                                                                                         04/26/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON

                STATE OF TENNESSEE v. ANDRE ANTHONY

                Appeal from the Criminal Court for Shelby County
Nos. 00-00157, 00-00158, 00-00159, 00-00160, 00-00161   Glenn Ivy Wright, Judge
                     ___________________________________

                           No. W2016-02347-CCA-R3-CD
                       ___________________________________


       The Appellant, Andre Anthony, appeals from the trial court’s denial of his motion
to correct an illegal sentence pursuant to Rule 36.1 of the Tennessee Rules of Criminal
Procedure. The State has filed a motion requesting that this Court affirm the trial court’s
judgment pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following
our review, we grant the State’s motion and affirm the judgment of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS
and CAMILLE R. MCMULLEN, JJ., joined.

John P. McNeil, Memphis, Tennessee, for the appellant, Andre Anthony.

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant
Attorney General; Amy Weirich, District Attorney General; and Muriel Malone,
Assistant District Attorney General, for the appellee, State of Tennessee.


                             MEMORANDUM OPINION


       The Appellant was convicted by a Shelby County jury on February 22, 2002, for
two counts of forgery over $500, one count of forgery over $1,000, one count of criminal
attempt to commit first degree murder, and one count of especially aggravated robbery.
After conviction, the trial court sentenced the Appellant to twenty-four years (24) for the
conviction of attempted first degree murder, twenty-two (22) years for the especially
aggravated robbery offense, four (4) years on the Class D felony forgery offense, and two
(2) years on each of the Class E felony forgery offenses. Based on a finding that
Appellant was a dangerous offender, the trial court ordered Appellant to serve his
sentence for especially aggravated robbery consecutively to his sentence for attempt to
commit first degree murder for an effective sentence of forty-six (46) years. On appeal,
this Court affirmed the Appellant’s convictions and sentence. State v. Andre Anthony,
No. W2002-01377-CCA-R3-CD, 2003 WL 23100339 (Tenn. Crim. App. Dec 30, 2003),
perm. app. denied (Tenn. June 1, 2004). The Appellant then filed a petition for post-
conviction relief which was denied by the post-conviction court with said denial being
affirmed on appeal. Andre Anthony v. State, No. W2007-00532-CCA-R3-PC, 2008 WL
763783 (Tenn. Crim App. Aug. 25, 2008), perm. app. denied (Tenn. Aug. 25, 2008).

       The Appellant has now filed an “Application for Dismissal or Quashing of
Indictment on Constitutional Grounds.” The pleading filed by the Appellant raised only
constitutional issues related to the racial makeup of the grand jury and the appointment of
the grand jury foreman. Upon receipt of the pleading, the trial court appointed counsel
for the Appellant and conducted a hearing on the pro se pleading without amendment by
counsel. During the hearing, the Appellant raised issues relating to the legal reasoning
behind the consecutive nature of his sentences. This argument was presented for the first
time from the witness stand and was not raised in the pleadings prior to hearing. After
hearing, the trial court entered an order dismissing the Appellant’s “petition to set aside /
post-conviction /36.1.” Counsel for the Appellant then sought to perfect the present
appeal.

       On appeal, the Appellant appears to have abandoned the constitutional claims
originally raised in the trial court and is focused solely on the propriety of the consecutive
sentencing. Therefore, the Appellant has waived any review of the constitutional issues
raised in his written pleading. See Tenn. R. App. P. 27.

      Focusing only on the consecutive sentencing, the Appellant argues for relief under
Rule 36.1 of the Tennessee Rules of Criminal Procedure. However, his original pleading,
which was never amended, made no argument relating to the illegality of his sentence but
only challenged the makeup and conduct of the grand jury. The first time the Appellant
mentioned the illegality of his sentence was while testifying during the hearing. As such,
this matter cannot be reviewed as a motion to correct an illegal sentence. Rule 36.1 of
the Tennessee Rules of Criminal Procedure states in part:

               (a)(1) Either the defendant or the state may seek to correct an illegal
       sentence by filing a motion to correct an illegal sentence in the trial court in
       which the judgment of conviction was entered. Except for a motion filed by
       the state pursuant to subdivision (d) of this rule, a motion to correct an
       illegal sentence must be filed before the sentence set forth in the judgment
       order expires. The movant must attach to the motion a copy of each
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       judgment order at issue and may attach other relevant documents. The
       motion shall state that it is the first motion for the correction of the illegal
       sentence or, if a previous motion has been made, the movant shall attach to
       the motion a copy of each previous motion and the court’s disposition
       thereof or shall state satisfactory reasons for the failure to do so.

While the Appellant filed a written motion, his motion does not reference Rule 36.1 or
his sentence. Additionally, he failed to include copies of the judgments at issue. As
such, the trial court did not err in dismissing the Appellant’s motion.

       Further, the law of the case doctrine prevents the Appellant from again
challenging the consecutive nature of his sentences. The law of the case doctrine
prohibits reconsideration of issues that have already been decided in a prior appeal of the
same case. State v. Jefferson, 31 S.W.3d 558 (Tenn. 2000). This rule applies to issues
that were explicitly raised on prior appeal and those issues which were decided by
implication. Id. On his direct appeal, the Appellant challenged his consecutive sentences
arguing, inter alia, that there was insufficient proof to support the trial court finding that
he is a dangerous offender and that he showed little or no regard for human life as
aggravating circumstances for consecutive sentencing. See State v. Anthony. The
Appellant now seeks to argue essentially the same issues in this appeal by challenging the
enhancement factors used by the trial court in sentencing. Any review of that argument is
barred as this matter has been ruled upon by this Court in a prior proceeding.

        The trial court was not in error in dismissing the petition of the Appellant. When
an opinion would have no precedential value, the Court of Criminal Appeals may affirm
the judgment or action of the trial court by memorandum opinion when the judgment is
rendered or the action is taken in a proceeding without a jury, such judgment or action is
not a determination of guilt, and the evidence does not preponderate against the finding
of the trial judge. See Tenn. Crim. App. R. 20. We conclude that this case satisfies the
criteria of Rule 20. The judgment of the trial court, therefore, is affirmed in accordance
with Rule 20, Rules of the Court of Criminal Appeals.



                                               ____________________________________
                                              J. ROSS DYER, JUDGE




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