State of Tennessee v. Mike Settle ( 2022 )

IN THE COURT OF CRIMINAL APPEALS OF TENNES
AT JACKSON FHTHD
Assigned on Briefs May 3, 2022 MAY 3 t7072
Clerk of the ate Courts
STATB OF TENNESSEE V. MIKE SETTLE Rec'd By
Appeal from the Circuit Court for Madison County
No. 99-906 Kyle C. Atkins, Judge
No. W2021-00328-CCA-R3-CD
The pro se Petitioner, Mike Settle, appeals the dismissal of his Tennessee Rule of Criminal
Procedure 36.1 claim. Upon our review, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
Cavrrr-le R. McMuLLEN, J., delivered the opinion of the court, in which Jeir,tps Cunwooo
WItt, Jn., and Ttvtornv L. Easren, JJ., joined.
Mike Settle, Hartsville, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Hannah-Catherine Lackey,
Assistant Attorney General; Jody S. Pickens, District Attorney General; and Al Earls,
Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
The Petitioner became ill and was transferred to a Jackson hospital while serving a
sentence in Shelby County for multiple convictions Settle v
*
Warden, No. E20 1 1-00766-CCA-R3-HC, 2012 WL 344 937 , at 1 (Tenn. Crim. APP. Feb.
3, 201.2), perm. app. denied (Tenn Apr. ll,2012) Two days later, the Petitioner
"overpowered a guard, took the officer 's weapon, and pointed it at the guard's head." Id
The Petitioner escaped from the hospital in a stolen car aftr.lr taking a hostage. Id. He was
recaptured, sent back to prison, and pleaded guilty to one count of felony escape, one count
of especially aggravated kidnapping, one count of aggravated robbery, and two counts of
aggravated assault in Madison County. Id. Pursuant to the plea agreement, the Petitioner
reciived concunent sentences of six years for the felony escape conviction, twenty-five
years for the especially aggravated kidnapping conviction, twenty-five years for the
aggravated robbery conviction, and fifteen years each for the aggravated assault
convictions. Id. Those sentences were also to run concuffently to a sentence the Petitioner
received from a federal firearms charge stemming from the same incident. Id. The
sentences were also to run consecutively to the Shelby County sentence he was serving at
the time of his escape. Id.The Petitioner filed various unsuccessful challenges to his convictions. See Mike
Settle v. State, No. W2003-01261-CCA-R3-PC,2004 WL 1656481, at *1 (Tenn. Crim.
App. July 23, 2004) (affirming denial of post-conviction petition for failure to state a
colorable claim for relief via memorandum opinion); Michael Settle v. State, No. M2004-
00411-CCA-R3-HC, 2005 WL 2978974, at * 1 (Tenn. Crim. App. Nov. 7, 2005), perm.
app. denied (Tenn. Mar.27,2006) (affirming summary dismissal of habeas corpus petition
for failure to pay court costs); Mike Settle v. David Mills. Warden, No. E2010-00945-
CCA-R3-HC,2010 WL 5276980, at *1 (Tenn. Crim. App. Dec. 17,2010), pelm--App
denied (Tenn. Mar. 9, 20ll) (affirming summary dismissal of habeas corpus petition);
Mike Settle, 2012 WL 344937, at * I (affinning dismissal of habeas corpus petition for
failing to cornply with procedural requirements); Mike Settle aka Mi ael Dewavne Settle
v. Jerrv Lester. W State of Tennessee" No. W20 1 3 -02609 -CCA-R3-HC, 2014 WL
*
3824004, at I (Tenn. Crim. App. Aug.4,2014), perm. app. denied (Tenn. Nov. 19, 2014)
(affirming dismissal of habeas corpus petition); Mike Settle v. Brenda Jones. Warden, No.
W2014-01362-CCA-R3-HC, 2014WL7433010, at *1 (Tenn. Crim. App. Dec. 30'2014)
(affirming denial of sixth habeas corpus petition). The Petitioner also filed at least two
habeas corpus petitions in federal court, which were dismissed as untimely. See Mike
Settle v. Rickv Rell- Warden. No. 3:09-0560 (M.D. Tenn. Nov. 10, 2009); Mike ev
Ricky J. Bell, No. 06-1092 (W.D. Tenn. Sept. 4, 2009). The Petitioner also filed two writs
of error coram nobis, which were dismissed due to the unavailability of coram nobis relief
in challenging guilty pleas. See Mike Settle v. State, No. W2018-01527-CCA-R3-ECN,
2019 WL 1594930, at *1 (Tenn. Crim. App. Apr. 15,2019); Mike Settle v. State, No.
W2015-01,629-CCA-R3-ECN,2016 WL1687210, at *1 (Tenn. Crim. App. Feb. 5,2016).
The Petitioner filed a Rule 36.1 motion on July 26,2018, which was denied by the
Madison County Circuit Court on August 3, 2018. The Petitioner subsequently filed a
second Rule 36.1 motion on August 9,2018, and another motion restating the same issues
on May 15,2019. The circuit court dismissed the Augustg,2018 motion on July 23,2019,
and a third motion restating the same issues was dismissed on October 1,2019. On June
3,2020, the Petitioner filed another Rule 36.1 motion, asserting that he was entitled to
withdraw his guilty plea because of the "illegal provision" of his pleabargain that stated
his sentence would run concurrently to his federal sentence. On August 13, 2020, the
Petitioner filed a "Declaration" that stated his pleas were not knowingly and voluntarily
entered and that he was entitled to withdraw his guilty plea and proceed to trial pursuant to
Rule 36.1. He againasserted that his guilty plea was not knowingly and voluntarily entered
oopromise"
because of the that his sentence would run concurrently to his federal sentence.
a
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The circuit court treated the "Declaration" as another Rule 36.1 motion and dismissed it by
written order on March ll, 2021. In the order, the circuit court noted that he was
incarcerated for his Shelby County convictions, not federally incarcerated, when he
escaped from the hospital, and his Madison County sentences were coffectly run
consecutively to his Shelby County sentences and were legal. The Petitioner filed a timely
notice of appeal on March 25,2021, and this case is now properly before this court.
ANALYSIS
The Petitioner contends on appeal that the circuit court erred in summarily
dismissing his petition and in finding that his sentences were legal.r The State responds
that the sentences are legal, and even if they were not, they were to the Petitioner's benefit.
We agree with the State.
Pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure, "[e]ither the
defendant or the state may, at any time, seek the correction of an illegal sentence[.]" Tenn.
R. Crim. P. 36.1(a). "For purposes of this rule, an illegal sentence is one that is not
authorized by the applicable statutes or that directly contravenes an applicable statute." Id.A petitioner is only entitled to a hearing and appointment of counsel "[i]f the motion states
a colorable claim that the sentence is illegal." Tenn. R. Crim. P. 36.1(b); see Marcus
*6 (Tenn.
Deangelo Lee v. State, No. W2013-01088-CCA-R3-CO,2014 WL 902450, at
Crim. App. Mar. 7,2014). This court has stated thata colorable claim "ois a claim . . .that,
if taken ui tru", in the light most favorable to the [petitioner], would entitle [the petitioner]
to relief[.]"' State v. David A. Brimmer, No. 82014-01393-CCA-R3-CD, 2014 WL
2017 Sg,-at *2 (Tenn. Crim. App. Dec. 18,2014) (citing and quoting State v. Mark Edward
*3 (Tenn. Crim. App. July
Greene, No. M2013-027|}-CCA-R3-CD,2014 WL 3530960,at
16,2014)); Tenn. Sup. Ct. R. 28 $ 2(H).
Our supreme court has concluded that there are three types of sentencing errors:
clerical .oorr, appealable errors, and fatal effors. State v. Wooden, 478 S.W.3d 585, 595
(Tenn. 2015). Clerical errors arise from a simple mistake in filling out information in the
judgment document. Id. Appealable errors arise where the sentencing statutes provide for
u rigfrt to a direct appeal of the sentencing decision and "generally involve attacks on the
corrictness ofthe methodology by which atrialcourt imposed [the] sentence." Id. (internal
citation omitted). For a sentence to be deemed an "illegal sentence," it must be the result
I In his reply brief, the Petitioner references his 36.1 motion from August9,2078-, and states that he never
received th"
.,July 23, 20lg order dismissing his motion[,]" and the "interests of justice" therefore entitle
him to ,,tolling the timely filing requirementl' for that motion. To the extent that he intends to appeal the
dismissal of the Augu st 9, 2018 motion, any such issue is waived. See Tenn. R. App' P. 4(a) (stating that
,,the notice of appeal required by Rule 3 shail be filed with and received by the clerk of the trial court within
30 days after the date of entry of the judgment appealed from . . ' '").
-3 -
of afatal elror, which renders a sentence illegal and void. Id. "This category consists of
any sentence'that is not authorized by the applicable statutes or that directly contravenes
an applicable statute."' Id.As relevant to the instant case, Tennessee Code Annotated section 39-16-605(d)
mandates that "[a]ny sentence received for [escape] shall be ordered to be served
consecutively to the sentence being served or sentence received for the charge for which
the person was being held at the time of escape." Further, Tennessee Rule of Criminal
Procedure 32(c)(3)(B) states that consecutive sentencing is mandated for "a sentence for
escape or for a felony committed while on escape[.]" Tennessee Rule of Criminal
Procedure 32(c)(2)(B) relevantly states that if "as the result of conviction in another state
or federal court, the defendant has any additional sentence or portion thereof to serve, the
court shall impose a sentence that is consecutive to such unserved sentence unless the court
determines in the exercise of its discretion that good cause exists to run the sentences
o"Tennessee Rules
concurrently and explicitly so orders." This court has explained that the
of Criminal Procedure do provide for concurrent service of state and federal sentences if
explicitly ordered by the trial court."' Bernard Frazier v. State, No. W2013-00187-CCA-
R3-PC, 2017 WL 1410285, at *7-8 (Tenn. Crim. App. Apr. 10,2014) (quoting Denick E.
Means v. State, No.02C01-9707-CR-0048, 1998 WL 470447, at
*5 (Tenn. Crim. App'
o"remain free to turn those concurrent
Aug. 13, 1998)). However, federal officials
sentences into consecutive sentences by refusing to accept the state prisoner until the
completion of the state sentencef.]"' Id. at *8 (quoting United S 980
F.2d 1269,1272-73 (9th Cir. 1992)).
At the time of the Petitioner's escape from the Jackson hospital, he was serving his
sentence for his Shelby County convictions. As such, the circuit court was conect in its
conclusion that his Madison County convictions were required to run consecutively to his
Shelby County convictions. Further, as noted above, the Petitioner's Madison County
convictions were not required to run consecutively to his federal sentence because he was
not in federal custody when he escaped, despite his contentions to the contrary. Our review
of the record indicates that the Madison County judgments explicitly state that those
sentences are to run concurrently to the Petitioner's federal sentence, and in the absence of
the sentencing transcript from the Madison County convictions to demonstrate otherwise,
we presume the court exercised its discretion "that good cause exists to run the sentences
conculrentlyl.]" See Tenn. R. Crim. P.32(c)(2)(B); see also State v. Caudle, 388 S.W.3d
273,279 (Tenn. 2012). As noted by the State, because the Madison County sentence
running concuffently with the federal sentence does not "directly contravene[] an
applicable statute" and is otherwise authorized by applicable statutes, see Wooden, 478
S.W.3d at 595, we cannot conclude that the Petitioner's sentence is illegal. Finally, even
if mandatory consecutive sentencing with respect to the Madison County sentence and the
federal sentence existed and the sentence was illegal, the Petitioner would not be entitled
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to relief because the agreed-upon sentence was to his benefit. Tenn. R. Crim. P.
36.1(c)(3)(B) ("If the illegal aspect was a material component of the plea agreement but
the illegal aspect was to the defendant's benefit, the court shall enter an order denying the
motion."). The Petitioner is not entitled to relief.
CONCLUSION
Based on the foregoing reasoning and analysis, the judgment of the trial court is
affirmed.
R. MCMULLEN, JUDGE
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