State of Tennessee v. Kelvin Anthony Lee

01/30/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs at Knoxville October 30, 2018

STATE OF TENNESSEE v. KELVIN ANTHONY LEE

Appeal from the Circuit Court for Lauderdale County

No. 6089 Joe H. Walker, III, Judge

___________________________________

No. W2018-00827-CCA-R3-CD

___________________________________

The Appellant, Kelvin Anthony Lee, filed a pro se motion to correct an illegal sentence

pursuant to Tennessee Rule of Criminal Procedure 36.1, and the Lauderdale County

Circuit Court summarily denied the motion. On appeal, the Appellant contends that his

sentence of life without parole violates Montgomery v. Louisiana, 136 S. Ct. 718 (2016);

Moten v. State, 935 S.W.2d 416 (Tenn. Crim. App. 1996); and Tennessee Code

Annotated section 39-13-204(j). Upon review of the record and the parties’ briefs, we

affirm the trial court’s denial of the motion.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which CAMILLE R.

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

Kelvin Anthony Lee, Pro Se, Tiptonville, Tennessee.

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

Attorney General; and D. Michael Dunavant, District Attorney General, for the appellee,

State of Tennessee.

OPINION

I. Factual Background

In 1995, the Appellant pled guilty to first degree felony murder. This court

summarized the proof as follows:

On the afternoon of September 17, 1994, Ricky

Daniels drove to his family’s farm in Lauderdale County to

check on his aging father, William Daniels, Jr., who had been

working on the farm that day. He drove to a clearing and

spotted his father’s truck sitting in the midst of a field, near a

small pond. As he drove closer, he realized that his father

was pinned underneath the truck and seriously injured. He

first thought that an accident had occurred and he called his

sister. After surveying the situation, however, he concluded

that his father’s condition was not accidental, and he

contacted an investigator with the Lauderdale County

Sheriff’s Department.

Authorities conducted an extensive examination of the

scene, working throughout the night. Their investigation

revealed that Daniels had suffered numerous gunshot wounds

and that his body had been run over and crushed by the

pickup truck. Evidence at the scene indicated that Daniels’

body had been dragged approximately 148 feet while

underneath the truck. It also appeared that the body had

become dislodged at one point and that the truck backed up

and ran over the body again before coming to a stop on the

victim. Investigators noticed that the victim’s pants pockets

were turned inside out and his wallet was missing.

Authorities also discovered bicycle tracks at the scene which

led to a nearby house where the [seventeen-year-old]

appellant lived with his family. After questioning several of

the appellant’s brothers, appellant was brought in for

questioning. The appellant made a full confession, admitting

that he had robbed and killed Daniels.

State v. Kelvin Anthony Lee, No. 02C01-9603-CC-00085, 1997 WL 686258, at *1

(Tenn. Crim. App. at Jackson, Nov. 5, 1997), perm app. denied, (Tenn. Aug. 3, 1998).

After the Appellant’s guilty plea, the trial court impaneled a jury to decide his

punishment and held a sentencing hearing. Id. at *2. During the hearing, various

witnesses testified for the State, including the medical examiner who performed the

victim’s autopsy. See id. at *3-4. Several witnesses testified for the defense, including

the Appellant, whose testimony at the hearing “varied substantially from his statement to

law enforcement.” Id. at *5. In sum, the Appellant claimed at the hearing that he and

two accomplices went to rob the victim, that his accomplices shot and ran over the

victim, and that one of his accomplices threatened to kill him and his family if he did not

confess to the police. See id. A clinical psychologist, who had examined the Appellant

for the hearing, testified for the defense that the Appellant’s IQ was seventy-one, which

-2-

indicated borderline intellectual functioning, and that the Appellant functioned

intellectually as a twelve-year-old. Id. at *6.

The jury sentenced the Appellant to life without parole by finding that the murder

was especially heinous, atrocious, or cruel pursuant to Tennessee Code Annotated section

39-13-204(i)(5). Id. at *7. On appeal of his sentence to this court, the Appellant argued,

in pertinent part, that the evidence was insufficient for the jury to apply the aggravating

circumstance. Id. at *11. This court disagreed and affirmed the Appellant’s sentence of

life without parole, concluding that “the jury was fully justified in finding that the murder

of Daniels was especially heinous, atrocious, or cruel.” Id. at *12.

In 2004, the Appellant filed a petition for a writ of habeas corpus, which the

habeas corpus court summarily denied. Kelvin A. Lee v. State, No. M2004-02809-CCA-

R3-HC, 2005 WL 1692952, at *1 (Tenn. Crim. App. at Nashville, July 20, 2005). On

appeal to this court, the Appellant argued that his guilty plea was void because he was

improperly transferred from juvenile court to criminal court, that the trial court and the

State failed to abide by the conditions of his guilty plea, and that no underlying felony

supported his conviction of felony murder. Id. at *2. This court affirmed the dismissal of

the petition. Id. at *3.

On April 2, 2018, the Appellant filed a pro se motion to correct an illegal sentence

pursuant to Tennessee Rule of Criminal Procedure 36.1. In the motion, he argued that his

sentence of life without parole violated Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455

(2012), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016), regarding mandatory

sentences of life without parole for juvenile offenders; violated Moten v. State, 935

S.W.2d 416 (Tenn. Crim. App. 1996), regarding a trial court’s duty to conduct a hearing

to determine a defendant’s competence to enter a guilty plea; and was imposed in

contravention to Tennessee Code Annotated section 39-13-204(j) because the trial court

failed to instruct the jury that it must also consider any statutory mitigating circumstances

in determining his punishment. The trial court summarily denied the motion.

II. Analysis

On appeal, the Appellant contends that the trial court erred by denying his Rule

36.1 motion to correct an illegal sentence, maintaining that his sentence of life without

parole violates Montgomery, Moten, and Tennessee Code Annotated section 39-13-

204(j). The State argues that the trial court’s summary denial of the motion was proper

because none of the Appellant’s claims are cognizant in a Rule 36.1 motion. We agree

with the State.

-3-

Rule 36.1, Tennessee Rules of Criminal Procedure, 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). As our supreme court has explained, only “fatal” sentencing errors render

sentences illegal. State v. Wooden, 478 S.W.3d 585, 595 (Tenn. 2015). “Included in this

category are 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.

Conversely, “[c]laims of appealable error generally involve attacks on the correctness of

the methodology by which a trial court imposed sentence.” Id. Few appealable errors

rise to the level of an illegal sentence. Id.

If a Rule 36.1 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.’” Wooden, 478 S.W.3d at 592. 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. A motion filed pursuant to Rule 36.1 “must state

with particularity the factual allegations on which the claim for relief from an illegal

sentence is based.” Id. at 594. In determining whether a motion states a colorable claim,

the trial court “may consult the record of the proceeding from which the allegedly illegal

sentence emanated.” Id. Whether a Rule 36.1 motion states a colorable claim is a

question of law, which we review de novo. Id. at 588.

As to the Appellant’s claim that his sentence of life without parole violates

Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the United States Supreme Court held

in Miller, 567 U.S. at 470, that a mandatory sentence of life without the possibility of

parole for a juvenile offender violates the United States Constitution’s Eighth

Amendment prohibition against cruel and unusual punishment. The Court did not hold in

Miller, though, that a juvenile could never be sentenced to life without the possibility of

parole. Charles Everett Lowe-Kelley v. State, No. M2015-00138-CCA-R3-PC, 2016 WL

742180, at *9 (Tenn. Crim. App. at Nashville, Feb. 24, 2016) (citing Miller, 132 S. Ct. at

2469). Instead, the court required “a certain process—considering an offender’s youth

and attendant characteristics—before imposing a particular penalty.” Miller, 567 U.S. at

483; see Cedrick Dickerson v. State, No. W2013-01766-CCA-R3-PC, 2014 WL

3744454, at *5 (Tenn. Crim. App. at Jackson, July 28, 2014) (holding that defendant’s

sentence of life without parole did not run afoul of Miller when the record demonstrated

that the trial court “provided the exact consideration that the Supreme Court called for in

-4-

Miller”). In Montgomery, 136 S. Ct. at 729, the court determined that Miller should be

applied retroactively.

Turning to the instant case, although the Appellant was seventeen years old when

he killed the victim, his sentence of life without parole was authorized by statute at the

time of the offense. Therefore, his claim under Montgomery is not a proper basis for

relief under Rule 36.1. See State v. Sammie Lee Taylor, No. W2015-01831-CCA-R3-

CD, 2016 WL 3883566, at *4 (Tenn. Crim. App. at Jackson, June 6, 2016) (holding that

defendant’s claim under Miller was not a proper basis for relief under Rule 36.1).

Next, the Appellant claims that the trial court erred by denying his Rule 36.1

motion because he was mentally incompetent to enter his guilty plea and because the trial

court had a duty to conduct a hearing to determine his competence to enter his plea. In

support of his claims, he relies on the clinical psychologist’s testimony that he had an IQ

of seventy-one and functioned intellectually as a twelve-year-old and relies on Moten,

935 S.W.2d at 421, in which this court stated that “[f]ailure to order a hearing when the

evidence raises a sufficient doubt as to an accused’s competence to stand trial or enter a

guilty plea deprives the accused of due process of law.” However, as noted by the State,

“a challenge to the voluntary or knowing entry of a guilty plea is not within the purview

of Tennessee Rule of Criminal Procedure 36.1.” State v. Robert B. Ledford, No. E2014-

01010-CCA-R3-CD, 2015 WL 757807, at *3 (Tenn. Crim. App. at Knoxville, Feb. 23,

2015). Likewise, the Appellant’s claim that the trial court should have held a

competency hearing prior to accepting his plea also is not cognizable under Rule 36.1

because “the Rule is directed at the sentence finally imposed, not the methodology by

which it is imposed.” State v. Jonathan T. Deal, No. E2013-02623-CCA-R3-CD, 2014

WL 2802910, at *2 (Tenn. Crim. App. at Knoxville, June 17, 2014). The Appellant’s

challenge to his guilty plea would affect his conviction, not his sentence. Accordingly,

he is not entitled to relief under Rule 36.1.

Finally, the Appellant contends that the trial court erred by denying his Rule 36.1

motion because the trial court failed to instruct the jury that in determining his sentence,

the jury was required to consider any applicable mitigating circumstances pursuant to

Tennessee Code Annotated section 39-13-204(j). Again, as noted by the State, defects in

the sentencing instructions would render the Appellant’s sentence voidable, not void.

Milton Lee Cooper v. Howard Carlton, Warden, No. E2011-00783-CCA-R3-HC, 2012

WL 1523960, at *5 (Tenn. Crim. App. at Knoxville, Apr. 30, 2012) (citing Danny Ray

Lacy v. Cherry Lindamood, No. M2009-00072-CCA-R3-CO, 2009 WL 3029619, at *2

(Tenn. Crim. App. at Nashville, Sept. 22, 2009)). Accordingly, this claim also is not

cognizant in a Rule 36.1 motion. State v. Joseph B. Thompson, No. E2015-01963-CCA-

R3-CD, 2016 WL 2770178, at *1 (Tenn. Crim. App. at Knoxville, May 10, 2016).

-5-

III. Conclusion

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

the motion.

_________________________________

NORMA MCGEE OGLE, JUDGE

-6-