State of Tennessee v. John N. Porterfield ( 2017 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
STATE OF TENNESSEE v. JOHN N. PORTERFIELD
Appeal from the Criminal Court for Shelby County
No. 90-16535, 91-04192 Paula L. Skahan, Judge
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No. W2016-01012-CCA-R3-CD - Filed April 28, 2017
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The Defendant, John N. Porterfield, appeals the trial court’s denial of his motion to
correct an illegal sentence pursuant to Rule 36.1 of the Tennessee Rules of Criminal
Procedure. Because the challenged sentences are expired, the Defendant is not entitled
relief. Accordingly, we affirm the judgment of the trial court pursuant to Rule 20 of the
Rules of the Court of Criminal Appeals.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
Pursuant to Court of Criminal Appeals Rule 20
JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E.
GLENN and CAMILLE R. MCMULLEN, JJ., joined.
Joseph A. Crone, Memphis, Tennessee, for the appellant, John N. Porterfield.
Herbert H. Slatery III, Attorney General and Reporter, and Amy P. Weirich, District
Attorney General, for the appellee, State of Tennessee.
MEMORANDUM OPINION
The Defendant is appealing the denial of his motion to correct an illegal sentence.
See Tenn. R. Crim. P. 36.1. The record has been filed, and appointed counsel moves this
court to withdraw pursuant to Court of Criminal Appeals Rule 22. Counsel contends this
appeal is frivolous under Anders v. California, 386 U.S. 738 (1967). The Defendant did
not respond to counsel’s motion, and the time for doing so has now expired. Having
reviewed the entire record on appeal, including counsel’s motion to withdraw and the
accompanying Anders brief, the court agrees that this appeal is frivolous.
On April 22, 1991, the Defendant pled guilty to aggravated robbery and received a
sentence of twelve years in prison. On June 5, 1991, the Defendant pled guilty to sale of
cocaine and received a sentence of eight years in prison to be served concurrent to his
sentence for his aggravated robbery conviction.
On July 24, 2015, the Defendant filed a pro se motion to correct an illegal
sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. He alleged that his
sentences were statutorily required to be served consecutively rather than concurrently
because he was out on bond for the aggravated robbery charge when he was arrested for
the sale of cocaine. See Tenn. Code Ann. § 40-20-111(b). He argued that because his
sentences were illegal, the judgments should be vacated. He also argued that his pleas
were unknowing and involuntary, contending that he would have not pled guilty had he
known that he should have been sentenced consecutively.
The trial court subsequently entered an order appointing counsel and setting the
matter for a hearing. On April 20, 2016, the trial court entered an order finding that the
sentences challenged by the Defendant had expired and denying the Defendant’s motion.
Tennessee Rule of Criminal Procedure 36.1 allows a defendant to “seek the
correction of an illegal sentence by filing a motion to correct an illegal sentence in the
trial court in which the judgment of conviction was entered.” Tenn. R. Crim. P. 36.1(a).
The rule defines an illegal sentence “one that is not authorized by the applicable statutes
or that directly contravenes an applicable statute.” Id. The Tennessee Supreme Court
recently addressed “whether Rule 36.1 expands the scope of relief available . . . by
permitting either the defendant or the State to correct expired illegal sentences.” State v.
Brown, 479 S.W.3d 200, 205 (Tenn. 2015). Our supreme court held that “Rule 36.1 does
not expand the scope of relief and does not authorize the correction of expired illegal
sentences. Therefore, a Rule 36.1 motion may be summarily dismissed for failure to state
a colorable claim if the alleged illegal sentence has expired.” Id. at 211.
The record reflects that the Defendant’s sentences expired long before he filed his
Rule 36.1 motion. Accordingly, we conclude the trial court properly denied the
Defendant’s Rule 36.1 motion.
For this reason, the trial court’s judgment is hereby affirmed pursuant to Court of
Criminal Appeals Rule 20. Furthermore, counsel’s motion to withdraw is hereby
granted. As directed by Rule 22(F), the Court hereby notifies the Defendant that he has a
right to file a pro se application for permission to appeal to the Tennessee Supreme Court
within sixty days. See Tenn. R. App. P. 11. Because the Defendant is indigent, costs are
taxed to the State.
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JOHN EVERETT WILLIAMS, JUDGE
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