State of Tennessee v. Calvin Scott

10/14/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs July 7, 2021
STATE OF TENNESSEE v. CALVIN SCOTT
Appeal from the Criminal Court for Shelby County
Nos. 99-03993, 99-03994, 99-03995, 99-03996, 99-03997
W. Mark Ward, Judge
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No. W2020-01574-CCA-R3-CD
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The Appellant, Calvin Scott, appeals the Shelby County Criminal Court’s denial of his
motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure
36.1. The Appellant also contends that the trial court had jurisdiction to address an issue
regarding his pretrial jail credits and that the trial court should have recused itself from his
case. Based upon our review of the record and the parties’ briefs, we affirm the judgment
of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and JILL BARTEE AYERS, JJ., joined.
Terrell Tooten, Cordova, Tennessee, for the appellant, Calvin Scott.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Kirby May, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
On the afternoon of January 22, 1999, the then eighteen-year-old Appellant and
James Kneeland entered Progressive Wheels, a wholesale wheel and tire business in
Memphis. State v. Calvin Scott, No. W2002-01324-CCA-R3-CD, 2003 WL 21644414, at
*1 (Tenn. Crim. App. at Jackson, July 8, 2003). Brian Petty, who was the manager of
Progressive Wheels, John Paul Young, who was an employee, and Allan Bozarth were
inside the business. Id. The Appellant and Kneeland used duct tape to bind the hands and
feet of the three men and demanded money from them. Id. During the robbery, the
Appellant took several hundred dollars out of Petty’s pocket, and “one of the robbers” shot
Bozart and Young “in the head execution-style,” killing them. Id. Petty was not harmed
and identified the Appellant at trial. Id. Moreover, the Appellant gave a statement to the
police in which he admitted that he was the shooter and that he took the victims’ wallets
and money. Id.In January 2002, a Shelby County Criminal Court Jury convicted the Appellant of
two counts of first degree premeditated murder; two counts of especially aggravated
robbery, a Class A felony; and one count of aggravated robbery, a Class B felony. After
the jury found the Appellant guilty of first degree murder, a separate sentencing proceeding
was held in order for the jury to determine whether the Appellant would serve life or life
without parole. During the proceeding, the trial court instructed the jury that a defendant
sentenced to life imprisonment would not be eligible for release until the defendant served
at least fifty-one years of the sentence. The jury sentenced the Appellant to life for each
count.
On February 14, 2002, the trial court held a sentencing hearing on the remaining
convictions and sentenced the Appellant to twenty-two years for each especially
aggravated robbery conviction and nine years for the aggravated robbery conviction. The
trial court ordered that the Appellant serve the life sentences concurrently with each other
and that he serve the sentences for the robbery convictions concurrently with each other
but consecutively to the life sentences for a total effective sentence of life plus twenty-two
years. The trial court also ordered that the Appellant serve all of the sentences
consecutively to a prior three-year sentence for aggravated assault because the Appellant
was on bail for that offense when he committed the murders and robberies. The trial court
entered judgments of conviction that correctly reflected the Appellant’s sentences. The
judgments also reflected that the Appellant was to receive 1,197 days of pretrial jail credits.
The Appellant filed a direct appeal of his convictions in this court, and this court
affirmed the judgments of the trial court. Id. This court also affirmed the post-conviction
court’s denial of post-conviction relief. Calvin Scott v. State, No. W2007-02051-CCA-
R3-PC, 2009 WL 435339, at *1 (Tenn. Crim. App. at Jackson, Feb. 20, 2009).
On March 3, 2020, the Appellant filed a document titled “Motion to Correct Illegal
Sentence.” In the motion, the Appellant requested that the trial court “correct the clerical
errors and illegal sentence” pursuant to Tennessee Rules of Criminal Procedure 36 and
36.1, respectively. Regarding the illegal sentence issue, the Appellant claimed that his life
sentences were void due to an improper jury instruction regarding the amount of time he
would have to serve in confinement before becoming eligible for parole. Specifically, the
Appellant contended that the trial court should have instructed the jury that he would have
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to serve sixty years, not fifty-one years, before becoming eligible for release. The
Appellant also claimed that pursuant to Blakely v. Washington, 542 U.S. 292 (2004), the
trial court improperly enhanced his sentences and ordered consecutive sentencing. Finally,
the Appellant claimed that his release eligibility date did not reflect his 1,197 days of
pretrial jail credits and that the trial court should enter an order reflecting the pretrial jail
credits he was to receive.
At a hearing on the motion, the Appellant testified that he had not received “any
good time [credits]” since he had been in prison. He also did not receive the three years of
pretrial jail credits that the trial court ordered. As a result, the records for the Tennessee
Department of Correction (TDOC) showed that he was not eligible for release until 2082.
The Appellant complained to prison counselors about his “time being incorrect” and
submitted a written inquiry about the length of his sentences and his release eligibility to
the TDOC. An employee from the TDOC’s records department responded that “they
[were] turning [the Appellant’s] life sentence into a sixty-year sentence.” The Appellant
said that he “then figured out how the 82 came into existence is because they turned the
life with parole sentence into 60 years and then added the 22 years on top of the 60 years
and then made it just a flat out 82. That’s where the 82 years come from.”
The Appellant testified that the jury sentenced him to “life with parole” for the
murder convictions. The Appellant thought the jury also was going to determine his
sentences for the especially aggravated robbery convictions. However, the jury was not
present when the trial court enhanced the Appellant’s sentences for especially aggravated
robbery to twenty-two years. Moreover, the jury did not make any findings regarding
enhancement factors. The Appellant stated that he still did not know how many years he
had to serve before being eligible for release but that his effective sentence was “supposed
to expire” in 2082.
At the conclusion of the hearing, the trial court asked defense counsel to explain
how the Appellant’s sentences were illegal. Defense counsel responded that the jury
requested that the Appellant receive a life sentence of fifty-one years, not sixty years, and
that the jury’s request “should have been honored.” The trial court ruled that none of the
Appellant’s claims were colorable in a Rule 36.1 motion and denied the motion.
II. Analysis
On appeal, the Appellant contends that his life sentences are illegal because they
were “changed” from fifty-one years to sixty years and that his especially aggravated
robbery sentences are illegal because the trial court enhanced the sentences and ordered
consecutive sentencing in violation of Blakely. The Appellant also contends that the trial
court should have addressed the issue regarding his not receiving his pretrial jail credits
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and that the trial court should have recused itself from his case because the trial judge
represented the Petitioner on direct appeal of his convictions. The State argues that the
Appellant is not entitled to relief. We agree with the State.
Rule 36.1, Tennessee Rules of Criminal Procedure, permits a defendant to seek
correction of an unexpired illegal sentence at any time. See State v. Brown, 479 S.W.3d
200, 211 (Tenn. 2015). “[A]n 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). As
our supreme court has explained, only “fatal” sentencing errors render sentences illegal.
State v. Wooden, 478 S.W.3d 585, 595 (Tenn. 2015). “Included in this category are
sentences imposed pursuant to an inapplicable statutory scheme, sentences designating
release eligibility dates where early release is statutorily prohibited, sentences that are
ordered to be served concurrently where statutorily required to be served consecutively,
and sentences not authorized by any statute for the offenses.” Id. Conversely, “[c]laims
of appealable error generally involve attacks on the correctness of the methodology by
which a trial court imposed sentence.” Id. Few appealable errors rise to the level of an
illegal sentence. Id.If a Rule 36.1 motion states a “colorable claim that the sentence is illegal,” the trial
court shall appoint counsel and hold a hearing on the motion. See Tenn. R. Crim. P.
36.1(b). Our supreme court has recognized that “Rule 36.1 does not define ‘colorable
claim.’” Wooden, 478 S.W.3d at 592. Nevertheless, the court explained that “for 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.” Id. at 593. A motion filed pursuant to Rule 36.1 “must state with particularity the
factual allegations on which the claim for relief from an illegal sentence is based.” Id. at
594. In determining whether a motion states a colorable claim, the trial court “may consult
the record of the proceeding from which the allegedly illegal sentence emanated.” Id.
Whether a Rule 36.1 motion states a colorable claim is a question of law, which we review
de novo. Id. at 588.
Turning to the instant case, we do not think anyone “changed” the Appellant’s life
sentences from fifty-one to sixty years. Instead, the amount of time the Appellant must
serve in confinement for a life sentence prior to becoming eligible for release is a matter of
semantics. As this court has explained,
“The determinate sentence for a life sentence [imprisonment for life] is sixty
years, as set forth in Tennessee Code Annotated section 40-35-501(h)(1).”
Brown v. Jordan, 563 S.W.3d 196, 200 (Tenn. 2018). For first degree murder
committed on or after July 1, 1995, as in the case sub judice, 100% of the
sentence of sixty years must be served. . . . However, a person convicted of
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a murder which occurs on or after July 1, 1995, and who receives a sentence
of imprisonment for life, can be granted certain statutorily authorized
“sentence reduction credits” up to nine years. [Tenn. Code Ann.] § 40-35-
501(i)(1). Thus, if such an inmate obtains the maximum number of allowable
sentence reduction credits, he will obtain credit for service of the entire sixty-
year sentence after having been incarcerated for fifty-one years. See [Tenn.
Code Ann.] § 41-21-236 (“‘sentence credits’ includes any credit, whether
called that or not, that results in a reduction of the amount of time an inmate
must serve on the original sentence or sentences.”)
State v. Urshawn Eric Miller, No. W2019-00197-CCA-R3-DD, 2020 WL 5626227, at *12
(Tenn. Crim. App. at Jackson, Sept. 18, 2020).
Here, the life sentences that the jury imposed for first degree murder and that are
reflected on the judgments of conviction were authorized by our Code and are not illegal.
See Tenn. Code Ann. § 39-13-207(a)(1). Likewise, this court has held that “a Blakely
violation would not render a judgment void and does not meet the definition of an illegal
sentence under Rule 36.1.” State v. Rafael Antonio Bush, No. M2016-01537-CCA-R3-
CD, 2017 WL 2376825, at *7 (Tenn. Crim. App. at Nashville, June 1, 2017); see State v.
Rodricus Antwan Johnson, No. W2018-00950-CCA-R3-CD, 2018 WL 6528698, at *3
(Tenn. Crim. App. at Jackson, Dec. 11, 2018).
As to the Appellant’s complaint about his pretrial jail credits, our supreme court has
held that a trial court’s failure to award pretrial jail credits does not render a sentence
illegal, and, therefore, does not warrant Rule 36.1 relief. Brown, 479 S.W.3d at 212-13.
In any event, all of the judgments of conviction in this case reflect that the trial court
awarded the Appellant 1,197 days of pretrial jail credits. Therefore, if the Appellant thinks
that his sentences have been calculated incorrectly or disagrees with the TDOC’s
determination of his release eligibility date, the proper avenue for review is through the
Uniform Administrative Procedures Act, not a Rule 36.1 motion. See Tenn. Code Ann. §§
4-5-101 to -325.
Finally, the Appellant contends that in the event of a remand, this court should
require that the trial court recuse itself from his case because the judge represented the
Appellant on direct appeal of his convictions. As noted by the State, though, Tennessee
Supreme Court Rule 10B, section 1.01, states that any party seeking recusal of a judge
must do so by a written motion “filed promptly after a party learns or reasonably should
have learned of the facts establishing the basis for recusal.” The Appellant did not file a
timely motion to recuse. Therefore, this issue is waived. See Tenn. R. App. P. 36(a).
III. Conclusion
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Based upon the record and the parties’ briefs, we affirm the judgment of the trial
court.
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NORMA MCGEE OGLE, JUDGE
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