State of Tennessee v. James Mark Thornton

08/28/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

June 27, 2017 Session

STATE OF TENNESSEE v. JAMES MARK THORNTON

Appeal from the Circuit Court for Cocke County

Nos. 6617, 6618, 6820, & 9827 Ben W. Hooper II, Judge

No. E2016-01022-CCA-R3-CD

The State appeals as of right from the Cocke County Circuit Court’s grant of the

Defendant’s, James Mark Thornton’s Tennessee Rule of Criminal Procedure 36.1 motion

to correct an illegal sentence. The State contends that the trial court erred because the

challenged sentence was not illegal. We agree with the State and dismiss the Defendant’s

Rule 36.1 motion.

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

Case Dismissed

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which CAMILLE R.

MCMULLEN and ROBERT L. HOLLOWAY, JR., JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; John H. Bledsoe, Deputy Attorney

General; James B. Dunn, District Attorney General; and William Brownlow Marsh,

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

Nikolas Kear, Gatlinburg, Tennessee, for the appellee, James Mark Thornton.

OPINION

In June 2000, the Defendant pled guilty to numerous offenses involving the sale of

cocaine in three separate cases: 6617, 6618, and 6820. All of the Defendant’s sentences

were ordered to be served concurrently for a total effective sentence of eight years. In

2006, the Defendant pled guilty to another drug offense in case 9827, and received a

twenty-five-year sentence. As part of that plea agreement, the Defendant waived his

right to a probation revocation hearing for cases 6617, 6618, and 6820. Those sentences

were ordered into execution. However, the sentences from cases 6617, 6618, and 6820

were ordered to be served concurrently to the sentence in case 9827. The sentences for

all of the Defendant’s state convictions were ordered to be served concurrently to a

separate federal sentence.

In February 2008, the Defendant filed a petition for writ of habeas corpus, alleging

that his sentences in cases 6617, 6618, 6820, and 9827 were void because he had been

released on bond in cases 6617 and 6618 when he committed the offenses at issue in case

6820. The habeas corpus court denied the Defendant’s petition, and this court affirmed

the denial on direct appeal. James Mark Thornton v. State, E2009-00399-CCA-R3-HC,

slip op. at 1 (Tenn. Crim. App. July 15, 2010). A panel of this court concluded that the

Defendant had received an illegal sentence in case 6820, but that he had failed to

establish that he was restrained of his liberty as a result of the judgments in cases 6617,

6618, and 6820. Id. at 7. With respect to case 9827, the panel concluded that “the

concurrent alignment of the . . . sentence imposed in case number 9827 [with the

sentences in cases 6617, 6618, and 6820] [did] not render that judgment void.” Id. at 8-9.

In 2015, the Defendant filed separate Rule 36.1 motions to correct illegal

sentences in the three June 2000 cases and case 9827. The motions were consolidated,

and the Defendant alleged that he should be allowed to withdraw his guilty plea in case

9827 because he had received an illegal sentence in case 6820 and that the resolution of

his probation violation for cases 6617, 6618, and 6820 was part of a “global” plea

agreement, which also involved case 9827. At the evidentiary hearing on this matter, the

Defendant testified that he would not have pled guilty to case 9827 if “the State had

insisted” that his sentence be served consecutively to cases 6617, 6618, and 6820. At the

conclusion of the hearing, the trial court granted the Defendant’s Rule 36.1 motion,

stating that the Defendant’s sentence in case 9827 was void because it was “intertwined”

with case 6820, in which the Defendant had received an illegal sentence. The State

timely appealed to this court.

At the time the Defendant’s motion was filed,1 Rule 36.1 allowed for either the

defendant or the State to “seek the correction of an illegal sentence.” Tenn. R. Crim. P.

36.1(a) (2015). “Illegal sentence” was defined in the rule as a sentence “that [was] not

authorized by the applicable statutes or that directly contravene[d] an applicable statute.”

Id. If an illegal sentence “was entered pursuant to a plea agreement” and “the illegal

provision was a material component of the plea agreement,” then Rule 36.1 authorized

the trial court to allow the defendant to withdraw their plea. Tenn R. Crim. P. 36.1(c)(3).

The term “illegal sentence” “is synonymous with the habeas corpus concept of a

‘void’ sentence.” Cox v. State, 53 S.W.3d 287, 292 (Tenn. Crim. App. 2001), overruled

1

We note that Rule 36.1 was amended effective July 1, 2016, to explicitly prohibit motions to correct

expired illegal sentences and motions to correct illegal sentences that were part of a plea agreement when

the “illegal aspect was to the defendant’s benefit.” Tenn. R. Crim. P. 36.1 (2017).

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on other grounds, Moody v. State, 160 S.W.3d 512 (Tenn. 2005). “[F]ew sentencing

errors [will] render [a sentence] illegal.” State v. Wooden, 478 S.W.3d 585, 595 (Tenn.

2015). Examples 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.” Id.

We agree that the Defendant’s sentence in case 6820 was illegal. However, even

the original version of Rule 36.1 does “not authorize the correction of expired illegal

sentences.” State v. Brown, 479 S.W.3d 200, 211 (Tenn. 2015). The Defendant

concedes that his sentences in cases 6617, 6618, and 6820 are expired. Likewise, the

Defendant concedes that his sentence in case 9827 was not illegal. Rather, the Defendant

argues that concurrent sentencing for case 6820 with his remaining cases was a material

element of his plea agreement in 9827. However, the record belies that assertion.

The Defendant testified at the evidentiary hearing that he would not have pled

guilty in case 9827 if he had been required to serve his sentence in that case

consecutively to his sentences in 6617, 6618, and 6820. As this court recognized in the

Defendant’s habeas corpus appeal, there was no requirement that case 9827 be served

consecutively to cases 6617, 6618, and 6820. Furthermore, correction of the illegal

sentence in case 6820 would not require that it, or the sentences from cases 6617 and

6618, be served consecutively to case 9827. Therefore, even if the sentence in case 6820

was corrected and ordered to be served consecutively to the sentences in cases 6617 and

6618, it would not affect the Defendant’s sentence in case 9827 because the twenty-five-

year sentence is being served concurrently to the sentences in the June 2000 cases and

would still be longer than those sentences. Accordingly, the trial court erred when it

concluded that case 6820 was “intertwined” with case 9827 and that the illegality in case

6820 was a material component of the plea agreement in case 9827.

Upon consideration of the foregoing and the record as a whole, the judgment of

the trial court is reversed, and the Defendant’s Rule 36.1 motion is dismissed.

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D. KELLY THOMAS, JR., JUDGE

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