State of Tennessee v. Reba Nell Woods ( 2017 )


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  •                                                                                          11/29/2017
    IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    Assigned on Briefs August 15, 2017
    STATE OF TENNESSEE v. REBA NELL WOODS
    Appeal from the Criminal Court for Davidson County
    No. 2010-B-1000 Mark J. Fishburn, Judge
    ___________________________________
    No. M2017-00910-CCA-R3-CD
    ___________________________________
    Pro se Defendant, Reba Nell Woods, appeals the denial of her “Motion to Modify
    Judgment,” which was interpreted by the trial court as a motion to reduce sentence
    pursuant to Tennessee Rule of Criminal Procedure 35. In this appeal, the Defendant
    argues that the trial court retained jurisdiction to decide her motion, even though she was
    in custody of the Tennessee Department of Correction. In response, the State contends
    that the Defendant’s motion was untimely by 118 days, an alternative basis upon which
    the trial court relied in denying relief. Upon our review, we affirm the judgment of the
    trial court.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
    CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T.
    WOODALL, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.
    Reba Nell Woods, Nashville, Tennessee, pro se.
    Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
    Attorney General; Glenn R. Funk, District Attorney General; and Janice Norman,
    Assistant District Attorney General, for the appellee, State of Tennessee.
    OPINION
    On June 23, 2011, a Davidson County Criminal Court Jury convicted the
    Defendant of three counts of selling twenty-six grams or more of cocaine within 1,000
    feet of a school and two counts of selling twenty-six grams or more of cocaine within
    1,000 feet of a park. The trial court sentenced her as a Range III, career offender to an
    effective sentence of ninety years’ imprisonment. On direct appeal, this court held that
    the trial court erred by failing to sever counts three, four, and five and reversed and
    remanded those convictions for a new trial on the charges. This court affirmed the
    Defendant’s convictions in counts one and two, which were also remanded to the trial
    court to reflect that the offenses did not occur in a drug-free zone. In addition, this court
    instructed the trial court to consider whether the Defendant’s mandatory thirty-year
    sentences should be served consecutively. See State v. Reba Nell Woods, No. M2012-
    01922-CCA-R3-CD, 
    2013 WL 6406275
    at *1 (Tenn. Crim. App. Dec. 9, 2013). On
    remand, the trial court resentenced the Defendant on June 29, 2016, to concurrent
    sentences of thirty years’ incarceration in counts one and two, to be served consecutively
    to an unrelated parole violation.
    On February 27, 2017, the Defendant filed the instant pro se “Motion to Modify
    Judgment,” which failed to cite any legal authority or basis upon which relief was sought.
    The four paragraph motion asserted as follows:
    Petitioner was sentenced to thirty years at 60% as a Range III
    offender. Petitioner submits that her charges are to be served concurrently
    however she was previously sentenced as a Range III offender at a 45%
    range. The Petitioner was resentenced on June 29, 2016 pursuant to the
    Court of Criminal Appeals opinion under citation M2012-019222-CCA-
    R3-CD. Both active charges are under case number 2010-B-1000, counts 1
    and 2, are to be run concurrent to each other and to run consecutive to case
    numbers 99-D-2260 and 99-B-867. The Petitioner submits that both of
    these charges have since expired, the respective expiration dates being
    December 14, 2015 for case number 99-D-2260 and December 23, 2011 for
    case number 99-B-867.
    Petitioner . . . is eligible to be sentence[d] at a 45% range under the
    Tennessee Sentencing Guidelines for a Range III offender. The Petitioner
    submits that she would also be subject to mandatory minimum sentencing
    under Federal Sentencing Guidelines.
    Petitioner has been disciplinary free since 2012. The Petitioner has
    taken her incarceration seriously and has tried to maintain a good behavior
    record and attends school working on obtaining her education.
    WHEREFORE, premises considered, the Petitioner hereby
    respectfully requests that her judgment be modified to allow for her all of
    her charges to [sic] served as a Range III offender where all charges would
    be served at a forty-five percent (45%) range.
    Interpreting the above motion as a request for modification of sentence pursuant to
    Rule 35 of the Tennessee Rules of Criminal Procedure, the trial court denied relief by
    -2-
    written order on March 7, 2017, reasoning that the Defendant’s motion was untimely and
    that it no longer retained jurisdiction of the Defendant based on Tennessee Code
    Annotated Section 40-35-314(c). The Defendant filed a timely notice of appeal on May
    4, 2017.
    ANALYSIS
    On appeal, the Defendant argues that she should be sentenced at 45% release
    eligibility rather than at 60% release eligibility, and she asserts that the trial court has
    jurisdiction to consider whether her 30-year concurrent sentence for counts 1 and 2
    should have been imposed consecutive to an unrelated parole violation. The State
    responds that the Defendant’s motion was untimely and that, regardless, the trial court
    did not abuse its discretion in declining to reduce the Defendant’s sentence under Rule
    35. We agree with the State.
    Rule 35 provides:
    (a) Timing of Motion. The trial court may reduce a sentence upon motion
    filed within 120 days after the date the sentence is imposed or probation is
    revoked. No extensions shall be allowed on the time limitation. No other
    actions toll the running of this time limitation.
    (b) Limits of Sentence Modification. The court may reduce a sentence only
    to one the court could have originally imposed.
    Tenn. R. Crim. P. 35.
    In the Defendant’s brief on appeal, she acknowledges the “clear and concise time
    limit” of Rule 35; but she insists that her motion was not based on Rule 35. However, in
    the next sentence she argues that “due to her case being reviewed by the Court of
    Criminal Appeals she would not have been eligible for a Rule 35 motion.” To further
    complicate our understanding of the precise issue presented, the Defendant cites post-
    conviction procedure and harmless error authority as her standard of review. Under these
    circumstances, we agree with the trial court and interpret the Defendant’s motion as one
    for a reduction or suspension in sentence. We further conclude that the Defendant’s Rule
    35 motion was not filed within the mandatory 120-day time period following
    resentencing as required by Rule 35(a). The record clearly shows that the Defendant was
    resentenced on June 29, 2016, and that the 120-day time period for filing a Rule 35
    motion expired on October 27, 2016. The instant motion requesting relief was not filed
    until February 21, 2017, approximately 117 days after the 120-day deadline had lapsed.
    We are bound by Rule 35(a), which explicitly states that no extensions to this 120-day
    -3-
    limitation period shall be allowed and that no other actions toll the running of this time
    limitation. Accordingly, the trial court properly denied the Defendant’s motion as
    untimely, and she is not entitled to relief.
    CONCLUSION
    For the foregoing reason, the judgment of the trial court is affirmed.
    ____________________________________
    CAMILLE R. MCMULLEN, JUDGE
    -4-
    

Document Info

Docket Number: M2017-00910-CCA-R3-CD

Judges: Judge Camille R. McMullen

Filed Date: 11/29/2017

Precedential Status: Precedential

Modified Date: 11/29/2017