State of Tennessee v. Marvin Magay James Green - concurring opinion

11/30/2021

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs July 27, 2021

STATE OF TENNESSEE v. MARVIN MAGAY JAMES GREEN

Appeal from the Criminal Court for Sullivan County

No. S52556 William K. Rogers, Judge

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No. E2020-00968-CCA-R3-CD

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JOHN EVERETT WILLIAMS, P.J., concurring in the result.

I write separately because I disagree with the majority’s interpretation of the issue

raised on appeal by the Defendant. The majority, concluding that the Defendant’s

contention is unclear, addresses the issue as one of pretrial jail credits or day-for-day

service. I believe that, on the contrary, the Defendant asserts that his sentence is illegal

or contains a clerical error because he was denied 128 days of sentence reduction credits

which he earned prior to the imposition of his sentence. Because this type of claim must

be addressed via the Uniform Administrative Procedures Act, I would affirm the denial of

relief on this basis.

The Defendant pled guilty in 2008 to simple possession of marijuana, possession

of 0.5 grams or more of cocaine with intent to sell in a drug-free school zone, maintaining

a dwelling where controlled substances are used or sold, and possession of drug

paraphernalia. See T.C.A. § 39-17-418; T.C.A. § 39-17-417, T.C.A. § 39-17-432; T.C.A.

§ 53-11-401; T.C.A. § 39-17-425. All of his sentences were to run concurrently with his

fifteen-year sentence for the drug-free school zone offense, and the judgment forms

reflect that he was granted 508 days of pretrial jail credit, from August 18, 2006, to

January 8, 2008.

The Defendant is no stranger to post-judgment litigation. See State v. Marvin

Green, No. E2018-00251-CCA-R3-CD, 2019 WL 1569255, at *2 (Tenn. Crim. App.

Apr. 11, 2019), no perm. app. filed; State v. Marvin Magay James Green, No. E2013-

02425-CCA-R3-CD, 2014 WL 2957716, at *4 (Tenn. Crim. App. June 30, 2014)

(concluding that the drug-free school zone offense contained a clerical error in

designating a release eligibility date when such a date was prohibited by statute requiring

the service of the entire fifteen years), perm. app. denied (Tenn. Nov. 20, 2014); Marvin

Green v. Jerry Lester, Warden, No. W2013-02525-CCA-R3-HC, 2014 WL 2941237

(Tenn. Crim. App. June 26, 2014), perm. app. denied (Tenn. Nov. 19, 2014); Marvin

Green v. Avril Chapman, Warden, No. M2013-02715-CCA-R3-HC, 2014 WL 2001031,

at *2 (Tenn. Crim. App. May 14, 2014) (denying habeas corpus relief and noting that

T.C.A. § 39-17-432 “required full service of the minimum sentence”) perm. app. denied

(Tenn. Sept. 19, 2014).

On November 22, 2019, the Defendant filed a motion to correct a clerical error or

motion to correct an illegal sentence under Tennessee Rule of Criminal Procedure 36 and

36.1. In his motion, the Defendant asserted he had been denied 128 days of “pretrial

behavior credits.” He elaborated that the trial court had orally ordered him to receive

credit for the time he had actually served but that “none of the uniform judgment[s]

reflect[] the mandatory 128 pretrial behavior credits.” The trial court denied the Rule 36

and Rule 36.1 motion.

While I agree with the majority that the Defendant’s appellate brief is less than

clear in framing the issue, the Defendant asserts in his reply brief that he did not receive

“sentence reduction credits for good institutional behavior prior to imposition of [the]

sentence” and cites to Tennessee Code Annotated section 41-21-236(e), which concerns

sentence reduction credits. The Defendant distinguishes the 508 days of pretrial jail

credit which he received for time he actually served prior to trial, and he states that he is

not contesting pretrial jail credits. Accordingly, I would not rely on Tennessee Code

Annotated section 40-23-101, which concerns pretrial jail credits, to analyze the

Defendant’s claim.

Instead, I believe the claim raised by the Defendant should be analyzed under

Tennessee Code Annotated section 41-21-236, which concerns “[t]ime reduction credits”

and provides that an inmate who exhibits good behavior may earn up to eight days each

month in “time credits” toward the sentence imposed. T.C.A. § 41-21-236(a)(2)(A),

(e)(2). Subsection (e) states that “[s]entence reduction credits for good institutional

behavior as authorized by this section shall also be awarded to all convicted felons for the

time incarcerated prior to the imposition of sentence.” T.C.A. § 41-21-236(e)(1). While

such credits are generally awarded automatically absent an objection from the

superintendent or jailer, “no convicted felon shall have a right to the credits nor shall the

felon have a right to appeal the superintendent’s or jailer’s determination concerning the

number of sentence reduction credits a particular felon should be awarded as set out in

the superintendent’s or jailer’s written objection to the department.” T.C.A. § 41-21-

236(e)(3). The Defendant is asserting that during the 508 days (or sixteen months) that

he was in jail prior to the plea, he earned eight days each month, for a total of 128 days.

The Defendant contends the absence of the credits in the judgment form renders

the judgment illegal or is a clerical error. However, the Defendant cites to no authority

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that such sentence reduction credits must appear in the judgment or that their absence

would render the judgment illegal. Compare State v. Brown, 479 S.W.3d 200, 212

(Tenn. 2015) (awarding of pretrial jail credits is mandatory but failure to include them in

the judgment does not render the judgment illegal). Although the statute concerning

pretrial jail credits requires the court to “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 … county jail or workhouse, pending arraignment and trial,”

there is no analogous provision in the statute concerning sentence reduction credits,

which is found in Title 41 of Tennessee Code Annotated, a title which governs

Correctional Institutions and Inmates. T.C.A. § 40-23-101(c); see T.C.A. § 41-21-236.

On the contrary, unlike pretrial jail credits, which are awarded by the court,

sentence reduction credits are calculated by the Department of Correction and must be

reviewed via the Uniform Administrative Procedures Act. Jackson v. Parker, 366

S.W.3d 186, 190 (Tenn. Crim. App. 2011), distinguished by Yates v. Parker, 371 S.W.3d

152, 156 (Tenn. Crim. App. 2012); see T.C.A. § 4-5-101, et seq.; State v. Jackie Phillip

Lester, No. M2016-00700-CCA-R3-CD, 2017 WL 253165, at *2 (Tenn. Crim. App. Jan.

17, 2017); see also James A. Vaughn v. State, No. 01C01-9308-CR-00258, 1994 WL

53845, at *1 (Tenn. Crim. App. Feb. 24, 1994) (citing State v. Christopher Oliver, 1993

WL 152408, at *2 (Tenn. Crim. App. May 11, 1993), and Matthew P. Finlaw v.

Anderson County Jail, No. 03C01-9212-CR-0048, 1993 WL 310312, at *2 (Tenn. Crim.

App. Aug. 13, 1993), for the proposition that sentence reduction credits have been

awarded by courts only in limited circumstances where the parties were in agreement that

a clerical error was made). Because sentence reduction credits fall under a different

procedural mechanism, this court ought not “‘conflate[] sentence reduction credits, which

are governed solely by the Department of Correction, with pretrial and post-judgment jail

credits, which can be awarded only by the trial court.’” Yates, 371 S.W.3d at 156

(quoting Tucker v. Morrow, 335 S.W.3d 116, 122 (Tenn. Crim. App. 2009), overruled on

other grounds by Brown, 479 S.W.3d at 212).

I note parenthetically that, under Tennessee Code Annotated section 39-17-432, a

defendant sentenced for a violation of the prohibition against selling drugs in a drug-free

school zone must serve at least the minimum sentence in the range, and that “[a]ny

sentence reduction credits the defendant may be eligible for or earn shall not operate to

permit or allow the release of the defendant prior to full service of the minimum

sentence.” T.C.A. § 39-17-432(c) (2008). The Defendant was sentenced to the minimum

in his range. See Marvin Green v. Avril Chapman, Warden, 2014 WL 2001031, at *1-2

(observing that the Petitioner was sentenced to the minimum in his range and that statute

“required full service of the minimum sentence”).

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The Defendant here does not raise any issue regarding pretrial jail credit. Neither

does he contest an order of day-for-day service of a sentence of less than one year in a

county jail. See supra, citing Jeannie Hudson, No. E2001-00377-CCA-R3-CD, 2002 WL

264625, at *4-5 (relying on T.C.A. § 41-2-111(b), which governs credits earned by

inmates sentenced to less than one year in a county jail or workhouse). Because I believe

that the Defendant’s claim concerns sentence reduction credits and must be addressed via

the Uniform Administrative Procedures Act, I concur in the conclusion that the trial court

properly dismissed the case.

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JOHN EVERETT WILLIAMS, PRESIDING JUDGE

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