# State of Tennessee v. Stephen V. Walker

> Court of Criminal Appeals of Tennessee · September 27, 2022

URL: https://www.frixlaw.com/law-library/cases/8209595

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** September 27, 2022
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge James Curwood Witt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8209595

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8209595. Public record. Not legal advice.