State of Tennessee v. Miko T. Burl

06/04/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
STATE OF TENNESSEE v. MIKO T. BURL
Appeal from the Criminal Court for Shelby County
No. 99-01973 Glenn Ivy Wright, Judge
No. W2017-01911-CCA-R3-CD
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The Appellant, Miko T. Burl, is appealing the trial court’s denial of his motion to correct
an illegal sentence. The State has filed a motion asking this Court to affirm pursuant to
Court of Criminal Appeals Rule 20. Said motion is hereby granted.
Tenn. R. App. P. 3 Appeal as of Right; Order of the Trial 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.
Miko T. Burl, pro se.
Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General, for the Appellee, State of Tennessee.
MEMORANDUM OPINION
In 2000, the Appellant was convicted of aggravated assault, aggravated burglary
and especially aggravated robbery. The trial court sentenced the Appellant as a standard
Range I offender to twenty-five years for the especially aggravated robbery conviction
and four years each for the other two convictions, all to be served concurrently. On direct
appeal, this Court reversed the aggravated assault conviction but affirmed the other two
convictions. State v. Miko T. Burl, No. W2000-02074-CCA-R3-CD, 2002 WL 1483207
(Tenn. Crim. App. Jan. 28, 2002). The denial of the Appellant’s first motion to correct an
illegal sentence was affirmed on appeal by this Court on February 22, 2017. State v.
Miko Burl, No. W2016-00670-CCA-R3-CD (Tenn. Crim. App. Feb. 22, 2017). In that
motion, the Appellant argued his sentences were illegal because the trial court misapplied
enhancement factors. This Court disagreed, noting that the sentences imposed were
within the appropriate statutory ranges. See Tenn. Code Ann. §§ 39-13-403(b); 39-14-
403(b); 40-35-112; 40-35-501. On June 5, 2017, the Appellant filed his second motion to
correct an illegal sentence. The Appellant again complained the trial court erroneously
sentenced him to the maximum sentence within the applicable range for the especially
aggravated robbery conviction. The trial court summarily dismissed the motion because
the issue was previously decided. This appeal ensued. Following the filing of the record
on appeal and the Appellant’s brief, the State filed a motion to affirm the ruling of the
trial court pursuant to Rule 20. For the reasons stated below, said motion is hereby
granted.
As we previously stated:
Rule 36.1 of Tennessee Rules of Criminal Procedure allows a petitioner 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”
as “one that is not authorized by the applicable statutes or that directly
contravenes an applicable statute.” Id. Only fatal errors are capable of
rendering a sentence illegal. Cantrell v. Easterling, 346 S.W.3d 445, 452
(Tenn. 2011). A trial court’s misapplication of enhancing and mitigating
factors, however, is considered an appealable error that can only be
“addressed on direct appeal and not in a post-conviction or habeas corpus
proceeding.” Id. at 451; State v. Wooden, 478 S.W.3d 585, 595-96 (Tenn.
2015). “‘[A]ttacks on the correctness of the methodology by which a trial
court imposed [a] sentence’ will not rise to the level of an illegal sentence.”
State v. Joseph B. Thompson, No. E2015-01963-CCA-R3-CD, 2016 WL
2770178, at *1 (Tenn. Crim. App. May 10, 2016) (quoting Wooden, 478
S.W.3d at 595).
W2016-00670-CCA-R3-CD at 2. The Appellant’s current complaint about being
sentenced to the maximum sentence within the applicable range falls squarely within the
category of appealable errors and is thus not actionable in a Rule 36.1 motion.
Accordingly, this Court’s analysis in the previous appeal controls the outcome herein.
The trial court did not err in summarily dismissing the motion. Tenn. R. Crim. P.
36.1(b)(2).
The Appellant also raises for the first time in his brief on appeal a claim that his
sentence violates the principles announced in Apprendi v. New Jersey, 530 U.S. 466
(2000) and Blakely v. Washington, 542 U.S. 296 (2004). Issues raised for the first time
on appeal are considered waived. See State v. Johnson, 970 S.W.2d 500, 508 (Tenn.
Crim. App. 1996). Regardless, the Appellant would not otherwise be entitled to relief on
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that claim. See State v. Rafael Antonio Bush, No. M2016-01537-CCA-R3-CD, 2017 WL
2376825 at*7 (Tenn. Crim. App. June 1, 2017).
The ruling of the trial court is hereby affirmed in accordance with Court of
Criminal Appeals Rule 20.
_______________________________________
JOHN EVERTT WILLIAMS, JUDGE
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