                                                                                       07/05/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT KNOXVILLE

                JOHNNY COFFEY v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Bradley County
                  No. M-08-597      Andrew M. Freiberg, Judge
                     ___________________________________

                          No. E2017-02206-CCA-R3-CD
                      ___________________________________


The pro se Appellant, Johnny Coffey, appeals as of right from the Johnson County
Criminal Court’s order summarily dismissing his motion to correct an illegal sentence.
Tenn. R. Crim. P. 36.1. The State has filed a motion to affirm the trial court’s judgment
pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals. Following
our review, we conclude that the State’s motion is well-taken and affirm the order of the
trial court.

           Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed
           Pursuant to Rule 20, Rules of the Court of Criminal Appeals.

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ROBERT H. MONTGOMERY, JR., JJ., joined.

Johnny Coffey, Pro Se, Wartburg, Tennessee.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Attorney
General; Stephen D. Crump, District Attorney General; and Matthew Dunn, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

        On December 3, 2008, the Bradley County grand jury charged the Appellant with
first degree murder. At trial, the jury convicted the Appellant of the lesser included
offense of second degree murder and the trial court sentenced the Appellant to twenty
years’ incarceration. This court affirmed the Appellant’s conviction and sentence on
direct appeal. State v. Johnny Coffey, No. E2011-00192-CCA-R3-CD, 2012 WL 362969
(Tenn. Crim. App. Feb. 6, 2012), perm. app. denied (Tenn. Apr. 11, 2012). The
Appellant unsuccessfully sought post-conviction relief, the denial of which was affirmed
by this court on direct appeal. Johnny Coffey v. State, E2013-01659-CCA-R3-PC, 2014
WL 1632765 (Tenn. Crim. App. Apr. 23, 2014), perm. app. denied (Tenn. Aug. 26,
2014).

         On September 19, 2017, the Appellant filed a motion to correct an illegal sentence
pursuant to Tennessee Rule of Criminal Procedure 36.1. In his motion, the Appellant
alleged that his sentence is illegal because “the trial court increased Coffey’s sentence by
five years based upon enhancement factors that were not submitted and determined by a
jury . . . .” See Blakely v. Washington, 124 S. Ct. 2531 (2004). On October 11, 2017, the
trial court summarily denied the 36.1 motion, ruling that the Appellant failed to present a
colorable claim. The Appellant filed a timely notice of appeal from the trial court’s
order.

       This court has held that “a Blakely violation would not render a judgment void and
does not meet the definition of an illegal sentence under Rule 36.1.” State v. Rafael
Antonio Bush, No. M2016-01537-CCA-R3-CD, 2017 WL 2376825, at *7 (Tenn. Crim.
App. June 1, 2017); State v. James Ronald Rollins, No. E2016-00186-CCA-R3-CD, 2016
WL 5920752, at *3 (Tenn. Crim. App. Aug. 16. 2016), perm. app. denied (Tenn. Jan. 19,
2017); State v. Joseph B. Thompson, No. E2015-01963-CCA-R3-CD, 2016 WL 2770178,
at *1 (Tenn. Crim. App. May 10, 2016); State v. Tony Samuel, No. W2014-02085-CCA-
R3-CD, 2015 WL 12978636 (Tenn. Crim. App. July 21, 2015).

       Furthermore, our supreme court “has held repeatedly that the 2005 amendments
resolved the Sixth Amendment constitutional concerns addressed in Blakely
v.Washington that arise when trial courts rely on enhancement factors that have not been
found by a jury.” State v. Cross, 362 S.W.3d 512, 528 (Tenn. 2012) (citing State v.
Hester, 324 S.W.3d 1, 69 (Tenn. 2010); State v. Banks, 271 S.W.3d 90, 144-45 (Tenn.
2008); State v. Carter, 254 S.W.3d 335, 342-44 (Tenn. 2007)). As aptly noted by the
Cross court:

              Prior to being amended in 2005, Tennessee’s sentencing laws set
       presumptive sentences in non-capital cases. The midpoint of the sentencing
       range was the presumptive sentence for all Class A felonies and the
       statutory minimum sentence was the presumptive sentence for all other
       felonies. Under the prior sentencing scheme, a trial court could not
       increase a defendant’s sentence beyond the presumptive sentence in the
       absence of an enhancement factor. However, a trial court could increase
       the sentence to the maximum within the range if it found even a single
       enhancement factor.



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              In response to constitutional concerns arising from the United States
      Supreme Court’s Blakely v. Washington decision, the General Assembly
      amended Tennessee’s sentencing statutes to remove presumptive sentences.
      These changes to the sentencing structure “enabled Tennessee’s trial courts
      to sentence a defendant to any sentence within the applicable range as long
      as the length of the sentence is ‘consistent with the purposes and principles’
      of the sentencing statutes.” The 2005 amendments to Tennessee’s
      sentencing laws have plainly “increase[d] the amount of discretion a trial
      court exercises when imposing a sentencing term.” These changes also
      eliminated the Blakely constitutional concern with Tennessee trial courts
      finding the facts necessary to apply enhancement factors.

Id. at 528-29 (internal citations omitted). The sentencing issues previously raised by
Blakely v. Washington were rendered moot by the 2005 Amendments to the Sentencing
Reform Act of 1989. Therefore, even if a Blakely claim had been properly presented, the
Appellant, sentenced in 2010 for a 2008 offense, could not prevail.

       Accordingly, the trial court properly denied the Appellant’s Rule 36.1 motion
without a hearing. Upon consideration of the foregoing and the record as a whole, we
affirm the judgment of the Bradley County Criminal Court pursuant to Rule 20 of the
Rules of the Tennessee Court of Criminal Appeals.



                                            ____________________________________
                                                   D. KELLY THOMAS, JR., JUDGE




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