State of Tennessee v. Elgene K. Porter ( 2021 )

04/19/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs December 9, 2020
STATE OF TENNESSEE v. ELGENE K. PORTER
Appeal from the Circuit Court for Rutherford County
No. F-61561-A Barry R. Tidwell, Judge
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No. M2020-00522-CCA-R3-CD
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The Petitioner, Elgene K. Porter, acting pro se, appeals the summary dismissal of his
“Motion to Correct and/or Amend Sentence” pursuant to Rule 36.1 of the Tennessee Rules
of Criminal Procedure. Upon our review, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and ALAN E. GLENN, J., joined.
Elgene K. Porter, Only, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Assistant Attorney General; Jennings H. Jones, District Attorney General; and J. Paul
Newman, Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
In July 2009, a Rutherford County Circuit Court jury convicted the Petitioner of
conspiracy to commit aggravated burglary, attempted aggravated robbery, aggravated
burglary, two counts of aggravated kidnapping, and aggravated rape. The Petitioner was
sentenced to three years at thirty percent for the conspiracy to commit aggravated burglary
conviction, five years at thirty percent for the aggravated burglary conviction, five years at
thirty percent for the attempted aggravated burglary conviction, ten years at one hundred
percent for each aggravated kidnapping conviction, and twenty-two years at one hundred
percent for the aggravated rape conviction. The sentences for aggravated kidnapping and
aggravated rape ran consecutive to one another, with all other counts running concurrent
to each other, for an effective sentence of forty-two years.
The Petitioner’s convictions and sentences were affirmed on direct appeal. State v.
Elgene Porter, No. M2009-02443-CCA-R3-CD, 2011 WL 915673, at *1 (Tenn. Crim.
App. Mar. 14, 2011), perm. app. denied, (Tenn. May 25, 2011). The Petitioner argued, in
part, that the trial court erred in its application of various enhancement factors and that, as
a result, the trial court erred in setting the length of his sentences and ordering partially
consecutive sentencing. Id. at *1, *9. This court found that although some enhancement
factors were “misapplied to the Defendant’s convictions” the “remaining enhancement
factors the trial court found [were] more than sufficient to support the Defendant’s
sentences.” Id. at *10. Additionally, this court held that the trial court properly imposed
partially consecutive sentencing “based on its finding that the Defendant was being
sentenced for offenses committed while on probation” and the “severity of the offenses
involved[.]” Id. at *11.
In 2013, the Petitioner filed a petition for post-conviction relief, alleging that he
received ineffective assistance of counsel. Elgene Porter v. State, No. M2012-011390-
CCA-R3-PC, 2013 WL 1197730, at *1 (Tenn. Crim App. Mar. 26, 2013), perm. app.
denied, (Sept. 11, 2013). The post-conviction court, after an evidentiary hearing, denied
relief. Id. This court affirmed the denial, and the Tennessee Supreme Court denied the
Petitioner’s application for permission to appeal. Id.On January 27, 2020, the Petitioner filed a “Motion to Correct and/or Amend
Sentence” pursuant to Tennessee Rules of Criminal Procedure 36.1. In the motion, the
Petitioner appears to argue he was illegally sentenced as a violent offender, with a release
eligibility of one hundred percent, for his aggravated kidnapping and aggravated rape
convictions. The Petitioner contended that he was entitled to be sentenced as a Range I,
Standard Offender with a release eligibility of thirty percent. On March 9, 2020, by written
order, the trial court summarily denied the Petitioner’s motion, reasoning, in pertinent part,
that the Petitioner’s 42-year sentence was within the range of sentencing permissible by
the Sentencing Reform Act and that the Petitioner failed to state a colorable claim for Rule
36.1 relief. It is from this order that the Petitioner now timely appeals.
ANALYSIS
In this appeal, the Petitioner reiterates his claim that he was illegally sentenced as a
violent offender with a release eligibility of one-hundred percent for his aggravated
kidnapping and aggravated rape convictions, and that he was entitled to be sentenced as a
Range I, Standard Offender with a thirty percent release eligibility. The State asserts that
the dismissal of the Petitioner’s motion was appropriate because he failed to state a
colorable claim for relief under Tennessee Rules of Criminal Procedure 36.1. We agree
with the State.
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Pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure, “[e]ither the
defendant or the state may, at any time, seek the correction of an illegal sentence[.]” Tenn.
R. Crim. P. 36.1(a). “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.” Id.A petitioner is only entitled to a hearing and appointment of counsel “[i]f the motion states
a colorable claim that the sentence is illegal.” 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). This court has stated that a colorable claim “‘is a claim . . . that,
if taken as true, in the light most favorable to the [petitioner], would entitle [the petitioner]
to relief[.]’” State v. David A. Brimmer, No. E2014-01393-CCA-R3-CD, 2014 WL
201759, at *2 (Tenn. Crim. App. Dec. 18, 2014) (citing and quoting State v. Mark Edward
Greene, No. M2013-02710-CCA-R3-CD, 2014 WL 3530960, at *3 (Tenn. Crim. App. July
16, 2014)); Tenn. Sup. Ct. R. 28 § 2(H).
The Petitioner claims that his sentence is illegal because the trial court improperly
classified him as a violent offender. However, it is well-established that an alleged error
in offender classification should be raised on direct appeal.1 See Cantrell v. Easterling,
346 S.W.3d 445, 449-53 (Tenn. 2011), perm. app. denied, (Tenn. Nov. 19, 2014)
(distinguishing between “appealable errors” and “fatal errors” in sentencing and noting that
“if a defendant is aggrieved by the trial court’s determination that he is a multiple offender,
he may raise this issue on direct appeal.”); see also State v. Jonathan T. Deal, No. E2013-
02623-CCA-R3-CD, 2014 WL 2802910, at *2 (Tenn. Crim. App. June 17, 2014)
(explaining that Rule 36.1 provides a means for correcting an illegal sentence as finally
imposed, not the methodology by which the sentence is imposed); State v. Robert B.
Ledford, No. E2014-01010-CCA-R3-CD, 2015 WL 757807, at *2 (Tenn. Crim. App. Feb.
23, 2015), perm. app. denied (Tenn. June 12, 2015) (stating that “an error in the offender
classification does not create a sentence that is not authorized by the applicable statutes or
that directly contravenes an applicable statute.”). Accordingly, the Petitioner’s claim is not
within the purview of Tennessee Rule of Criminal Procedure Rule 36.1.
Additionally, the Petitioner’s sentences for aggravated kidnapping and aggravated
rape are within the statutorily authorized ranges for these offenses. The Petitioner correctly
notes that he is a Range I, standard offender, a designation that would generally entitle him
to a thirty percent release eligibility. “As with most general rules, however, there are
exceptions.” Davis v. State, 313 S.W.3d 751, 757 (Tenn. 2010). A defendant convicted
of one of the felonies enumerated in Tennessee Code Annotated section 40-35-501(i)(2) is
“not eligible for early release on parole[,]” regardless of their offender designation. Id.1
As previously noted, on direct appeal, the Petitioner challenged the length of his sentences and
the imposition of partially consecutive sentencing. However, the Petitioner did not challenge his designation
as a violent offender. State v. Elgene Porter, No. M2009-02443-CCA-R3-CD, 2011 WL 915673, at *1, *9
(Tenn. Crim. App. Mar. 14, 2011), perm. app. denied (Tenn. May 25, 2011).
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Both aggravated kidnapping and aggravated rape are felonies enumerated in this section.
Tenn. Code Ann. § 40-35-501(i)(2)(D), (F) (2020). “[O]n the uniform judgment document
completed for each offense, release eligibility for most of these offenses is indicated by a
box labeled ‘Violent 100%.’” Id. The Petitioner’s aggravated kidnapping and aggravated
rape judgment forms follow this requirement. Accordingly, the Petitioner has failed to
state a colorable claim under Rule 36.1, and he is not entitled to relief.
CONCLUSION
Based on the above reasoning and authority, we affirm the judgment of the trial
court.
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CAMILLE R. MCMULLEN, JUDGE
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