State of Tennessee v. Eric Dewayne Wallace

02/11/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs February 1, 2022
STATE OF TENNESSEE v. ERIC DEWAYNE WALLACE
Appeal from the Criminal Court for Shelby County
Nos. 95-03054, 95-03055 J. Robert Carter, Jr., Judge
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No. W2021-00540-CCA-R3-CD
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A jury convicted the Defendant, Eric Dewayne Wallace, of first degree felony murder
and attempted first degree murder for offenses committed in 1992, and he was sentenced
to consecutive terms of life imprisonment and fifteen years. After discovering in 2021
that the Defendant was mistakenly assigned 1,174 days of pretrial jail credit and 312 days
of behavior credit to both convictions, the trial court entered an order and corrected
judgment for the conviction for attempted first degree murder, removing the credits to
correct a clerical error under Tennessee Rule of Criminal Procedure 36. On appeal, the
Defendant challenges the trial court’s order on the basis that it abused its discretion,
violated his due process rights and the prohibitions against double jeopardy, and failed to
comply with Rule 17 of the Rules of the Tennessee Supreme Court and Tennessee Code
Annotated section 40-35-209. After review, we affirm the trial court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and JILL BARTEE AYERS, JJ., joined.
Eric Dewayne Wallace, Henning, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior
Assistant Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of July 10, 1992, the Defendant and his brother, Mr. Percy
Wallace, were involved in the shooting death of Ms. Venita Swift and in the attempted
shooting of Mr. Jimmy Weddle when a drug exchange turned violent. State v. Eric D.
Wallace, No. 02-C-01-9604-CR-00125, 1997 WL 421011, at *1-2 (Tenn. Crim. App.
July 28, 1997). Following a jury trial, the Defendant was convicted of first degree felony
murder (case no. 95-03054) and attempted first degree murder (case no. 95-03055) for his
role in the offenses. Id. at *1. The trial court imposed consecutive sentences of life
imprisonment for first degree felony murder and fifteen years for attempted first degree
murder. Id. Although the judgment forms appended to the Defendant’s motion in this
case are almost entirely illegible, it is undisputed that he was awarded 1,174 days of
pretrial jail credits and 312 days of behavior credits (“the credits”) in both cases for time
served prior to sentencing. See Eric D. Wallace v. Tony Parker, et. al., No. M2019-
01044-COA-R3-CV, 2021 WL 861773, at *1 (Tenn. Ct. App. Mar. 8, 2021), no perm.
app. filed. On direct appeal, this court affirmed the Defendant’s convictions and
sentences. Eric D. Wallace, 1997 WL 421011, at *1. Following direct appeal, the
Defendant made numerous unsuccessful post-judgment attacks on his convictions on
grounds unrelated to the present appeal. See Eric Dewayne Wallace v. State, No. W2017-
00690-CCA-R3-HC, 2017 WL 6550624, at *1 (Tenn. Crim. App. Dec. 22, 2017) (citing
cases).
Sometime after entry of the judgments, the Tennessee Department of Correction
(“TDOC”) applied the credits to the Defendant’s sentence and calculated his release
eligibility date (“RED”) for his life sentence to be September 30, 2019, and the RED for
his consecutive, fifteen-year sentence to be March 31, 2024. Eric D. Wallace, 2021 WL
861773, at *1. The Defendant then filed a petition for writ of habeas corpus claiming that
he was being illegally detained because his fifteen-year sentence for attempted first
degree murder in case number 95-03055 had expired. Eric Dewayne Wallace, 2017 WL
6550624, at *1. Specifically, he claimed that he was entitled to the credits awarded in the
judgment form and that the TDOC had failed to apply the credits toward his RED. Id.The habeas corpus court denied the Defendant’s petition, and on appeal, a panel of this
court affirmed the habeas corpus court’s decision on the basis that the Defendant’s
sentence was not expired, that challenges to the TDOC’s calculation of release eligibility
based on the application of the credits should be brought pursuant to the Uniform
Administrative Procedures Act, and that the Petitioner was not entitled to the credits for
time served on both sentences because the sentences were to be served consecutively. Id.
at *2-3.
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At some point, the Defendant petitioned the TDOC for a recalculation of his RED,
claiming that the TDOC failed to apply the credits to both sentences. Eric D. Wallace,
2021 WL 861773, at *1. After the TDOC denied his petition, the Defendant filed a
Petition for Declaratory Judgment in the Davidson County Chancery Court on July 24,
2018. Id. Meanwhile, on April 9, 2019, the criminal court entered a corrected judgment
form, removing the credits from the Defendant’s fifteen-year sentence in case number 95-
03055, such that the credits only applied to his life sentence in case number 95-03054.
Id. In a 2019 appeal to this court and while the civil petition was pending, the Defendant
challenged the entry of the April 2019 corrected judgment form. See State v. Eric D.
Wallace, No. W2019-01140-CCA-R3-CD, 2020 WL 6317111, at *1 (Tenn. Crim. App.
Oct. 28, 2020). A panel of this court dismissed the Defendant’s appeal because the
record was inadequate for review and because the Defendant also had a civil case
pending regarding the calculation of the credits. Id. at *2 (citing Eric D. Wallace, 2021
WL 861773). In the time since our decision to dismiss the Defendant’s appeal, the Court
of Appeals issued an opinion affirming the chancery court’s grant of summary judgment
denying the Defendant’s civil petition. Id. at *3.
On April 21, 2021, the Defendant filed the present motion to correct a clerical
error challenging the April 2019 entry of corrected judgment in case number 95-03055
and requesting that the credits be reissued. The Defendant contended that the entry of the
corrected judgment was improper because it was not properly amended by a handwritten
notation made on the original judgment, that no party requested relief under Rule 36 to
give the trial court jurisdiction, that he was denied due process because he was not given
notice and there was no record made to document the correction, and that the sentence
without the credits was illegal under Tennessee Rule of Criminal Procedure 36.1. He
attached copies of the original judgment forms and the corrected judgment form in
support of his motion. In response, the State filed a motion to dismiss in which it argued
that the Petitioner was not entitled to relief. The State conceded that the corrected
judgment was improperly entered because the clerk of court rather than the trial court
made the notation on the judgment form and entered the corrected judgment. However,
the State contended that the correction itself was proper and requested that the trial court
enter a corrected judgment form reflecting that the Defendant was not entitled to the
credits.
The trial court issued an order on May 4, 2021, finding that after sentencing the
criminal court clerk noted the credits on the judgment forms. However, at a later time,
the clerk made a handwritten notation on the back of the original judgment form in case
number 95-03055 removing the credits “‘pursuant to Sledge v. State of Tennessee
ruling.’” (emphasis altered). The court found that the procedure attempted by the clerk
was improper and that the trial court should resolve disputes concerning the credits. The
trial court entered an order denying the Defendant’s motion and granting the State’s
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motion to dismiss. The court also entered a corrected judgment form in case number 95-
03055 removing the credits. The Defendant appeals from the trial court’s decision.
ANALYSIS
On appeal the Defendant contends that the trial court abused its discretion because
the clerk of court had no jurisdiction to correct the judgment forms in April 2019, that the
trial court’s correction of the judgment forms violated due process because his sentence
had expired before the corrected judgment was entered, that the delay in correcting the
judgment form violated the prohibition against double jeopardy, and that the trial court’s
correcting of the judgment form did not comply with Rule 17 of the Rules of the
Tennessee Supreme Court or Tennessee Code Annotated section 40-35-209. The State
responds that the Defendant’s claim regarding the credits has already been decided by the
Court of Appeals in Eric D. Wallace, 2021 WL 861773 at *3, that the trial court properly
corrected the judgment form to correct a clerical error, that the Defendant waived the due
process and double jeopardy claims by failing to raise them below, and that any error
committed by the clerk in correcting the judgment form in April 2019 was cured by the
trial court’s May 2021 corrected judgment. We conclude that the Petitioner is not
entitled to relief.
Insofar as the Defendant challenges the trial court’s decision to correct a clerical
error in the judgment, Tennessee Rule of Criminal Procedure 36 provides in relevant part
that “[a]fter giving any notice it considers appropriate, the court may at any time correct
clerical mistakes in judgments, orders, or other parts of the record, and errors in the
record arising from oversight or omission.” “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.” State v. Brown, 479 S.W.3d 200, 213 (Tenn. 2015) (citing State
v. Moore, 814 S.W.2d 381, 383 (Tenn. Crim. App. 1991)). “We review a trial court’s
ruling on a Rule 36 motion under an abuse of discretion standard.” State v. Jeffery Siler,
No. E2020-00468-CCA-R3-CD, 2020 WL 6130919, at *3 (Tenn. Crim. App. Oct. 19,
2020), perm. app. denied (Tenn. Feb. 4, 2021) (citing Marcus Deangelo Lee v. State, No.
W2013-01088-CCA-R3-CO, 2014 WL 902450, at *3 (Tenn. Crim. App. Mar. 7, 2014)).
“‘A defendant incarcerated prior to trial who receives consecutive sentences is only
allowed pre-trial jail credits to be applied toward the first sentence.’” Timothy L.
Dulworth v. Henry Steward, Warden, No. W2012-00314-CCA-R3-HC, 2012 WL
2742210, at *2 (Tenn. Crim. App. July 9, 2012) (citing Marvin Rainer v. David G. Mills,
No. W2004-02676-CCA-R3-HC, 2006 WL 156990, at *5 (Tenn. Crim. App. Jan. 20,
2006)).
The Defendant maintains that he is entitled to the credits in both convictions.
However, as we previously concluded in affirming the denial of the Defendant’s request
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for habeas corpus relief, the Defendant was not entitled to the same credits in case
number 95-03055 having already been awarded the credits in case number 95-03054. See
Eric Dewayne Wallace, 2017 WL 6550624, at *3. The Court of Appeals also concluded
in its decision concerning the credits that the trial court properly corrected the judgment
to remove the credits in case number 95-03055 in order to cure a clerical error. Eric D.
Wallace, 2021 WL 861773 at *3. The Defendant has not shown that the trial court
improperly found that the award of the credits in case number 95-03055 was a clerical
error.
Turning to the Defendant’s remaining arguments, the Defendant contends that the
trial court’s entry of the May 2021 corrected judgment violated his due process rights
because his sentence was expired by the time the credits were removed.1 The State
responds that this argument is waived because the Defendant did not raise this claim
below. We agree with the State because “[i]ssues raised for the first time on appeal are
considered waived.” State v. Johnson, 970 S.W.2d 500, 508 (Tenn. Crim. App. 1996).
We also conclude that this argument is waived because the appellate record fails to
establish that the Defendant’s sentence was expired. See Tenn. R. App. P. 24(b); Tenn.
Ct. Crim. App. R. 10(b); See also State v. Ivy, 868 S.W.2d 724, 728 (Tenn. Crim. App.
1993) (“In the absence of a record adequate for review, this court must presume that the
trial judge ruled correctly.”). The Defendant also argues that the trial court’s delay in
correcting the judgment form violated the prohibitions against double jeopardy. This
argument is waived because the Defendant did not raise this argument in his motion
below and the Defendant failed to support this argument in his brief with legal authority.
See Tenn. R. App. P. 24(b); Tenn. Ct. Crim. App. R. 10(b); see also Johnson, 970
S.W.2d at 508.
Finally, the Defendant claims that in entering the May 2021 corrected judgment
form the trial court did not comply with Rule 17 of the Rules of the Tennessee Supreme
Court or Tennessee Code Annotated section 40-35-209. Rule 17 generally provides for a
Uniform Judgment Document to be used by Tennessee courts and requires that the
document should contain the information in section 40-35-209(e). The Defendant
references subsections of 40-35-209(e) requiring the judgment form to list the type of
offense charged and convicted and the sentence imposed, the Defendant’s social security
number, and the Defendant’s date of birth. We note that the information required by the
statute is included in the corrected judgment form entered by the trial court, except that
1
We note that the Defendant attached to his appellate brief a “TOMIS OFFENDER SENTENCE
LETTER.” However, we decline to consider this documentation because it is not in the appellate record.
See Ricky Flamingo Brown, Sr., v. State, No. M2002-02427-CCA-R3-PC, 2003 WL 21362197, at *2
(Tenn. Crim. App. June 13, 2003) (supporting documentation attached to the petitioner’s appellate brief
that was not included in the appellate record could not be considered on appeal); see also Tenn. R. App.
P. 28(a).
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the Defendant’s year of birth is listed as 1997, five years after he committed the crimes
underlying this case. An incorrect date of birth is a clerical error which the Defendant
can move to correct under Rule 36 but does not amount to a violation of the statute such
as to require relief here. He has otherwise failed to show that any error in the contents of
the judgment form render the trial court’s decision an abuse of discretion. Therefore, he
is not entitled to relief.
CONCLUSION
Based upon the foregoing reasons, we affirm the judgment of the trial court.
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JOHN EVERETT WILLIAMS, PRESIDING JUDGE
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