State of Tennessee v. Andre Anthony

03/28/2024

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 6, 2024

STATE OF TENNESSEE v. ANDRE ANTHONY

Appeal from the Criminal Court for Shelby County

Nos. 00-00160, 00-00161 Chris Craft, Judge

No. W2023-01019-CCA-R3-CD

The Defendant, Andre Anthony, appeals the trial court’s denial of his motion to correct a

clerical mistake pursuant to Tennessee Rule of Criminal Procedure 36. The Defendant

contends that his two consecutive sentences at issue were originally ordered to run in a

specific order but that the challenged corrected judgment forms indicate that each sentence

runs consecutively to the other, in no particular order, and should once again be corrected.

The State responds that the trial court correctly denied the Rule 36 motion because the

order of the consecutive sentences is immaterial and because the corrected judgments

accurately reflect the Defendant’s sentence. After review, we affirm the judgment of the

trial court.

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

KYLE A. HIXSON, J., delivered the opinion of the court, in which J. ROSS DYER and JOHN

W. CAMPBELL, SR., JJ., joined.

Andre Anthony, Hartsville, Tennessee, Pro Se.

Jonathan Skrmetti, Attorney General and Reporter; G. Kirby May, Assistant Attorney

General; and Steven J. Mulroy, District Attorney General, for the appellee, State of

Tennessee.

OPINION

I. FACTUAL AND PROCEDURAL HISTORY

This case arises from a July 1999 incident where the Defendant attacked and robbed

a store clerk at gunpoint in Memphis, Tennessee. State v. Anthony, No. W2002-01377-

CCA-R3-CD, 2003 WL 23100339, at *1-2 (Tenn. Crim. App. Dec. 30, 2023), perm. app.

denied (Tenn. June 1, 2004). Numerous courts have documented the full factual and

procedural history of this case.1 As such, we will limit our recitation to those facts

necessary to resolve this appeal.

In 2002, a Shelby County jury convicted the Defendant in case number 00-00161 of

especially aggravated robbery (“the robbery case”) and in case number 00-00160 of

attempted first degree murder (“the attempted murder case”). Id. at *4. According to the

transcript of the sentencing hearing, which was attached to the Defendant’s Rule 36 motion,

the trial court sentenced the Defendant to twenty-two years at 100 percent in the robbery

case. In the attempted murder case, the Defendant was sentenced to twenty-four years at

thirty percent, “consecutive to the [twenty-two]year sentence[,]” for a total effective

sentence of forty-six years. The judgment forms for both cases ordered each sentence to

run consecutively to the other, and both listed the Defendant’s 982 days of pretrial jail

credit.

On July 29, 2020, the trial court entered corrected judgment forms for both cases.2

For the attempted murder case, the trial court removed the consecutive sentence notation

and listed that the Defendant was to receive pretrial jail credit from August 24, 1999, to

May 2, 2002, or 982 days. For the robbery case, the trial court kept the notation that this

sentence was consecutive to the attempted murder case but removed the award of pretrial

jail credit.

1

See Anthony, 2003 WL 23100339 (affirming the Defendant’s convictions and sentence on direct

appeal); Anthony v. State, No. W2007-00532-CCA-R3-PC, 2008 WL 763783 (Tenn. Crim. App. Mar. 24,

2008), perm. app. denied (Tenn. Aug. 25, 2008) (affirming denial of post-conviction relief); State v.

Anthony, No. W2016-02347-CCA-R3-CD, 2018 WL 1989613 (Tenn. Crim. App. Apr. 26, 2018), perm.

app. denied (Tenn. July 19, 2018) (affirming dismissal of the Defendant’s motion pursuant to Tennessee

Rule of Criminal Procedure 36); Anthony v. Tennessee, No. 18-cv-02584, 2020 WL 6811675 (W.D. Tenn.

Nov. 19, 2020) (dismissing habeas corpus petition pursuant to 28 U.S.C. § 2254); Anthony v. State, No.

M2021-00665-CCA-R3-HC, 2022 WL 2812824 (Tenn. Crim. App. July 19, 2022), perm. app. denied

(Tenn. Dec. 14, 2022) (affirming dismissal of habeas corpus petition); Anthony v. Parker, No. M2021-

00753-COA-R3-CV, 2022 WL 4091747 (Tenn. Ct. App. Sept. 7, 2022), perm. app. denied (Tenn. Dec. 14,

2022) (dismissing appeal challenging the denial of relief pursuant to the Uniform Administrative

Procedures Act); State v. Anthony, No. W2021-00668-CCA-R3-CD, 2022 WL 2826852 (Tenn. Crim. App.

July 20, 2022), perm. app. denied. (Tenn. Dec. 19, 2022) (dismissing appeal challenging corrected

judgment forms and order of consecutive sentences).

2

Neither the original judgments nor the corrected judgments from 2020 were included in the record

before us. They were in the record of the Defendant’s appeal in Anthony, 2022 WL 2826852. We have

taken judicial notice of the underlying appellate record in that case. See Tenn. R. App. P. 13(c).

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The Defendant filed a “Motion to Correct Judgment Order” in response to the

corrected judgment forms of July 29, 2020. Anthony, 2022 WL 2826852, at *1. In his

motion, the Defendant requested that the trial court specify that he was to serve his sentence

in the robbery case first and argued that the July 29, 2020 corrected judgments were invalid

because he never received notice from the State for a motion to correct his judgments. Id.

The trial court denied the motion, and this court dismissed the Defendant’s appeal, finding

that the Defendant did not have a right of appeal from the denial of a “Motion to Correct

Judgment Order.” Id. at *2. A panel of this court nevertheless concluded that the

sentencing hearing transcript reflected that the trial court ordered the Defendant to serve

his sentence in the attempted murder case consecutively to the sentence in the robbery case.

Id. This court stated that “the trial court should have entered a corrected judgment in [the

attempted murder case] pursuant to Tennessee Rule 36 to remove the duplicitous award of

pretrial jail credits.” Id.

Pursuant to Tennessee Rule of Appellate Procedure 11, the Defendant filed an

application to appeal this dismissal to the Tennessee Supreme Court. On December 19,

2022, the Tennessee Supreme Court denied the Defendant’s application but stated in its

order,

Upon consideration of the application, and the record before us, the

application is denied without prejudice to filing in the trial court, pursuant to

Tennessee Rule of Criminal Procedure 36, a motion to correct the judgments

in case numbers 00-00160 and 00-00161. See [Anthony, 2022 WL 2826852,

at *2] (noting that, contrary to the corrected judgments entered on July 29,

2020, the sentencing hearing transcript reflects that the trial court ordered the

[D]efendant to serve the twenty-four-year sentence for [the attempted murder

case] consecutively to the twenty-two-year sentence for [the robbery case]

and that it therefore appears that the trial court should have removed the

duplicitous award of pretrial jail credit on the judgment for [the attempted

murder case], not [the robbery case]).

Order, State v. Anthony, No. W2021-00668-SC-R11-CD (Tenn. Dec. 19, 2022).

On March 7, 2023, the trial court entered corrected judgment forms for both cases.

In the judgment for the attempted murder case, the trial court ordered that sentence to run

consecutively to the robbery case, and it removed the award of pretrial jail credit. In the

“Special Conditions” box, the trial court noted, “Corrected pursuant to State v. Andre

Anthony, W2021-00668-SC-R1-CD Filed 12/19/22 (to remove duplicative jail credit).” In

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the judgment for the robbery case, the trial court ordered that sentence to run consecutively

to the attempted murder case and added the award of pretrial jail credit. In the “Special

Conditions” box on this judgment form, the trial court noted, “Corrected pursuant to State

v. Andre Anthony, W2021-00668-SC-R1-CD Filed 12/19/22 (to add jail credit).” Thus, the

corrected judgment forms reflected that each sentence was to run consecutively to the

other, but the Defendant was awarded pretrial jail credit only in the judgment for the

robbery case.

On March 10, 2023, the Defendant filed a “Motion to Correct Clerical Error Entry

on Corrected Judgment # 00-00-161 Dated 3-7-23.” In the motion, the Defendant alleged

that the March 7, 2023 corrected judgment forms erroneously indicated that the sentences

were consecutive to each other without reference to any particular order. The Defendant

argued that the trial court should remove the consecutive notation on the robbery case, as

that sentence was to be served first and was not consecutive to his other sentence. On May

15, 2023, the trial court denied the motion and found that the corrected judgment forms

accurately ordered the robbery case’s sentence to run consecutively to the attempted

murder case’s sentence, totaling an effective sentence of forty-six years, and accurately

applied the Defendant’s pretrial jail credit to the robbery case.

On June 2, 2023, the Defendant filed a second “Motion to Correct Clerical Mistake,”

contending that the May 15, 2023 order contradicted the record and the Tennessee Supreme

Court’s December 19, 2022 order. He argued that his attempted murder sentence was to

be served consecutively to his robbery sentence, “not the other way around.” On June 7,

2023, the trial court denied the Defendant’s second motion stating that because both

sentences “are to be served consecutively to each other, it makes no difference which

indictment number is stated first.” This timely appeal followed.

II. ANALYSIS

The Defendant contends that his Rule 36 motion was improperly denied because the

March 7, 2023 corrected judgment forms errantly reflect the Defendant’s sentences running

consecutively to the other, in no specific order, contrary to the trial court’s comments at

the sentencing hearing and to the Tennessee Supreme Court’s December 19, 2022 order.

The State asserts that the trial court correctly denied the Rule 36 motion because the order

of the consecutive sentences is immaterial and because the corrected judgments accurately

reflect the Defendant’s sentence.

Tennessee Rule of Criminal Procedure 36 provides that “the court may at any time

correct clerical mistakes in judgments, orders, or other parts of the record, and errors in the

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record arising from oversight or omission.” Clerical errors “arise simply from a clerical

mistake in filling out the uniform judgment document and may be corrected at any time[.]”

State v. Brown, 479 S.W.3d 200, 208 (Tenn. 2015) (citation and internal quotations

omitted). Correcting clerical mistakes may include “supply[ing] omitted or overlooked

information.” State v. Allen, 593 S.W.3d 145, 154 (Tenn. 2020). “To determine whether

a clerical error has been made, a court ordinarily must compare the judgment with the

transcript of the trial court’s oral statements.” Brown, 479 S.W.3d at 213 (citation omitted).

When a conflict exists between the judgment and the transcript of the trial court’s

statements, the transcript controls. Id. (citations omitted). This court has previously

reviewed a trial court’s ruling on a Rule 36 motion under an abuse of discretion standard.

See, e.g., Lee v. State, No. W2013-01088-CCA-R3-CO, 2014 WL 902450, at *3 (Tenn.

Crim. App. Mar. 7, 2014) (citation omitted).

Here, the Defendant contends his robbery case must be served first and the notation

that it is “consecutive to” his attempted murder case is a clerical error. In arguing that the

trial court correctly denied the Defendant’s Rule 36 motion, the State quotes the following

language from State v. Blanton: “[I]t is immaterial whether sentence one is consecutive to

sentence two, or vice versa, as the sentences are consecutive in either case.” 926 S.W.2d

953, 961 (Tenn. Crim. App. 1996). We note that Blanton involved a determination of

whether the consecutive sentencing provision for felony offenses committed while on bail,

as set forth in Tennessee Rule of Criminal Procedure 32(c)(3)(C), applied when a defendant

was convicted of the initial offense first before being tried for the second offense. See id.

In holding that the defendant was subject to mandatory consecutive sentencing pursuant to

Rule 32(c)(3)(C) under such a scenario, this court concluded that the language of the Rule

“does not specify that there must be a conviction for the earlier offense and then a

conviction for the latter one.” Id. So, while the dicta quoted by the State is certainly

supportive of the State’s position, it is not dispositive of the question before us as this case

is not on all fours with the question presented in Blanton.

However, Tennessee Code Annotated section 40-35-501(m) provides, “For

consecutive sentencing, the periods of ineligibility for release are calculated for each

sentence and are added together to determine the release eligibility date for the consecutive

sentences.” Therefore, the total period a defendant must serve in incarceration before

becoming release eligible is the same regardless of which sentence is served first. See State

v. March, No. M2018-00660-CCA-R3-CD, 2019 WL 1409354, at *3 (Tenn. Crim. App.

Mar. 28, 2019); cf. Stewart v. Schofield, 368 S.W.3d 457, 467 (Tenn. 2012) (holding the

concept of custodial parole irrelevant as defendants serving consecutive sentences will be

assigned a single release eligibility date). Relying on section -501(m), this court has

previously determined that a defendant’s challenge to the order of his consecutive

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sentences did not qualify as a clerical error under Rule 36 as the defendant’s sentence was

accurately reflected in the judgment forms. See March, 2019 WL 1409354, at *3 (holding

the consecutive notation on both judgment forms was not a clerical error because the

release eligibility was the same and the sentencing calculation was “clear and straight

forward – fifty-six years, twenty-five of these years to be served at 100%”). In the instant

case, we conclude the same.

Additionally, the March 7, 2023 corrected judgment forms list the Defendant’s

pretrial jail credit on his robbery case, thereby designating it as the first sentence to be

served. See, e.g., State v. Cabrere, No. W2019-02093-CCA-R3-CD, 2020 WL 5230593,

at *2 (Tenn. Crim. App. Sept. 1, 2020); Dulworth v. Steward, Warden, No. W2012-00314-

CCA-R3-HC, 2012 WL 2742210, at *2 (Tenn. Crim. App. July 9, 2012); State v. Davis,

No. E2000-02879-CCA-R3-CD, 2002 WL 340597, at *3 (Tenn. Crim. App. Mar. 4, 2002)

(all of these cases holding that a defendant ordered to serve consecutive sentences is only

entitled to pretrial jail credit on his first sentence). For the reasons stated, the corrected

judgments accurately reflect the sentence imposed by the trial court. The trial court did

not err by denying Rule 36 relief.

III. CONCLUSION

In consideration of the foregoing and the record as a whole, we affirm the judgment

of the trial court.

______________________________

KYLE A. HIXSON, JUDGE

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