                                                                                        08/28/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                   Assigned on Briefs July 25, 2017 at Knoxville

                 STATE OF TENNESSEE v. MICHAEL SMITH

                Appeal from the Circuit Court for Hardeman County
                       No. 6139    J. Weber McCraw, Judge
                     ___________________________________

                           No. W2016-01513-CCA-R3-CD
                       ___________________________________


The pro se defendant, Michael Smith, appeals the summary denial of his motion to
correct clerical errors on the face of an order suspending a forty-month sentence for a
felony escape conviction. The defendant argues the trial court actually resentenced him
to one year, time served, and the order did not accurately reflect this ruling. The
defendant further argues the trial court should have entered an amended judgment
reflecting the resentencing. On review, we conclude the record is insufficient to support
the defendant’s arguments and affirm the trial court’s denial of the motion.


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

J. ROSS DYER, J., delivered the opinion of the court, in which ALAN E. GLENN and
ROBERT H. MONTGOMERY, JR., JJ., joined.

Michael W. Smith, Whiteville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Caitlyn Smith, Assistant Attorney
General; Mike Dunavant, District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                             Facts and Procedural History

      While unclear from the record presented by the defendant, this Court previously
summarized the pertinent underlying facts and procedural history in a variety of opinions.
Those opinions and our review of the present record indicate that on March 13, 1997, the
defendant pled guilty to two counts of rape, two counts of aggravated burglary, and five
misdemeanor offenses, receiving concurrent sentences of ten years for each rape
conviction, six years for each aggravated burglary conviction, and eleven months,
twenty-nine days for each misdemeanor conviction. Michael Wade Smith v. State, No.
W1999-01817-CCA-R3-PC, 2000 WL 1664262, at *1 (Tenn. Crim. App. Oct. 23, 2000).
In a subsequent petition for post-conviction relief, the defendant alleged he unknowingly
and involuntarily entered into the guilty pleas after receiving ineffective assistance of
counsel. Id. The post-conviction court denied the petition. Id.

       Upon review, this Court found other grounds for setting aside the defendant’s
guilty pleas. Id. Because the second rape and aggravated burglary offenses were
committed while the defendant was out on bond for the initial charges, the guilty plea
agreement violated Tennessee Code Annotated section 40-20-111(b), requiring the
sentence for a felony committed while on bail to be served consecutive to the sentence
for the initial felony charge. Id. This Court concluded, “[s]ince the [defendant] entered
his pleas of guilty with the belief that all sentences would be served concurrently, we do
not know whether he would have done so had he known the requirement regarding
consecutive sentencing.” Id. at *3. We, therefore, remanded the matter to the trial court
with instructions it allow the petitioner to withdraw his guilty plea. Id.

       On July 26, 1997, after pleading guilty to the rape and aggravated burglary
charges but prior to this Court’s remand of his guilty pleas to the trial court, the defendant
escaped from prison in Hardeman County and was found nearby several hours later.
State v. Michael W. Smith, No. W1999-02413-CCA-R3-PC (Tenn. Crim. App. Oct. 11,
2000). The defendant then pled guilty to felony escape on May 8, 1998. Id. Due to his
criminal record, the defendant was sentenced as a Range II multiple offender and
received a sentence of forty months. Id. Following a hearing on October 5, 2001, the
trial court entered an order on December 3, 2001, suspending the remainder of the
defendant’s sentence for felony escape. The language used in this order appears to be the
basis for the defendant’s current appeal.

       Following the remand of his aggravated burglary and rape convictions, on April
29, 2003, the defendant pled guilty to one count of rape and one count of attempted rape
with consecutive sentences of eight years at 100% for the rape conviction and three years
at 30% for the attempted rape conviction. Michael W. Smith v. State, No. W2005-00246-
CCA-R3-PC, 2005 WL 3447679, at *1 (Tenn. Crim. App. Dec. 14, 2005) perm. app.
denied (Tenn. Apr. 24, 2006). The remaining charges were dismissed. Id. On May 12,
2004, the defendant filed a petition for post-conviction relief alleging his second guilty
plea to rape and attempted rape was unknowingly and involuntarily entered. Id. The
post-conviction court denied this motion, and this Court affirmed the denial. Id. at *5.



                                            -2-
        On December 6, 2006, the defendant was arrested for violation of probation in the
felony escape matter. The defendant filed a petition for habeas corpus alleging “‘the
petitioner is not and has never been on probation as to this cause,’ and that ‘the petitioner
received time served from the Honorable [Jon] Kerry Blackwood, Judge, in open court in
October 2001 per D.A. Office’s request.’” Michael W. Smith v. Delphus Hicks, Sheriff,
No. W2007-00320-CCA-R3-HC, 2007 WL 4146227, *1 (Tenn. Crim. App. Nov. 21,
2007). The defendant did not include copies of the judgments of conviction that caused
his illegal detention, and, therefore, failed to comply with the mandatory statutory
requirements for obtaining habeas corpus relief. Id. at *2. For this reason, we affirmed
the trial court’s dismissal of the defendant’s petition. Id.

       At some point thereafter, the State filed another violation of probation warrant,
again alleging the defendant violated the terms of his probation sentence for felony
escape. The trial court held a hearing on January 15, 2008, during which the defendant
argued the warrant should be dismissed. The trial court granted the motion to dismiss
and found the December 3, 2001 order suspending the defendant’s felony escape
sentence “was silent as to the terms of the suspended sentence and therefore defendant
was not aware of [the] terms of probation.” The trial court then placed the defendant on
probation for the remaining thirteen months of his felony escape sentence.

       On April 24, 2011, the defendant filed another petition for post-conviction relief in
the rape and aggravated burglary case, this time alleging the State withheld exculpatory
evidence that would have proven his innocence. Michael W. Smith. v. State, No. W2012-
01073-CCA-R3-PC, 2012 WL 6206305, *1 (Tenn. Crim. App. Dec. 11, 2012). The post-
conviction court dismissed the petition. Id. at *1. This Court affirmed the dismissal on
appeal, concluding the first post-conviction petition was resolved on the merits by a court
of competent jurisdiction, so the post-conviction court properly dismissed the second
petition. Id. at *2.

       On June 20, 2016, the defendant filed a motion to correct clerical errors, alleging
the December 3, 2001 order suspending his sentence erroneously recorded the oral ruling
of the trial court and, therefore, multiple subsequent orders are invalid. The trial court
dismissed the petition without a hearing. This timely appeal followed.

                                         Analysis

         On appeal, the defendant asserts the trial court erred when denying his Tennessee
Rule of Criminal Procedure 36 (“Rule 36”) motion because on October 5, 2001, the trial
court did not suspend his sentence; it instead resentenced him to one year of incarceration
for the felony escape conviction. Rather than provide the transcript from the October 5,
2001 hearing as proof the written order inaccurately documented the trial court’s ruling,
                                            -3-
the defendant argues the trial court did not have authority to suspend the felony escape
sentence because the sentence was invalidated after the underlying felony convictions
used to enhance the sentencing range were vacated by this Court. The defendant asserts
that as a result, several orders of the trial court are invalid, including the order suspending
his sentence dated December 3, 2001, and the subsequent orders addressing his alleged
violation of probation.

        Rule 36 gives the trial court the authority to correct a clerical error on a judgment
at any time when, due to a clerical mistake, oversight, or omission, it fails to accurately
record a defendant’s sentence. Tenn. R. Crim. P. 36; see also State v. Brown, 479
S.W.3d 200, 213 (Tenn. 2015). Clerical errors arise “simply from a clerical mistake in
filling out the uniform judgment document.” Cantrell v. Easterling, 346 S.W.3d 445,
449 (Tenn. 2011). When considering whether there has been a clerical error, this Court
has held:

       “In making changes for clerical error, the record on the case must show that
       the judgment entered omitted a portion of the judgment of the court or that
       the judgment was erroneously entered. The most reliable indicator that
       clerical error was made is the transcript of the hearing or other papers filed
       in connection with the proceedings which show the judgment was not
       correctly entered. In the absence of these supporting facts, a judgment may
       not be amended under the clerical error rule after it has become final.”

State v. Tony Arthur Swan, No. E2015-01516-CCA-R3-CD, 2017 WL 2483000, *2
(Tenn. Crim. App. June 8, 2017) (emphasis omitted), (quoting State v. Jack Lee Thomas,
Jr., No. 03C01-9504-CR-00109, 1995 WL 676396, *1 (Tenn. Crim. App. Nov. 15,
1995)). A trial court’s ruling on a Rule 36 motion is reviewed under an abuse of
discretion standard. Marcus Deangelo Lee v. State, No. W2013-01088-CCA-R3-CO,
2014 WL 902450, at *3 (Tenn. Crim. App. Mar. 7, 2014).

        In the present matter, the defendant maintains the order suspending his felony
escape sentence, dated December 3, 2001, inaccurately reflected the oral ruling of the
trial court made October 5, 2001. The defendant, however, failed to include the transcript
from the October 5, 2001, hearing in the record on appeal. Without this record, we are
unable to determine whether the December 3, 2001 order contains a clerical error
entitling the defendant to relief under Rule 36. The defendant is not entitled to the
requested relief.




                                             -4-
                                    Conclusion

     In accordance with the aforementioned reasoning and authorities, we affirm the
judgments of the trial court.




                                         ____________________________________
                                         J. ROSS DYER, JUDGE




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