Marcus T. Johnson v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs October 25, 2016
MARCUS T. JOHNSON v. STATE OF TENNESSEE
Appeal from the Criminal Court for Knox County
No. 94097 Steven Wayne Sword, Judge
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No. E2016-00642-CCA-R3-CD – Filed November 7, 2016
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Marcus T. Johnson (“the Defendant”) pled guilty to sale of .5 grams or more of cocaine, a
Class B felony. The Defendant was sentenced as a Range I standard offender to ten years
of probation. The Defendant now appeals from the denial of his fourth Rule 36.1 motion.
After reviewing the record and applicable law, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and J. ROSS DYER, JJ., joined.
Marcus T. Johnson, Pikeville, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel; and
Charme Allen, District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual and Procedural Background
On April 7, 2011, the Defendant pled guilty to sale of .5 grams or more of cocaine,
a Class B felony. Pursuant to a plea agreement, the trial court sentenced the Defendant,
as a Range I standard offender, to ten years and suspended the sentence to supervised
probation. The trial court later revoked the Defendant’s probation and ordered the
Defendant to serve the remainder of his sentence in confinement.
Since his probation revocation, the Defendant has filed a plethora of motions in
the trial court. The Defendant filed his first Rule 36.1 Motion on October 16, 2013. The
Defendant filed a second Rule 36.1 Motion on May 29, 2015, which the trial court
denied.1 The Defendant filed his third Rule 36.1 Motion on September 14, 2015, which
the trial court denied. This court affirmed the trial court’s denial on July 13, 2016. State
v. Marcus T. Johnson, No. E2016-00004-CCA-R3-CD, 2016 WL 3912565, at *3 (Tenn.
Crim. App. July 13, 2016), perm. app. denied (Tenn. Oct. 19, 2016). The Defendant filed
his fourth and current Rule 36.1 motion on February 4, 2016. In this motion, the
Defendant argued that his sentence of ten years with a thirty percent release eligibility for
a Class B felony was illegal. The Defendant asserted that because trial counsel verbally
informed him that he would be pleading to a Class C felony as a Range I standard
offender and his plea agreement did not state that he was pleading to a Class B felony, his
proper sentencing range was three to six years. The trial court denied this motion on
February 23, 2016, finding that “the [D]efendant ha[d] failed to present any issues
indicating that his judgment is illegal.” This appeal followed.
II. Analysis
In 2013, the Tennessee General Assembly promulgated Rule 36.1, which provides,
in part:
(a) Either the defendant or the state may, at any time, 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. 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.
...
(c)(1) If the court determines that the sentence is not an illegal sentence, the
court shall file an order denying the motion.
...
(3) If the illegal sentence was entered pursuant to a plea agreement, the
court shall determine whether the illegal provision was a material
component of the plea agreement. If so, the court shall give the defendant
an opportunity to withdraw his or her plea. If the defendant chooses to
1
It is unclear from the technical record how the trial court ruled on the Defendant’s first Rule
36.1 motion and whether the Defendant appealed the denial of his second Rule 36.1 motion.
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withdraw his or her plea, the court shall file an order stating its finding that
the illegal provision was a material component of the plea agreement,
stating that the defendant withdraws his or her plea, and reinstating the
original charge against the defendant. If the defendant does not withdraw
his or her plea, the court shall enter an amended uniform judgment
document setting forth the correct sentence.
(4) If the illegal sentence was entered pursuant to a plea agreement, and if
the court finds that the illegal provision was not a material component of
the plea agreement, then the court shall enter an amended uniform
judgment document setting forth the correct sentence.
Tenn. R. Crim. P. 36.1. Under this rule, a defendant must state a colorable claim for
relief before he is entitled to a hearing and appointment of counsel. Tenn. R. Crim. P.
36.1(b); see Marcus Deangelo Lee v. State, No W2013-01088-CCA-R3-CO, 2014 WL
902450, at *6 (Tenn. Crim. App. Mar. 7, 2014). The term “colorable claim” is not
defined in Rule 36.1. This court had adopted the definition of colorable claim from post-
conviction cases: “A colorable claim is a claim . . . that, if taken as true, in light most
favorable to [the defendant], would entitle [the defendant] to relief[.]” State v. Mark
Edward Green, No. M2013-02710-CCA-R3-CD, 2014 WL 3530960, at *3 (Tenn. Crim.
App. July 16, 2014).
In his appellate brief, the Defendant has failed to include coherent argument,
citation to case law or statute, or references to the record in support of his claim that his
sentence is illegal. Tennessee Court of Criminal Appeals Rule 10(b) states that “[i]ssues
which are not supported by argument, citation to authorities, or appropriate references to
the record will be treated as waived in this court.” Tenn. Crim. App. R. 10(b); see also
Tenn. R. App. P. 27(a)(7). Therefore, the issues contained in the Defendant’s fourth Rule
36.1 motion are waived.
In any event, it is clear from the record that the trial court properly denied the Rule
36.1 motion. The Defendant’s judgment of conviction reflects that the Defendant pled
guilty, as a Range I standard offender, to sale of .5 grams or more of cocaine and received
a sentence of ten years’ probation. As stated above, a sentence is illegal if it is “not
authorized by the applicable statutes or . . . directly contravenes an applicable statute.”
Tenn. R. Crim. P. 36.1. A ten-year sentence for a standard offender convicted of a Class
B felony is authorized by statute. Tenn. Code Ann. § 40-35-112(a)(2) (“A Range I
sentence is as follows: . . . [f]or a Class B felony, not less than eight (8) nor more than
twelve (12) years.”). Therefore, the Defendant failed to state a colorable claim, and the
trial court did not err by denying the Defendant’s Rule 36.1 motion. The Defendant is
not entitled to relief.
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III. Conclusion
For the aforementioned reasons, the judgment of the trial court is affirmed.
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ROBERT L. HOLLOWAY, JR., JUDGE
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