State of Tennessee v. Stephen V. Walker

09/27/2022

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs September 27, 2022

STATE OF TENNESSEE v. STEPHEN V. WALKER

Appeal from the Criminal Court for Hamilton County

No. 166974 Barry A. Steelman, Judge

No. E2021-01115-CCA-R3-CD

The pro se petitioner, Stephen V. Walker, appeals the Hamilton County Criminal Court’s

summary dismissal of his motion to correct an illegal sentence, filed pursuant to Tennessee

Rule of Criminal Procedure 36.1. Discerning no error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which CAMILLE R.

MCMULLEN, and TOM GREENHOLTZ, JJ., joined.

Stephen V. Walker, Wartburg, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant

Attorney General; and Neal Pinkston, District Attorney General, for the appellee, State of

Tennessee.

OPINION

A Hamilton County Criminal Court jury convicted the petitioner of armed

robbery, for which the petitioner received a life sentence. State v. Jeffery Boozer and

Stephen V. Walker, No. 1061, 1988 WL 74604, at *1 (Tenn. Crim. App., Knoxville, July

21, 1988). This court affirmed the petitioner’s conviction on direct appeal, and our

supreme court denied further review. Id. at *1-3.

Since his direct appeal, the petitioner has collaterally attacked his conviction

and sentence via multiple avenues. First, he sought post-conviction relief on the ground of

ineffective assistance of counsel. Steven Vincent Walker v. State, No. 03C01-9205CR169,

1992 WL 371767, at *1-2 (Tenn. Crim. App., Knoxville, Dec. 17, 1992). His petition was

unsuccessful, and this court affirmed the denial of post-conviction relief. Id.

Next, in November 2000, the petitioner sought habeas corpus relief,

alleging that his sentence was illegal because: (1) he was

improperly sentenced as a persistent offender; (2) his sentence

was improperly enhanced because he did not receive the

State’s notice of intent to seek enhanced punishment; (3) the

record of his prior criminal convictions relied upon to sentence

him was inaccurate; and (4) his counsel was ineffective.

Steve V. Walker v. State, No. E2001-00322-CCA-R3-CD, 2002 WL 1162354, at *1 (Tenn.

Crim. App., Knoxville, June 3, 2002). The trial court, construing the habeas corpus petition

as a motion to correct an illegal sentence, denied relief, concluding that the petitioner’s

sentence was legal. Id. On appeal, this court affirmed the trial court’s ruling, concluding

that the Code authorized “a term of imprisonment of not less than ten years to life

imprisonment . . . for the crime of robbery accomplished by the use of a deadly weapon.”

Id. at *2 (citing T.C.A. § 39-2-501(a) (1981) (repealed)). This court also concluded that

“the fact that the [p]etitioner was on probation at the time he committed the offense justifies

the classification of the offense as an especially aggravated offense,” that “a defect in the

notice of intent to seek sentence enhancement does not render an enhanced sentence

illegal,” and that the petitioner’s disagreement with a trial court’s “application of

enhancement and mitigating factors” does not render a sentence illegal. Id. at *2-3.

The petitioner filed a second petition for a writ of habeas corpus, again

arguing “that his sentence was not authorized by the 1982 Sentencing Act.” Steve V.

Walker v. State, No W2006-01170-CCA-R3-HC, 2007 WL 2935620, at *1 (Tenn. Crim.

App., Jackson, Oct. 9, 2007). The habeas corpus court summarily dismissed the petition,

“finding that the [p]etitioner’s issues had already been addressed in his first petition for a

writ of habeas corpus and that he failed to state a cognizable claim for relief.” Id. This

court again affirmed the denial of relief, reiterating that “a life sentence was within the

applicable range of punishment for the offense,” that the judgment’s silence on release

eligibility did not render the sentence illegal, that the petitioner’s offense was correctly

classified as an especially aggravated one, and that “the State gave timely notice that it

intended to seek enhanced punishment.” Id. at *3.

In August 2015, the petitioner moved to correct what he believed to be an

illegal sentence under Tennessee Rule of Criminal Procedure 36.1, arguing that his life

sentence exceeded the maximum punishment allowed for a Range II offender and that the

trial court improperly weighed mitigating and enhancing factors. The trial court summarily

dismissed the motion, concluding that “a misapplication of enhancing and mitigating

factors does not render a sentence illegal” and that “the law in effect at the time of the

[petitioner’s] offense” permitted a life sentence for a conviction of robbery accomplished

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by the use of a deadly weapon. The petitioner failed to file a timely notice of appeal, and

the trial court denied his motion for a delayed appeal.

On July 9, 2021, the petitioner filed a second motion pursuant to Criminal

Procedure Rule 36.1, arguing that his sentence is illegal because the trial court “erroneously

enhanced” his sentence by applying certain enhancement factors in addition to the Class X

felony provisions. See T.C.A. § 39-1-703 (1982) (repealed). The trial court denied the

petitioner’s motion for failure to state a colorable claim, citing “the reasons set forth in the

09/15/2015 order” denying the petitioner’s first Rule 36.1 motion. The denial of this

motion is the subject of the present appeal.

In this appeal, the petitioner again asserts that his sentence is illegal, arguing

that his life sentence exceeds that which was permitted for a Range II offender at the time

of his sentencing and that, even if a life sentence was statutorily permitted, the trial court

improperly applied enhancement factors and imposed an excessive sentence. The

petitioner also argues that the trial court erroneously sentenced him as a “persistent

aggravated offender” and that the State erred in its notice to seek enhanced punishment.

Rule 36.1 provides the defendant and the State an avenue to “seek to correct

an illegal sentence,” defined as a sentence “that is not authorized by the applicable statutes

or that directly contravenes an applicable statute.” Tenn. R. Crim. P. 36.1; see also State

v. Wooden, 478 S.W.3d 585, 594-95 (Tenn. 2015) (holding that “the definition of ‘illegal

sentence’ in Rule 36.1 is coextensive with, and not broader than, the definition of the term

in the habeas corpus context”). To avoid summary denial of an illegal sentence claim

brought under Rule 36.1, a defendant must “state with particularity the factual allegations,”

Wooden, 478 S.W.3d at 594, establishing “a colorable claim that the unexpired sentence is

illegal,” Tenn. R. Crim. P. 36.1(b). “[F]or purposes of Rule 36.1 . . . ‘colorable claim’

means 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.” Wooden, 478 S.W.3d at

593. The determination whether a Rule 36.1 “motion states a colorable claim for correction

of an illegal sentence under Rule 36.1 is a question of law, to which de novo review

applies.” Id. at 589 (citing Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007)).

We note first that each of the petitioner’s claims have been previously

determined. In affirming the denial of habeas corpus relief and relief via Criminal

Procedure Rule 36.1, this court twice concluded that the petitioner’s life sentence did not

exceed that which was permitted for the offense, that the trial court properly classified the

offense as an especially aggravated one, that the State gave sufficient notice of its intent to

seek an enhanced punishment, and that any error by the trial court in applying enhancement

and mitigating factors did not render the sentence illegal. See Steven V. Walker, 2002 WL

1162354, at *2-3; Steve V. Walker, 2007 WL 2935620, at *3. The petitioner may not

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continue to relitigate 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.,

Nashville, Mar. 15, 2016) (“Rule 36.1 may not be used to relitigate those issues that have

been previously determined.”). We will, however, for the sake of clarity, explain in more

detail why the petitioner’s sentence is not illegal.

Although the petitioner is correct that the trial court wrongly classified him

as a “persistent and aggravated offender” at the time of his sentencing, see T.C.A. § 40-35-

106, -107, 108 (1982) (repealed) (providing for persistent offender or especially mitigated

offender classifications and for designation of an offense as especially aggravated)

(emphasis added), this error was corrected by the habeas corpus court. See Steve V. Walker,

2002 WL 1162354, at *1. Because the erroneous classification of a defendant’s offender

status does not render a sentence illegal, see Cantrell v. Easterling, 346 S.W.3d 445, 450-

51 (Tenn. 2011) (identifying errors in offender classification as appealable errors and not

fatal ones), the habeas corpus court correctly identified the error as a clerical one and

corrected the judgment pursuant to Tennessee Rule of Criminal Procedure 36.

Furthermore, the trial court’s misclassification of the petitioner as a “persistent and

aggravated offender” did not result in a sentence outside the range permitted by statute and,

consequently, did not entitle the petitioner to a new sentencing hearing.

Importantly, the petitioner was properly classified as a Range II offender.

Even if the trial court erred by classifying him as a persistent offender as he claims, the

Range II classification was nonetheless appropriate because he committed the present

offense while on probation for prior convictions, which required the court to apply a Range

II sentence. See T.C.A. § 40-35-107(3)(C) (1982) (repealed) (stating that “[a]n ‘especially

aggravated offense’ is: . . . [a] felony committed while on . . . probation” and that “[a]

defendant who is found to have committed an especially aggravated offense shall receive

a sentence within Range II”). Again, a trial court’s erroneous determination of an

offender’s classification does not render the sentence illegal for the purpose of Rule 36.1.

See Cantrell, 346 S.W.3d at 450-51.

A life sentence was a permissible Range II sentence for a conviction of

robbery accomplished by the use of a deadly weapon. The version of the Code in effect at

the time of the petitioner’s offense provided that “[a] ‘Range II’ sentence range shall be

not less than the minimum sentence plus one-half (1/2) of the difference between the

maximum sentence and the minimum sentence, and not more than the maximum sentence

as provided by law.” T.C.A. § 40-35-109(b) (1982) (repealed). A conviction for robbery

accomplished by the use of a deadly weapon was punishable by “imprisonment for life or

for any period of time not less than ten (10) years.” Id. § 39-2-501(a) (1982) (repealed).

A life sentence was “presumed to be sixty (60) years.” Id. § 39-2-501(d)(1) (1982)

(repealed). Thus, the minimum Range II sentence available for the petitioner was 35

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years—10 years plus 25 years (one-half of 60 minus 10, see T.C.A. § 40-35-109(b) (1982)

(repealed))—and the maximum sentence was life. Because the petitioner’s life sentence is

within the range permitted by statute, the petitioner’s sentence is not illegal.

The petitioner also contends that because he was convicted of a Class X

felony, the trial court was prohibited from applying enhancement factors under Code

section 40-35-111 (1982) (repealed). This is simply incorrect. Although “[a] robbery

accomplished by the use of a deadly weapon is a Class X felony,” see T.C.A. §§ 39-1-

702(5), 39-2-501(b) (1982) (repealed), the Class X felony designation is not itself a

sentence enhancement. Rather, the Class X designation required that the sentence be

served pursuant to certain conditions, including that the sentence was to be “determinate

in nature,” “[n]ot be subject to reduction for good, honor or incentive or other sentence

credit of any sort,” “[t]erminate or expire only after service of the entire sentence, day for

day,” and “[n]ot be included in any pre-trial diversion program.” T.C.A. § 39-1-703 (1982)

(repealed). None of these conditions related to the length of sentence the trial court could

impose, and the trial court was not prohibited from applying enhancement factors to

determine the length of the petitioner’s sentence. Moreover, it is well-settled that a trial

court’s misapplication of enhancement or mitigating factors does not render a sentence

illegal for the purpose of Rule 36.1. Wooden, 478 S.W.3d at 595-96 (identifying errors in

the application of enhancement or mitigating factors as appealable errors and not fatal

ones).

Finally, even if the State failed to give sufficient notice of its intent to seek

enhanced punishment, such an error would not render the petitioner’s sentence illegal and,

consequently, would not merit relief under Rule 36.1. See State v. Juan LaSean Perry, No.

M2020-01169-CCA-R3-CD, 2021 WL 4770255, at *3 (Tenn. Crim. App., Nashville, Oct.

13, 2021) (“An error regarding the notice to seek enhanced punishment does not render a

sentence illegal under Rule 36.1.” (citing State v. Atlanta Pearl Hardy, No. M2017-00537-

CCA-R3-CD, 2017 WL 3492060, at *2 (Tenn. Crim. App., Nashville, Aug. 16, 2017)).

Accordingly, we affirm the trial court’s judgment.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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