         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   February 13, 2001 Session

                 GREGORY HATTON v. STATE OF TENNESSEE

                    Direct Appeal from the Circuit Court for Giles County
                             No. 6947    Jim T. Hamilton, Judge



                      No. M2000-00756-CCA-R3-PC - Filed May 25, 2001


The petitioner, Gregory Hatton, sought post-conviction relief on the grounds that his trial counsel
was ineffective, that his guilty pleas were not knowing and voluntary, and that his sentence is illegal.
The trial court concluded that the petition was barred by the statute of limitations. Insofar as an
illegal sentence is subject to correction at any time, the trial court's dismissal of the petitioner's
illegal sentence claim was erroneous. Because, however, the petitioner is not entitled to relief on
that claim, the judgment of the trial court is affirmed.

                  Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed.

GARY R. WADE, P.J., delivered the opinion of the court, in which ALAN E. GLENN and ROBERT W.
WEDEMEYER , JJ., joined.

Claudia S. Jack, District Public Defender, Columbia, Tennessee, for the appellant, Gregory Hatton.

Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General;
Richard H. Dunavant, Assistant District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

        On July 18, 1977, the petitioner pled guilty to armed robbery, first degree burglary, two
counts of simple kidnapping, assault with intent to commit murder, grand larceny, and rape. The
trial court imposed sentences as follows: 30 years for the armed robbery; five to 15 years for the
burglary; four to ten years for each of the kidnappings; three to 21 years for the assault; three to ten
years for the larceny; and life imprisonment for the rape. The trial court ordered concurrent
sentences except for the armed robbery sentence, which was ordered to be served consecutively. The
effective sentence was life plus thirty years. A petition to rehear was denied.

        On February 19, 1981, the petitioner filed a motion for new trial challenging the validity of
his guilty pleas. The trial court, which elected to consider the motion as a petition for post-
conviction relief, appointed counsel and held an evidentiary hearing. At the conclusion of the
hearing, the trial court found that the guilty pleas were knowingly and voluntarily made. This court
affirmed on appeal. State v. Gregory Hatton, No. 81-275-III (Tenn. Crim. App., at Nashville, Aug.
13, 1982).

       In 1996, the petitioner filed a petition for writ of habeas corpus asserting that the judgment
entered on his rape conviction was void because the indictment failed to allege the mens rea of the
crime. The trial court denied the petition. This court affirmed pursuant to Rule 20 of the Rules of
the Tennessee Court of Criminal Appeals. Gregory L. Hatton v. State, No. 02C01-9611-CC-00407
(Tenn. Crim. App., at Jackson, Feb. 19, 1997).

        On October 21, 1994, prior to his petition for writ of habeas corpus, the petitioner had filed
this petition for post-conviction relief, his second. The trial court appointed counsel and two
amended petitions were subsequently filed. On March 3, 2000, the trial court denied the petition,
concluding that it was barred by the three-year statute of limitations contained in Tennessee Code
Annotated § 40-30-102 (repealed 1995). In October, 1994, the petitioner was subject to the
following statute of limitations:

        A prisoner in custody under sentence of a court of this state must petition for post-
        conviction relief under this chapter within three (3) years of the date of the final
        action of the highest state appellate court to which an appeal is taken or consideration
        of such petition shall be barred.

Tenn. Code Ann. § 40-30-102 (repealed 1995). There was no statute of limitations under the original
post-conviction procedure act. See Tenn. Code Ann. § 40-30-102 (1982) (originally Tenn. Code
Ann. § 40-3802) (repealed 1995). The three-year statute of limitations, adopted in 1986, began to
run on July 1, 1986, and expired on July 3, 1989. Abston v. State, 749 S.W.2d 487, 488 (Tenn.
Crim. App. 1988). With the exception of the illegal sentence claim, the trial court did not err by
denying the petitioner's claims on the ground that they were barred by the statute of limitations.

        In his first post-conviction petition, the petitioner had contended that his guilty pleas were
neither knowingly nor voluntarily entered. Thus, the same issue presented in this petition is barred
as "previously determined." See Tenn. Code Ann. § 40-30-112(a) (repealed 1995). Because the
petitioner failed to raise any ineffective assistance of counsel claim in his first post-conviction
petition, that ground has been waived. See Tenn. Code Ann. § 40-30-112(b)(1) (repealed 1995);
House v. State, 911 S.W.2d 705, 711 (Tenn. 1995).

        The petitioner, who also asked for a delayed appeal, argues that the trial court failed to rule
on the request. That is not, however, a basis for relief. The statute of limitations for post-conviction
relief applies to delayed appeals. Handley v. State, 889 S.W.2d 223, 224 (Tenn. Crim. App. 1994).

       With regard to the petitioner's illegal sentence claim, the general rule is that an illegal
sentence may, in fact, be corrected at anytime. State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978)
(noting that the trial court had the power and duty to correct an illegal sentence at any time).

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Typically, a challenge to an illegal sentence by an incarcerated defendant is by petition for writ of
habeas corpus. See Stephenson v. Carlton, 28 S.W.3d 910 (Tenn. 2000); Freddie Cupples v. State,
No. 02C01-9511-CC-00333, slip op. at 3 (Tenn. Crim .App., at Jackson, Oct. 22, 1996), app. denied
(Tenn. Feb. 10, 1997). This court has also considered an attack on an illegal sentence by way of
post-conviction petition, holding that the action is not barred by the applicable statute of limitations.
Kevin Lavell Abston v. State, No. 02C01- 9807-CR-00212, slip op. at 3 (Tenn. Crim. App., at
Jackson, Dec. 30, 1998) (citing State v. Mahler, 735 S.W.2d 226, 228 (Tenn. 1987)); see also James
Gordon Coons, III v. State, No. 01C01-9801-CR-00014, slip op. at 6 (Tenn. Crim. App., at
Nashville, May 6, 1999).

       A sentence is illegal if it directly contravened a statute in existence at the time it was
imposed. Taylor v. State, 995 S.W.2d 78, 85 (Tenn. 1999). A sentence is not illegal when the
defendant claims only prosecutorial misconduct or judicial vindictiveness. See Luttrell v. State, 644
S.W.2d 408, 409 (Tenn. Crim. App. 1982) (noting that alleged constitutional violations are properly
addressed in post-conviction, not habeas corpus, proceedings). "Technical violations related to the
judgment forms and committal documents . . . would not render [a] petitioner's confinement illegal
as long as a valid conviction and resultant legal sentence were imposed." Marvin Anthony
Matthews v. Charles C. Noles, No. 02C01-9206-CC-00140, slip op. at 4 (Tenn. Crim. App., at
Jackson, Feb. 24, 1993), app. denied (Tenn. June 1, 1993).

        Here, the petitioner argues that the consecutive sentencing was illegal because it "violated
the statutory and Tennessee Supreme Court case law in effect at the time" and because there was no
presentence report or sentencing hearing. The petitioner also complains that the trial court did not
offer him an opportunity to withdraw his guilty pleas and failed to advise him that he had the right
to appeal his sentence.

       Initially, this court affirmed the constitutionality of the petitioner's guilty pleas in the first
post-conviction proceeding. See Hatton, No. 81-275-III, slip op. at 4 ("[The petitioner] was plainly
advised that the trial judge was not bound by any agreement between the prosecuting attorney and
defense counsel and declined the opportunity to withdraw his plea of guilty to the charges."). In
1977, the following sentencing statute was in effect:

        When any person has been convicted of two (2) or more offenses, judgment shall be
        rendered on each conviction after the first, providing that the terms of imprisonment
        to which such person is sentenced shall run concurrently or cumulatively in the
        discretion of the trial judge; provided, that the exercise of the discretion of the trial
        judge shall be reviewable by the Supreme Court on appeal.

Tenn. Code Ann. § 40-2711 (1975) (subsequently Tenn. Code Ann. § 40-20-111(a)) (repealed 1995).
The sentence imposed is well within the statutory limitations. See Burkhart, 566 S.W.2d at 873.
"While the imposition of consecutive sentences by a trial court may be erroneous because not
warranted under the facts and sentencing laws, consecutive sentences for multiple convictions are
not considered illegal sentences." State v. Carl Steven McGill, No. 03C01-9409-CR-00345, slip op.

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at 6 (Tenn. Crim. App., at Knoxville, Sept. 19, 1995); see also State v. Edward Lorenzo Samuels,
No. M1998-01821-CCA-RMCD (Tenn. Crim. App., at Nashville, Dec. 30, 1999), aff'd, State v.
Samuels, ___ S.W.3d ___, No. M1999-01821-SC-R11CD (Tenn. May 4, 2001). Even if the
consecutive sentences were erroneously imposed, no relief would be available at this late date.
Because the sentence was not illegal, the petitioner is not entitled to relief.

       Accordingly, the judgment of the trial court is affirmed.



                                                     ___________________________________
                                                     GARY R. WADE, PRESIDING JUDGE




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