State of Tennessee v. Lavonta Laver Churchwell

04/29/2020

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

STATE OF TENNESSEE v. LAVONTA LAVER CHURCHWELL

Appeal from the Criminal Court for Davidson County

No. 2009-A-260 Jennifer Smith, Judge

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No. M2019-01673-CCA-R3-CD

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The Appellant, Lavonta Laver Churchwell, is appealing the trial court’s denial of his

motion to correct an illegal sentence. The State has filed a motion asking this Court to

affirm pursuant to Court of Criminal Appeals Rule 20. Said motion is hereby granted.

Tenn. R. App. P. 3 Appeal as of Right; Order of the Trial Court Affirmed Pursuant

to Court of Criminal Appeals Rule 20

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which ROBERT W.

WEDEMEYER and TIMOTHY L. EASTER, JJ. joined.

Lavonta Laver Churchwell, pro se.

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

Assistant Attorney General, for the Appellee, State of Tennessee.

MEMORANDUM OPINION

In 2009, the Appellant was indicted on two counts of first degree premeditated

murder, two counts of first degree felony murder, and two counts of especially

aggravated robbery. He was convicted of two counts of felony murder, two counts of

especially aggravated robbery, and two counts of criminally negligent homicide. The

trial court merged the Appellant’s convictions for criminally negligent homicide into his

felony murder convictions. The Appellant was sentenced to an effective life sentence

with all sentences running concurrently. This Court affirmed the convictions and

sentences on direct appeal. State v. Lavonta Laver Churchwell, No. M2011-00950-CCA-

R3-CD, 2013 WL 430118 (Tenn. Crim. App. Feb. 4, 2013). The Appellant was

unsuccessful in his subsequent pursuit of post-conviction relief. Lavonta Laver

Churchwell v. State, No. M2015-01567-CCA-R3-PC, 2016 WL 5253203 (Tenn. Crim.

App. Sep. 21, 2016). In July 2019, the Appellant filed a motion to correct an illegal

sentence. Tenn. R. Crim. P. 36.1. The trial court summarily denied relief. The

Appellant now appeals. In response to the filing of the record on appeal and the

Appellant’s brief, the State has filed a motion to affirm the ruling of the trial court

pursuant to Rule 20. For the reasons stated below, said motion is hereby granted.

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). Our supreme court has

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). That

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

arising from a clerical mistake in the judgment sheet), 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).

Citing the applicable authority discussed above, the trial court ruled as follows on

the Appellant’s motion:

Defendant now seeks relief pursuant to Rule 36.1. But his motion

does not challenge the legality of his sentences but trial errors that could

have been raised on direct appeal. He requests that this court vacate or

correct his sentence because: (1) the Court committed “plain error” and

violated Defendant’s right to a fair and impartial trial by jury by allowing

the [S]tate to introduce personal details about the victim; (2) the

prosecutor’s repeated reference to gang affiliation violated the sentencing

statute, which forbade the use of gang enhancements for some offenses; (3)

Defendant was improperly sentenced on both a lesser-included offense and

the greater offense; and (4) double jeopardy and due process prohibit the

use of the element of “bodily injury” to prove both especially aggravated

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robbery and felony murder. Rule 36.1 provides no avenue for the relief on

any of the Defendant’s claims.

...

First, the Defendant’s claims that this Court violated his right to a

fair and impartial trial and his rights under the sentencing statute address

evidentiary concerns, not the legality of his sentence. Second, Defendant’s

claim that he was improperly sentenced on a greater and lesser-included

offense address the validity of his convictions, not the legality of his

sentences. And beyond that, he is simply mistaken. “It is well settled in

Tennessee that, under certain circumstances, two convictions or dual guilty

verdicts must merge into a single conviction to avoid double jeopardy

implications. For example, merger is required when a jury returns verdicts

of guilt on two offenses and one of the guilty verdicts is a lesser-included

offense of the other offense.” State v. Berry, 503 S.W.3d 360, 362 (Tenn.

2015) (citing State v. Davis, 466 S.W.3d 49, 77 (Tenn. 2015)). The

judgment in Defendant’s case reflects that the Court merged his dual

convictions for felony murder and criminally negligent homicide as

required by Berry. Third, Defendant’s double jeopardy and due process

claims related to the use of the same element of “bodily injury” to prove

both especially aggravated robbery and felony murder are trial errors that

could have been raised on direct appeal. The claims are also meritless. A

conviction for felony murder and the underlying felony of especially

aggravated robbery does not violate double jeopardy principles or due

process. State v. John Robert Tory, No. 03C01-9306-CR-00202, 1994 WL

398808 (Tenn. Crim. App. Aug. 3, 1994) (perm. app. denied) (citing State

v. Blackburn, 694 S.W.2d 934 (Tenn. 1985)).

In short, Defendant does not claim that the sentences imposed by

this Court were not authorized by the applicable statutes or that they

directly contravene an applicable statute. And even if he articulated such a

claim, he would not prevail. Life imprisonment - Defendant’s sentence on

each of his two felony murder convictions - is a statutorily authorized

sentence for first-degree murder. Especially aggravated robbery, a Class A

felony, carries a sentence range of fifteen to sixty years in prison.

Defendant’s twenty-year sentences for especially aggravated robbery are

plainly within that range. Defendant’s sentence is entirely consistent with

the Criminal Sentencing Act.

The trial court did not err in denying the Appellant’s motion. The Appellant

received a statutorily authorized sentence of life imprisonment for his first degree murder

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convictions. Tenn. Code Ann. § 39-13-202(c). As to the two especially aggravated

robbery convictions, a Class A felony, the statutory maximum is sixty years, and a Range

I sentence for the offense is fifteen to twenty-five years. Tenn. Code Ann. §§ 40-35-

111(b)(1) and 112(a)(1). The Appellant was sentenced to twenty years for each

especially aggravated robbery conviction. Accordingly, as the trial court correctly held,

the Appellant’s sentences were authorized by the applicable statutory scheme. Moreover,

as the trial court also correctly held, Rule 36.1 provides no avenue for relief on any of the

Appellant’s claims because they present appealable, not fatal, errors. The Appellant also

raises other claims for the first time on appeal. Issues raised for the first time on appeal

are considered waived, however. State v. Johnson, 970 S.W.2d 500, 508 (Tenn. Crim.

App. 1996).

In light of the discussion above, the trial court did not err in denying relief to the

Appellant. The ruling of the trial court is, therefore, affirmed pursuant to Court of

Criminal Appeals Rule 20.

Judge Robert L. Holloway, Jr.

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