                                                                                                06/02/2017




         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                      Assigned on Briefs April 26, 2017 at Knoxville

          STATE OF TENNESSEE v. PERRY MITCHELL KIRKMAN

                  Appeal from the Criminal Court for Davidson County
                          No. 2009-A-404 Steve Dozier, Judge


                                No. M2016-02248-CCA-R3-CD


The Defendant, Perry Mitchell Kirkman, pleaded guilty to two counts aggravated sexual
battery in 2010 and received a fifteen-year sentence as a Range II offender. Six years later,
the Defendant filed a motion pursuant to Tennessee Criminal Procedure Rule 36.1 requesting
that the trial court correct an illegal sentence because his sentence exceeds the sentencing
range for a Range I offender convicted of a Class B felony. The trial court summarily
dismissed the motion after determining that the Defendant knowingly and voluntarily
pleaded guilty and agreed to a sentence outside the appropriate sentencing range pursuant to
Hicks v. State, 945 S.W.2d 706 (Tenn. 1997).1 On appeal, the Defendant contends that the
trial court erred in dismissing his motion. We affirm the judgment of the trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.

Perry Mitchell Kirkman, Hartsville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel;
and Glenn Funk, District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

       In 2009, the Defendant was indicted for ten counts of rape of a child, two counts of
displaying sexual acts to a minor, and one count of solicitation of rape of a child. On April
22, 2010, the Defendant pleaded guilty pursuant to a negotiated plea agreement to two counts
of aggravated sexual battery in exchange for a fifteen-year sentence at 100% service and for
the dismissal of the remaining charges. The petition to enter a guilty plea reflects the
1
  In Hicks, our supreme court determined that “a knowing and voluntary guilty plea waives any
irregularity as to offender classification or release eligibility.” 945 S.W.2d at 709.
Defendant’s signature and requests the trial court accept his guilty plea to two counts of
aggravated sexual battery in exchange for a fifteen-year sentence at 100% service. The
judgment forms reflect that the Defendant pleaded guilty as a Range II offender pursuant to
Hicks.

       On September 14, 2016, the Defendant filed a motion to correct an illegal sentence
pursuant to Tennessee Criminal Procedure Rule 36.1. In the motion, the Defendant stated
that he was a Range I offender based upon his previous criminal history, that his Range II
sentence was illegal, and that the trial court lacked the authority and jurisdiction to impose a
sentence outside the appropriate sentencing range. See T.C.A. § 40-35-112(a)(2) (stating
that “[a] Range I sentence . . . [f]or a Class B felony, [is] not less than eight (8) years nor
more than twelve (12) years[.]”).

        On September 21, 2016, the trial court summarily dismissed the Defendant’s motion.
In its written order, the court found that the Defendant pleaded guilty to two counts of
aggravated sexual battery and accepted an out-of-range sentence of fifteen years at 100%
service pursuant to the plea agreement and pursuant to Hicks. After reviewing the guilty plea
hearing transcript, the court determined that the Defendant entered his guilty pleas
knowingly and voluntarily and that the Defendant had failed to state a colorable claim for
relief. This appeal followed.

       The Defendant contends that the trial court erred by summarily dismissing his motion
and that his sentence is illegal because he was erroneously sentenced as a Range II offender.
He argues that the sentence is a nullity and that his due process rights were violated. The
State responds that the trial court properly dismissed the motion. We agree with the State.

       Tennessee Criminal Procedure Rule 36.1 states, in relevant part, that

       (a) Either the defendant or the state may, at any time, 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. For purposes of this
       rule, an 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). A defendant is entitled to a hearing and the appointment of
counsel if the motion states a colorable claim for relief. Id. at 36.1(b). Further, the trial
court is required to file an order denying the motion if it determines that the sentence is not
illegal. Id. at 36.1(c)(1).

      Whether a defendant states a colorable claim is a question of law and is reviewed de
novo. State v. Wooden, 478 S.W.3d 585, 588 (Tenn. 2015). A colorable claim is defined as
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“a claim that, if taken as true and viewed in a light most favorable to the moving party,
would entitle the moving party to relief under Rule 36.1.” Id. at 593. A motion filed
pursuant to Rule 36.1 “must state with particularity the factual allegations on which the
claim for relief from an illegal sentence is based.” Id. at 594. A trial court “may consult the
record of the proceeding from which the allegedly illegal sentence emanated” when
determining whether a motion states a colorable claim for relief. Id.

       Only fatal errors result in an illegal sentence and “are so profound as to render the
sentence illegal and void.” Id. at 595; see State v. Cantrell, 346 S.W.2d 445, 452 (Tenn.
2011). Fatal errors include sentences imposed pursuant to an inapplicable statutory scheme,
sentences that designate release eligibility dates when early release is prohibited, sentences
that are ordered to be served concurrently when consecutive service is required, and
sentences that are not authorized by statute. Wooden, 478 S.W.3d at 595. Errors which are
merely appealable, however, do not render a sentence illegal and include “those errors for
which the Sentencing Act specially provides a right of direct appeal.” Id.; see Cantrell, 346
S.W.2d at 449. Appealable errors are “claims akin to . . . challenge[s] to the sufficiency of
the evidence supporting a conviction” and “involve attacks on the correctness of the
methodology by which a trial court imposed sentence.” Wooden, 478 S.W.3d at 595; see
Cantrell, 346 S.W.2d at 450-52.

       The record reflects that the Defendant was indicted for ten counts of rape of a child,
two counts of displaying sexual acts to a minor, and one count of solicitation of rape of a
child. Pursuant to the negotiated plea agreement, the Defendant pleaded guilty to two counts
of aggravated sexual battery, Class B felonies, in exchange for a fifteen-year sentence and
for the dismissal of the remaining charges. The petition to enter a guilty plea reflects the
Defendant’s signature, and the judgment forms reflect that the guilty pleas were entered
pursuant to Hicks. Although the transcript of the guilty plea hearing is not included in the
appellate record, the trial court’s order dismissing the motion reflects that the court reviewed
the transcript and determined it reviewed the terms of the plea agreement with the
Defendant. The court also determined that the Defendant pleaded guilty pursuant to Hicks,
agreeing to a Range II sentence of fifteen years. The court determined that the Defendant
entered knowing and voluntary guilty pleas relative to the offender classification.

        In Hicks, our supreme court determined that “a knowing and voluntary guilty plea
waives any irregularity as to offender classification or release eligibility.” 945 S.W.2d at
709. Likewise, in Hoover v. State, 215 S.W.3d 776 (Tenn. 2007), the petitioner pleaded
guilty to second degree murder pursuant to a negotiated plea agreement in exchange for a
thirty-five-year sentence at 100% service, although he was a standard offender. In denying
habeas corpus relief, our supreme court concluded that “[a] plea-bargained sentence may
legally exceed the maximum available in the offender Range so long as the sentence does not
exceed the maximum punishment authorized for the plea offense.” Id. at 780.

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        In the present case, the Defendant received a sentence that exceeded the possible
sentence for a Range I offender convicted of a Class B felony, but the sentence imposed was
less than the maximum permitted by law. The authorized punishment for a Class B felony is
not less than eight years nor more than thirty years. T.C.A. § 40-35-111(b)(2) (2014).
Although the guilty plea hearing transcript is not included in the appellate record, the trial
court reviewed the record and found that the Defendant entered a knowing and voluntary
guilty plea. See Wooden, 478 S.W.3d at 594 (“[W]hen determining whether a Rule 36.1
motion sufficiently states a colorable claim, a trial court may consult the record of the
proceedings from which the allegedly illegal sentence emanated.”). As a result, we
conclude that the Defendant’s sentence is not illegal because the plea-bargained sentence
does not exceed the maximum punishment authorized for aggravated sexual battery.
Therefore, the trial court properly dismissed the Defendant’s motion, and he is not entitled to
relief on this basis.

        In reaching this determination, we have not overlooked the Defendant’s allegation
that he is entitled to Rule 36.1 relief because he received the ineffective assistance of counsel
and because his guilty pleas were involuntary and unknowing. These claims were not
alleged in his motion, and he is not entitled to raise the issues on appeal. See T.R.A.P. 36(a)
(stating that appellate “relief may not be granted in contravention of the province of the trier
of fact”). In any event, these allegations are not fatal errors for purposes of Rule 36.1 relief
but rather are appealable errors that do not render a sentence illegal. See Wooden, 478
S.W.3d at 595. We note that the Defendant sought post-conviction relief, and this court
affirmed the post-conviction court’s determinations that the Defendant did not receive
ineffective assistance and that his guilty pleas were voluntary and knowing. See Perry
Kirkman v. State, No. M2011-01781-CCA-R3-PC, 2013 WL 54030, at *1 (Tenn. Crim. App.
Jan. 4, 2013). Therefore, the Defendant is not entitled to relief.

         Based on the foregoing and the record as a whole, we affirm the judgment of the trial
court.



                                            ____________________________________
                                            ROBERT H. MONTGOMERY, JR., JUDGE




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