The opinion
09/17/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs February 4, 2020
STATE OF TENNESSEE v. TITUS AVERY BRITTAIN
Appeal from the Circuit Court for Hardeman County
No. 18-CR-71 J. Weber McCraw, Judge
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No. W2019-01249-CCA-R3-CD
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The pro se Defendant, Titus Avery Brittain, appeals the trial court’s denial of his motion
for pretrial jail credits. Following our review, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS,
P.J., and CAMILLE R. MCMULLEN, J., joined.
Titus Avery Brittain, Nashville, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter; and Caitlin Smith, Senior Assistant
Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS
This case apparently arises out of the Defendant’s participation with fellow prison
inmates in a March 4, 2016 attack of another inmate at a Hardeman County prison. On
May 7, 2018, the Hardeman County Grand Jury returned an indictment charging the
Defendant and four co-defendants with aggravated assault. On August 27, 2018, the
Defendant pled nolo contendere in the Hardeman County Circuit Court to one count of
aggravated assault and was sentenced by the trial court as a Range I standard offender to
three years at thirty percent release eligibility to be served concurrently to his Tennessee
Department of Correction sentence in another case. In the concurrent box of the judgment
form in the instant case is the notation “TDOC,” without the case number or the length of
that sentence. The Defendant’s petition for acceptance of his guilty plea, however, contains
the hand-written notation that the three-year sentence in the instant case is to be served
concurrently with case number “2009B1769.” There are no pretrial jail credits listed on
the judgment in the instant case or on the petition for acceptance of the guilty plea.
On May 31, 2019, the Defendant filed a “Motion to Receive Time Credits and
Memorandum of Law” in which he alleged that he had not received proper pretrial jail
credits toward his aggravated assault sentence in the instant case. Specifically, he argued
that because his sentence was ordered to be served concurrently to the three-year-sentence
he was serving in another aggravated assault case, case number 2009B1769, and that the
second three-year sentence had expired, “then it should be clear that the 3[-]year sentence
[in the instant case] has also expired and [the Defendant] is entitled to immediate release
from State custody.”
On June 10, 2019, the trial court entered an order denying the motion on the grounds
that it had no jurisdiction over the case. Among other things, the court noted that the
Defendant did not have any pretrial jail credits in Hardeman County and that any questions
regarding parole or sentence credits had no bearing on the validity of the Defendant’s
conviction. On July 5, 2019, the Defendant mailed from the prison his notice of appeal,
which was filed on July 12, 2019.
ANALYSIS
The Defendant’s argument on appeal differs from his argument in his motion to the
trial court. 1 As we understand his argument before this court, the Defendant believes he is
entitled to jail credits toward his three-year-sentence in the instant aggravated assault case
because as a result of the instant offense, he was transferred from the Hardeman County
Correctional Facility in Whiteville to the Hardeman County Jail to be “street charged with
the offense of aggravated assault by T.D.O.C. officials[,]” before being returned to state
prison, where he was issued a disciplinary infraction report and punished. Afterwards, he
was “transferred to several other state operated facilities until he was [i]ndicted in
Hardeman County by TDOC State prison officials.” Under the Defendant’s reasoning,
the trial court was required pursuant to Tennessee Code Annotated section 40-23-101 to
award him pretrial jail credits toward the sentence in the instant case because the time he
spent in the Hardeman County Jail and various “other state operated facilities” arose out of
the instant offense.
1
We note that that “[i]t is well-settled that an appellant is bound by the evidentiary theory set forth at trial,
and may not change theories on appeal.” State v. Alder, 71 S.W.3d 299, 303 (Tenn. Crim. App. 2001).
Doing so generally results in waiver of the issue on appeal. State v. Michael Jason Vance, No. M2011-
02469-CCA-R3-CD, 2013 WL 6001954, at *15 (Tenn. Crim. App. Nov. 12, 2013), perm. app. denied
(Tenn. Apr. 10, 2014).
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The State responds by arguing that the trial court properly found that it had no
jurisdiction, as the judgment has long since become final. The State additionally argues
that the Defendant has no appeal as of right from a trial court’s denial of a motion for jail
credits and, further, that even if the motion were liberally treated as a petition for writ of
habeas corpus or a Rule 36.1 motion to correct an illegal sentence, the Defendant is not
entitled to relief.
As an initial matter, we agree with the State that construing the motion as a
Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence or as a
petition for writ of habeas corpus does not afford the Defendant any relief, as the arguments
the Defendant raises about his alleged failure to receive proper pretrial jail credits do not
rise to the level of a colorable claim for either habeas corpus or Rule 36.1 relief. See
Anderson v. Washburn, --- S.W.3d ---, No. M2018-00661-SC-R11-HC, 2019 WL
3071311, at *1 (Tenn. 2019); State v. Brown, 479 S.W.3d 200, 212 (Tenn. 2015). We
disagree, however, with the trial court’s conclusion that it lacked jurisdiction over the
motion and with the State’s contention that this court lacks jurisdiction over the appeal.
Although the trial court generally lacks jurisdiction to modify a sentence after the judgment
is final and the defendant has been transferred to the Department of Correction, see Tenn.
Code Ann. § 40-35-212(c)(d)(1), the trial court may correct clerical errors in a judgment at
any time. Rule 36 of the Tennessee Rules of Criminal Procedure provides:
After 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. Upon filing of
the corrected judgment or order, or upon the court’s denial of a motion filed
pursuant to this rule, the defendant or the state may initiate an appeal as of
right pursuant to Rule 3, Tennessee Rules of Appellate Procedure.
Tenn. R. Crim. P. 36. The failure to award proper pretrial jail credit is the type of clerical
error encompassed by the rule. “Failure to award pretrial jail credits is a clerical error.”
State v. Ashley Carver, No. W2019-01727-CCA-R3-CD, 2020 WL 2499940, at *2 (Tenn.
Crim. App. May 14, 2020) (citing Brown, 479 S.W.3d at 213). We, thus, conclude that the
trial court had jurisdiction over the motion.
The record in this case is sparse, making it impossible for this court to determine
whether the Defendant had pretrial jail credits that were not accurately reflected on his
judgment. In its order, however, the trial court specifically found that the Defendant did
not have any pretrial jail credits in Hardeman County. Unlike this court, the trial court
presumably had a record before it that enabled it to make such a determination. It is the
Defendant’s duty to prepare an adequate record on appeal. Tenn. R. App. P. 24 (a); Tenn.
R. Crim. P. 36, advisory comm’n comments. When the record is inadequate for review,
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we presume that the ruling of the trial court is correct. See State v. Oody, 823 S.W.2d 554,
559 (Tenn. Crim. App. 1991). Accordingly, we affirm the judgment of the trial court
denying the motion.
CONCLUSION
Based on the foregoing authorities and reasoning, we affirm the judgment of the
trial court.
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ALAN E. GLENN, JUDGE
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