State of Tennessee v. Thomas Edward Kotewa

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs August 16, 2016
STATE OF TENNESSEE v. THOMAS EDWARD KOTEWA
Appeal from the Criminal Court for Anderson County
No. A6CR0004 Donald R. Elledge, Judge
No. E2015-02111-CCA-R3-CD – Filed September 15, 2016
The defendant, Thomas Edward Kotewa, appeals the summary dismissal of his motion,
filed pursuant to Tennessee Rule of Criminal Procedure 36.1, to correct what he believes
to be an illegal sentence imposed for his 2006 Anderson County Criminal Court guilty-
pleaded conviction of second degree murder. Discerning no error, we affirm.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and D. KELLY THOMAS, JR., JJ., joined.
Thomas Edward Kotewa, Mountain City, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Assistant
Attorney General; and David S. Clark, District Attorney General, for the appellee, State
of Tennessee.
OPINION
The defendant pleaded guilty to the conviction offense on November 6,
2006, in exchange for a sentence of 15 years‟ incarceration to be served at 100 percent by
operation of law. See generally Thomas E. Kotewa v. State, No. E2007-02193-CCA-R3-
PC (Tenn. Crim. App., Knoxville, June 11, 2009), perm. app. denied (Tenn. Oct. 19,
2009). On September 10, 2015, the defendant moved the trial court under Rule 36.1 to
correct his sentence, arguing that a number of discovery violations by the State resulted
in due process violations which led to an illegal sentence. The trial court summarily
dismissed the motion via an order filed on October 1, 2015.
In this appeal, the defendant reiterates his claim of entitlement to Rule 36.1
relief on grounds that the State withheld material evidence, violating the tenets of Brady
v. Maryland, 373 U.S. 83 (1963), which caused the defendant to enter an unknowing and
involuntary guilty plea and thus resulted in an illegal sentence. The State asserts that
summary dismissal was appropriate in this case because the defendant failed to state a
cognizable claim for relief in a Rule 36.1 proceeding. We agree with the State.
Rule 36.1 provides the defendant and the State an avenue to “seek the
correction of an illegal sentence,” defined as a sentence “that is not authorized by the
applicable statutes or that directly contravenes an applicable statute.” Tenn. R. Crim. P.
36.1; see also State v. Wooden, 478 S.W.3d 585, 594-95 (Tenn. 2015) (holding that “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”). To avoid summary denial of an
illegal sentence claim brought under Rule 36.1, a defendant must “state with particularity
the factual allegations,” Wooden, 478 S.W.3d at 594, establishing “a colorable claim that
the sentence is illegal,” Tenn. R. Crim. P. 36.1(b). “[F]or purposes of Rule 36.1 . . .
„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. The determination whether a Rule 36.1 “motion states a colorable
claim for correction of an illegal sentence under Rule 36.1 is a question of law, to which
de novo review applies.” Id. at 589 (citing Summers v. State, 212 S.W.3d 251, 255
(Tenn. 2007)).
The defendant pleaded guilty to second degree murder, a Class A felony.
The 15-year sentence imposed for that conviction was authorized at the time of the
offense and does not contravene any applicable statute. See T.C.A. § 40-35-112(a)(1).
The defendant‟s claim regarding alleged discovery violations is merely an attack on his
conviction, which would not affect the legality of his sentence and would not, therefore,
be cognizable in a Rule 36.1 proceeding. Similarly, a claim of unknowing and
involuntary guilty plea is not a cognizable claim for relief under Rule 36.1.
Accordingly, we affirm the judgment of the trial court.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
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