        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE


               STATE OF TENNESSEE v. WILLIAM SEIGLER

                Appeal from the Circuit Court for Rutherford County
                         No. F60996    Royce Taylor, Judge




                 No. M2014-02559-CCA-R3-CD – Filed July 7, 2015
                           _____________________________

The Appellant, William Seigler, is appealing the order of the trial court denying his
“motion to correct 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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which ROBERT L.
HOLLOWAY, JR., and TIMOTHY L. EASTER, JJ., joined.

William Seigler, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Assistant
Attorney General, for the Appellee, State of Tennessee.


                              MEMORANDUM OPINION


       The Appellant is appealing the trial court’s order denying his “motion to correct
sentence.” In December 2007, the Appellant was indicted on five counts of rape of a
child. The Appellant ultimately pleaded guilty to three counts of attempted rape of a
child. The two remaining counts were dismissed. The Appellant was sentenced to
twelve years on each count, to be served concurrently as a standard offender at 30%.
Judgments were entered on March 10, 2008. The Appellant filed a “motion to correct
sentence” on October 28, 2014. To the extent the Appellant requested a reduction of his
sentence, the trial court concluded that the motion was untimely. See Tenn. R. Crim. P.
35(a) (motion to reduce sentence must be filed within 120 days after sentence imposed).
The court further concluded that the Appellant’s sentence was not illegal under the terms
of Rule of Criminal Procedure 36.1. In response to the Appellant’s brief, the State moves
this Court to affirm the order of the trial court pursuant to Court of Criminal Appeals
Rule 20. For the reasons stated below, said motion is hereby granted.

       The gist of the Appellant’s argument is that he should not have been sentenced at
the high end of the applicable sentencing range because he is a first time offender. The
Appellant was charged with rape of a child, a Class A felony; he pled guilty to attempted
rape of a child, a Class B felony. The sentencing range for a standard Range I offender
for a Class B felony is not less than eight (8) nor more than twelve (12) years. Tenn.
Code Ann. § 40-35-112(a)(2).

       As referenced above, a “trial court may reduce a sentence upon motion filed
within 120 days after the date the sentence is imposed . . . No extensions shall be allowed
on the time limitation.” Tenn. R. Crim. P. 35(a). As the trial court correctly found, the
Appellant’s motion, if treated as one requesting a reduction of sentence pursuant to Rule
35, was filed more than six years after sentences were imposed and, therefore, was
untimely. The trial court did not err in denying the motion in that respect.

       Rule 36.1 permits a defendant to seek correction of an illegal sentence at any time.
“[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). Regarding the
Appellant’s argument that his sentence is illegal, the State succinctly explains why that
argument must fail:

       If the appellant had been tried and convicted of the original charged
       offenses of rape of a child, he would have been exposed to a greater
       punishment of “not less than fifteen (15) nor more than twenty-five (25)
       years” for each offense. Tenn. Code Ann. § 40-35-112(a)(1). Additionally,
       because rape of a child is one of the several enumerated offenses for which
       “[t]here shall be no release eligibility,” he would not have been eligible for
       parole. See Tenn. Code Ann. § 40-35-501(i). Attempted rape of a child is
       not one of the enumerated offenses under § 40-35-501, and therefore, the
       appellant is eligible for parole after serving thirty (30) percent of his
       twelve-year sentence. The current case is an obvious situation where the
       appellant entered into an agreement to reduce his exposure to the possibility
       of multiple convictions for rape of a child with sentence ranges of fifteen to
       twenty-five years to be served at 100% for each offense, to an agreed total
       term of ten to twelve years with the possibility of parole after service of
       30% of the sentence. Our courts have long-recognized “the ability of the
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       State and defendants to use offender classification and release eligibility as
       subjects of plea bargain negotiations” which “are properly characterized as
       non-jurisdictional.” McConnell v. State, 12 S.W.3d 795, 798 (Tenn. 2000)
       (emphasis added).

As the trial court correctly held, the Appellant’s sentence is not illegal under Rule 36.1
because his sentence was specifically authorized by statute. See Tenn. Code Ann. § 40-
35-112(a)(2).

       The Appellant appears to raise for the first time in his brief on appeal an issue
relating to the representation by his attorney at the guilty plea and sentencing hearings.
That issue was not presented to the trial court and thus it is waived on appeal. See, e.g.,
Butler v. State, 789 S.W.2d 898, 902 (Tenn. 1990).

       Accordingly, the order of the trial court denying the Appellant’s “motion to
correct sentence” is hereby affirmed pursuant to Rule 20.




                                                 _________________________________
                                                 ROBERT W. WEDEMEYER, JUDGE




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