Opinion

State of Tennessee v. Dennis Rasheed Gaye

Court
Court of Criminal Appeals of Tennessee
Filed
Oct 7, 2019
Status
Published
On the bench
Judge Timothy L. Easter
Cited by
0 cases
Authority
More cited than 9.1%

“[A] defendant is required to provide such information only if the defendant’s Rule 35 motion seeks reduction of a specific sentence imposed in exchange for a guilty plea. For Rule 35 motions of this type, the McDonald standard remains applicable and appropriate.”

How later courts described this case

  • “[A] defendant is required to provide such information only if the defendant’s Rule 35 motion seeks reduction of a specific sentence imposed in exchange for a guilty plea. For Rule 35 motions of this type, the McDonald standard remains applicable and appropriate.”

Written by the judges who cited it.

The opinion

10/07/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs August 27, 2019

STATE OF TENNESSEE v. DENNIS RASHEED GAYE

Appeal from the Criminal Court for Knox County

No. 100635 Bobby R. McGee, Judge

___________________________________

No. E2018-02236-CCA-R3-CD

___________________________________

Defendant, Dennis Rasheed Gaye, appeals from the dismissal of a motion to reduce his

sentence, a motion to correct an illegal sentence, and a motion to correct a clerical error.

For the following reasons, the judgment of the trial court is affirmed.

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 CAMILLE R.

MCMULLEN and J. ROSS DYER, JJ., joined.

Dennis Rasheed Gaye, Whiteville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant

Attorney General; Charme P. Allen, District Attorney General; and Jennifer Welch,

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

OPINION

On January 16, 2014, Defendant entered guilty pleas in several cases: 100635,

101271, and 96453A. From the transcript of the guilty plea hearing, we have gleaned

that in case number 101271, Defendant pled guilty to conspiracy to possess with intent to

sell less than .5 grams of cocaine in a drug-free zone, a Class C felony. In exchange for

the guilty plea, the State dismissed several other counts in case number 101271. The trial

court sentenced Defendant to six years to be served at 100%, imposed a $2000 fine, and

charged Defendant with costs.

In Count 1 of case number 100635, Defendant appears1 to have been originally

indicted for possession with intent to sell 26 grams or more of cocaine within 1000 feet of

1

The record submitted to this Court on appeal does not contain the indictments.

a drug-free childcare zone but pleaded guilty to possession with intent to sell .5 grams or

more of cocaine within 1000 feet of a drug-free childcare zone, both Class B felonies.

Dennis Rasheed Gaye v. State, E2017-00793-CCA-R3-PC, 2018 WL 287034, at *1

(Tenn. Crim. App. Jan. 4, 2018), perm. app. denied (Tenn. May 15, 2018). Defendant

was sentenced to eight years at 100% to be served consecutively to the sentence in case

number 101271. Defendant also received a fine of $2000 and was ordered to pay court

costs. In Count 5 of case number 100635, Defendant pled guilty to simple possession

and was sentenced to eleven months and twenty-nine days and a received $250 fine. This

sentence was ordered to be served concurrently to the sentence in Count 1. In Count 6 of

case number 100635, Defendant pled guilty to evading arrest in exchange for a sentence

of eleven months and twenty-nine days to be served concurrently with the sentence in

Count 1. Counts 2, 3, 4, 7, and 8 of case number 100635 were dismissed. Case number

100634 was dismissed.2

In case number 96453A, Defendant pled guilty to robbery in exchange for a six-

year sentence as a Range I, standard offender to be served consecutively to the sentence

in case number 100635. As a result of the guilty pleas in all three cases, Defendant was

sentenced to a total effective sentence 20 years.

In April of 2014, Defendant filed a pro se motion for correction and reduction of

his sentence pursuant to Tennessee Rule of Criminal Procedure 35 in case numbers

101271 and 100635. In the motion, Defendant argued that the trial court failed to make

the proper findings prior to ordering consecutive sentencing. Defendant also argued that

his sentence in case number 100635 should be eight years at 30% rather than eight years

at 100% because the evidence did not show that he was in a drug-free zone at the time he

committed the offense.

In October of 2014, Defendant sought post-conviction relief. The post-conviction

court held a hearing in April of 2017 at which Defendant alleged that “the indictment [in

case 100635] should be dismissed because the judgment did not reflect the proper

conviction offense.” Id. The post-conviction court determined that the original judgment

of conviction for Count 1 of case number 100635 reflected that Defendant was convicted

of possession with intent to sell 26 grams or more of cocaine within 1000 feet of a drug-

free childcare zone, and the State conceded that a clerical error occurred on the judgment.

Id. As a result, the post-conviction court ordered correction of the judgment form to

reflect a conviction of possession with intent to sell 0.5 grams or more of cocaine within

1000 feet of a drug-free childcare zone. Id. The post-conviction court denied further

relief, finding that dismissal of the indictment was not warranted. Id. On appeal from the

denial of post-conviction relief, this Court affirmed the post-conviction court’s judgment.

Id. at *2. The supreme court denied permission to appeal.

2

We are unable to ascertain the charges from case number 100634 from the record.

-2-

On February 16, 2018, Defendant filed an amended motion for relief under Rule

35, asking the trial court to reduce his eight-year sentence in case number 100635 to 7.2

years at 100%, asserting that there was a discrepancy between his negotiated guilty plea

and the plea agreement announced on the record at the sentencing hearing. In May of

2018, Defendant filed a second amended motion pursuant to Rule 35 in which he asked

the trial court to remove the drug-free zone enhancement from his conviction in case

number 100635 and order Defendant to serve his sentence on probation because the

location of the traffic stop which gave rise to the charges was not within a drug-free zone.

In July of 2018, Defendant again amended his Rule 35 motion, asking the trial court to

reduce his sentence in case number 100635 to three years at 100%. In this amendment,

Defendant asserted that the trial court improperly rejected his plea agreement and allowed

him to plead guilty to the reduced charge of possession with the intent to sell .5 grams or

more “absent a[n] agreement with the State.”

In June of 2018, Defendant sought relief from his convictions via a motion filed

pursuant to Tennessee Rule of Criminal Procedure 36.1. In this motion, Defendant

argued that the trial court improperly rejected the terms of his plea agreement and then

changed the terms of the agreement by sentencing Defendant for possession with intent to

sell .5 grams or more of cocaine despite the State’s announcement at the guilty plea

hearing that he was pleading guilty to possession with intent to sell 26 grams or more of

cocaine within a drug-free zone. In Defendant’s estimation, this created an illegal

sentence.

On July 23, 2018, Defendant filed a motion pursuant to Rule 36 to correct a

clerical error. In this motion, Defendant argued that the affidavit of complaint listed the

improper address for the place of arrest. Defendant also asked the trial court to reduce

his release eligibility to 30% under Rule 35.

In September of 2018, Defendant filed his fourth amended motion for relief under

Rule 35 in which he repeated his claims from July of 2018. Defendant has also

unsuccessfully pursued two petitions for writ of certiorari challenging his guilty pleas in

this Court. Dennis R. Gaye v. State, E2018-00571-CCA-UNK-CO (Tenn. Crim. App.

Apr. 9, 2018) (Order); Dennis R. Gaye v. State, E2018-00715-CCA-WR-CO (Tenn.

Crim. App. Apr. 24, 2018) (Order).

On November 14, 2018, the trial court held a hearing. The trial court denied

Defendant’s Rule 35 motion for reduction of sentence, finding that Defendant was

already sentenced to the minimum sentence allowed by statute. The trial court also

denied Defendant’s Rule 36.1 motion to correct an illegal sentence. The trial court

dismissed the Rule 36 motion to correct a clerical error as moot. Defendant filed a timely

notice of appeal.

-3-

Analysis

On appeal, Defendant argues that the trial court erred by failing to sentence him as

an especially mitigated offender and argues that the location of the traffic stop was

outside of a drug-free zone. Additionally, Defendant argues that the trial court erred by

refusing to appoint an attorney for his Rule 36.1 motion because he stated a colorable

claim. Defendant also complains that the trial court did not grant his motion for relief

under Rule 36. The State argues that Defendant has waived any issue with regard to the

resolution of the Rule 35 motion for failure to submit an adequate record for review.

Specifically, the State points to the failure of Defendant to include the original motion

filed pursuant to Rule 35 in the technical record.3 The State also insists that Defendant

has “failed to show that post-sentencing information or developments had arisen to

warrant a reduction of his sentence in the interest of justice.” Finally, the State agrees

that the trial court properly denied the Rule 36.1 motion because Defendant failed to state

a colorable claim.

Tennessee Rule of Criminal Procedure 35 provides a mechanism by which a

defendant may seek reduction of his sentence within 120 days after the date the sentence

is imposed. Tenn. R. Crim. P. 35(a). The trial court may only reduce a sentence to one

that the court could have “originally imposed.” Id. at 35(b). A trial court may deny a

Rule 35 motion without a hearing. Id. at 35(c). A defendant may appeal the denial of the

motion. Id. at 35(d). When an appellate court reviews the denial of a motion to reduce or

modify a sentence, the standard is whether the trial court abused its discretion. State v.

Edenfield, 299 S.W.3d 344, 346 (Tenn. Crim. App. 2009).

Where a Defendant has entered a plea agreement with a specific, negotiated

sentence, that sentence may only be modified pursuant to Rule 35(b) “where unforeseen,

post-sentencing developments would permit modification of a sentence in the interest of

justice.” State v. McDonald, 893 S.W.2d 945, 947 (Tenn. Crim. App. 1994); see State v.

Patterson, 564 S.W.3d 423, 434 (Tenn. 2018) (“[A] defendant is required to provide such

information only if the defendant’s Rule 35 motion seeks reduction of a specific sentence

imposed in exchange for a guilty plea. For Rule 35 motions of this type, the McDonald

standard remains applicable and appropriate.”). Defendant seeks reduction of his

sentence on the basis that the traffic stop that led to his arrest and eventual guilty plea

took place more than 1000 feet from the childcare agency at issue. The location of the

traffic stop was known to Defendant at the time of his arrest and is not, therefore, an

3

After the State filed its brief, Defendant filed several motions with this Court to supplement the

appellate record with the original and an amended Rule 35 motion. This Court granted the motions to

supplement. The technical record was supplemented with the original Rule 35 motion from April of 2014

and an amendment to the motion from February of 2018.

-4-

unforeseen post-sentencing development. The trial court did not abuse its discretion in

denying the Rule 35 motion.

With regard to Defendant’s motion to correct an illegal sentence pursuant to Rule

36.1, the trial court had to first determine if the motion stated a “colorable claim that the

sentence is illegal.” Tenn. R. Crim. P. 36.1(b). A colorable claim is 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). If the motion does not state a colorable claim, the court “shall enter an order

summarily denying the motion.” Tenn. R. Crim. P. 36.1(b)(2). Whether a defendant has

stated a colorable claim is a question of law subject to de novo review. Wooden, 478

S.W.3d at 593. Here, Defendant argues that his sentence is illegal because the conviction

offense that is listed on the judgment form does not match the conviction offense

announced by the State at the plea hearing. If anything, this is a clerical error rather than

an illegal sentence. See Wooden, 478 S.W.3d at 594-95. Moreover, Defendant already

received relief during his post-conviction proceeding on the basis of the clerical error

about which he now complains. See Dennis Rasheed Gaye, 2018 WL 287034, at *2. In

fact, this issue was already resolved when Defendant filed the motion pursuant to Rule

36.1. The trial court properly denied Defendant’s motion because he failed to state a

colorable claim. Defendant has already received the remedy he sought.

Tennessee Rule of Criminal Procedure 36 states that a court “may at any time

correct clerical mistakes in judgments . . . arising from oversight or omission.” Clerical

errors arise “simply from a clerical mistake in filling out the uniform judgment

document.” Cantrell v. Easterling, 346 S.W.3d 445, 449 (Tenn. 2011). Our supreme

court has held that “to determine whether a clerical error has been made, a court

ordinarily must compare the judgment with the transcript of the trial court's oral

statements.” State v. Brown, 479 S.W.3d 200, 213 (Tenn. 2015). If a conflict between

the transcript and the judgment exists, then the transcript of the court’s oral statements

control. Id. Defendant’s complaint with regard to Rule 36 dealt with the address for the

location of his arrest. This information does not appear on the judgment form. The trial

court properly denied Defendant’s motion to correct a clerical error pursuant to Rule 36.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed. Nine days

after this case was docketed in this Court, Defendant filed a motion to expedite the appeal

on the basis that his sentence was set to expire in 65 days. Defendant did not include any

supporting documentation with his motion to expedite. The motion is denied.

____________________________________

TIMOTHY L. EASTER, JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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