State Of Tennessee v. Jennifer Sadie Thompson

FILED

06/06/2022

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE Clerk of the

AT NASHVILLE Appellate Courts

Assigned on Briefs December 21, 2021

STATE OF TENNESSEE v. JENNIFER SADIE THOMPSON

Appeal from the Circuit Court for Franklin County

Nos. 2016-CR-40,2014-CR-20,2013-CR-84 J. Curtis Smith, Judge

No. M2021-00420-CCA-R3-CD

The Appellant, Jennifer Sadie Thompson, filed a pro se motion for correction of sentence

pursuant to Rule 36.1, which was denied by the trial court. On appeal, the Appellant

contends that the trial court erred by denying her motion, arguing that the Tennessee

Department of Correction failed to apply sentencing credits to which she was entitled.

Upon review, we affirm the judgment of the trial court.

Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT L.

HOLLOWAY,JR., and J. Ross DYER, JJ.,joined.

Jennifer Sadie Thompson, Nashville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Senior Assistant

Attorney General; J. Michael Taylor, District Attorney General; and Courtney Lynch,

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

OPINION

I. Factual Background

The record reflects that on January 5, 2016, the Appellant was indicted in case

number 2016-CR-40 on one count of felony failure to appear and one count of

misdemeanor failure to appear. On July 15, 2016, the Appellant pled guilty to felony

failure to appear and received a sentence of one year in the Tennessee Department of

Correction(TDOC)which was to be served consecutively to the sentences imposed for the

Appellant's violations of probation in case numbers 2013-CR-84 and 2014-CR-20. The

misdemeanor failure to appear charge was dismissed pursuant to the plea agreement. The

Appellant was not awarded pretrial or post-judgment sentencing credits in case number

2016-CR-40.

An order dated July 15, 2016, reflects that the trial court revoked Appellant's

probation in case number 2013-CR-84, for which the Appellant was convicted of two

counts of identity theft and received a total effective sentence of five years. The order

further reflects that the trial court granted the Appellant specific dates of pretrial and post-

judgment jail credits.

Another order dated July 15, 2016, reflects that the trial court fully revoked the

Appellant's probation in case number 2014-CR-20,for which the Appellant was convicted

of felony failure to appear and sentenced to three years and six months to be served

consecutively to the sentence in case number 2013-CR-84. The Appellant was not awarded

pretrial or post-judgment sentencing credits in case number 2014-CR-20.

On January 9, 2020, the Appellant, acting pro se, filed a motion pursuant to

Tennessee Rule of Criminal Procedure 36.1 to correct an illegal sentence in case numbers

2016-CR-40 and 2014-CR-20. In the motion, the Appellant alleged that "effective May

24, 2019," all convictions of failure to appear became Class A misdemeanors. See Tenn.

Code Ann § 39-16-609(d)(providing that effective July 1, 2019, "fflailure to appear is a

Class A misdemeanor"). The Appellant sought to have her sentences for felony failure to

appear reduced to misdemeanors. The trial court entered an order filed on June 23, 2020,

nunc pro tunc to March 3, 2020, denying the Appellant's motion.

On March 29, 2021, the Appellant filed a pro se "Motion for Pretrial Jail Credits"

in case numbers 2016-CR-40,2014-CR-20, and 2013-CR-84. In the motion, the Appellant

contended:

The [Appellant's] charges were revocated [sic]. Her

sentence was to reflect a total of8 years and 6 months and she

was to receive a total of 924 days credited. TDOC does not

reflect this time as credited to her. The time was originally

granted to her in 2017 and TDOC reflected it on her sentence

at that [sic] but now the TDOC system no longer reflects all of

the [Appellant's] credits. Therefore the [Appellant] prays that

she be awarded the following APPROXIMATELY 31.5

MONTHS CREDIT FOR ALL PRETRIAL JAIL CREDIT

DAYS AND BEHAVIOR AND PROGRAM CREDITS AND

ALL STREET TIME FOR THESE SENTENCES.

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On April 13, 2021, the trial court denied the motion, noting that "[t]he pre-trial jail

credit dates are on the appropriate judgment(s) and the behavior/program 'good

behavior/good time' credits should not be listed on the judgment as jail credit."' The trial

court stated that the relief the Appellant sought was "administrative with [the] TN Dept of

Corrections and should be filed with the appropriate court."

Thereafter, the Appellant filed a notice of appeal "from the final judgment in this

action on the 3rd day of March, 202[0]. . . ." On appeal, the Appellant contends that her

sentence was illegal because after her probation was revoked, her "time" was not"correctly

configured based on her originaljudgments and revocation papers." She asks this court to

reverse the denial of her motions and to "correct" her sentence pursuant to Rule 36.1.

H. Analysis

Rule 36.1, Tennessee Rules of Criminal Procedure, 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). As

our supreme court has explained, only "fatal" sentencing errors render sentences illegal.

State v. Wooden, 478 S.W.3d 585, 595 (Tenn. 2015). "Included in this category 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. Conversely, "[c]laims

of appealable error generally involve attacks on the correctness of the methodology by

which a trial court imposed sentence." Id. Few appealable errors rise to the level of an

illegal sentence. Id.

If a Rule 36.1 motion states a "colorable claim that the sentence is illegal," the trial

court shall appoint counsel and hold a hearing on the motion. See Tenn. R. Crim. P.

36.1(b). Our supreme court has recognized that "Rule 36.1 does not define 'colorable

claim.'" Wooden,478 S.W.3d at 592. Nevertheless,the court explained that "for purposes

ofRule 36.1,...'colorable claim' means a claim that, iftaken as true and viewed in a light

most favorable to the moving party, would entitle the moving party to relief under Rule

36.1." Id. at 593. A motion filed pursuant to Rule 36.1 "must state with particularity the

factual allegations on which the claim for relief from an illegal sentence is based." Id. at

594. In determining whether a motion states a colorable claim, the trial court"may consult

the record of the proceeding from which the allegedly illegal sentence emanated." Id.

Whether a Rule 36.1 motion states a colorable claim is a question oflaw, which we review

de novo. Id. at 588.

The judgments of conviction were not included in the appellate record.

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On appeal, the Appellant contends that pursuant to Rule 36.1, the trial court should

have ordered the TDOC to correct its calculation of sentencing credits to which she is

entitled. Specifically, she states that upon her

initial incarceration[,] her street time was granted to her and at

first [the] Tennessee Department of Correction withdrew this

court sanctioned credit from her however later recalculated it

and permitted her to meet the parole board in 2018. The

Appellant was released on parole and then violated and

Tennessee Department of Correction has now withdrew any

credit that the Appellant had for street time.

Initially, we note that the Appellant previously has raised multiple challenges

regarding sentencing credits which she believes rendered her sentences illegal. At one

point, the Appellant contended that the trial court failed to properly apply pretrial and post-

judgment sentencing credits to her sentences. In Brown, our supreme court addressed this

issue and held:

Although pretrial jail credits allow a defendant to receive credit

against [her] sentence for time already served, awarding or not

awarding pretrial jail credits does not alter the sentence in any

way, although it may affect the length of time a defendant is

incarcerated. A trial court's failure to award pretrial jail credits

may certainly be raised as error on appeal, . . . [b]ut a trial

court's failure to award pretrial jail credits does not render the

sentence illegal and is insufficient, therefore, to establish a

colorable claim for relief under Rule 36.1. See Wooden, 478

S.W.3d at 595-96 (defining colorable claim as "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").

479 S.W.3d at 212-13 (emphasis in original).

The Appellant also has contended that the TDOC had failed to apply all of the

credits the Appellant earned to her sentences, and the Appellant asked this court to order

the TDOC to award her pretrial jail credits, "behavior and program credits," and "street

time." This court has explained that "while a trial court can award pretrial jail credits,

sentence reduction credits 'are governed solely by the Department of Correction.'" State

v. Jackie Phillip Lester, No. M2016-00700-CCA-R3-CD, 2017 WL 253165, at *2(Tenn.

Crim. App. at Nashville, Jan. 17, 2017)(quoting Yates v. Parker, 371 S.W.3d 152, 156

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(Tenn. Crirn. App. 2012)). Accordingly, if the Appellant contends that her sentences have

been calculated incorrectly or disagrees with the TDOC-s determination of her release

eligibility date, the proper avenue for review is throu2h the Uniform Administrative

Procedures Act, not a Rule 36.1 motion. See Tenn. Code Ann. §§ 4-5-101 to -325; State

v. Calvin Scott. No. W2020-01574-CCA-R3-CD, 2021 WL 4786372, at *3 (Tenn. Crim.

App. at Jackson, Oct. 14, 2021).

III. Conclusion

The judgment of the trial court is affirmed.

NORTVIA MCGEE 06LE,JUDGE—

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