State of Tennessee v. Kari Diane Speck

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs July 19, 2016
STATE OF TENNESSEE v. KARI DIANE SPECK
Appeal from the Criminal Court for Putnam County
No. 10-0226 Gary McKenzie, Judge
___________________________________
No. M2016-00254-CCA-R3-CD – Filed August 8, 2016
___________________________________
Appellant, Kari Diane Speck, appeals the denial of her motion to correct an illegal
sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. Because Appellant has
failed to state a colorable claim that her sentences are illegal, the decision of the trial
court is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and D. KELLY THOMAS, JR., JJ., joined.
Kari Diane Speck, Memphis, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Bryant C. Dunaway, District Attorney General; and Victor Gernt, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
On June 16, 2011, Appellant pled guilty to second degree murder and aggravated
robbery. Appellant was sentenced as a Range I, standard offender and received
concurrent sentences of thirty years and twelve years, respectively. The “special
conditions” box on the judgment form for the second degree murder conviction states,
“Defendant has agreed to plea outside of the range of punishment.” According to the
plea agreement, both sentences were to be served at 100%; however, the judgment form
for the aggravated robbery conviction reflects a release eligibility of 30%.
On January 4, 2016, Appellant filed a motion to correct an illegal sentence,
alleging that the second degree murder sentence is illegal because it is outside the range
for a standard offender convicted of a Class A felony. Additionally, Appellant alleged
that the aggravated robbery sentence was illegal because it is not a violent offense
requiring 100% service. The trial court denied the motion, and Appellant timely filed an
appeal.
Rule 36.1 of the Tennessee Rules of Criminal Procedure provides a procedural
mechanism for either the defendant or the State to seek correction of an illegal sentence.
“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.” Tenn. R. Crim. P.
36.1(a). In this regard, “the definition of „illegal sentence‟ in Rule 36.1 is coextensive
with, and not broader than, the definition of the term in the habeas corpus context.” State
v. Wooden, 478 S.W.3d 585, 594 (Tenn. 2015). The trial court may summarily dismiss
the motion if the defendant does not “state[] a colorable claim that the sentence is
illegal.” Tenn. R. Crim. P. 36.1(b). A “„colorable claim‟ means a claim that, if taken as
true and viewed in a light most favorable to the moving party, would entitle the moving
party to relief under Rule 36.1.” Wooden, 478 S.W.3d at 593.
Historically, a “knowing and voluntary guilty plea waives any irregularity as to
offender classification or release eligibility.” Hicks v. State, 945 S.W.2d 706, 709 (Tenn.
1997). The prosecution and the defense “may agree to a „hybrid‟ sentence that „mixes
and matches‟ range assignment, term of years, and release eligibility without regard to
what our sentencing scheme might call for absent a plea bargain so long as (1) the term of
years is within the overall range of years specified for the offense, and (2) the [release
eligibility date] is not less than the minimum allowable for the offense.” Davis v. State,
313 S.W.3d 751, 760 (Tenn. 2010) (citations omitted). That is precisely what occurred in
this case. Although Appellant‟s sentence for second degree murder is beyond the normal
range for a standard offender convicted of a Class A felony, our supreme court has
clearly held that such a plea-bargained sentence is not illegal when the sentence is still
within the overall statutory range for the crime. Hoover v. State, 215 S.W.3d 776, 780
(Tenn. 2007) (holding that a Range I, thirty-five-year sentence at 100% for second degree
murder is not illegal); see also State v. Donquise Tremonte Alexander, No. M2015-
02098-CCA-R3-CD, 2016 WL 768894, at *2 (Tenn. Crim. App. Feb. 29, 2016) (holding
that a Range I, thirty-year sentence at 100% for second degree murder is not illegal),
perm. app. denied (Tenn. June 23, 2016). The authorized punishment for a Class A
felony is not less than fifteen years nor more than sixty years. T.C.A. § 40-35-111(b)(1).
Because Appellant‟s murder sentence is within the statutory range, it is not illegal.
With regard to Appellant‟s conviction for aggravated robbery, the judgment form
reflects that she received a Range I sentence of 12 years to be served at the standard
offender release eligibility of 30%. We acknowledge that this is inconsistent with the
-2-
plea agreement document signed by the parties, which indicates that the sentence for the
aggravated robbery conviction is to be served at 100%. However, we do not have a
transcript of the plea hearing in the record currently before us. Normally, the transcript
controls when the record shows a conflict between the judgment form and the transcript.
State v. Moore, 814 S.W.2d 381, 383 (Tenn. Crim. App. 1991). An appellant bears the
burden of preparing an adequate record for appellate review. See State v. Ballard, 855
S.W.2d 557, 560-61 (Tenn. 1993). Based solely on the judgment form in the record,
there is nothing illegal about a Range I sentence being served at 30%.1 T.C.A. § 40-35-
501(c). Because the release eligibility date for Defendant‟s aggravated robbery sentence
is not less than that authorized by statute, it is not illegal.
Because Appellant has failed to state a colorable claim that her sentences are
illegal, the trial court properly denied the motion.
____________________________________
TIMOTHY L. EASTER, JUDGE
1
Nothing in the record before us indicates that Appellant had a prior conviction for aggravated
robbery or especially aggravated robbery that would require 100% service of her sentence pursuant to
Tennessee Code Annotated section 40-35-501(k)(2).
-3-