The opinion
02/26/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs February 18, 2021
STATE OF TENNESSEE v. MICHELLE BENNINGTON
Appeal from the Criminal Court for Hamilton County
No. 294428 Thomas C. Greenholtz, Judge
___________________________________
No. E2020-00025-CCA-R3-CD
___________________________________
Defendant, Michelle Bennington, filed a pro se motion pursuant to Tennessee Rule of
Criminal Procedure 36 to correct an alleged clerical error in a July 22, 2019 probation
revocation order. The motion sought entry of a corrected order providing 827 days of post-
judgment jail credit. The trial court determined that there was no clerical error in the
revocation order and denied the motion. However, the trial court determined that there was
a clerical error in the May 23, 2016 judgments of conviction and entered corrected
judgments providing two additional days of pretrial jail credit. Finding no error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
Michelle Bennington, Henning, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Neal Pinkston, District Attorney General; and Kristen Spires, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Procedural History
On May 23, 2016, Defendant pled guilty to trafficking for commercial sex act
(Count One), contributing to the delinquency of a minor (Count Three), and prostitution
(Count Four). Pursuant to a plea agreement, the trial court sentenced Defendant to eight
years in Count One and eleven months and twenty-nine days in both Counts Three and
Four. The sentences were ordered to be served concurrently and were suspended to
supervised probation. The judgments provided pretrial jail credit from December 18, 2014,
to May 23, 2016.
On July 11, 2017, the trial court issued a capias based on a probation violation report
claiming that Defendant tested positive for cocaine, amphetamine, buprenorphine, and
methamphetamine. Defendant conceded the violation, and on August 16, 2017, the court
partially revoked Defendant’s probation through August 26, 2017. The revocation order
provided that Defendant would be supervised out of Knox County and would receive jail
credit from July 24 to August 16, 2017.
On January 23, 2018, the trial court issued another capias based on a probation
violation report claiming that Defendant tested positive for methamphetamine on
December 13, 2017. By letter dated June 2, 2019, Defendant notified the court that she
was incarcerated in the Tennessee Department of Correction (TDOC) on a sentence out of
Knox County. Defendant was transported from prison to Hamilton County on July 19,
2019. On July 22, 2019, Defendant conceded the violation, and the trial court fully revoked
probation and ordered Defendant to serve her original sentence. The revocation order
provided jail credit from July 19 to July 22, 2019.
On September 19, 2019, Defendant filed a “Motion to Correct Clerical Error on
Probation Order” (“the Motion”), claiming that the trial court’s July 22, 2019 revocation
order failed to award all jail credit to which she was entitled. She claimed that, on
December 2, 2016, she pled guilty in Knox County and was sentenced to six years to be
served concurrently with her effective eight-year Hamilton County sentence. Defendant
moved the court to issue a corrected revocation order to provide 827 days post-judgment
jail credit. Specifically, Defendant sought post-judgment jail credit on her Hamilton
County sentence for the following: (1) 206 days during which she was incarcerated in Knox
County awaiting trial; (2) 37 days during which she was incarcerated in Knox County after
she was sentenced on the Knox County charges; (3) 556 days beginning with the full
revocation of her Knox County probation on January 12, 2018, through entry of the July
22, 2019 revocation order in Hamilton County during which time she was incarcerated in
TDOC; and (4) 28 days that were credited in the Hamilton County August 16, 2017
probation order.
The trial court denied the Motion by order entered on November 18, 2019, finding:
Neither the omission of credit for confinement in jail in Knox County, nor
the omission of credit for confinement in prison in West Tennessee,
constitutes a clerical error in the judgments of this court, because the record
-2-
does not reflect that either confinement was a post-arrest, pre-plea or post-
arrest, pre-revocation confinement arising out of the offenses in this case.
The court found that there was no clerical error in the July 22, 2019 revocation order but
found that there was a clerical error in the May 23, 2016 judgments of conviction and that
Defendant was entitled to jail credit beginning on December 16 not December 18, 2014.
The court entered corrected judgments.
Defendant filed an untimely Notice of Appeal on January 6, 2020. The State’s
motion to dismiss the appeal was denied by this court because Defendant attempted to
timely file a Notice of Appeal on December 18, 2019, but the notice was returned to
Defendant by the appellate clerk for additional information.
Analysis
On appeal, Defendant claims that the trial court erred by failing to award applicable
jail credits in its July 22, 2019 revocation order. The State argues that the trial court
properly denied the Motion. We agree with the State.
Tennessee Code Annotated section 40-23-101 provides, in pertinent part:
The trial court shall, at the time the sentence is imposed and the
defendant is committed to jail, the workhouse or the state penitentiary for
imprisonment, render the judgment of the court so as to allow the defendant
credit on the sentence for any period of time for which the defendant was
committed and held in the city jail or juvenile court detention prior to waiver
of juvenile court jurisdiction, or county jail or workhouse, pending
arraignment and trial. The defendant shall also receive credit on the sentence
for the time served in the jail, workhouse or penitentiary subsequent to any
conviction arising out of the original offense for which the defendant was
tried.
Tenn. Code Ann. § 40-23-101(c) (2019).
The first sentence of Tennessee Code Annotated section 40-23-101(c) requires trial
courts to award pretrial jail credit. The failure to award pretrial jail credits is a clerical
error. State v. Brown, 479 S.W.3d 200, 212 (Tenn. 2015). A trial court may correct clerical
errors in a judgment at any time. Tenn. R. Crim. P. 36.
The second sentence of section 40-23-101(c) entitles a defendant to post-judgment
credit for any time served in confinement after conviction if the confinement arises out of
-3-
the original offense for which the defendant was convicted. “Notwithstanding any other
law to the contrary, [TDOC] is responsible for calculating the sentence expiration date and
the release eligibility date of any felony offender sentenced to the department and any
felony offender sentenced to confinement in a local jail or workhouse for one (1) or more
years.” Tenn. Code Ann. § 40-35-501(r) (2019); see State v. Patterson, 564 S.W.3d 423,
434 (Tenn. 2018). There is “no law to the contrary” applicable to this case.
TDOC, not the trial court, was responsible for calculating post-judgment jail credit
on Defendant’s Hamilton County sentence and the concurrent Knox County sentence. See
Stewart v. Schofield, 368 S.W.3d 457, 464 (Tenn. 2012). As the trial court explained in its
thorough, five-page order denying the Motion, if Defendant “believes that TDOC
overlook[ed] an award of jail credit or otherwise miscalculate[d] the felony sentence, her
remedy lies under the Tennessee Uniform Administrative Procedures Act, Tenn. Code
Ann. §[§] 4-5-101 [to 325].”
Conclusion
The trial court correctly determined that there was no clerical error in the July 22,
2019 revocation order. The trial court properly corrected a clerical error in the judgments
of conviction to provide two additional days of pretrial jail credit. We affirm the trial
court’s order denying the Motion and the court’s entry of corrected judgments.
____________________________________
ROBERT L. HOLLOWAY, JR., JUDGE
-4-