State of Tennessee v. Joseph Smith ( 2022 )

03/03/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs January 6, 2022
STATE OF TENNESSEE v. JOSEPH SMITH
Appeal from the Criminal Court for Shelby County
No. 14-00334 Chris Craft, Judge
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No. W2021-00290-CCA-R3-CD
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Pro-se petitioner, Joseph Smith, filed an untimely notice of appeal from the Shelby County
Criminal Court’s denial of his motion to correct an illegal sentence pursuant to Tennessee
Rule of Criminal Procedure 36.1. Following our review of the entire record and the briefs
of the parties, we conclude that the interest of justice does not warrant a waiver of the notice
requirement because Petitioner failed to state a colorable claim for relief. Therefore, we
dismiss this appeal as untimely.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
JILL BARTEE AYERS., delivered the opinion of the court, in which CAMILLE R. MCMULLEN
and J. ROSS DYER, JJ., joined.
Joseph Smith, Whiteville, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural Background
Petitioner was arrested on August 6, 2013, for arson. On October 16, 2013, while
in custody, he pled guilty to violation of community supervision, a Class E felony. The
judgment reflects that he was sentenced to a Range I, two-year sentence consecutive to
“Pending Arson Case.” The judgment also reflects jail credit from August 16, 2013, the
day he was placed in jail, to October 16, 2013, the day of his guilty plea.
On July 30, 2014, while still in custody, Petitioner pled guilty to arson, and received
an agreed-upon Range II sentence of ten years to serve in the Tennessee Department of
Correction. In March 2015, the Department of Correction asked the trial court to enter an
amended judgment reflecting the consecutive alignment of the ten-year arson sentence and
the two-year community supervision violation sentence so that Petitioner would not receive
duplicative jail credits. To that end, on March 13, 2015, the trial court entered an amended
judgment for the arson conviction with a notation that the sentence would run consecutive
to “W1300652,” the community supervision violation conviction. The amended judgment
also reflects jail credit from August 16, 2013, to July 30, 2014, the day Petitioner pled
guilty to arson.
On June 2, 2020, Petitioner filed a motion to correct illegal sentence under
Tennessee Rule of Criminal Procedure 36.1 (“Rule 36.1”). In the motion, Petitioner
claimed that his ten-year sentence is illegal because the trial court ran it consecutive to his
“expired” two-year sentence. He alleged that he had served his two-year sentence in the
penal farm before he pled guilty to, and was sentenced in, the arson case, and that there
was no agreement for his ten-year sentence “to run concurrently or consecutively to any
other sentence[.]” On June 8, 2020, the trial court denied the motion without a hearing and
without appointing counsel because Petitioner had failed to state a colorable claim. In
denying the motion, the trial court held that the ten-year sentence was authorized under the
statute and “therefore not illegal and needs no correction.” Petitioner filed an untimely
notice of appeal on March 17, 2021.
Analysis
On appeal, Petitioner has not renewed his assertion that his sentence is illegal. He
claims instead that the trial court erred in denying his Rule 36.1 motion because the
consecutive nature of his sentence was “excessive.” For the first time, he also claims that
his sentence was excessive because he was denied pretrial and post-trial jail credit. The
State contends that the appeal should be dismissed because the notice of appeal was
untimely filed and the interest of justice does not mandate waiver of the filing requirement.
On the merits, the State claims that the trial court properly denied Petitioner’s Rule 36.1
motion because he failed to raise a colorable claim.
Tennessee Rule of Appellate Procedure 4(a) (“Rule 4(a)”) states that the notice of
appeal “shall be filed with and received by the clerk of the trial court within 30 days after
the date of entry of the judgment appealed from[.]” Here, the trial court entered its order
on June 8, 2020, and Petitioner’s notice of appeal was file stamped March 17, 2021, over
nine months after the trial court’s entry of judgment. Petitioner’s notice of appeal was
clearly untimely.
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“[H]owever, in all criminal cases, “the ‘notice of appeal’ document is not
jurisdictional and the filing of such document may be waived in the interest of justice.” Id.
“Waiver is not automatic and should occur only when ‘the interest of justice’ mandates
waiver.” State v. Rockwell, 280 S.W.3d 212, 214 (Tenn. Crim. App. 2007). “In
determining whether waiver is appropriate, this court will consider the nature of the issues
presented for review, the reasons for and the length of the delay in seeking relief, and any
other relevant factors presented in the particular case.” Id. (quoting State v. Markettus L.
Broyld, No. M2005-00299-CCA-R3-CO, 2005 WL 3543415, at *1 (Tenn. Crim. App., at
Nashville, Dec.27, 2005). In this case, it is Petitioner’s burden to establish that a waiver
of the notice of appeal is appropriate. Tenn. R. App. P. 4(a); see also Tenn. R. App. P.
20(g) (“[s]hould timeliness of filing or service become an issue, the burden is on the pro se
litigant to establish compliance with this provision”).
As reasons for the nine-month delay, Petitioner states that the trial court failed to
provide him a certified copy of the case file so that he could prepare his appellate brief,
that he was denied access to the prison law library because he “refus[ed] to be inoculated”
against the COVID-19 virus, and that he was unfamiliar with Rule 4(a) “as a layman in the
practice of law.” While it is true that incarcerated litigants are entitled to some lenity, Rule
4(a) does not however, relieve pro se defendants from the thirty-day filing requirement.
State v. Gailor Paige, No. W2018-02214-CCA-R3-CD, 2019 WL 7288804, at *1 (Tenn.
Crim. App., at Jackson, Dec. 30, 2019) (pro se litigants expected to comply with
substantive and procedural rules that govern conduct of all litigants).
Petitioner’s reasons for the delay do not clarify to the court why it took nine months
to file an appeal. By his own admission, the failure to receive his case file and the denial
of access to the prison library hampered his ability to prepare and file his briefs. Cf.
Crittenden v. State, 978 S.W.2d 929, 932 (Tenn. 1998) (untimely appeal waived in the
interest of justice where appellant initially waived appeal, changed his mind during the
period he lacked counsel, attempted to perfect appeal before limitations period expired by
seeking assistance of counsel, and managed to file a pro se appeal eleven days after the
limitations period had expired). Indeed, this court is aware that Petitioner relied on the
same reasons to request the acceptance of his late-filed initial brief and his late-filed reply
brief. The length of the delay and the reasons for the delay weigh against waiver in this
case.
As for the issues for review, Petitioner challenges the consecutive alignment of his
two-year sentence for violating community supervision and his ten-year sentence for arson.
Petitioner insists that his two-year sentence expired before he pled guilty to the ten-year
sentence for arson. Petitioner is not entitled to relief under Rule 36.1 because he is alleging
an appealable error, not a fatal one. State v. Wooden, 478 S.W.585, 595 (Tenn. 2015);
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State v. Eric Bernard Howard, No. M2019-01900-CCA-R3-CO, 2020 WL 3408794, at *1
(Tenn. Crim. App., at Nashville, June 22, 2020).
Furthermore, Petitioner concedes that his claim for pretrial jail credit is not a
colorable claim under Rule 36.1. Indeed, 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. State v. Brown, 479 S.W.3d 200, 212-13 (Tenn. 2015). In any
event, the judgments of conviction in this case reflect that the trial court awarded Petitioner
pretrial jail credits. Therefore, if the Appellant thinks that his sentences have been
calculated incorrectly or disagrees with the determination of his release eligibility date by
the Department of Correction, the proper avenue for review is through the Uniform
Administrative Procedures Act, not a Rule 36.1 motion. See T.C.A. §§ 4-5-101 to -325.
Petitioner failed to state a colorable claim that his sentence is illegal. Thus, we
conclude that the interest of justice does not mandate waiver of the timely notice of appeal
in this case. Consequently, we dismiss the appeal as untimely. Petitioner is not entitled to
relief.
CONCLUSION
Based upon the foregoing, the petitioner's appeal is dismissed as untimely.
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JILL BARTEE AYERS, JUDGE
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