STATE OF TENNESSEE v. JAMES EARL GORDON

01/27/2021

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 25, 2020

STATE OF TENNESSEE v. JAMES EARL GORDON

Appeal from the Circuit Court for Williamson County

No. 999-332 Deanna B. Johnson, Judge

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No. M2019-01729-CCA-R3-CD

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The Pro Se Defendant, James Earl Gordon, appeals the trial court’s summary denial of his

motion to correct an illegal sentence, pursuant to Tennessee Rule of Criminal Procedure

36.1, in which he argues that he received ineffective assistance of counsel and raises

various constitutional issues. After thorough review, we affirm the denial of the motion.

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., joined. CAMILLE R. MCMULLEN J., concurring in results only.

James Earl Gordon, Nashville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Assistant

Attorney General; Kim R. Helper, District Attorney Genera, for the appellee, State of

Tennessee.

OPINION

FACTS

In 1995, the Defendant was convicted of premeditated murder and aggravated

burglary and was given a life sentence without the possibility of parole and six years to be

served consecutively to the life sentence, respectively. See State v. James E. Gordon, No.

01C01-9611-CC-00495, 1998 WL 44920 (Tenn. Crim. App. Feb. 5, 1998), perm. appeal

denied (Tenn. Dec. 14, 1998). The Defendant appealed, arguing that there was insufficient

evidence to convict him of premeditated murder and aggravated burglary, that the jury

erred in sentencing him to life without parole, that the trial court erred in sentencing him

to six years for aggravated burglary, and that the trial court erred in ordering his six-year

sentence to be served consecutively to the life sentence. Id. at *4. This court agreed that

the six-year sentence should run concurrently to the life sentence but otherwise affirmed

the trial court’s judgments. Id. at *11.

In 2000, the Defendant filed a petition for post-conviction relief. See State v. James

E. Gordon, No. M2000-02435-CCA-R3-PC, 2001 WL 844404, at *1 (Tenn. Crim. App.

July 26, 2001), perm. app. dismissed (Tenn. Oct. 8, 2001). In his petition, the Defendant

asserted that he had received ineffective assistance of trial counsel. The post-conviction

court disagreed, and this court affirmed the post-conviction court’s denial of the petition

on appeal. Id. In 2014, the Defendant filed an application to reopen his post-conviction

petition, which the trial court denied. This court upheld the denial of the application to

appeal. See James Earl Gordon v. State, No. M2014-01945-CCA-R28-PC (Tenn. Crim.

App. Jan. 14, 2015), perm. app. denied (Tenn. May 15, 2015).

The Defendant filed a motion to correct an illegal sentence pursuant to Tennessee

Rule of Criminal Procedure 36.1 on May 2, 2019. The Defendant alleged that he received

ineffective assistance of counsel, prosecutorial misconduct, coerced confession, and denial

of his constitutional right to confrontation. The trial court denied the motion on September

4, 2019, finding that the Defendant had “failed to state a colorable claim for correction of

an illegal sentence.” The Defendant filed a notice of appeal on September 26, 2019.

ANALYSIS

In the current appeal, the Defendant asserts five issues, all relating to ineffective

assistance of counsel and various constitutional issues, including violation of due process

and his rights under the Fourth, Fifth, and Sixth, and Fourteenth amendments to the United

States Constitution. The State responds that the Defendant has failed to state a colorable

claim for relief under Rule 36.1. We agree with the State.

Rule 36.1 provides “a mechanism for the defendant or the State to seek to correct

an illegal sentence.” State v. Brown, 479 S.W.3d 200, 208-09 (Tenn. 2015). An illegal

sentence is defined as “one that is not authorized by the applicable statutes or that directly

contravenes an applicable statute.” Tenn. R. Crim. P. 36.1(a). When a defendant files a

motion under Rule 36.1, the trial court must determine whether the motion “states a

colorable claim that the sentence is illegal.” Tenn. R. Crim. P. 36.1(b). In the context of

Rule 36.1, 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).

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Our supreme court has classified 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. at 594-95. Fatal errors 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. The court held that only

fatal errors render sentences illegal. Id.

None of the issues raised by the Defendant are cognizable in a Rule 36.1 motion.

See, e.g., State v. Wooden, 478 S.W.3d 585, 593 (Tenn. 2015) (finding that ineffective

assistance of counsel claims are not cognizable under Rule 36.1); State v. Brandon D.

Washington, No. W2016-00413-CCA-R3-CD, 2017 WL 2493685, at *2 (Tenn. Crim.

App. June 9, 2017), perm. app. denied (Tenn. Oct. 4, 2017) (“Moreover, errors implicating

constitutional rights render judgments voidable, not void, and are not colorable claims

pursuant to Rule 36.1.”). The trial court properly dismissed the Rule 36.1 petition, and the

Defendant is not entitled to relief.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the denial of the

motion.

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ALAN E. GLENN, JUDGE

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