Calvin Reeves v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 17, 2017

CALVIN REEVES v. STATE OF TENNESSEE

Appeal from the Criminal Court for Putnam County

No. 11-0063 David A. Patterson, Judge

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No. M2017-00042-CCA-R3-PC – Filed January 3, 2018

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Defendant, Calvin Reeves, appeals the trial court’s entry of amended judgment forms,

without notice to him, which removed pretrial jail credit from two of his three

consecutive sentences. He claims those credits were part of his negotiated plea

agreement. Based upon our review of the record, the triplicate award of pretrial jail

credit was a clerical error such that the trial court had the authority to amend the

judgments under Tennessee Rule of Criminal Procedure 36. However, the amended

judgment form for Count One still contains a clerical error when compared with the

actual pretrial jail credit awarded during the plea submission hearing. Therefore, we

affirm the trial court’s judgments in part, reverse in part, and remand for the entry of a

corrected judgment form on Count One.

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

in Part, Reversed in Part, and Remanded

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which D. KELLY THOMAS,

JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Calvin Reeves, Whiteville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Assistant

Attorney General; Bryant C. Dunaway, District Attorney General; and Victor Gernt,

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

OPINION

In late February and early March of 2009, the Putnam County Sheriff’s

Department conducted several undercover operations targeting Defendant in the sale of

cocaine. On three separate occasions, an undercover officer and a confidential informant

purchased just under one gram of cocaine from Defendant, and each transaction occurred

within 1000 feet of Cookeville High School. On January 9, 2012, Defendant, a career

drug offender, pled guilty as a Range II, multiple offender to three counts of selling more

than .5 grams of cocaine, without the school zone enhancement, in exchange for a total

effective sentence of thirty years and the dismissal of other pending charges.1 During the

plea hearing, the following colloquy transpired:

[Counsel for the State]: With respect to one observation you had, just to

make sure it’s on the record is, that [Defendant] understands, as well as

counsel, to make clear that he is receiving pretrial jail credit that

predates, that goes considerably back, I think it’s back to May or June of

2010.

Defendant: Correct.

[Counsel for the State]: If I’m not mistaken. And that will be applied, the

judgments will reflect that that applies to each of these three offenses. I

just want to make sure he understands, the State agrees to this, although

the dates themselves, that he’s getting credit for, predate his being

essentially served the pick-up [sic] indictment in this matter. It is, that

it’s by agreement, and the State understands, he had been in custody on

those other cases, and the State is going to make sure that he receives

that credit.

[Counsel for Defendant]: And that would be 572 days2 on each of the three

counts.

[Counsel for the State]: That’s my understanding.

1

In case number 11-0063, Defendant was also charged with three counts of delivery of cocaine as

well as separate counts charging sale and delivery within 1000 feet of a school; the judgment forms

dismissing these counts are included in the supplemental technical record. Defendant also had pending

drug charges in case numbers 10-0815A and 10-0816, which were also dismissed as part of the plea

agreement; however, those judgment forms are not in the record of this current appeal as they were not

included in Defendant’s original post-conviction petition or the trial court’s subsequent amendment of the

judgment forms. If those judgement forms do not exist in the trial court’s records, judgments should be

entered reflecting the dismissal of each count pursuant to State v. Davidson, 509 S.W.3d 156, 217 (Tenn.

2016) (requiring a trial court to prepare a uniform judgment document for each count of the indictment).

2

Defense counsel’s statement during the plea hearing of 572 days may be either a misstatement

or a miscalculation of Defendant’s pretrial jail credit. The TDOC form submitted with Defendant’s post-

conviction petition indicates 593 days of pretrial jail credit, which is consistent with this Court’s

calculation based on the dates given on the judgment forms.

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(Emphasis added). The judgment forms entered by the trial court on each of the three

convictions reflected pretrial jail credit from May 26, 2010, to January 9, 2012, or 593

days. The judgment forms also reflected that each of the ten-year sentences were to run

consecutively to each other, effectively granting Defendant a total of 1779 days of

pretrial jail credit. It is clear from the record that a component of this negotiated plea

agreement involved Defendant receiving the benefit of triple-dipping on his pretrial jail

credit.

Defendant subsequently filed a petition for post-conviction relief, alleging

ineffective assistance of counsel and an involuntary guilty plea. Specifically, Defendant

contended that the Tennessee Department of Correction (“TDOC”) had deemed his

sentence to be illegal and modified it by applying the pretrial jail credits to only one of

his three convictions. According to Defendant, not only did the TDOC lack the authority

to modify an illegal sentence under State v. Burkhart, 566 S.W.2d 971 (Tenn. 1978), the

modification violated the plea agreement between Defendant and the State. Additionally,

Defendant contended that trial counsel was deficient for failing to advise him that the

TDOC might deem pretrial jail credit on consecutive sentences illegal and refuse to

enforce the negotiated plea agreement.

The trial court filed an order on November 17, 2015, finding that the State had

conceded error and granting Defendant post-conviction relief. On that same day and with

the assistance of post-conviction counsel, Defendant entered into a new plea agreement

with the State. Defendant pled guilty to three counts of the reduced charge of selling less

than .5 grams of cocaine in exchange for consecutive sentences of six years, six years,

and eight years, for a total effective sentence of twenty years. The plea agreement form

reflected that Defendant was to receive jail credit from May 26, 2010, through November

17, 2015, or 2001 days. During the plea submission hearing, the following occurred with

respect to the application of the pretrial jail credits:

The Court: We’re making a record of this also. We’re making sure that

we’re doing this the way that is in agreement with what you are

agreeing to.

The total time that is going to be allotted to you for this particular

case is that amount from May 26 of 2010 through today’s, to today’s

date on this twenty year sentence. That isn’t for each count, do you

understand that, sir?

[Defendant]: Yes, sir.

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(Emphasis added). The trial court entered judgment forms on March 2, 2016, 3 reflecting

that the three sentences were to run consecutively and that each was to receive pretrial

jail credit from May 26, 2010, to November 17, 2015, effectively granting Defendant

6003 days of pretrial jail credit.

Nine months later, on December 7, 2016, the trial court sua sponte entered

amended judgment forms on each of the three convictions.4 Count One was amended to

reflect pretrial jail credit from May 26, 2010, through January 9, 2012, and a note was

added in the Special Conditions box which read “The defendant was in TDOC custody

from 1/9/2012 through 11/17/2015.” The other two counts were amended to remove the

pretrial jail credit in its entirety, thus substantially reducing Defendant’s total pretrial jail

credits from 6003 days to 593 days. All three forms contained a notation in the Special

Conditions box that “[t]he judgment is amended to reflect the correct jail credit.” It is

from the amended December 2016 judgments that Defendant now appeals.

Defendant filed a pro se notice of appeal on January 4, 2017, which was received

by this Court on January 9, 2017. The State responded by filing a motion to dismiss the

appeal, arguing that this Court lacked jurisdiction to consider this appeal under Tennessee

Rule of Appellate Procedure 3(b) and that the notice of appeal was untimely. Citing State

v. Phillip G. Harris, No. M2008-01819-CCA-R3-CD, 2010 WL 2431981 (Tenn. Crim.

App. Jun. 11, 2010), no perm. app. filed, the State argued that Defendant could not appeal

the trial court’s entry of amended judgments but should have filed a motion to withdraw

his guilty plea or a petition for post-conviction relief, either of which he could then

appeal to this Court. This Court denied the State’s motion, concluding that a criminal

defendant has the right to appeal the entry of a corrected or amended judgment under

Tennessee Rule of Appellate Procedure 3(b) and Tennessee Rule of Criminal Procedure

36 and that the notice of appeal was timely filed. Thus, we will proceed to consider

Defendant’s argument that the trial court lacked authority to amend the judgments after

they had become final and the State’s counterargument that the trial court maintained the

power to correct a clerical error pursuant to Tennessee Rule of Criminal Procedure 36.

3

The record does not contain an explanation for the three and one-half month delay from the

November 17, 2015 plea agreement to the March 2, 2016 entry of the judgments.

4

We note that the record on appeal does not contain any motion filed by either of the parties

regarding amendment of the judgments, any form of notice filed by the trial court prior to the entry of

these amended judgments, any transcript of a hearing relating to the amendment of the judgments, or any

order reflecting the trial court’s findings with regard to the amendment of the judgments. The amended

judgment forms were signed by the trial court and the assistant district attorney but not by Defendant or

defense counsel. While Tennessee Rule of Criminal Procedure 36 requires the trial court to give “any

notice it considers appropriate” prior to the entry of amended judgments, due to these appellate

proceedings, Defendant now has actual notice of the trial court’s attempt to amend the judgments.

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A judgment of conviction becomes final thirty days after its entry unless a timely

notice of appeal or post-trial motion is filed. State v. Pendergrass, 937 S.W.2d 834, 837

(Tenn. 1996). Once a judgment becomes final, a trial court loses jurisdiction to amend it

except under certain circumstances. Id. (citing State v. Moore, 814 S.W.2d 381, 382

(Tenn. Crim. App. 1991)); see Tenn. R. Crim. P. 35 (motion for reduction of sentence),

36 (correction of clerical errors), 36.1 (correction of illegal sentences). Erroneous

judgments that do not fall into the category of either clerical errors or illegal sentences

may be addressed only on direct appeal. See generally Cantrell v. Easterling, 346

S.W.3d 445, 449-453 (Tenn. 2011) (distinguishing clerical errors, appealable errors, and

fatal errors).

Under Tennessee Rule of Criminal Procedure 36, “[a]fter giving any notice it

considers appropriate, the court may at any time correct clerical mistakes in judgments,

orders, or other parts of the record, and errors in the record arising from oversight or

omission.” “Where a trial court fails, by reason of clerical mistake, oversight, or

omission, to record a defendant’s sentence accurately on a judgment, the trial court

maintains the power to correct the clerical error under Rule 36.” State v. Brown, 479

S.W.3d 200, 213 (Tenn. 2015). “To determine whether the judgment contains a clerical

error, a court ordinarily must compare the judgment with the transcript of the trial court’s

oral statements,” which is controlling. Id. As this Court has previously explained:

“[T]he record in the case must show that the judgment entered omitted a

portion of the judgment of the court or that the judgment was erroneously

entered. The most reliable indicator that clerical error was made is the

transcript of the hearing or other papers filed in connection with the

proceedings which show the judgment was not correctly entered. In the

absence of these supporting facts, a judgment may not be amended under

the clerical error rule after it has become final.”

State v. Hobert Dean Davis, No. E2000-02879-CCA-R3-CD, 2002 WL 340597, at *3

(Tenn. Crim. App. Mar. 4, 2002) (quoting State v. Jack Lee Thomas, Jr., No. 03C01-

9504-CR-00109, 1995 WL 676396, at *1 (Tenn. Crim. App. Nov. 15, 1995)), no perm.

app. filed.

In this case, the trial court entered amended judgments “to reflect the correct jail

credit.” Whenever a defendant receives a sentence of imprisonment,

the trial court shall . . . render the judgment of the court so as to allow the

defendant credit on the sentence for any period of time for which the

defendant was committed and held in the city jail or juvenile court

detention . . . or county jail or workhouse, pending arraignment and trial.

The defendant shall also receive credit on the sentence for the time served

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in the jail, workhouse or penitentiary subsequent to any conviction arising

out of the original offense for which the defendant was tried.

T.C.A. § 40-23-101(c). The awarding of pretrial jail credits is mandatory. See Brown,

479 S.W.3d at 212. However, the statute does not address how pretrial jail credit should

be applied to multiple convictions stemming from the same period of confinement. See

Dericko Jackson v. Michael Donahue, Warden, No. W2013-01718-CCA-R3-HC, 2014

WL 2547764, at *4 (Tenn. Crim. App. May 30, 2014), perm. app. denied (Tenn. Oct. 15,

2014). This Court has held that when the trial court orders concurrent alignment of the

sentences, the award of pretrial jail credits should be included on each judgment to

provide the full benefit of the credits against the aggregate sentence. State v. Henry, 946

S.W.2d 833, 835 (Tenn. Crim. App. 1997) (“To allow pretrial jail credit in only one case

would contravene the concurrent sentences and effectively require [the defendant] to

serve a longer sentence on the second charge.”). On the other hand, several unpublished

opinions have held that a defendant ordered to serve consecutive sentences is only

entitled to pretrial jail credit on the first sentence. See, e.g., Timothy L. Dulworth v.

Henry Steward, Warden, No. W2012-00314-CCA-R3-HC, 2012 WL 2742210, at *2

(Tenn. Crim. App. July 9, 2012) (citing Marvin Rainer v. David G. Mills, Warden, No.

W2004-02676-CCA-R3-HC, 2006, WL 156990, at *5 (Tenn. Crim. App. Jan. 20, 2006),

no perm. app. filed; State v. Darrell Phillips, No. W2005-00154-CCA-R3-CD, 2005 WL

3447706, at *1 n.1 (Tenn. Crim. App. Dec. 16, 2005), perm. app. denied (Tenn. May 1,

2006); Hobert Dean Davis, 2002 WL 340597, at *3), no perm. app. filed. “The effect of

consecutive awards of the full amount of pretrial jail credit would be to double the

credit.” Id. (citing State v. Joyce Elizabeth Cleveland, No. M2005-02783-CCA-R3-CD,

2006 WL 2682821, at *2 (Tenn. Crim. App. Sept. 14, 2006), no perm. app. filed). “‘An

inmate may not “double-dip” for credits from a period of continuous confinement.’” Id.

(quoting Marvin Rainer, 2006 WL 156990, at *5). However, the erroneous awarding of

pretrial jail credit on consecutive sentences does not render the sentences illegal under

habeas corpus or Tennessee Rule of Criminal Procedure 36.1. See Dericko Jackson,

2014 WL 2547764, at *5 (concluding that duplicitous pretrial jail credit was not in direct

contravention of a statute and, therefore, not “illegal” as that term has been defined).

Therefore, the only means by which a trial court may correct the erroneous award of

duplicate pretrial jail credit on consecutive sentences after the judgments have become

final is if such an award was a clerical error while transcribing the sentence on the

judgment form. See Dericko Jackson, 2014 WL 2547764, at *5 (“If a judgment is final

and is not illegal, and does not contain a ‘clerical error,’ it must be followed as it is

written.”); State v. Steve A. White, No. W2003-01947-CCA-R3-CD, 2004 WL 2381731,

at *3 (Tenn. Crim. App. Oct. 25, 2004) (“[W]hile a sentence in direct contravention of a

statute is illegal and void, a final judgment which, although incorrect, is in conformity

with an applicable statute is not subject to amendment.”), no perm. app. filed; Hobert

Dean Davis, 2002 WL 340597, at *3 (“[T]he trial court does not have jurisdiction to

correct a substantive error in a judgment . . . after it becomes final.”).

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In this case, the trial court clearly erred in effectively granting Defendant over

sixteen years of credit on a twenty-year sentence on the March 2016 judgment forms.

From our review of the November 17, 2015 plea submission hearing, it is clear that such

was not the intent of either the trial court or the parties in entering this new plea

agreement, and Defendant has pointed us to no evidence in the record that would indicate

otherwise. In addition to the trial court’s direct statement, and Defendant’s agreement,

that the credit would not be applied to each count, it makes no logical sense that the trial

court would intentionally accept a plea agreement containing the exact same error which

lead to Defendant’s receiving post-conviction relief in the first place.5 Because the

triplicate award of pretrial jail credit was clearly a clerical error, the trial court maintained

the authority to correct the mistake even after the judgments had become final.

However, upon our review of the record, it appears that the amended judgment

form for Count One entered on December 7, 2016, still contains a clerical error. The

judgment form awards pretrial jail credit from May 26, 2010, through January 9, 2012,

with a note in the Special Conditions box which reads “The defendant was in TDOC

custody from 1/9/2012 through 11/17/2015.” However, both the plea agreement form

and the transcript of the plea submission hearing clearly reflect that the parties agreed to

and the trial court accepted an award of pretrial credit from May 26, 2010, through

November 17, 2015. Because the trial court’s oral statements are controlling, see Brown,

479 S.W.3d at 213, the judgment form for Count One should be amended pursuant to

Rule 36 to reflect the correct dates for which pretrial jail credit was granted—May 26,

2010, through November 17, 2015. Thus, we reverse the trial court’s judgment as to

Count One and remand for the entry of a corrected judgment form.

Conclusion

The judgments of the trial court are affirmed in part, reversed in part, and

remanded to the trial court for the entry of a corrected judgment in Count One.

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TIMOTHY L. EASTER, JUDGE

5

We note that the trial judge who accepted the original 2012 plea and entered the respective

judgment forms was the Honorable Leon Burns, Jr., while the trial judge that granted post-conviction

relief, accepted the renegotiated November 2015 plea, and entered both the March and December 2016

judgment forms was the Honorable David A. Patterson.

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