State of Tennessee v. Ernest Eugene Thomas, alias: Victor Knable ( 2001 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs May 23, 2001
STATE OF TENNESSEE v. ERNEST EUGENE THOMAS,
alias: VICTOR KNABLE
Direct Appeal from the Criminal Court for Knox County
No. 70215 Ray L. Jenkins, Judge
No. E2000-02613-CCA-R3-CD
August 3, 2001
In 1997, pursuant to a negotiated plea agreement, the Defendant pled guilty to possession of more
than seventy pounds of marijuana with the intent to sell, a Class B felony, and received a twelve-year
sentence as a Range II multiple offender, to be served in the Tennessee Department of Correction.
On March 3, 2000, the Defendant filed a motion to correct an illegal sentence, alleging that he should
have been sentenced as a Range I standard offender rather than a Range II multiple offender because
two prior Pennsylvania convictions that were the basis for his Range II sentencing were
misdemeanors rather than felonies. Following a hearing on the Defendant’s motion, the trial court
dismissed the motion, finding that “the Defendant may plead outside the range” and that the
Defendant had sufficient qualifying felonies. Finding no error by the trial court, we affirm the
judgment of the trial court dismissing the Defendant’s motion.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
THOMAS T. WOODALL , J., joined.
Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant, Ernest Eugene Thomas, alias, Victor
Knable.
Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Leon Franks, Assistant District Attorney General;
for the appellee, State of Tennessee.
OPINION
On July 30, 1997, the Defendant entered a “best interest” guilty plea to one count of
possessing more than seventy pounds of marijuana with intent to sell, a Class B felony. Pursuant
to the negotiated plea agreement, the Defendant was sentenced to twelve years as a Range II multiple
offender, which is the minimum Range II sentence for a Class B felony. Tenn. Code Ann. § 40-35-
112(b)(2). The transcript of the plea proceedings indicates that the Defendant fully understood every
aspect of his plea and that he was competently represented by counsel when the plea was entered.
On March 3, 2000, the Defendant filed a pro se “MOTION TO CORRECT ILLEGAL
SENTENCE,” in which he alleged that “the [Defendant] was informed by his attorney that the
[Defendant] had sufficient prior felonies to make him a Range II offender based upon convictions
in Pennsylvania. However, those convictions were misdemeanors.” The trial court appointed
counsel for the Defendant, the State responded to the Defendant’s motion with a motion to dismiss
the Defendant’s motion, and the entire matter was heard by the trial court and taken under
advisement on September 28, 2000. On October 3, 2000, the trial court entered an order that stated
as follows:
[Defendant] has filed a Petition complaining of the imposition of an illegal
sentence on July 30, 1997. This is not a Post Conviction Petition because of its
terms. If considered as such it is time barred pursuant to Tennessee Code Annotated
40-30-202. If considered under Rule 35, it is also time barred.
If considered as a Petition for Habeas Corpus, it does not conform to
Tennessee Code Annotated 29-21-101, et. seq., and if that is ignored, the [D]efendant
may plead outside the range, State v. Mahler, 735 S.W2d 226. If that is ignored, the
[Defendant] had sufficient qualifying felonies.
The Petition is DISMISSED.
From said order, the Defendant has appealed to this Court.
ANALYSIS
Initially, we note that Rule 3(b) of the Tennessee Rules of Appellate Procedure does not
permit a direct appeal of a trial court’s dismissal of a motion to correct an illegal sentence. Although
the Defendant failed to proceed by means of a petition for habeas corpus relief, the denial of which
could be directly appealed to this Court, we do not believe that the Defendant’s failure to seek habeas
corpus relief would necessarily deprive him of appellate review.
It is well settled that a trial court may correct an illegal sentence at any time. State v.
Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978). A defendant may pursue appellate review from the
denial of a motion to correct an illegal sentence through the common law writ of certiorari. State
v. Donald Ree Jones, No. M2000-00381-CCA-R3-CD, 2000 WL 150012, at *3 (Tenn. Crim. App.,
Nashville, Oct. 13, 2000). The common law writ of certiorari is now codified: “The writ of certiorari
may be granted . . . in all cases where an inferior tribunal . . . has exceeded the jurisdiction conferred,
or is acting illegally, when, in the judgment of the court, there is no other plain, speedy, or adequate
remedy.” Tenn. Code Ann. § 27-8-101.
In this case, we believe that it is in the interest of justice and judicial economy to consider
this appeal as a petition for writ of certiorari and to deal with the petition on its merits. That having
been said, we have concluded that the petition is without merit.
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The record does not contain a transcript of the hearing of the Defendant’s motion by the trial
court on September 28, 2000. It is the Defendant’s duty to prepare an adequate record in order to
allow meaningful review on appeal. Tenn. R. App. P. 24(b); State v. Bunch, 646 S.W.2d 158, 160
(Tenn. 1983); State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). In the absence of
an adequate record, this Court must presume that the trial court’s ruling was supported by the
evidence. State v. Bibbs, 806 S.W.2d 786, 790 (Tenn. Crim. App. 1991).
The trial court correctly held that “the Defendant may plead outside the range.” A sentence
is not illegal when the Defendant expressly agrees to a particular offender classification and when
the sentence imposed is clearly within the statutory limits fixed for the offense of conviction. See
State v. Mahler, 735 S.W.2d 226, 228 (Tenn. 1987); McConnell v. State, 12 S.W.3d 795, 798 (Tenn.
2000). Thus, a defendant can agree as part of a plea agreement to be sentenced as a Range II
offender, although meeting the criteria for Range I, if the sentence imposed is within statutory limits
fixed for the offense. For the Class B felony to which he pled, the Defendant was sentenced to the
maximum number of years for a Range I offender and the minimum number of years for a Range II
offender. See Tenn. Code Ann. § 40-35-112(a)(2), (b)(2).
We also note, as argued by the State in its brief, that the appellate record in this case does not
contain a copy of the judgment being challenged, the written plea agreement, or any evidence
regarding the Defendant’s complete criminal history. The trial court determined that the Defendant
had “sufficient qualifying felonies.” We will not disturb that finding.
Accordingly, we AFFIRM the judgment of the trial court.
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ROBERT W. WEDEMEYER, JUDGE
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