State of Tennessee v. Kevin McDougle ( 2019 )

03/27/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs January 9, 2019
STATE OF TENNESSEE v. KEVIN MCDOUGLE
Appeal from the Criminal Court for Shelby County
No. 06-04209, 06-04208, 07-01739 W. Mark Ward, Judge
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No. W2018-00996-CCA-R3-CD
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The defendant, Kevin McDougle, appeals from the Shelby County Criminal Court’s
denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal
sentence. Upon our review of the record and applicable law, we affirm the judgment of
the trial court.
Tenn. R. App. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS,
P.J., and ALAN E. GLENN, J., joined.
Kevin McDougle, Nashville, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Trayce Jones,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Facts and Procedural History
The defendant is currently serving an effective fifty-six-year sentence in the
Tennessee Department of Correction for crimes committed in Case Numbers 06-04208,
06-04209, and 07-01739.1 His sentence stemmed from two separate trials resulting in
seven convictions, including: three counts of aggravated robbery, three counts of
aggravated assault, and one count of unlawful possession of a handgun. In two separate
appeals, the defendant unsuccessfully challenged his convictions and sentences. State v.
Kevin McDougle, No. W2007-01877-CCA-R3-CD, 2010 WL 2219591, at *1 (Tenn.
1
Case Numbers 06-04209 and 07-01739 were consolidated at trial.
Crim. App. May 24, 2010), no perm. app. filed.; State v. Kevin McDougle, No. W2009-
01648-CCA-R3-CD, 2010 WL 2490752, at *1 (Tenn. Crim. App. June 11, 2010), no
perm. app. filed. The defendant next sought post-conviction relief for his cases, but he
was again unsuccessful in both the trial court and on appeal. Kevin McDougle v. State,
No. W2011-01430-CCA-R3-PC, 2012 WL 12932002, at *11 (Tenn. Crim. App. June 27,
2012), no perm. app. filed.
On April 18, 2018, the defendant filed a motion to correct an illegal sentence,
pursuant to Tennessee Rule of Criminal Procedure 36.1. Citing Case Numbers 06-04208,
06-04209, and 07-01739, the defendant alleged his effective fifty-six-year sentence is
illegal because: the State failed to file a notice of intent to seek enhanced sentencing; the
trial court erred in imposing consecutive sentencing based upon his status as Range I
offender; the trial court imposed an excessive sentence; and the “trial court did not have
the authority to impose Range [II] sentences.” The trial court denied the Rule 36.1
motion in relation to Case Number 06-04208 for failure to state a colorable claim, noting
the defendant’s “factual assertion is not true.” Specifically, the trial court stated the
defendant “allege[d] his sentence is illegal because he was wrongfully sentenced as a
Range II offender” when, in fact, the “[d]efendant was sentenced as a Range I offender.”2
The defendant timely appealed.
Analysis
The defendant asserts the trial court erred in denying his Rule 36.1 motion to
correct an illegal sentence for failure to state a colorable claim. The defendant claims his
effective fifty-six-year sentence is illegal and the trial court should have appointed
counsel and held a hearing on the motion. The State disagrees, arguing the trial court did
not err in denying the Rule 36.1 motion. The State also asserts the defendant’s motion
was procedurally deficient for failing to attach copies of the judgment orders to the same.
Upon our review, it is clear the defendant is not entitled to relief.
Whether a motion states a colorable claim for correction of an illegal sentence
under Rule 36.1 is a question of law calling for de novo review. State v. Wooden, 478
S.W.3d 585, 589 (Tenn. 2015) (citing Summers v. State, 212 S.W.3d 251, 255 (Tenn.
2007)). Rule 36.1 provides that the petitioner “may, at any time, seek the correction of an
illegal sentence by filing a motion to correct an illegal sentence in the trial court in which
2
The defendant drafted two separate Rule 36.1 motions. The first motion references case number
06-04208 and is stamped “Filed.” The second motion references case numbers 06-04209 and 07-01739
but does not have a “Filed” stamp on it. Because the motions are located sequentially within the record,
we presume the second motion was attached to the first at filing. Therefore, though the trial court’s denial
order only references case number 06-04208, we apply the denial of the motion to all three cases as the
arguments within the separately-drafted Rule 36.1 motions are the same.
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the judgment of conviction was entered.” A sentence is illegal if it is not authorized by
the applicable statutes or directly contravenes an applicable statute. Tenn. R. Crim. P.
36.1 (a)(2). If the motion states a colorable claim, the trial court shall appoint counsel if
the petitioner is indigent and not already represented by counsel and hold a hearing on the
motion, unless the parties waive the hearing. Tenn. R. Crim. P. 36.1 (b)(3). A
“‘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 movant must attach to the motion a copy of each
judgment order at issue and may attach other relevant documents.” Tenn. R. Crim. P.
36.1 (a)(1).
In reviewing the record before us, it is clear the defendant is not entitled to relief
as the defendant failed to satisfy the procedural requirements of Rule 36.1. Specifically,
the rule requires the defendant to “attach to the motion a copy of each judgment order at
issue.” Tenn. R. Crim. P. 36.1 (a)(1). The record shows the defendant failed to attach
copies of the judgement orders for his seven convictions to his motion filed with the trial
court. Additionally, the defendant failed to include copies of the judgment orders as part
of the record on appeal. Absent copies of the judgment orders at issue, we cannot
appropriately review the defendant’s claims. It is apparent the defendant failed to meet
the procedural requirements under Rule 36.1 and he is not entitled to relief from this
Court.
In denying relief, the trial court found the defendant failed to state “a valid claim”
in his Rule 36.1 motion. However, we need not address the merits of the defendant’s
claims as it is clear the defendant has failed to meet the procedural requirements of Rule
36.1 and he is not entitled to relief. Furthermore, this Court previously upheld the
sentencing of the trial court, including the imposition of consecutive sentencing, on direct
appeal. Kevin McDougle, 2010 WL 2219591, at *7-10; Kevin McDougle, 2010 WL
2490752, at *4. The defendant is not entitled to relief.
Conclusion
Based on the foregoing, we affirm the judgment of the trial court but remand for
correction of the judgment of conviction.
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J. ROSS DYER, JUDGE
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