he argues that he was indicted for

attempted felony murder and that as a result, his conviction for felony murder is void and

his resulting sentence is illegal. He maintains that the jury returned a conviction for an

offense for which he was never indicted and that he never consented to an amendment to

the indictment. The Defendant, however, did not raise this issue in the trial court.

Therefore, this issue is waived. Cauthern v. State, 145 S.W.3d 571, 599 (Tenn. Crim.

App. 2004) (“[A]n issue raised for the first time on appeal is waived.”) (citing State v.

Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim. App. 1996)).

Moreover, the Defendant is not entitled to relief. The gravamen of the

Defendant’s motion is an attack upon his convictions, and “[t]he attack upon his sentence

is simply a collateral effect of his endeavor to reverse his conviction and dismiss the

underlying charge.” State v. Jimmy Wayne Wilson, No. E2013-02354-CCA-R3-CD,

2014 WL 1285622, at *2 (Tenn. Crim. App. Mar. 31, 2014), perm. app. denied (Tenn.

Nov. 19. 2014). The Defendant’s argument that his sentences are illegal depends upon

his conviction that he was either indicted for or convicted of attempted felony murder,

which is not a criminal offense. The Defendant has not argued that “his sentence,

independent of his conviction, was imposed outside of, or in contravention of, the

applicable statutory authority.” Id. The Defendant has not set forth a colorable claim

that his sentence, rather than his conviction, is illegal pursuant to Rule 36.1.

Furthermore, although the indictments and judgments are not included in the appellate

record, this court, on direct appeal, listed the offenses for which the Defendant was

indicted and convicted, none of which included attempted felony murder. See

Christopher Hatcher, 2004 WL 2058909, at *1, 10. Accordingly, the Defendant is not

entitled to relief.

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 is taken in a proceeding without a jury, 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. Crim. App. R. 20. We conclude that this

case satisfies the criteria of Rule 20. The judgment of the trial court, therefore, is

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

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ALAN E. GLENN, JUDGE

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