                                                                                        05/25/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs May 2, 2018

     STATE OF TENNESSEE v. WILLIE JERMAINE CUNNINGHAM

                 Appeal from the Criminal Court for Shelby County
                 No. 97-01278, 97-01279 Glenn Ivy Wright, Judge
                      ___________________________________

                           No. W2017-01134-CCA-R3-CD
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Defendant, Willie Jermaine Cunningham, appeals from the dismissal of several attempts
to receive relief from an “illegal sentence” under Tennessee Rule of Criminal Procedure
36.1. Because Defendant has failed to state a colorable claim for relief, we affirm the
dismissal of the motion for relief.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ALAN E. GLENN and
J. ROSS DYER, JJ., joined.

Lance R. Chism (on appeal) and Sean Muizers (at hearing), Memphis, Tennessee, for the
appellant, Willie Jermaine Cunningham.

Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Muriel Malone and
Austin Scofield, Assistant District Attorneys General, for the appellee, State of
Tennessee.


                                       OPINION

       Over two decades ago, Defendant robbed and kidnapped a female victim in a
Shelby County store parking lot. See State v. Willie J. Cunningham, No. 02C01-9801-
CR-00022, 1999 WL 395415, at *1 (Tenn. Crim. App. June 15, 1999), no perm. app.
filed. As a result of the convictions, Defendant was sentenced to ten years for aggravated
robbery and twenty years for especially aggravated kidnapping. Id. The trial court
ordered the sentences to run consecutively on the basis that Defendant was a dangerous
offender. Id. at *1, *5.
       Defendant appealed, arguing in part that his consecutive sentence were improper.
This Court disagreed, noting that Defendant’s actions of repeatedly threatening the
victim’s life and pointing a gun at the victim’s head on multiple occasions evinced “little
or no regard for human life” and a lack of “hesitation about committing a crime in which
the risk to human life was high.” Id. at *5. This Court also found that both factors in
State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995), applied. The Court commented
that consecutive sentences were “necessary in order to protect the public from further
misconduct,” based on Defendant’s “criminal history and his lack of concern for the life
of his victim.” Id. at *6. Ultimately, this Court concluded that the thirty-year sentence
was reasonably related to the severity of the offenses. Id.

       In 2010, Defendant unsuccessfully sought habeas corpus relief. See Willie J.
Cunningham v. State, No. W2010-00214-CCA-R3-HC, 2010 WL 4215147, at *1 (Tenn.
Crim. App. Oct. 25, 2010), no perm. app. filed. Unsatisfied, Defendant filed a pro se
motion to correct an illegal sentence under Tennessee Rule of Criminal Procedure 36.1 in
November of 2015. In the motion, Defendant claimed that the trial court abused its
discretion by imposing consecutive sentences without making the required finding of the
Wilkerson factors. Counsel was appointed and a short hearing was held in July of 2015.
The trial court determined that there was no “good faith basis [to determine] that his
sentence would be illegal.” The trial court acknowledged this Court’s affirmance of
Defendant’s sentence on direct appeal and was unaware of any change in sentencing law
that would render Defendant’s sentence illegal. As a result, the trial court dismissed the
motion.

        Defendant filed a second motion for relief under Rule 36.1 in April of 2016. The
second motion merely recounted the issues presented in Defendant’s 2015 motion. The
trial court recognized the duplicitous nature of the second motion and promptly dismissed
it for failing to state a colorable claim.

        Defendant filed an untimely notice of appeal and accompanying motion in which
he asked this Court to waive the timely filing of the notice of appeal based on trial
counsel’s failure to inform Defendant that the trial court denied the second motion for
relief under Rule 36.1. This Court granted the waiver of the timely filing of the notice of
appeal.

                                         Analysis

        On appeal, Defendant argues that the trial court improperly dismissed the motion
for relief under Rule 36.1 while conceding that “Rule 36.1 is not the proper avenue for

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attacking a trial court’s methodology in imposing a sentence.” Defendant asks this Court
to make a “change in the law.” We pitilessly decline to do so.

       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)(2). Our supreme court
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 form), 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).

        Defendant has failed to establish a fatal error that would entitle him to the relief he
seeks. Any issue Defendant had with sentencing disparity should have been, and in this
case was, raised on direct appeal. See State v. Gosnell, 62 S.W.3d 740, 750 (Tenn. Crim.
App. 2001) (explaining that although “[o]ur sentencing act is designed to eliminate
unjustified disparity in sentencing and provide for consistent treatment of defendants,”
“each defendant must be viewed individually with regard to the enhancing and mitigating
factors applicable to that defendant.”). Defendant has presented an appealable error,
rather than a fatal error. Additionally, Defendant is essentially attempting to relitigate the
issues he presented on direct appeal. “Rule 36.1 may not be used to relitigate those issues
that have been previously determined.” State v. Ricky Flamingo Brown, No. M2015-
01754-CCA-R3-CD, 2016 WL 987641, at *2 (Tenn. Crim. App. Mar. 15, 2016), perm.
app. denied (Tenn. Aug. 18, 2016). Defendant’s remaining request, for this Court to
somehow change the law with respect to the availability to expand the application of
36.1, is not well-taken. This Court cannot and will not substitute its own policy
judgments for those of the legislature. Frazier v. State, 495 S.W.3d 246, 249 (Tenn.
2016).

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Based on the foregoing, we affirm the denial of relief under Rule 36.1.



                                      ____________________________________
                                      TIMOTHY L. EASTER, JUDGE




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