                                                                                      01/30/2019
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                 Assigned on Briefs at Knoxville October 30, 2018

            STATE OF TENNESSEE v. KELVIN ANTHONY LEE

               Appeal from the Circuit Court for Lauderdale County
                      No. 6089     Joe H. Walker, III, Judge
                    ___________________________________

                          No. W2018-00827-CCA-R3-CD
                      ___________________________________

The Appellant, Kelvin Anthony Lee, filed a pro se motion to correct an illegal sentence
pursuant to Tennessee Rule of Criminal Procedure 36.1, and the Lauderdale County
Circuit Court summarily denied the motion. On appeal, the Appellant contends that his
sentence of life without parole violates Montgomery v. Louisiana, 136 S. Ct. 718 (2016);
Moten v. State, 935 S.W.2d 416 (Tenn. Crim. App. 1996); and Tennessee Code
Annotated section 39-13-204(j). Upon review of the record and the parties’ briefs, we
affirm the trial court’s denial of the motion.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and TIMOTHY L. EASTER, JJ., joined.

Kelvin Anthony Lee, Pro Se, Tiptonville, Tennessee.

Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
Attorney General; and D. Michael Dunavant, District Attorney General, for the appellee,
State of Tennessee.

                                      OPINION

                               I. Factual Background

     In 1995, the Appellant pled guilty to first degree felony murder. This court
summarized the proof as follows:

                   On the afternoon of September 17, 1994, Ricky
             Daniels drove to his family’s farm in Lauderdale County to
             check on his aging father, William Daniels, Jr., who had been
             working on the farm that day. He drove to a clearing and
             spotted his father’s truck sitting in the midst of a field, near a
             small pond. As he drove closer, he realized that his father
             was pinned underneath the truck and seriously injured. He
             first thought that an accident had occurred and he called his
             sister. After surveying the situation, however, he concluded
             that his father’s condition was not accidental, and he
             contacted an investigator with the Lauderdale County
             Sheriff’s Department.

                    Authorities conducted an extensive examination of the
             scene, working throughout the night. Their investigation
             revealed that Daniels had suffered numerous gunshot wounds
             and that his body had been run over and crushed by the
             pickup truck. Evidence at the scene indicated that Daniels’
             body had been dragged approximately 148 feet while
             underneath the truck. It also appeared that the body had
             become dislodged at one point and that the truck backed up
             and ran over the body again before coming to a stop on the
             victim. Investigators noticed that the victim’s pants pockets
             were turned inside out and his wallet was missing.
             Authorities also discovered bicycle tracks at the scene which
             led to a nearby house where the [seventeen-year-old]
             appellant lived with his family. After questioning several of
             the appellant’s brothers, appellant was brought in for
             questioning. The appellant made a full confession, admitting
             that he had robbed and killed Daniels.

State v. Kelvin Anthony Lee, No. 02C01-9603-CC-00085, 1997 WL 686258, at *1
(Tenn. Crim. App. at Jackson, Nov. 5, 1997), perm app. denied, (Tenn. Aug. 3, 1998).

       After the Appellant’s guilty plea, the trial court impaneled a jury to decide his
punishment and held a sentencing hearing. Id. at *2. During the hearing, various
witnesses testified for the State, including the medical examiner who performed the
victim’s autopsy. See id. at *3-4. Several witnesses testified for the defense, including
the Appellant, whose testimony at the hearing “varied substantially from his statement to
law enforcement.” Id. at *5. In sum, the Appellant claimed at the hearing that he and
two accomplices went to rob the victim, that his accomplices shot and ran over the
victim, and that one of his accomplices threatened to kill him and his family if he did not
confess to the police. See id. A clinical psychologist, who had examined the Appellant
for the hearing, testified for the defense that the Appellant’s IQ was seventy-one, which
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indicated borderline intellectual functioning, and that the Appellant functioned
intellectually as a twelve-year-old. Id. at *6.

        The jury sentenced the Appellant to life without parole by finding that the murder
was especially heinous, atrocious, or cruel pursuant to Tennessee Code Annotated section
39-13-204(i)(5). Id. at *7. On appeal of his sentence to this court, the Appellant argued,
in pertinent part, that the evidence was insufficient for the jury to apply the aggravating
circumstance. Id. at *11. This court disagreed and affirmed the Appellant’s sentence of
life without parole, concluding that “the jury was fully justified in finding that the murder
of Daniels was especially heinous, atrocious, or cruel.” Id. at *12.

       In 2004, the Appellant filed a petition for a writ of habeas corpus, which the
habeas corpus court summarily denied. Kelvin A. Lee v. State, No. M2004-02809-CCA-
R3-HC, 2005 WL 1692952, at *1 (Tenn. Crim. App. at Nashville, July 20, 2005). On
appeal to this court, the Appellant argued that his guilty plea was void because he was
improperly transferred from juvenile court to criminal court, that the trial court and the
State failed to abide by the conditions of his guilty plea, and that no underlying felony
supported his conviction of felony murder. Id. at *2. This court affirmed the dismissal of
the petition. Id. at *3.

        On April 2, 2018, the Appellant filed a pro se motion to correct an illegal sentence
pursuant to Tennessee Rule of Criminal Procedure 36.1. In the motion, he argued that his
sentence of life without parole violated Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455
(2012), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016), regarding mandatory
sentences of life without parole for juvenile offenders; violated Moten v. State, 935
S.W.2d 416 (Tenn. Crim. App. 1996), regarding a trial court’s duty to conduct a hearing
to determine a defendant’s competence to enter a guilty plea; and was imposed in
contravention to Tennessee Code Annotated section 39-13-204(j) because the trial court
failed to instruct the jury that it must also consider any statutory mitigating circumstances
in determining his punishment. The trial court summarily denied the motion.

                                       II. Analysis

       On appeal, the Appellant contends that the trial court erred by denying his Rule
36.1 motion to correct an illegal sentence, maintaining that his sentence of life without
parole violates Montgomery, Moten, and Tennessee Code Annotated section 39-13-
204(j). The State argues that the trial court’s summary denial of the motion was proper
because none of the Appellant’s claims are cognizant in a Rule 36.1 motion. We agree
with the State.



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        Rule 36.1, Tennessee Rules of Criminal Procedure, 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). As our supreme court has explained, only “fatal” sentencing errors render
sentences illegal. State v. Wooden, 478 S.W.3d 585, 595 (Tenn. 2015). “Included in this
category 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.
Conversely, “[c]laims of appealable error generally involve attacks on the correctness of
the methodology by which a trial court imposed sentence.” Id. Few appealable errors
rise to the level of an illegal sentence. Id.

        If a Rule 36.1 motion states a “colorable claim that the sentence is illegal,” the
trial court shall appoint counsel and hold a hearing on the motion. See Tenn. R. Crim. P.
36.1(b). Our supreme court has recognized that “Rule 36.1 does not define ‘colorable
claim.’” Wooden, 478 S.W.3d at 592. Nevertheless, the court explained that “for
purposes of Rule 36.1, . . . ‘colorable claim’ means 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. In determining whether a motion states a colorable claim,
the trial court “may consult the record of the proceeding from which the allegedly illegal
sentence emanated.” Id. Whether a Rule 36.1 motion states a colorable claim is a
question of law, which we review de novo. Id. at 588.

        As to the Appellant’s claim that his sentence of life without parole violates
Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the United States Supreme Court held
in Miller, 567 U.S. at 470, that a mandatory sentence of life without the possibility of
parole for a juvenile offender violates the United States Constitution’s Eighth
Amendment prohibition against cruel and unusual punishment. The Court did not hold in
Miller, though, that a juvenile could never be sentenced to life without the possibility of
parole. Charles Everett Lowe-Kelley v. State, No. M2015-00138-CCA-R3-PC, 2016 WL
742180, at *9 (Tenn. Crim. App. at Nashville, Feb. 24, 2016) (citing Miller, 132 S. Ct. at
2469). Instead, the court required “a certain process—considering an offender’s youth
and attendant characteristics—before imposing a particular penalty.” Miller, 567 U.S. at
483; see Cedrick Dickerson v. State, No. W2013-01766-CCA-R3-PC, 2014 WL
3744454, at *5 (Tenn. Crim. App. at Jackson, July 28, 2014) (holding that defendant’s
sentence of life without parole did not run afoul of Miller when the record demonstrated
that the trial court “provided the exact consideration that the Supreme Court called for in
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Miller”). In Montgomery, 136 S. Ct. at 729, the court determined that Miller should be
applied retroactively.

        Turning to the instant case, although the Appellant was seventeen years old when
he killed the victim, his sentence of life without parole was authorized by statute at the
time of the offense. Therefore, his claim under Montgomery is not a proper basis for
relief under Rule 36.1. See State v. Sammie Lee Taylor, No. W2015-01831-CCA-R3-
CD, 2016 WL 3883566, at *4 (Tenn. Crim. App. at Jackson, June 6, 2016) (holding that
defendant’s claim under Miller was not a proper basis for relief under Rule 36.1).

       Next, the Appellant claims that the trial court erred by denying his Rule 36.1
motion because he was mentally incompetent to enter his guilty plea and because the trial
court had a duty to conduct a hearing to determine his competence to enter his plea. In
support of his claims, he relies on the clinical psychologist’s testimony that he had an IQ
of seventy-one and functioned intellectually as a twelve-year-old and relies on Moten,
935 S.W.2d at 421, in which this court stated that “[f]ailure to order a hearing when the
evidence raises a sufficient doubt as to an accused’s competence to stand trial or enter a
guilty plea deprives the accused of due process of law.” However, as noted by the State,
“a challenge to the voluntary or knowing entry of a guilty plea is not within the purview
of Tennessee Rule of Criminal Procedure 36.1.” State v. Robert B. Ledford, No. E2014-
01010-CCA-R3-CD, 2015 WL 757807, at *3 (Tenn. Crim. App. at Knoxville, Feb. 23,
2015). Likewise, the Appellant’s claim that the trial court should have held a
competency hearing prior to accepting his plea also is not cognizable under Rule 36.1
because “the Rule is directed at the sentence finally imposed, not the methodology by
which it is imposed.” State v. Jonathan T. Deal, No. E2013-02623-CCA-R3-CD, 2014
WL 2802910, at *2 (Tenn. Crim. App. at Knoxville, June 17, 2014). The Appellant’s
challenge to his guilty plea would affect his conviction, not his sentence. Accordingly,
he is not entitled to relief under Rule 36.1.

       Finally, the Appellant contends that the trial court erred by denying his Rule 36.1
motion because the trial court failed to instruct the jury that in determining his sentence,
the jury was required to consider any applicable mitigating circumstances pursuant to
Tennessee Code Annotated section 39-13-204(j). Again, as noted by the State, defects in
the sentencing instructions would render the Appellant’s sentence voidable, not void.
Milton Lee Cooper v. Howard Carlton, Warden, No. E2011-00783-CCA-R3-HC, 2012
WL 1523960, at *5 (Tenn. Crim. App. at Knoxville, Apr. 30, 2012) (citing Danny Ray
Lacy v. Cherry Lindamood, No. M2009-00072-CCA-R3-CO, 2009 WL 3029619, at *2
(Tenn. Crim. App. at Nashville, Sept. 22, 2009)). Accordingly, this claim also is not
cognizant in a Rule 36.1 motion. State v. Joseph B. Thompson, No. E2015-01963-CCA-
R3-CD, 2016 WL 2770178, at *1 (Tenn. Crim. App. at Knoxville, May 10, 2016).

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                                    III. Conclusion

      Based upon the record and the parties’ briefs, we affirm the trial court’s denial of
the motion.

                                                _________________________________
                                                NORMA MCGEE OGLE, JUDGE




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