State of Tennessee v. Jonathan Everett

06/17/2022

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs June 8, 2022

STATE OF TENNESSEE v. JONATHAN EVERETT

Appeal from the Criminal Court for Shelby County

No. 06-06767 Lee V. Coffee, Judge

No. W2021-00677-CCA-R3-CD

The Defendant, Jonathan Everett, was convicted of second degree murder, attempted

voluntary manslaughter, and reckless endangerment, and he received an effective sentence

of twenty-nine years, eleven months, and twenty-nine days. He filed a motion pursuant to

Tennessee Rule of Criminal Procedure 36.1 alleging that his sentence was illegal because

the trial court erred by misapplying enhancement factors, by imposing the maximum

sentence within the sentencing range for second degree murder, and by imposing

consecutive service. The trial court summarily dismissed the motion for the failure to state

a colorable claim. On appeal, the Defendant contends that the trial court erred by

summarily dismissing his motion. We affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JOHN

EVERETT WILLIAMS, P.J., and TIMOTHY L. EASTER, J., joined.

Jonathan Everett, Tiptonville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Kayleigh Butterfield, Assistant

Attorney General; and Amy P. Weirich, District Attorney General, for the appellee, State

of Tennessee.

OPINION

The Defendant was indicted for first degree murder and two counts of attempted

first degree murder in connection with a March 10, 2006 shooting incident after a Trezevant

High School Jamboree band competition. The shooting resulted in the death of one victim

and injuries to a second victim. The surviving victim later identified the Defendant as the

shooter. The Defendant confessed to shooting the homicide victim but claimed that he shot

at the surviving victim because the surviving victim had threatened the Defendant in

connection with gang-related issues. At the jury trial, the Defendant was convicted of

second degree murder, attempted voluntary manslaughter, and reckless endangerment, and

the trial court imposed Range I sentences of twenty-five years for second degree murder,

four years for attempted voluntary manslaughter, and eleven months, twenty-nine days for

reckless endangerment. The court ordered consecutive service after determining that the

Defendant was a dangerous offender. The Defendant appealed his convictions and

effective sentence, arguing, in relevant part, that the trial court erred by misapplying two

enhancement factors, that the court erred by imposing the maximum within-range sentence

for second degree murder, and that the court erred by imposing consecutive service. This

court affirmed the convictions and sentences and denied relief. See State v. Jonathan

Everett, No. W2008-01578-CCA-R3-CD, 2011 WL 1304893 (Tenn. Crim. App. Apr. 4,

2011), perm. app. denied (Tenn. Aug. 25, 2011).

In 2012, the Defendant sought post-conviction relief, alleging the ineffective

assistance of counsel. The post-conviction court denied relief, and this court affirmed. See

Jonathan Everett v. State, No. W2013-02033-CCA-R3-PC, 2014 WL 3744498 (Tenn.

Crim. App. July 28, 2014), perm. app. denied (Tenn. Nov. 19, 2014).

On April 26, 2021, the Defendant filed the present motion to correct an illegal

sentence pursuant to Tennessee Criminal Procedure Rule 36.1, alleging that the trial court

erred during sentencing. He asserted that the trial court erred by misapplying enhancement

factors, by imposing the maximum within-range sentence for second degree murder, and

by ordering consecutive service. On August 9, 2021, the trial court entered an order

summarily dismissing the motion for the failure to state a cognizable claim. The court,

likewise, determined that the allegations had been previously litigated in the appeal from

the conviction proceedings. This appeal followed.

The Defendant contends that the trial court erred by summarily dismissing his

motion to correct an illegal sentence. He argues that the trial court erred by misapplying

enhancement factors, by imposing the maximum within-range sentence for second degree

murder, and by ordering consecutive service. He argues for the first time on appeal that

his effective sentence violates principles of double jeopardy. The State responds that the

trial court did not err by summarily dismissing the motion because the Defendant failed to

state a colorable claim for relief. We agree with the State.

Tennessee Criminal Procedure Rule 36.1 states, in relevant part, that

(a)(1) Either the defendant or the state may seek to correct an illegal sentence

by filing a motion to correct an illegal sentence in the trial court in which the

judgment of conviction was entered. . . .

-2-

(a)(2) For purposes of this rule, an illegal sentence is one that is not

authorized by the applicable statutes or that directly contravenes an

applicable statute.

The trial court is required to file an order denying the motion if it determines that the

sentence is not illegal. Id. at 36.1(c)(1).

Whether a motion states a colorable claim is a question of law and is reviewed de

novo. State v. Wooden, 478 S.W.3d 585, 588 (Tenn. 2015). A colorable claim is defined

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.” 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. A trial court “may consult

the record of the proceeding from which the allegedly illegal sentence emanated” when

determining whether a motion states a colorable claim for relief. Id.

Only fatal errors result in an illegal sentence and “are so profound as to render the

sentence illegal and void.” Id. at 595; see State v. Cantrell, 346 S.W.2d 445, 452 (Tenn.

2011). Fatal errors include sentences imposed pursuant to an inapplicable statutory

scheme, sentences that designate release eligibility dates when early release is prohibited,

sentences that are ordered to be served concurrently when consecutive service is required,

and sentences that are not authorized by statute. Wooden, 478 S.W.3d at 595. Errors which

are merely appealable, however, do not render a sentence illegal and include “those errors

for which the Sentencing Act specifically provides a right of direct appeal.” Id.; see

Cantrell, 346 S.W.2d at 449. Appealable errors are “claims akin to . . . challenge[s] to the

sufficiency of the evidence supporting a conviction” and “involve attacks on the

correctness of the methodology by which a trial court imposed sentence.” Wooden, 478

S.W.3d at 595; see Cantrell, 346 S.W.2d at 450-52.

We conclude that the trial court did not err by summarily dismissing the motion

because the Defendant has failed to state a colorable claim for relief. Error in the

application of enhancement and mitigating factors “must be addressed on direct appeal

because it does not render the sentence illegal[.]” Wooden, 478 S.W.3d at 595-96.

Likewise, the imposition of a maximum within-range sentence for an offense does not

render a sentence illegal. See id. at 596 (“A sentence which is ‘statutorily available but

ordinarily inapplicable to a given defendant’ is not an illegal sentence[.]”) (quoting

Cantrell, 346 S.W.2d at 454). The Defendant’s twenty-five-year sentence for second

degree murder was statutorily available, even if the trial court erred by concluding that the

sentence was appropriate. See T.C.A. § 40-35-112(a)(1) (2019) (“A Range I sentence . . .

[f]or a Class A felony [is], not less than fifteen (15) nor more than twenty-five (25)

years[.]”); Id. § 39-13-210(c) (2019) (“Second degree murder is a Class A felony.”).

-3-

Finally, the imposition of consecutive service does not render the Defendant’s effective

sentence illegal. Although not mandatory, the trial court had the statutory discretion to

impose consecutive service in this case after determining that the Defendant was a

dangerous offender. See id. § 40-35-115(b)(4) (2019); see also State v. Rickie Reed, No.

W2016-02119-CCA-R3-CD, 2017 WL 781739, at *3 (Tenn. Crim. App. Feb. 28, 2017).

As a result, the Defendant’s allegations, even if true, would not create fatal errors

entitling him to Rule 36.1 relief. Rather, his allegations would merely result in appealable

errors that do not render a sentence illegal. See Wooden, 478 S.W.3d at 595. Furthermore,

the Defendant’s allegations were raised in a previous appeal. See Jonathan Everett, 2011

WL 1304893, at *10-12. This court affirmed the trial court’s application of the

enhancement factors and the twenty-five-year sentence for second degree murder, but it

waived consideration of the imposition of consecutive service because the Defendant failed

to cite to any authority to support his argument. See id. at *12. “Rule 36.1 may not be

used to relitigate those issues that have been previously determined.” State v. Ricky

Flamingo Brown, No. M2015-01754-CCA-R3-CD, 2016 WL 987641, at *2 (Tenn. Crim.

App. Mar. 15, 2016), perm. app. denied (Tenn. Aug. 18, 2016); see also Memphis Publ’g

Co. v. Tenn. Petroleum Underground Storage Tank Bd., 975 S.W.2d 303, 306 (Tenn. 1998)

(holding “under the law of the case doctrine, an appellate court’s decision on an issue of

law is binding in later trials and appeals of the same case if the facts on the second trial or

appeal are substantially the same as the facts in the first trial or appeal”). Thus, the

Defendant is not entitled to relief on this basis.

The Defendant also argues for the first time on appeal that his sentences violate

principles of double jeopardy. Issues raised for the first time on appeal are subject to

waiver. See T.R.A.P. 36(a); see also State v. Johnson, 970 S.W.2d 500 (Tenn. Crim. App.

1996) (“Issues raised for the first time on appeal are considered waived.”). Waiver of

appellate consideration notwithstanding, violations of double jeopardy principles are not

colorable claims for purposes of Rule 36.1. See State v. Michael Sargent, No. W2018-

00517-CCA-R3-CD, 2019 WL 1952881, at *1 (Tenn. Crim. App. Apr. 30, 2019); State v.

Carl Hall, No. W2016-00915-CCA-R3-CD, 2017 WL 1093991, at *2 (Tenn. Crim. App.

Mar. 22, 2017). The Defendant is not entitled to relief on this basis.

Based on the foregoing and the record as a whole, we affirm the judgment of the

trial court.

____________________________________

ROBERT H. MONTGOMERY, JR., JUDGE

-4-