State of Tennessee v. Willie Jermaine Cunningham

05/25/2018

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs May 2, 2018

STATE OF TENNESSEE v. WILLIE JERMAINE CUNNINGHAM

Appeal from the Criminal Court for Shelby County

No. 97-01278, 97-01279 Glenn Ivy Wright, Judge

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No. W2017-01134-CCA-R3-CD

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Defendant, Willie Jermaine Cunningham, appeals from the dismissal of several attempts

to receive relief from an “illegal sentence” under Tennessee Rule of Criminal Procedure

36.1. Because Defendant has failed to state a colorable claim for relief, we affirm the

dismissal of the motion for relief.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ALAN E. GLENN and

J. ROSS DYER, JJ., joined.

Lance R. Chism (on appeal) and Sean Muizers (at hearing), Memphis, Tennessee, for the

appellant, Willie Jermaine Cunningham.

Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant

Attorney General; Amy P. Weirich, District Attorney General; and Muriel Malone and

Austin Scofield, Assistant District Attorneys General, for the appellee, State of

Tennessee.

OPINION

Over two decades ago, Defendant robbed and kidnapped a female victim in a

Shelby County store parking lot. See State v. Willie J. Cunningham, No. 02C01-9801-

CR-00022, 1999 WL 395415, at *1 (Tenn. Crim. App. June 15, 1999), no perm. app.

filed. As a result of the convictions, Defendant was sentenced to ten years for aggravated

robbery and twenty years for especially aggravated kidnapping. Id. The trial court

ordered the sentences to run consecutively on the basis that Defendant was a dangerous

offender. Id. at *1, *5.

Defendant appealed, arguing in part that his consecutive sentence were improper.

This Court disagreed, noting that Defendant’s actions of repeatedly threatening the

victim’s life and pointing a gun at the victim’s head on multiple occasions evinced “little

or no regard for human life” and a lack of “hesitation about committing a crime in which

the risk to human life was high.” Id. at *5. This Court also found that both factors in

State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995), applied. The Court commented

that consecutive sentences were “necessary in order to protect the public from further

misconduct,” based on Defendant’s “criminal history and his lack of concern for the life

of his victim.” Id. at *6. Ultimately, this Court concluded that the thirty-year sentence

was reasonably related to the severity of the offenses. Id.

In 2010, Defendant unsuccessfully sought habeas corpus relief. See Willie J.

Cunningham v. State, No. W2010-00214-CCA-R3-HC, 2010 WL 4215147, at *1 (Tenn.

Crim. App. Oct. 25, 2010), no perm. app. filed. Unsatisfied, Defendant filed a pro se

motion to correct an illegal sentence under Tennessee Rule of Criminal Procedure 36.1 in

November of 2015. In the motion, Defendant claimed that the trial court abused its

discretion by imposing consecutive sentences without making the required finding of the

Wilkerson factors. Counsel was appointed and a short hearing was held in July of 2015.

The trial court determined that there was no “good faith basis [to determine] that his

sentence would be illegal.” The trial court acknowledged this Court’s affirmance of

Defendant’s sentence on direct appeal and was unaware of any change in sentencing law

that would render Defendant’s sentence illegal. As a result, the trial court dismissed the

motion.

Defendant filed a second motion for relief under Rule 36.1 in April of 2016. The

second motion merely recounted the issues presented in Defendant’s 2015 motion. The

trial court recognized the duplicitous nature of the second motion and promptly dismissed

it for failing to state a colorable claim.

Defendant filed an untimely notice of appeal and accompanying motion in which

he asked this Court to waive the timely filing of the notice of appeal based on trial

counsel’s failure to inform Defendant that the trial court denied the second motion for

relief under Rule 36.1. This Court granted the waiver of the timely filing of the notice of

appeal.

Analysis

On appeal, Defendant argues that the trial court improperly dismissed the motion

for relief under Rule 36.1 while conceding that “Rule 36.1 is not the proper avenue for

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attacking a trial court’s methodology in imposing a sentence.” Defendant asks this Court

to make a “change in the law.” We pitilessly decline to do so.

Rule 36.1 permits a defendant to seek correction of an unexpired illegal sentence

at any time. See State v. Brown, 479 S.W.3d 200, 211 (Tenn. 2015). “[A]n 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). Our supreme court

interpreted the meaning of “illegal sentence” as defined in Rule 36.1 and concluded that

the definition “is coextensive, and not broader than, the definition of the term in the

habeas corpus context.” State v. Wooden, 478 S.W.3d 585, 594-95 (Tenn. 2015). The

court then reviewed the three categories of sentencing errors: clerical errors (those arising

from a clerical mistake in the judgment form), appealable errors (those for which the

Sentencing Act specifically provides a right of direct appeal), and fatal errors (those so

profound as to render a sentence illegal and void). Id. Commenting on appealable errors,

the court stated that those “generally involve attacks on the correctness of the

methodology by which a trial court imposed sentence.” Id. In contrast, fatal errors

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 offenses.” Id. The

court held that only fatal errors render sentences illegal. Id. A trial court may summarily

dismiss a Rule 36.1 motion if it does not state a colorable claim for relief. Tenn. R. Crim.

P. 36.1(b)(2).

Defendant has failed to establish a fatal error that would entitle him to the relief he

seeks. Any issue Defendant had with sentencing disparity should have been, and in this

case was, raised on direct appeal. See State v. Gosnell, 62 S.W.3d 740, 750 (Tenn. Crim.

App. 2001) (explaining that although “[o]ur sentencing act is designed to eliminate

unjustified disparity in sentencing and provide for consistent treatment of defendants,”

“each defendant must be viewed individually with regard to the enhancing and mitigating

factors applicable to that defendant.”). Defendant has presented an appealable error,

rather than a fatal error. Additionally, Defendant is essentially attempting to relitigate the

issues he presented on direct appeal. “Rule 36.1 may not be used to relitigate those issues

that have been previously determined.” State v. Ricky Flamingo Brown, No. M2015-

01754-CCA-R3-CD, 2016 WL 987641, at *2 (Tenn. Crim. App. Mar. 15, 2016), perm.

app. denied (Tenn. Aug. 18, 2016). Defendant’s remaining request, for this Court to

somehow change the law with respect to the availability to expand the application of

36.1, is not well-taken. This Court cannot and will not substitute its own policy

judgments for those of the legislature. Frazier v. State, 495 S.W.3d 246, 249 (Tenn.

2016).

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Based on the foregoing, we affirm the denial of relief under Rule 36.1.

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TIMOTHY L. EASTER, JUDGE

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