                                                                                         08/29/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs July 24, 2019

         STATE OF TENNESSEE v. JONATHAN DAVID SCHELFE

                 Appeal from the Criminal Court for Sumner County
                  Nos. 659-2012, 681-2012 Dee David Gay, Judge
                     ___________________________________

                           No. M2018-01604-CCA-R3-CD
                       ___________________________________

Pro se Petitioner, Jonathan David Schelfe, appeals from the denial of his motion for
correction of an illegal sentence pursuant to Rule 36.1 of the Tennessee Rules of
Criminal Procedure. Following our review, we affirm.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and TIMOTHY L. EASTER, JJ., joined.

Jonathan David Schelfe, Clifton, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant
Attorney General; Ray Whitley, District Attorney General; and Tara Wyllie, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

       In September 2012, the Petitioner was charged in a 42-count indictment of rape of
a child, aggravated sexual battery, rape, solicitation of a minor under 13 years of age to
observe sexual conduct, and solicitation of a minor to observe sexual conduct in case
numbers 681-2012 and 659-2012. On May 23, 2013, the Petitioner entered a guilty plea
and received an effective sentence of forty years, to be served at 100%. At issue in this
appeal is case number 659-2012, and our review is limited to the Petitioner’s convictions
of rape of a child in counts 1, 4, 5, and 8. For each of those counts, the Petitioner was
ordered to concurrent terms of fifteen years at 100%, to be served consecutively to counts
13, 16, 17, 20 (all rape of a child with an offense date after 2010), counts 21 and 24
(aggravated sexual battery), count 25 (rape of child with an offense date in 2011), counts
26, 31, 32, 37 (rape), counts 38 and 41(solicitation of minor/sexual content), and count 42
(rape of a child with an offense date of January 2008 to August 2010).
      Significantly, at the Petitioner’s May 23, 2013 guilty plea hearing, the State
advised the trial court as follows:

             [The Petitioner] will be pleading guilty to Counts 1, 4, 5, and 8, rape
      of a child. Your Honor, these counts occurred sometime between 2007 and
      2009. There was a change in the statutory scheme on the sentencing for
      rape of a child July 1st, 2007. Accordingly, I believe, the [Petitioner] has
      the right to select which sentencing scheme he wants to be sentenced
      under….We have agreed that he will be sentenced under the sentencing
      scheme prior to July 1st, 2007. In that situation, rape of a child carried 15
      to 25 years at 100 percent.

       The State then provided the following factual basis in support of the Petitioner’s
guilty pleas to rape of a child in counts 1, 4, 5, and 8:

             From the time that [the victim] was about seven years old, beginning
      in 2007, sometime in 2007, the initial encounter involved her walking in,
      seeing her father, the [Petitioner], watching pornography. He encouraged
      her to continue to stay there and watch the pornography with him.

             Within a relatively short period of time, he began to molest her. He
      would do so on a regular basis. At least weekly or every other week he
      would touch her on her vaginal area, he would have her touch his penis, he
      would digitally penetrate her, and he would perform oral sex on her. Those
      are the bases of the Counts 1, 4, 5, 8, and 9 through 12.

       The record shows that the trial court complied with Rule 11, see Tenn. R. Crim. P.
11(c)(1)(C), and engaged in a detailed and extensive plea submission hearing to ensure
that the Petitioner was apprised of his rights and was entering a knowing and voluntary
plea.

        On July 30, 2018, the Petitioner filed a “Motion for Correction of Illegal ‘Fatal
Error’ Sentences Pursuant to Tenn. R. Crim. P. 36.1,” and the State filed a response on
August 9, 2018. The trial court conducted a hearing on August 13, 2018, at which time
the court informed the Petitioner that he brought him to court to gain a better
understanding of his pro se argument in his Rule 36.1 motion. The Petitioner referenced
his affidavit in support of his Rule 36.1 motion, from which the court read, in relevant
part, as follows: “I was afforded for the first time, my only opportunity, to examine the
plea’s contents and see for myself the written construction of the State’s offer[], but
unknown to me, fraudulent and illegal agreement prepared by the prosecuting attorney.”
The trial court asked the Petitioner what the implication of the statement was, and the
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Petitioner responded, “It means that the indictment encompassed within its terms, counts
1, 4, 5, and 8, as a material component to the indictment, the time of offense, which
incorporated the time including July 1, 2007, through 2- -- through the end of year of ’09,
this time is jurisdictional to the extent that a sentencing imposition of 15 to 25 years, the
prior repealed law, is not applicable to this time.” The Petitioner argued that, as a result,
his plea agreement was illegal, and, as such, should be dismissed. He further argued that
his sentence should be vacated, and double jeopardy would bar a subsequent prosecution.
The trial judge informed the Petitioner that he was “wrong” and that the Petitioner was
“proceeding under misguided facts.” After additional questions from the State, the trial
court denied the motion for failure to state a colorable claim of relief.

      On August 30, 2018, the Petitioner filed a “Motion for the Court to Reconsider Its
Order and Amend the Order by Granting Relief from the Now Current Fatal Error
Sentences, the State’s Fraud, and False Imprisonment of Movant’s Person.” On
September 4, 2018, the Petitioner filed a timely notice of appeal.

                                                ANALYSIS

       As we understand the Petitioner’s pro se brief, in this appeal, the Petitioner
contends that the trial court erred in finding (1) that the Petitioner did not state a colorable
claim for relief in his motion and (2) that he did not receive an illegal sentence.1 The
Petitioner insists that the State used the incorrect sentencing scheme for rape of a child in
charging the Petitioner; that there is no factual basis in the record to support the fact that
the offenses in counts 1, 4, 5, and 8 occurred prior to the change in the law; and that he
should have been charged under the later version of the rape of a child statute. In
response, the State argues, and we agree, that the trial court properly denied the
petitioner’s motion.

        We resolve this case guided by Rule 36.1, which allows a petitioner or the State to
seek the correction of an unexpired illegal sentence. See Tenn. R. Crim. P. 36.1(a)(1);
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)(2). To avoid summary denial of an illegal sentence
claim brought under Rule 36.1, the petitioner must establish a colorable claim that the
sentence is illegal. Tenn. R. Crim. P. 36.1(b)(2). A colorable claim is 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.” State v. Wooden, 478 S.W.3d 585, 593 (Tenn.
2015). The determination of whether a Rule 36.1 motion states a colorable claim is a


       1
           We have rephrased the Petitioner’s issues for clarity.
                                                     -3-
question of law, which this court reviews de novo. Id. at 589 (citing Summers v. State,
212 S.W.3d 251, 255 (Tenn. 2007)).

      In denying relief in this case, the trial court stated as follows:

              I find that Rule 36.1 is to void a sentence that is illegal on its face. I
      find that there is no colorable claim as stated by the [Petitioner] in his
      argument in court today and based on his very detailed pleading, along with
      an affidavit. The indictment alleges the date of the crimes between on or
      about 2007 and on or about 2009, and there are multiple counts in this
      indictment as we see frequently in child abuse crimes, because sometimes
      that’s just about as definite as you can get. Now, that date is constitutional.
      There’s nothing invalid about that particular time frame and nothing that
      would create a mandatory dismissal under the law violating due process.

             The [Petitioner] argues that because the matters occurred in 2008
      and 2009 and the indictment didn’t specifically state that, that this voids the
      entire plea and sentence that was imposed on May 23, 2013. I disagree
      completely with the [Petitioner’s] view of colorable claim. As I stated, the
      indictment specifically sets out in detail, as well as can be set out under the
      circumstances, the dates for multiple, multiple sexual offenses against a
      child.

              In the guilty plea the prosecutor specifically sets out four crimes that
      occurred before the change of the law. Others occurred after the change of
      the law on a Class A rape of a child. The Court finds that the correct legal
      application was made at that time because the [Petitioner] could not be
      sentenced to something greater and it was made greater after the crime
      alleged to have occurred. He should have been sentenced under the law as
      it applied when these senten—when these offenses occurred. In doing that,
      the [Petitioner] was given a benefit of ten years less than what the new
      sentence provided.

             Further, the plea agreement specifically provided that the [Petitioner]
      would not be referred to other state jurisdictions or federal jurisdiction for
      possible crimes involving sexual abuse and child pornography in other
      jurisdictions. The State made a very thorough and specific statement of an
      evidentiary basis for the guilty pleas. The [Petitioner] and the--his defense
      attorney pursued this plea, agreed in this plea, and it’s set out there
      completely in the transcript, and it’s clear that this was done to benefit the

                                            -4-
       [Petitioner]. The law was followed, and there is no colorable claim to show
       that the judgment and plea was void on its face.

        We agree with the order of the trial court. Here, the Petitioner appears to be
laboring under the mistaken belief that his convictions for rape of a child in counts 1, 4,
5, and 8 are void or illegal because he was sentenced under a law that was repealed. He
is not entitled to relief on multiple grounds. It should be noted at the outset that the guilty
plea colloquy as well as the judgment forms provide the date for these counts of
conviction as between January 1, 2007, and December 31, 2009. As the trial court
explained, the mandatory minimum sentence for rape of a child, a Class A felony, that
was in effect prior to July 1, 2007, was not less than fifteen nor more than twenty-five
years. See Tenn. Code Ann. §§ 39-15-522 (2007), 40-35-112(a)(1). After July 1, 2007,
the mandatory minimum sentence for rape of a child became twenty-five years. Tenn.
Code Ann. §39-13-522 (2007-2011). “When a penal statute or penal legislative act of the
state is repealed or amended by a subsequent legislative act, the offense, as defined by the
statute or act being repealed or amended, committed while the statute or act was in full
force and effect shall be prosecuted under the act or statute in effect at the time of the
commission of the offense.” Tenn. Code Ann. § 39-11-112; see also State v. Larry Wade
Gibson, No. E2003-02102-CCA-R3-CD, 2004 WL 2827000, at *3 (Tenn. Crim. App.
Dec. 9, 2004) (holding that it would be a violation of the Tennessee Constitution’s Ex
Post Facto Clause if a defendant was sentenced under a law “that changes the punishment
or inflicts a greater punishment than the law annexed to the crime when it was
committed”)(citing Miller v. State, 584 S.W.2d 758, 761 (Tenn. 1979)); State v. William
“Bill” Douglas Farr, Sr., M2016-01216-CCA-R3-CD, 2017 WL 4280701, at *8 (Tenn.
Crim. App. Sept. 26, 2017).

        Moreover, to the extent that the Petitioner is now attempting to collaterally attack
his guilty plea, he is also not entitled to relief. See State v. Ronnie Walls, No. M2018-
00903-CCA-R3-CD, 2019 WL 2183774, at *3 (Tenn. Crim. App. May 21, 2019)
(holding that Rule 36.1 of the Tennessee Rules of Criminal Procedure is not the proper
vehicle to collaterally attack a guilty plea)(citing Carpenter v. State, 136 S.W.3d 608, 609
(Tenn. 2004)); see also State v. Hoover, 215 S.W.3d 776, 779 (Tenn. 2007)(holding that
the overall punishment range authorized for the plea offense is what controls the
determination of whether an agreed sentence is legal); Hicks v. State, 945 S.W.2d 706,
709 (Tenn. 1997)(holding that “a knowing and voluntary guilty plea waives any
irregularity as to offender classification or release eligibility”). Accordingly, we agree
with the trial court and conclude that the Petitioner has not stated a colorable claim for
relief and, as such, is not entitled to relief under Rule 36.1.

                                      CONCLUSION

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         Based on the above reasoning and authority, we affirm the judgment of the trial
court.



                                            ____________________________________
                                            CAMILLE R. MCMULLEN, JUDGE




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