State of Tennessee v. Andre Cabrere ( 2020 )

09/01/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs July 8, 2020
STATE OF TENNESSEE v. ANDRE CABRERE
Appeal from the Criminal Court for Shelby County
No. 13-02319 John Wheeler Campbell, Judge
___________________________________
No. W2019-02093-CCA-R3-CD
___________________________________
The defendant, Andre Cabrere, appeals the trial court’s entry of corrected judgment forms
removing pretrial jail credits from two of the defendant’s consecutive sentences without
providing the defendant notice prior to doing the same. The defendant claims the pretrial
credits were part of his negotiated plea agreement. However, based on our review of the
record and the briefs of the parties, it is unclear whether the awarding of pretrial credits
was part of the defendant’s negotiated plea or a clerical error such that the trial court had
the authority to amend the judgments under Tennessee Rule of Criminal Procedure 36.
Accordingly, we reverse the judgments of the trial court and remand the case to allow the
defendant the opportunity to respond and present proof of his claim.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed
and Remanded
J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS,
P.J., and ROBERT W. WEDEMEYER, J., joined.
Andre Cabrere, Mountain City, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior 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 History
In May 2013, a Shelby County grand jury indicted the defendant for attempted
second-degree murder (Count 1), aggravated assault (Count 2), carjacking (Count 4),
evading arrest in a motor vehicle (Count 6), and two counts of employing a firearm during
the commission of a dangerous felony, to wit: attempted second-degree murder and
carjacking (Counts 3 and 5).
On October 17, 2013, the defendant pled guilty to attempted second-degree murder,
carjacking, and two counts of employing a firearm during the commission of a dangerous
felony. Per the plea agreement, the defendant agreed to sentences of eight years for
attempted second-degree murder and carjacking and three years for each count of
employing a firearm during the commission of a dangerous felony. The written plea
agreement was silent as to consecutive and concurrent terms as well as pretrial jail credits.
However, according to the judgment forms entered the day of the defendant’s plea, the trial
court ordered the defendant’s two eight-year sentences (Counts 1 and 4) to be served
concurrently to one another and his two three-year sentences (Counts 3 and 5) to be served
concurrently to one another. The defendant’s three-year sentences were then ordered to be
served consecutive to his eight-year sentences for a total effective sentence of eleven years.
The judgment forms also note the defendant was awarded pretrial jail credit from October
30, 2012 through October 17, 2013 (353 days), on each of his four sentences.
On September 19, 2019, citing Fredrick Sledge v. Tennessee Department of
Correction, et al., No. M2014-02564-COA-R3-CV, 2015 WL 7428578 (Tenn. Ct. App.
Nov. 20, 2015), no perm. app. filed, the trial court, without notice to the defendant,
amended the judgments in Counts 3 and 5 by removing the awarded pretrial jail credits to
those sentences.
On November 18, 2019, the defendant filed with this Court a document entitled
“Appellate Brief Re: Objection to Amended Judgment Possession of Firearm, Counts 3
and 5, Case #1302319.” While the record contains no document styled “Notice of Appeal”
and the defendant’s initial pleading in this Court was filed beyond the 30-day time limit
for filing a notice of appeal, the defendant’s initial pleading is sufficient to constitute a
notice of appeal pursuant to Tennessee Rule of Appellate Procedure 3(f), and this Court
can, and does, waive the timeliness requirement in the interest of justice pursuant to
Tennessee Rule of Appellate Procedure 4(a).
Analysis
On appeal, the defendant contends the trial court erred in amending his judgments
in Counts 3 and 5 by removing his pretrial jail credits. He argues that the awarding of
pretrial jail credits to all of his sentences was part of his negotiated plea agreement and that
duplicative jail credit is not “illegal”; therefore, this was not a clerical error allowing the
trial court jurisdiction to amend the judgements. The State argues the defendant failed to
provide any proof supporting his claim that jail credits were part of his negotiated
-2-
agreement, and therefore, the trial court properly corrected the erroneous awarding of
duplicative credits. Though the record, as currently constructed, does not provide proof
concerning the terms of the defendant’s plea agreement, i.e., the transcript from the
defendant’s plea and sentencing hearing, such is the case because the trial court amended
the defendant’s judgments without notice to the defendant and without providing the
defendant the opportunity to make a record. Because the erroneous awarding of pretrial
jail credit on consecutive sentences does not render the sentences illegal under habeas
corpus or Tennessee Rule of Criminal Procedure 36.1, we reverse the judgments of the trial
court and remand the matter in order to allow the trial court the opportunity to make a
record regarding the basis of its decision to remove the pretrial jail credits and to allow the
defendant, after receiving notice, the opportunity to dispute whether the award of pretrial
jail credits was a clerical error on the original judgment.
A judgment of conviction becomes final thirty days after its entry unless a timely
notice of appeal or post-trial motion is filed. State v. Pendergrass, 937 S.W.2d 834, 837
(Tenn. 1996). Once a judgment becomes final, a trial court loses jurisdiction to amend it
except under certain circumstances. Id. (citing State v. Moore, 814 S.W.2d 381, 382 (Tenn.
Crim. App. 1991)); see Tenn. R. Crim. P. 35 (motion for reduction of sentence), 36
(correction of clerical errors), 36.1 (correction of illegal sentences). Erroneous judgments
that do not fall into the category of either clerical errors or illegal sentences may be
addressed only on direct appeal. See generally Cantrell v. Easterling, 346 S.W.3d 445,
449-453 (Tenn. 2011) (distinguishing clerical errors, appealable errors, and fatal errors).
Under Tennessee Rule of Criminal Procedure 36, “[a]fter giving any notice it
considers appropriate, the court may at any time correct clerical mistakes in judgments,
orders, or other parts of the record, and errors in the record arising from oversight or
omission.” “Where a trial court fails, by reason of clerical mistake, oversight, or omission,
to record a defendant’s sentence accurately on a judgment, the trial court maintains the
power to correct the clerical error under Rule 36.” State v. Brown, 479 S.W.3d 200, 213
(Tenn. 2015). “To determine whether the judgment contains a clerical error, a court
ordinarily must compare the judgment with the transcript of the trial court’s oral
statements,” which is controlling. Id. As this Court has previously explained:
“[T]he record in the case must show that the judgment entered omitted
a portion of the judgment of the court or that the judgment was erroneously
entered. The most reliable indicator that clerical error was made is the
transcript of the hearing or other papers filed in connection with the
proceedings which show the judgment was not correctly entered. In the
absence of these supporting facts, a judgment may not be amended under the
clerical error rule after it has become final.”
-3-
State v. Hobert Dean Davis, No. E2000-02879-CCA-R3-CD, 2002 WL 340597, at *3
(Tenn. Crim. App. Mar. 4, 2002) (quoting State v. Jack Lee Thomas, Jr., No. 03C01-9504-
CR-00109, 1995 WL 676396, at *1 (Tenn. Crim. App. Nov. 15, 1995), no perm. app.
filed.).
Whenever a defendant receives a sentence of imprisonment,
the trial court shall . . . render the judgment of the court so as to allow the
defendant credit on the sentence for any period of time for which the
defendant was committed and held in the city jail or juvenile court detention
. . . or county jail or workhouse, pending arraignment and trial. The
defendant shall also receive credit on the sentence for the time served in the
jail, workhouse or penitentiary subsequent to any conviction arising out of
the original offense for which the defendant was tried.
Tenn. Code Ann. § 40-23-101(c). The awarding of pretrial jail credits is mandatory. See
Brown, 479 S.W.3d at 212. However, the statute does not address how pretrial jail credit
should be applied to multiple convictions stemming from the same period of confinement.
See Dericko Jackson v. Michael Donahue, Warden, No. W2013-01718-CCA-R3-HC, 2014
WL 2547764, at *4 (Tenn. Crim. App. May 30, 2014), perm. app. denied (Tenn. Oct. 15,
2014). This Court has held that when the trial court orders concurrent alignment of the
sentences, the award of pretrial jail credits should be included on each judgment to provide
the full benefit of the credits against the aggregate sentence. State v. Henry, 946 S.W.2d
833, 835 (Tenn. Crim. App. 1997) (“To allow pretrial jail credit in only one case would
contravene the concurrent sentences and effectively require [the defendant] to serve a
longer sentence on the second charge.”). On the other hand, several unpublished opinions
have held that a defendant ordered to serve consecutive sentences is only entitled to pretrial
jail credit on the first sentence. See, e.g., Timothy L. Dulworth v. Henry Steward, Warden,
No. W2012-00314-CCA-R3-HC, 2012 WL 2742210, at *2 (Tenn. Crim. App. July 9,
2012) (citing Marvin Rainer v. David G. Mills, Warden, No. W2004-02676-CCA-R3-HC,
2006 WL 156990, at *5 (Tenn. Crim. App. Jan. 20, 2006), no perm. app. filed; State v.
Darrell Phillips, No. W2005-00154-CCA-R3-CD, 2005 WL 3447706, at *1 n.1 (Tenn.
Crim. App. Dec. 16, 2005), perm. app. denied (Tenn. May 1, 2006); Hobert Dean Davis,
2002 WL 340597, at *3), no perm. app. filed. “The effect of consecutive awards of the full
amount of pretrial jail credit would be to double the credit.” Id. (citing State v. Joyce
Elizabeth Cleveland, No. M2005-02783-CCA-R3-CD, 2006 WL 2682821, at *2 (Tenn.
Crim. App. Sept. 14, 2006), no perm. app. filed ). “‘An inmate may not “double-dip” for
credits from a period of continuous confinement.’” Id. (quoting Marvin Rainer, 2006 WL
156990, at *5). However, the erroneous awarding of pretrial jail credit on consecutive
sentences does not render the sentences illegal under habeas corpus or Tennessee Rule of
Criminal Procedure 36.1. See Dericko Jackson, 2014 WL 2547764, at *5 (concluding that
-4-
duplicitous pretrial jail credit was not in direct contravention of a statute and, therefore, not
“illegal” as that term has been defined). Therefore, the only means by which a trial court
may correct the erroneous award of duplicate pretrial jail credit on consecutive sentences
after the judgments have become final is if such an award was a clerical error while
transcribing the sentence on the judgment form. Id. (“If a judgment is final and is not
illegal, and does not contain a ‘clerical error,’ it must be followed as it is written.”); State
v. Steve A. White, No. W2003-01947-CCA-R3-CD, 2004 WL 2381731, at *3 (Tenn. Crim.
App. Oct. 25, 2004) (“[W]hile a sentence in direct contravention of a statute is illegal and
void, a final judgment which, although incorrect, is in conformity with an applicable statute
is not subject to amendment.”), no perm. app. filed; Hobert Dean Davis, 2002 WL 340597,
at *3 (“[T]he trial court does not have jurisdiction to correct a substantive error in a
judgment . . . after it becomes final.”).
Unfortunately, in the instant matter, the record is silent as to whether or not the
awarding of pretrial credits to each of the defendant’s sentences was part of the negotiated
plea agreement or just a clerical error made when transcribing the defendant’s sentences
on the judgment forms. The record does not contain a transcript of the defendant’s guilty
plea or sentencing hearing. And, despite the State’s claim that the lack of a sufficient
record is the fault of the defendant, we note the trial court amended the defendant’s
judgments without notice to the defendant which, in turn, precluded the defendant from
responding or attempting to provide proof in support of his claim that the pretrial credits
on each of his sentences was a condition of his plea agreement. Further, the corrected
judgments fail to explain the basis for removing the defendant’s pretrial credits in Counts
3 and 5. While the trial court references Fredrick Sledge v. Tennessee Department of
Correction, et al., No. M2014-02564-COA-R3-CV, 2015 WL 7428578 (Tenn. Ct. App.
Nov. 20, 2015), the trial court’s notation fails to address the basis for the amendment.
Sledge does not stand for the proposition that a trial court can amend a judgment and
remove pretrial credits in every case. Rather, in Sledge, the Court of Appeals determined
the Tennessee Department of Correction could not alter or amend the judgment of a trial
court even if the judgment wrongfully awarded pretrial jail credits. Fredrick Sledge, 2015
WL 7428578, at *4.
Again, this Court has held that a defendant ordered to serve consecutive sentences
is only entitled to pretrial jail credit on the first sentence. See Timothy L. Dulworth¸ 2012
WL 2742210, at *2. However, the erroneous awarding of pretrial jail credit on consecutive
sentences does not render the sentences illegal under habeas corpus or Tennessee Rule of
Criminal Procedure 36.1. See Dericko Jackson, 2014 WL 2547764, at *5 (concluding that
duplicitous pretrial jail credit was not in direct contravention of a statute and, therefore, not
“illegal” as that term has been defined). Therefore, the only means by which a trial court
may correct the erroneous award of duplicate pretrial jail credit on consecutive sentences
after the judgments have become final is if such an award was a clerical error while
-5-
transcribing the sentence on the judgment form. Id. (“If a judgment is final and is not
illegal, and does not contain a ‘clerical error,’ it must be followed as it is written.”); State
v. Steve A. White, No. W2003-01947-CCA-R3-CD, 2004 WL 2381731, at *3 (Tenn. Crim.
App. Oct. 25, 2004) (“[W]hile a sentence in direct contravention of a statute is illegal and
void, a final judgment which, although incorrect, is in conformity with an applicable statute
is not subject to amendment.”), no perm. app. filed; Hobert Dean Davis, 2002 WL 340597,
at *3 (“[T]he trial court does not have jurisdiction to correct a substantive error in a
judgment . . . after it becomes final.”).
Based on the record before us, we cannot determine whether or not the defendant
was awarded pretrial jail credits as a part of his negotiated plea agreement or as the result
of a clerical error in transcribing the defendant’s sentence on the judgment forms.
Accordingly, we reverse the judgments of the trial court and remand the matter in order to
allow the trial court the opportunity to make a record regarding the basis of its decision to
remove the pretrial jail credits and to allow the defendant, after receiving notice, the
opportunity to dispute whether the award of pretrial jail credits was a clerical error on the
original judgment.
Conclusion
Based upon the foregoing authorities and reasoning, we reverse the the judgments
of the trial court and remand the matter for a hearing consistent with this opinion.
____________________________________
J. ROSS DYER, JUDGE
-6-