State of Tennessee v. Brandon D. Washington

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 1, 2016

STATE OF TENNESSEE v. BRANDON D. WASHINGTON

Appeal from the Criminal Court for Shelby County

No. 10-04054, 10-05254 J. Robert Carter, Jr., Judge

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No. W2016-00413-CCA-R3-CD - Filed June 9, 2017

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The defendant, Brandon D. Washington, appeals as of right from the Shelby County

Criminal Court’s denial of his Tennessee Rule of Criminal Procedure 36.1 motion to

correct an illegal sentence. The basis for the defendant’s appeal is the trial court’s

alleged failure to accurately apply pretrial jail credits and other credits. Following our

review, we conclude that the defendant failed to state a colorable claim and affirm the

judgment of the trial court.

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

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

J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS

and CAMILLE R. MCMULLEN, JJ., joined.

Brandon Washington, Clifton, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;

Amy P. Weirich, District Attorney General; and Eric Christensen, Assistant District

Attorney General, for the appellee, State of Tennessee.

MEMORANDUM OPINION

On August 1, 2011, the defendant pled guilty in indictment No. 10-04054 to

aggravated assault, intentionally evading arrest in a motor vehicle, and unlawful

possession of marijuana with intent to sell, for which he received an effective three-year

sentence. The defendant also pled guilty in indictment No. 10-05254 to unlawful

possession of Oxycodone with intent to sell, unlawful possession of Alprazolam with

intent to sell, and unlawful possession of marijuana with intent to sell, for which he

received an effective sentence of three years. Additionally, per the terms of the plea

agreement, the sentences in the two indictments were to be served consecutively for an

overall effective sentence of six years in confinement. On September 21, 2011, the

defendant’s sentence was suspended, and he was placed on probation for a term of six

years. The defendant subsequently violated the terms of his probation and was ordered to

serve his six-year sentence in confinement.1

On January 26, 2016, the defendant filed a “Motion for Correction of Sentence” in

which he argued, among other issues, that his sentence is illegal because he was not

credited with sufficient pretrial jail credits. On February 3, 2016, the trial court entered

an order denying the defendant’s motion finding the defendant failed to state a colorable

claim.

The defendant timely appealed the trial court’s decision. On appeal, the defendant

contends he has been deprived of pretrial and “good behavior” credits. He also argues he

is entitled to credit toward his sentences for the time he served on probation.

Additionally, the defendant raises various constitutional issues including the right to bond

in another matter and ineffective assistance of counsel. The State argues the defendant’s

claims do not entitle him to relief under Tennessee Rule Criminal Procedure 36.1. Upon

review of the record and the briefs, we agree with the State.

Tennessee Rule of Criminal Procedure 36.1 provides that the defendant “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.” Tenn. R.

Crim. P. 36.1(a). A sentence is illegal if it is not authorized by the applicable statutes or

directly contravenes an applicable statute. Id. If the motion states a colorable claim, the

trial court shall appoint counsel if the defendant is indigent and not already represented

by counsel and hold a hearing on the motion, unless the parties waive the hearing. Tenn.

R. Crim. P. 36.1(b). A “‘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.” State v. Wooden, 478 S.W.3d 585, 593 (Tenn. 2015).

The basis for the majority of the issues raised by the defendant on appeal is that

his sentence is illegal because he was not credited with sufficient pretrial jail credits. In

State v. Brown, 479 S.W.3d 200, 212 (Tenn. 2015), our Supreme Court addressed the

issue of whether the failure to award pretrial jail credits constituted a “colorable claim”

1

Neither the revocation warrant nor the order revoking the defendant’s probation is

included in the appellate record. However, based on the trial court’s order summarily dismissing

the motion to correct an illegal sentence and the briefs of the parties, it appears that the

revocation warrant was issued on June 9, 2015, and the trial court entered an order revoking the

defendant’s probation on July 17, 2015.

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for the purpose of Rule 36.1. The Court observed that while “pretrial jail credits allow a

defendant to receive credit against his sentence for time already served, awarding or not

awarding pretrial jail credits does not alter the sentence in any way, although it may

affect the length of time a defendant is incarcerated.” Id. (emphasis in original). The

Court opined that a litigant wishing to challenge the award of pretrial jail credits was

entitled to raise the issue on direct appeal. Id. at 212-13. However, the Court ultimately

concluded that “a trial court’s failure to award pretrial jail credits does not render the

sentence illegal and is insufficient, therefore, to establish a colorable claim for relief

under Rule 36.1.” Id. at 213 (emphasis in original). To the extent the defendant contends

his sentence is illegal due to the improper application of pretrial jail credits, he has not

asserted a colorable claim under Rule 36.1 and is not entitled to relief.

Next, the defendant contends his sentence is illegal because his first three year

sentence has expired. More specifically, the defendant argues that he should have been

awarded credit for the time he served on probation. However, as the State correctly notes

in its brief, the time served on probation does not count toward completion of a sentence

unless the defendant successfully completes the entire probationary term. See State v.

Hunter, 1 S.W.3d 643, 646 (Tenn. 1999). According to the defendant’s brief and the

order of the trial court, the violation of probation warrant was filed on June 9, 2015, prior

to the expiration of his first three-year sentence. We conclude, therefore, that the trial

court had the authority to reinstate the defendant’s original six-year sentence upon the

revocation of his probation. The defendant is not entitled to relief on this issue.

In addition, the defendant alleges various claims related to constitutional

violations, entitlement to bond in another case, and ineffectiveness of counsel. These

types of claims do not render his sentences illegal. See State v. Wooden, 478 S.W.3d 585,

595 (Tenn. 2015) (citations omitted) (finding the defendant did not raise a colorable

claim for relief under Rule 36.1 when the defendant alleged mere appealable errors,

meaning “claims akin to . . . challenge[s] to the sufficiency of the evidence supporting a

conviction” and those which “involve attacks on the correctness of the methodology by

which a trial court imposed [the] sentence,” rather than fatal errors). Moreover, errors

implicating constitutional rights render judgments voidable, not void, and are not

colorable claims pursuant to Rule 36.1. State v. Taylor, No. W2015-01831-CCA-R3-CD,

2016 WL 3883566, at *4 (Tenn. Crim. App. June 6, 2016). The defendant is not entitled

to relief on this basis.

Finally, to the extent the defendant raised additional issues in his appellate and

reply briefs, those issues have been waived due to his failure to cite supporting

authorities. Tenn. R. App. P. 27(a)(7)(A). The defendant is not entitled to relief on any

basis asserted on appeal.

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

memorandum opinion the judgement 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 court. 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.

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J. ROSS DYER, JUDGE

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