        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs December 15, 2015


                 STATE OF TENNESSEE v. CHARLES SPEED

                 Appeal from the Criminal Court for Shelby County
                   No. 130331821    James C. Beasley, Jr., Judge




               No. W2015-00473-CCA-R3-CD - Filed March 18, 2016
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The defendant, Charles Speed, appeals the denial of his Rule 36.1 motion to correct what
he alleges is an illegal sentence. He argues that his sentence is illegal because the State
never filed a noticed to seek an enhanced sentence within ten days of the entry of his
guilty plea. Following our review, we affirm the judgment of the trial court.


              Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which D. KELLY
THOMAS, JR., J., joined. ROGER A. PAGE, J., not participating.

Monica A. Timmerman, Memphis, Tennessee, for the Appellant, Charles Speed.

Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Alanda Dwyer,
Assistant District Attorney General, for the Appellee, State of Tennessee.


                                       OPINION

                      FACTS AND PROCEDURAL HISTORY

       The defendant pled guilty to four counts of aggravated robbery in exchange for an
eighteen-year sentence as a Range II offender to be served with 100% release eligibility
for each conviction. He pled guilty to one count of aggravated assault in exchange for a
fifteen-year sentence as a Range III offender. He pled guilty to one count of attempted
aggravated robbery in exchange for a fifteen-year sentence as a Range III offender. The
trial court ordered the sentences to be served concurrently for an effective sentence of
eighteen years.

        The defendant filed a motion to correct an illegal sentence arguing that the State
failed to provide him with adequate notice of its intent to seek an enhanced punishment.
The trial court appointed counsel, who filed an amended motion.

       The trial court held a hearing on the motion, and the only evidence presented was
the arguments of defense counsel and the prosecutor. Defense counsel argued that the
State failed to provide notice of its intent to seek an enhanced sentence, which rendered
the defendant‟s Range II sentences voidable. Counsel argued that the appropriate remedy
was for the trial court to vacate the defendant‟s guilty pleas and sentence him as a Range
I offender. The State responded that because the defendant pled guilty in exchange for a
negotiated plea agreement, a notice seeking an enhanced sentence was not required.

        The trial court orally denied the motion. The court found that any issue with
regard to notice was waived when the defendant entered his guilty pleas. The court found
that the notice requirement statute cited by the defense referred to open-ended pleas and
trials. The court found that the defendant‟s guilty pleas were proof that he knowingly and
voluntarily waived his right to the notice. The court noted that any claims regarding the
voluntariness of the defendant‟s guilty pleas had to be addressed under post-conviction
procedures. The court found that the defendant‟s arguments that his sentences were void
or voidable under Rule 36.1 were “misplaced.”

       After orally denying the motion on January 29, 2015, the trial court entered a
written order denying the motion on January 30, 2015. The defendant‟s notice of appeal
was filed on March 3, 2015.

                                        ANALYSIS

        The defendant argues that his sentences are illegal because the State did not file a
notice to seek an enhanced punishment. He acknowledges that his sentences are merely
voidable and not void, but he argues that his pleas should be set aside as a matter of
policy because there is no indication that he voluntarily waived his right to notice of an
enhanced punishment. The State responds that that the appeal should be dismissed for
failure to file a timely notice of appeal and that the trial court properly denied the motion.

       Tennessee Rule of Appellate Procedure 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 defendant filed a notice of appeal on
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March 3, 2015, more than 30 days after the trial court entered its order denying the
motion to correct an illegal sentence. In criminal cases, however, “the „notice of appeal‟
document is not jurisdictional and the filing of such document may be waived in the
interest of justice.” Tenn. R. App. P. 4(a).         “In determining whether waiver is
appropriate this Court shall consider the nature of the issues for review, the reasons for
the delay in seeking relief, and other relevant factors presented in each case.” Michelle
Pierre Hill v. State, No. 01C01-9506-CC-00175, 1996 WL 63950, at *2 (Tenn. Crim.
App. Feb. 13, 1996). “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).

        Tennessee Rule of Criminal Procedure 36.1 provides that the defendant may “seek
the correction of an illegal sentence by filing a motion to correct an illegal sentence in the
trial court in which the judgment of conviction was entered.” Tenn. R. Crim. P. 36.1(a).
Our supreme court recently stated that the definition of an “illegal sentence” in Rule 36.1
was “coextensive with . . . the definition of the term in the habeas corpus context.” State
v. James D. Wooden, − S.W.3d − 2015 WL 7748034, at *7 (Tenn. Dec. 2, 2015). The
court stated that illegal sentences “are 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. Here, the defendant‟s sentences do not meet any of the
criteria within this definition. He was sentenced to eighteen years as a Range II offender
for a Class B felony, which is a sentence authorized by statute. See State v. Michael
Christopher Bigbee, No. M2014-01999-CCA-R3-CD, 2015 WL 5968524, at *2 (Tenn.
Crim. App. Oct. 14, 2015) (rejecting a defendant‟s claim that the State‟s failure to file a
notice seeking enhanced punishment rendered his Range II sentence illegal “because: (1)
a Range II sentence is authorized by statute, and (2) a Range II sentence does not directly
contravene any statute.”), no perm. app. filed. Additionally, the defendant‟s claim that
the lack of adequate notice prevented him from making an informed decision to plead
guilty goes to the knowing and voluntary nature of the plea and would render the
judgment merely voidable. John J. Kratochvil v. James M. Holloway, Warden, No.
M2014-00600-CCA-R3-HC, 2014 WL 5428836, at *2 (Tenn. Crim. App. Oct. 27, 2014)
(concluding that in the context of a habeas corpus petition, “the State‟s failure to provide
a notice of enhanced punishment would likewise render the judgment voidable, not void,
and would not afford the petitioner habeas corpus relief.”), perm. app. denied (Tenn. Feb.
13, 2015). The defendant has not stated a colorable claim for relief, and we conclude that
the interest of justice does not require a waiver of the requirement of filing a timely
notice of appeal.


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                                  CONCLUSION

       Based upon the foregoing, we conclude that the defendant‟s appeal was untimely
and dismiss the appeal.




                                             _________________________________
                                             JOHN EVERETT WILLIAMS, JUDGE




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