                                                                                      05/01/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE

               STATE OF TENNESSEE v. JENALINE N. FISHER

                Appeal from the Criminal Court for Davidson County
                   No. 2003-C-1791    Cheryl Blackburn, Judge


                             No. M2017-02223-CCA-R3-CD
                           _____________________________

The Appellant, Jenaline Fisher, is appealing the trial court’s denial of her motion to
correct an illegal sentence. The State has filed a motion asking this Court to affirm
pursuant to Court of Criminal Appeals Rule 20. Said motion is hereby granted.

Tenn. R. App. P. 3 Appeal as of Right; Order of the Trial Court Affirmed Pursuant
                      to Court of Criminal Appeals Rule 20

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which ROBERT L.
HOLLOWAY, JR. and TIMOTHY L. EASTER, JJ. joined.

Jenaline Fisher, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel,
for the Appellee, State of Tennessee.


                              MEMORANDUM OPINION


       In March 2004, the Appellant pleaded guilty to the lesser included offense of
second degree murder in one count of a three-count indictment. The remaining counts
were dismissed as part of the plea agreement, as were several other charges. The
Appellant agreed to an out-of-range sentence of thirty years to be served at 100% as a
violent offender. There was no direct appeal. The Appellant was unsuccessful with her
subsequent post-conviction attempt to challenge the voluntariness of her plea. Jenaline
N. Fisher v. State, No. M2005-02651-CCA-R3-PC, 2006 WL 2716872 (Tenn. Crim.
App. Sep. 25, 2006), perm. app. denied (Tenn. Dec. 18, 2006). She also failed in her
pursuit of habeas corpus relief in 2007. No appeal was taken therefrom. In September
2017, the Appellant filed a motion to correct an alleged illegal sentence. See Tenn. R.
Crim. P. 36.1. The trial court summarily denied the motion. The Appellant now appeals.
Following the filing of the record on appeal and the Appellant’s brief, the State filed a
motion to affirm the ruling of the trial court pursuant to Rule 20. For the reasons stated
below, said motion is hereby granted.

       In the motion the Appellant filed in the trial court, she argued that her guilty plea
was not made knowingly, voluntarily and intelligently. She also claimed that her
sentence is illegal. The trial court ruled that the Appellant’s challenge to the
voluntariness of her plea was previously litigated and otherwise was not a cognizable
claim for relief pursuant to Rule 36.1. As to the validity of her sentence, the court held it
was within the appropriate range for the offense class and that the Appellant waived any
irregularity as to offender classification or release eligibility by entering into a knowing
and voluntary plea.

       Rule 36.1 permits a defendant to seek correction of an unexpired illegal sentence
at any time. See State v. Brown, 479 S.W.3d 200, 211 (Tenn. 2015). “[A]n illegal
sentence is one that is not authorized by the applicable statutes or that directly
contravenes an applicable statute.” Tenn. R. Crim. P. 36.1(a). Our supreme court
recently interpreted the meaning of “illegal sentence” as defined in Rule 36.1 and
concluded that the definition “is coextensive, and not broader than, the definition of the
term in the habeas corpus context.” State v. Wooden, 478 S.W.3d 585, 594-95 (Tenn.
2015). The court then reviewed the three categories of sentencing errors: clerical errors
(those arising from a clerical mistake in the judgment sheet), appealable errors (those for
which the Sentencing Act specifically provides a right of direct appeal) and fatal errors
(those so profound as to render a sentence illegal and void). Id. Commenting on
appealable errors, the court stated that those “generally involve attacks on the correctness
of the methodology by which a trial court imposed sentence.” Id. In contrast, fatal errors
include “sentences imposed pursuant to an inapplicable statutory scheme, sentences
designating release eligibility dates where early release is statutorily prohibited, sentences
that are ordered to be served concurrently where statutorily required to be served
consecutively, and sentences not authorized by any statute for the offenses.” Id. The
court held that only fatal errors render sentences illegal. Id. A trial court may summarily
dismiss a Rule 36.1 motion if it does not state a colorable claim for relief. Tenn. R. Crim.
P. 36.1(b)(2).

        A defendant and the State may negotiate offender classifications, and even release
eligibility, because they “are non-jurisdictional and legitimate bargaining tools in plea
negotiations under the Criminal Sentencing Reform Act of 1989.” Bland v. Dukes, 97
S.W.3d 133, 134 (Tenn. Crim. App. 2002). The current case is an obvious situation
where the Appellant entered into an agreement to reduce her exposure to the possibility
of convictions for first degree murder and especially aggravated robbery, as well as
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possible convictions on two other charges of felony vandalism and simple assault.
Again, our courts have long-recognized “the ability of the State and defendants to use
offender classification and release eligibility as subjects of plea bargain negotiations”
which “are properly characterized as non-jurisdictional.” McConnell v. State, 12 S.W.3d
795, 798 (Tenn. 2000) (emphasis added). Moreover, “a plea-bargained sentence is legal
so long as it does not exceed the maximum punishment authorized by the plea offense.”
Hoover v. State, 215 S.W.3d 776, 780 (Tenn. 2007). Here, the Appellant pled guilty to
second degree murder, a Class A felony punishable up to sixty years. Tenn. Code Ann. §
40-35-111(b). As a Range II offender, the Appellant could have been sentenced between
twenty-five and forty years. Tenn. Code Ann. § 40-35-112(b). As the trial court
correctly found, the Appellant’s sentence of thirty years does not exceed the maximum
sentence authorized for a Class A felony. Moreover, because she agreed to the sentence,
the trial court was not required to make any findings thereon. State v. John T. Davis, No.
W2015-00445-CCA-R3-CD, 2016 WL 1714875 at *3 (Tenn. Crim. App. Apr. 26, 2016).

       The Appellant’s challenge to the voluntariness of her guilty plea has previously
been determined and does not otherwise state a colorable claim for relief in a Rule 36.1
motion. As this Court has emphasized, Rule 36.1 “provide[s] an avenue for correcting
allegedly illegal sentences. The Rules does not provide an avenue for seeking the
reversal of convictions.” State v. Jimmy Wayne Wilson, No. E2013-02354-CCA-R3-CD,
2014 WL 1285622 (Tenn. Crim. App., Mar. 31, 2014), perm. app. denied, (Tenn., Nov.
19, 2014) (emphases in original).

        In light of the discussion above, we conclude the Appellant’s sentence is not
illegal under the terms of Rule 36.1. Accordingly, the trial court did not err in summarily
denying relief. The ruling of the trial court is therefore affirmed pursuant to Court of
Criminal Appeals Rule 20.



                                   _______________________________________
                                   ROBERT W. WEDEMEYER, JUDGE




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