State of Tennessee v. Rocky M. White

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 1, 2016

STATE OF TENNESSEE v. ROCKY M. WHITE

Appeal from the Circuit Court for Madison County

No. 91-53, 92-515, 93-945, 93-1133, 93-1134, 93-1135, 93-1136, 93-1137

Donald H. Allen, Judge

___________________________________

No. W2016-00283-CCA-R3-CD – Filed January 31, 2017

___________________________________

Pro se Petitioner, Rocky White, appeals from the Madison County Circuit Court‟s

summary dismissal of his motion to correct an illegal sentence pursuant to Rule 36.1 of

the Tennessee Rules of Criminal Procedure. On appeal, the Petitioner argues that the trial

court erred by summarily dismissing his motion. Because the sentences in this action

have expired, we affirm the judgment of the trial court pursuant to Rule 20 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 of the Court of Criminal Appeals

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS and J. ROSS DYER, JJ., joined.

Rocky M. White, Forrest City, Arkansas, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Assistant

Attorney General; James G. Woodall, District Attorney General; and Al Earls, Assistant

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

MEMORANDUM OPINION

On May 23,1994, the Petitioner plead guilty in Madison County Case Nos. 93-

945, 93-1133, 93-1134, 93-1135, 93-1136, 93-1137 and Chester County Case No. 3355.

The Petitioner received a total effective sentence of twelve years for the Chester County

Case and ten years for the Madison County Case No. 93-1137, to be served concurrently,

but consecutive to Madison County Case Nos. 92-515 and 91-53. The record does not

include any information regarding, nor does the Petitioner challenge Case Nos. 92-515

and 91-53. On September 18, 2015, the Petitioner filed a “Pro Se Motion to Correct

Illegal Sentence Pursuant to [Tennessee Rule of Criminal Procedure] 36.1” arguing that

the sentences in Madison County Case No. 93-1137 and Chester County Case No. 3355

were illegal because he was released on bail when he committed the offenses, which

required the sentences to be served consecutively. On December 28, 2015, the trial court

dismissed the Petitioner‟s motion because the Petitioner failed to state a colorable claim

“since the alleged illegal sentences have expired.” The Petitioner then filed a “Motion to

Reconsider” on January 19, 2015, which the trial court denied on the same grounds. The

Petitioner filed a notice of appeal on February 10, 2016.

The Petitioner argues that the trial court erred in dismissing his “Motion to

Reconsider” because Rule 36.1 states that “at any time” a Petitioner can seek correction

of an illegal sentence.” The Petitioner relies on this Court‟s opinion in State v. Kevin M.

Thompson for the proposition that Rule 36.1 does not “exempt its applicability to

„expired sentences.‟” State v. Kevin M. Thompson, No. E2014-01358-CCA-R3-CD,

2015 WL 1548852, at *4 (Tenn. Crim. App. Apr. 1, 2015). The Petitioner further argues

that his sentences were illegal “on the face of the judgment” and that they were later used

to enhance his sentence in an unrelated federal case. The State argues, and we agree, that

the trial court properly dismissed the Petitioner‟s Rule 36.1 motion.

As an initial matter, we must address the timeliness of the Petitioner‟s notice of

appeal. The order dismissing the Petitioner‟s motion was filed on December 28, 2015,

and the Petitioner‟s notice of appeal was filed on February 10, 2016. The Petitioner‟s

motion to reconsider did not toll the thirty-day filing period required by Tennessee Rule

of Appellate Procedure 4(a). See Ivory v. State, No. W2015-00636-CCA-R3-PC, 2015

WL 6873474, at *2 (Tenn. Crim. App. Nov. 9, 2015). (“A motion to reconsider is not

one of the specified motions in Tennessee Rule of Appellate Procedure 4(c).”); See also

Tenn. R. App. P. 4(c). Accordingly, his notice of appeal was untimely by fourteen days;

nevertheless, we will review his appeal on the merits. See Tenn. R. App. P. 4(a) (“[I]n all

criminal cases the „notice of appeal‟ document is not jurisdictional and the filing of such

document may be waived in the interest of justice.”).

Pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure, “[e]ither the

defendant or the state may, at any time, seek the correction of an illegal sentence.” Tenn.

R. Crim. P. 36.1(a)(1). “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.”

Tenn. R. Crim. P. 36.1(a)(2). A petitioner is only entitled to a hearing and appointment

of counsel “[i]f the motion states a colorable claim that the unexpired sentence is illegal.”

Tenn. R. Crim. P. 36.1(b)(3); see State v. Brown, 479 S.W.3d 200, 211 (Tenn. 2015)

(stating that “a Rule 36.1 motion may be summarily dismissed for failure to state a

colorable claim if the alleged illegal sentence has expired.”). A colorable claim is “a

-2-

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.” State v. Wooden, 478 S.W.3d

585, 593 (Tenn. 2015). Whether a motion states a colorable claim for correction of an

illegal sentence under Rule 36.1 is a question of law, which this court reviews de novo.

Id. at 589 (citing Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007)).

Taking the Petitioner‟s assertions as true and viewing them in the light most

favorable to him, the Petitioner is not entitled to relief because his alleged illegal

sentences have expired. See State v. Brown, 479 S.W.3d 200, 211 (Tenn. 2015) (holding

that Rule 36.1 does not expand the scope of relief available for illegal sentence claims

and therefore does not authorize the correction of expired illegal sentences). The record

shows that the Petitioner received an effective sentence of twelve years‟ incarceration on

May 23, 1994. At most, the Petitioner‟s sentence was set to expire at some point in 2006.

On September 18, 2015, almost ten years after his sentences expired, the Petitioner filed

his Rule 36.1 motion. The Petitioner‟s motion and brief rely on cases that have been

effectively overruled by State v. Brown, 479 S.W.3d 200, 211 (Tenn. 2015). Moreover,

Rule 36.1 has been amended and now states that “a motion to correct an illegal sentence

must be filed before the sentence set forth in the judgment order expires.” Tenn. R. Crim.

P. 36.1(a)(1) (amendment effective July 1, 2016). The Petitioner is therefore not entitled

to relief.

When an opinion would have no precedential value, this Court may affirm by

memorandum opinion the judgment or action of the trial court when the judgment was

rendered or the action was taken in a proceeding without a jury and such judgment or

action was 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.

________________________________

CAMILLE R. McMULLEN, JUDGE

-3-