State of Tennessee v. Mack Jeffery Thompson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 21, 2016

STATE OF TENNESSEE v. MACK JEFFERY THOMPSON

Direct Appeal from the Criminal Court for Davidson County

No. 2005-B-1113 Seth Norman, Judge

No. M2015-01601-CCA-R3-CD – Filed May 18, 2017

The Appellant, Mack Jeffery Thompson, filed a motion to correct an illegal sentence

pursuant to Tennessee Rule of Criminal Procedure 36.1. The trial court denied the

motion, and the Appellant timely filed a notice of appeal. Based upon our review of the

record and the parties’ briefs, we affirm the trial court’s denial of the motion but remand

the case for correction of a clerical error on the judgment of conviction.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS and TIMOTHY L. EASTER, JJ., joined.

Mack Jeffery Thompson, Pikeville, Tennessee, Pro se.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney

General, Glenn R. Funk, District Attorney General; and Renee R. Erb, Assistant District

Attorney General, for the Appellee, State of Tennessee.

OPINION

I. Factual Background

The record reflects that on May 20, 2005, the Appellant was indicted for

premeditated first degree murder, felony murder, and theft. On March 6, 2006, the

Appellant pled guilty to second degree murder, a Class A felony, in exchange for the

dismissal of the felony murder and theft charges. The written plea agreement provided

that the Appellant would receive a Range II sentence of forty years with one hundred

percent of the sentence to be served in confinement. The judgment of conviction reflects

the terms of the plea agreement; however, a box on the judgment of conviction was

marked to designate the Appellant as a repeat violent offender.

On April 30, 2015, the Appellant filed a pro se motion to correct an illegal

sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. He attached a copy of

the written plea agreement and the judgment of conviction to his motion. In the motion,

he alleged that “[t]he plea agreement does not reflect the same as the judgement [sic]

sheet, [the Appellant] signed for range Two sentence.” He further alleged that the State’s

notice of intent to sentence him to life without parole as a repeat violent offender

pursuant to Tennessee Code Annotated section 40-35-120, was “erroneous” and “mis-

applied” because he did not meet the requirements of the statute.1 He also alleged that

Tennessee Code Annotated section 40-35-202(a) required the State to notify a defendant

that he was subject to more than the “standard” sentencing range in order to facilitate plea

agreements, to enable a defendant to make an informed plea, and to assist in trial strategy

and that he was not properly notified. The Appellant provided no argument in support of

the foregoing contentions.

On July 24, 2015, the trial court entered an order summarily denying the motion.

The trial court noted that it had reviewed the plea agreement and a transcript of the guilty

plea hearing and found that the Appellant was sentenced in accordance with the terms of

the plea agreement. The court further found that the Appellant’s forty-year sentence was

within the range for a Range II offender. The court found that the Appellant did not

qualify as a repeat violent offender under Tennessee Code Annotated section 40-35-

120(a)(1), which was cited by the State in the notice, but that he did qualify under

subsections (a)(5)-(6). Further, the court stated that the Appellant was not prejudiced by

the “defective notice.” The court held that the Appellant’s contention that “he was

incorrectly classified as a ‘repeat violent offender’” was without merit. The Appellant

appeals the trial court’s ruling.

II. Analysis

Historically, “two distinct procedural avenues [were] available [in Tennessee] to

collaterally attack a final judgment in a criminal case—habeas corpus and post-

1

The notice filed by the State alleged that the Appellant had “‘three strikes’ pursuant to Tennessee Code

Annotated § 40-35-120(a)(1).” The State listed the following convictions:

1. IF-5388, Armed Robbery, Class B felony, 1988, Davidson County,

Tennessee;

2. 87-F-1939, Armed Robbery, Class B felony, 1988, Davidson County,

Tennessee;

3. 87-F-1937, Robbery, Class C felony, 1988, Davidson County,

Tennessee.

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conviction petitions.” Hickman v. State, 153 S.W.3d 16, 19 (Tenn. 2004). However,

“Rule 36.1 was adopted, effective July 1, 2013, with its express purpose ‘to provide a

mechanism for the defendant or the State to seek to correct an illegal sentence.’” State v.

Brown, 479 S.W.3d 200, 210-11 (Tenn. 2015) (quoting Tenn. R. Crim. P. 36.1, Advisory

Comm’n Cmt.).

At the time the Appellant filed his Rule 36.1 motion, Tennessee Rule of Criminal

Procedure 36.1, provided, in part:

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.

Tenn. R. Crim. P. 36.1(a) (2013). However, our supreme court later determined that

Tennessee Rule of Criminal Procedure 36.1 did not authorize the correction of expired

illegal sentences. See Brown, 479 S.W.3d at 205. Thereafter, Rule 36.1 was amended to

delete “at any time” and to add 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)

(2016).

If the motion states a “colorable claim that the sentence is illegal,” the trial court

shall appoint counsel and hold a hearing on the motion. See Tenn. R. Crim. P. 36.1(b).

Our supreme court has recognized that “Rule 36.1 does not define ‘colorable claim.’”

State v. Wooden, 478 S.W.3d 585, 592 (Tenn. 2015). Nevertheless, the court explained

that “for 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.” Id. at 593. We note that

[e]xamples of illegal sentences 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 offense.” Wooden, 478 S.W.3d at 595. Conversely,

“attacks on the correctness of the methodology by which a

trial court imposed [a] sentence” will not rise to the level of

an illegal sentence. Id.

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State v. Joseph B. Thompson, No. E2015-01963-CCA-R3-CD, 2016 WL 2770178, at *1

(Tenn. Crim. App. at Knoxville, May 10, 2016).

On appeal, the Appellant first contends that his sentence was illegal “because the

plea agreement does not reflect the same as the [j]udgment in that the Appellant signed

for a Range II sentence.” The written plea agreement provides that the Appellant pled

guilty to “Murder - 2nd[;] Class A Felony[;] Range II[;] 40 years @ 100%.” At the guilty

plea hearing, the State announced that the Appellant was pleading guilty to second degree

murder and receiving a sentence of “40 years at a hundred percent to serve.” Our code

provides that a sentence for a Class A felony may be no less than fifteen years and no

more than sixty years. Tenn. Code Ann. § 40-35-111(b)(1). Specifically, a Range II,

multiple offender convicted of a Class A felony is subject to a sentence between twenty-

five and forty years. Tenn. Code Ann. § 40-35-112(b)(1). The Appellant’s sentence falls

within this range. Kristi Kimbro v. Brenda Jones, Warden, No. W2013-02323-CCA-R3-

HC, 2014 WL 1512857, at *2 (Tenn. Crim. App. at Jackson, Apr. 16, 2014).

Additionally, a box on the judgment of conviction correctly designated the Appellant as a

violent offender and required him to serve one hundred percent of his sentence in

confinement. Tenn. Code Ann. § 40-35-501(i)(2)(B).

In a related argument, the Appellant notes that on the judgment of conviction,

another box was marked designating that he was a repeat violent offender. The Appellant

contends that the judgment was “void on its face because the Repeat Violent Offender

status requires a defendant to serve a sentence of life without the possibility of parole.”

The Appellant argues that he should not have been sentenced as a repeat violent offender

because he did not meet any of the statutory criteria. The State responds that the

Appellant’s “argument is misguided, because he was not sentenced as a repeat violent

offender.” The State asserts that the repeat violent offender designation on the judgment

of conviction was a clerical error that may be corrected at any time. We agree with the

State. The Appellant’s written plea agreement makes no mention of the Appellant’s

being sentenced as a repeat violent offender. Moreover, the transcript of the guilty plea

hearing reveals that although the State filed a “three strikes notice,” the State agreed to

allow the Appellant to plead guilty to a reduced charge of second degree murder with a

sentence of forty years to be served at one hundred percent. Therefore, the repeat violent

offender designation on the judgment was a clerical error. See Mario Ramirez Rodriguez

v. Arvil Chapman, Warden, No. M2012-00958-CCA-R3-HC, 2013 WL 1912588, at *5

(Tenn. Crim. App. at Nashville, May 8, 2013). Accordingly, we conclude that the

Appellant’s sentence is not illegal but that we must remand this matter to the trial court

for correction of the clerical error pursuant to Rule 36, Tennessee Rules of Criminal

Procedure.

Finally, the Appellant asserts that the State’s notice that it was seeking a sentence

of life without the possibility of parole “was insufficient to give the Appellant proper

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notice of the sentence to which he was exposed and which hindered his ability to evaluate

the plea offer.” However, the claim that “the lack of adequate notice prevented him from

making an informed decision to plead guilty goes to the knowing and voluntary nature of

the plea and would render the judgment merely voidable.” State v. Charles Speed, No.

W2015-00473-CCA-R3-CD, 2016 WL 1073232, at *2 (Tenn. Crim. App. at Jackson,

Mar. 18, 2016), perm. to appeal denied, (Tenn., Aug. 19, 2016). Any deficiency in the

notice does not render the Appellant’s sentence illegal and, therefore, does not entitle the

Appellant to relief. See State v. Christopher Hubbard, No. W2016-01263-CCA-R3-CD,

2017 WL 244116, at *2 (Tenn. Crim. App. at Jackson, Jan. 20, 2017), perm. to appeal

denied, (Tenn., Apr. 13, 2017).

III. Conclusion

Based upon the record and the parties’ briefs, we affirm the trial court’s denial of

the Appellant’s Rule 36.1 motion but remand the case to the trial court for correction of

the judgment to reflect that the Appellant was not sentenced as a repeat violent offender.

_________________________________

NORMA MCGEE OGLE, JUDGE

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