                                                                                       06/04/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON

                 STATE OF TENNESSEE v. MARIO PERKINS

                 Appeal from the Criminal Court for Shelby County
                         No. 96-09282  Chris Craft, Judge


                           No. W2017-01941-CCA-R3-CD
                         _____________________________

The Appellant, Mario Perkins, is appealing the trial court’s denial of his motion to
withdraw his guilty plea and to correct an illegal sentence. The State has filed a motion
asking this Court to affirm pursuant to Court of Criminal Appeals Rule 20. Said motion
is hereby granted.

Tenn. R. App. P. 3 Appeal as of Right; Order of the Trial Court Affirmed Pursuant
                      to Court of Criminal Appeals Rule 20

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which ALAN E.
GLENN and CAMILLE R. MCMULLEN, JJ., joined.

Mario Perkins, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel,
for the Appellee, State of Tennessee.


                             MEMORANDUM OPINION

       The Appellant was originally charged with first degree murder and aggravated
robbery in this case. He eventually pled guilty to second degree murder and aggravated
robbery in 1996. Pursuant to the plea agreement, the Appellant received a forty-five year
sentence as a Range III persistent offender for the second degree murder conviction and a
concurrent eight year sentence for the aggravated robbery conviction. In 1999, the trial
court entered an amended judgment to reflect the sentence for second degree murder was
to be served at one hundred percent. The Appellant subsequently sought post-conviction
relief which was denied. On appeal, this Court affirmed that denial. Mario Perkins v.
State, No. 02C01-9805-CR-00127, 1999 WL 412720 (Tenn. Crim. App. June 18, 1999).
The Appellant was also unsuccessful in his pursuit of habeas corpus relief. Mario R.
Perkins v. State, No. M2007-00698-CCA-R3-HC, 2007 WL 4548100 (Tenn. Crim. App.
Dec. 19, 2007). In August 2017, the Appellant filed a motion to withdraw his guilty plea
and to correct an alleged illegal sentence. The trial court summarily denied the same.
This appeal ensued. The record and the Appellant’s have been brief. In response, the
State filed a motion to affirm the ruling of the trial court pursuant to Rule 20. For the
reasons stated below, said motion is hereby granted.

        In the motion he filed in the trial court, the Appellant argued the trial court did not
have jurisdiction to amend the judgment to reflect service of the forty-five-year sentence
at one hundred percent because the Appellant agreed to a forty-five-year sentence at
forty-five percent. The original judgment entered in 1996 reflects the forty-five-year
sentence will be served at forty-five percent release eligibility. The trial court amended
the judgment to reflect “the intent of the parties” and to conform with Tennessee Code
Annotated Section 40-35-501(i)(1) which mandates one hundred percent service of a
sentence imposed for a conviction of certain enumerated offenses including second
degree murder. The relevant amendment to that code section took effect July 1, 1995,
approximately nine months prior to the murder in this case. The trial court recognized
the fact the Appellant agreed to be sentenced out of range as a Range III offender instead
of a Range I offender to avoid a possible life sentence for a first degree murder
conviction. The forty-five-year sentence as a Range III offender for second degree
murder, a Class A felony, was specifically authorized by statute. Tenn. Code Ann. § 40-
35-112(c).

        As noted above, the Appellant previously challenged the legality of his sentence
via a habeas corpus petition. In that petition, the Appellant argued he could not be
sentenced as a Range III persistent offender because he did not have the requisite
criminal history. He also argued the trial court erred when it amended the judgment of
conviction for second degree murder because “[a]t no time did [he] agree to a sentence of
forty-five years at one hundred percent.” Perkins, 2007 WL 4548100 at * 1. In affirming
the denial of habeas corpus relief, this Court held as follows:

               We note that the petitioner first challenged his sentence for second
       degree murder in a post-conviction petition. On appeal, this court stated
       that the record clearly reflected that the petitioner agreed to a sentence of
       forty-five years with required service of a minimum eighty-five percent of
       his sentence, provided the appellant earned the requisite good time credits.
       Mario Perkins v. State, No. 02C01-9805-CR-00127, 1999 WL 412720, at *
       *3-4 (Tenn. Crim. App. at Jackson, June 18, 1999). We further note that
       the petitioner's original judgment of conviction for second degree murder
       reflected that the petitioner was sentenced to serve forty-five percent of his
       sentence in confinement, in contravention of Tennessee Code Annotated
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       section 40-35-501(i)(2)(B) which mandates service of one hundred percent
       of the sentence in confinement. That sentence would have been illegal.
       However, the petitioner's judgment of conviction, as corrected, shows no
       illegality on its face as it reflects that the petitioner must serve one hundred
       percent of his sentence in confinement. The trial court acted within its
       authority in correcting the judgment. See Tenn. R.Crim. P. 36 (providing
       that “[c]lerical mistakes in judgments . . . may be corrected by the court at
       any time”).

Id., at *3.

        Tennessee Rule of Criminal Procedure 36.1 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).
Our supreme court recently interpreted the meaning of “illegal sentence” as defined in
Rule 36.1 and concluded that the definition “is coextensive, and not broader than, the
definition of the term in the habeas corpus context.” State v. Wooden, 478 S.W.3d 585,
594-95 (Tenn. 2015). The court then reviewed the three categories of sentencing errors:
clerical errors (those arising from a clerical mistake in the judgment sheet), appealable
errors (those for which the Sentencing Act specifically provides a right of direct appeal)
and fatal errors (those so profound as to render a sentence illegal and void). Id. Fatal
errors include “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.
The court held that only fatal errors render sentences illegal. Id.

       The trial court did not err in denying the Appellant’s motion in this case. “[A]
plea-bargained sentence is legal so long as it does not exceed the maximum punishment
authorized by the plea offense.” Hoover v. State, 215 S.W.3d 776, 780 (Tenn. 2007).
Moreover, as noted above, our Supreme Court recently interpreted the meaning of
“illegal sentence” as defined in Rule 36.1 and concluded that the definition “is
coextensive, and not broader than, the definition of the term in the habeas corpus
context.” Wooden, 478 S.W.3d at 594-95. Indeed, that Court observed the language of
Rule 36.1 “mirrors” the definition of an illegal sentence for habeas corpus purposes. Id.
Accordingly, this Court’s analysis in the Appellant’s previous habeas corpus action
controls the outcome herein. The trial court correctly ruled the Appellant did not state a
colorable claim for relief pursuant to Rule 36.1.



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       As to the Appellant’s request to withdraw his guilty plea, the trial court correctly
ruled the Appellant’s motion was untimely. Tenn. R. Crim. P. 32(f). A motion to
withdraw a guilty plea may not be granted by the trial court after a judgment becomes
final. Id. See also State v. Burris, 40 S.W.3d 520, 524 (Tenn. Crim. App. 2000). The
Appellant filed his motion in this case well after judgment became final in 1996. As
Burris recognizes, “the only avenue available to a defendant seeking to withdraw a plea
is a collateral proceeding under the Post-Conviction Procedure Act.” 40 S.W.3d at 524.
The Appellant already pursued that avenue of relief, albeit unsuccessfully. Perkins, 1999
WL 412720.

      Accordingly, for these reasons, the ruling of the trial court is hereby affirmed
pursuant to Court of Criminal Appeals Rule 20.



                                                _________________________________
                                                JOHN EVERTT WILLIAMS, JUDGE




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