                                                                                          10/31/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs October 16, 2018

     STATE OF TENNESSEE v. EDWARD DEWAYNE SHELTON, JR.

                Appeal from the Criminal Court for Davidson County
                    No. 2009-A-854    Mark J. Fishburn, Judge


                            No. M2018-00319-CCA-R3-CD


The Appellant, Edward Dewayne Shelton, Jr., appeals as of right from the Davidson
County Criminal Court’s summary denial of his “motion to dismiss the indictment and
motion to withdraw guilty plea and motion to correct illegal sentence.” The Appellant
contends (1) that his motion to withdraw his guilty plea was timely filed because there
was no file-stamp date on the judgment form; (2) that his guilty plea was not knowingly
and voluntarily entered due to the ineffective assistance of his trial counsel; (3) that the
charging indictment was void because it “was only signed by the foreman of the grand
jury”; and (4) that his sentence was illegal because he was classified as a Range II,
multiple offender rather than a Range I, standard offender. Discerning no error, we
affirm the judgment of the trial court.

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

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

Edward Dewayne Shelton, Jr., Hartsville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Counsel; Glenn R. Funk, District Attorney General; and Janice Norman, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

       In 2009, the Appellant was indicted for one count of first degree felony murder,
one count of first degree premeditated murder, two counts of attempted first degree
murder, three counts of attempted especially aggravated robbery, and one count of
aggravated assault. On January 29, 2010, the Appellant entered a plea agreement with
the State. The Appellant agreed to plead guilty to second degree murder and receive a
sentence of thirty-five years as a Range II, multiple offender. In exchange, the State
dismissed all of the remaining charges. The Appellant’s judgment form was dated
January 29, 2010, but it was not file stamped by the court clerk. The judgment form also
noted that the Appellant “waive[d] range of punishment under” Hicks v. State, 945
S.W.2d 706 (Tenn. 1997).

       On December 22, 2017, the Appellant filed the instant motion. The Appellant
contended that the motion was timely because there was no file-stamp date on the
judgment form; therefore, his judgment of conviction had never been entered by the court
clerk. The Appellant also contended that his guilty plea was not knowingly and
voluntarily entered due to the ineffective assistance of his trial counsel. Specifically, the
Appellant argued that trial counsel was ineffective for advising him to accept a sentence
as a Range II, multiple offender when he did not “have any prior convictions to qualif[y]
him as a multiple offender.” The Appellant further contended that the indictment against
him was void because it “was only signed by the foreman of the grand jury” and not all of
the grand jurors.

       On January 29, 2018, the trial court entered a written order summarily denying the
Appellant’s motion. The trial court concluded that the Appellant’s motion was untimely.
The trial court noted that there was no file-stamp date on the judgment form. However,
“[t]here was a minute entry entered and signed on January 29, 2010, reflecting [the
Appellant’s] plea in this matter.” The trial court concluded that the Appellant’s
conviction became final thirty days “after that date” on March 1, 2010. The Appellant
now appeals to this court. The Appellant raises the same arguments on appeal as those in
his motion.

        A motion to withdraw a guilty plea must be filed before the judgment becomes
final. Tenn. R. Crim. P. 32(f). “A trial court’s judgment becomes final thirty days after
its entry unless a timely notice of appeal or specified post-trial motion is filed.” Hill v.
State, 111 S.W.3d 579, 580 (Tenn. Crim. App. 2003). The judgment of conviction “shall
be signed by the judge and entered by the clerk.” Tenn. R. Crim. P. 32(e)(1). The failure
to comply with Rule 32(e) “amounts to a clerical error” and “does not require a
conviction to be set aside.” State v. Gary Carr, No. W2016-01525-CCA-R3-CD, 2017
WL 2493687, at *2 (Tenn. Crim. App. June 9, 2017).

       “[T]he file-stamped date is significant for the sole purpose of determining the
timeliness of certain filings such as a motion for new trial.” Carr, 2017 WL 2493687, at
*2. The Appellant argues that his motion to withdraw his guilty plea was timely because
there was no file-stamp date on the judgment form even though his motion was filed
almost eight years after the plea submission hearing. The Appellant in his motion and
brief states he received a copy of the judgment form from the clerk’s office. The
judgment form was also included in the appellate record. As such, “we presume at some
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point [the judgment form was] received by the clerk’s office but not properly
file-stamped.” Id. Furthermore, the trial court “determined that the judgment form was
entered on the record and into the minutes of the court” on January 29, 2010. Id.
Accordingly, we conclude that the trial court did not err in finding that the judgment
became final on March 1, 2010, and that the Appellant’s motion was untimely.

         The Appellant’s claim that his guilty plea was not knowingly and voluntarily
entered due to the ineffective assistance of his trial counsel appears to be a request for
post-conviction relief. Post-conviction relief is available when a “conviction or sentence
is void or voidable because of the abridgment of any right guaranteed by the Constitution
of Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103.
However, a petition for post-conviction relief must be filed “within one (1) year of the
date of the final action of the highest state appellate court to which an appeal is taken or,
if no appeal is taken, within one (1) year of the date on which the judgment became
final . . . .” Tenn. Code Ann. § 40-30-102(a). As noted above, the Appellant’s judgment
became final on March 1, 2010, almost eight years before his motion was filed.

       “[T]he right to file a petition for post-conviction relief . . . shall be extinguished
upon the expiration of the limitations period.” Tenn. Code Ann. § 40-30-102(a). “If it
plainly appears from the face of the petition, any annexed exhibits or the prior
proceedings in the case that the petition was not filed . . . within the time set forth in the
statute of limitations, . . . the judge shall enter an order dismissing the petition.” Tenn.
Code Ann. § 40-30-106(b). The Post-Conviction Procedure Act is explicit that the
one-year statute of limitations “shall not be tolled for any reasons, including any tolling
or saving provision otherwise available at law or equity.” Tenn. Code Ann. § 40-30-
102(a).

        The Post-Conviction Procedure Act provides for only three narrow factual
circumstances in which the statute of limitations may be tolled, none of which the
Appellant alleges apply to his case. See Tenn. Code Ann. § 40-30-102(b). In addition to
the statutory circumstances, our supreme court has held that due process principles may
require tolling the statute of limitations. See Whitehead v. State, 402 S.W.3d 615, 622-23
(Tenn. 2013). However, the Appellant has not alleged that any of the circumstances our
supreme court has identified as requiring tolling of the post-conviction statute of
limitations apply to his case. See id. at 623-24. Accordingly, we conclude that the
Appellant’s claim of ineffective assistance of trial counsel is time-barred.

       The Appellant also contends that the charging indictment was void because it “was
only signed by the foreman of the grand jury” and not all of the grand jurors. The
Appellant cites to Tennessee Code Annotated section 40-13-105 to support his argument.
However, section 40-13-105 provides that an indictment “cannot be found without the
concurrence of at least twelve . . . grand jurors.” When at least twelve grand jurors
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concur, the indictment “shall be endorsed a ‘true bill,’ and the endorsement signed by the
foreman.” Tenn. Code Ann. § 40-35-105. Section 40-13-105 requires only the signature
of the grand jury foreperson and not the signatures of all of the grand jurors. Here, the
indictment was endorsed a “true bill” and signed by the foreperson of the grand jury. As
such, there was no defect in the indictment.

        The Appellant additionally contends that his sentence was illegal because he was
classified as a Range II, multiple offender rather than a Range I, standard offender. Rule
36.1 provides that either the defendant or the State “may seek to correct an illegal
sentence.” Tenn. R. Crim. P. 36.1(a)(1). An “illegal sentence” is defined in the rule as a
sentence “that is not authorized by the applicable statutes or that directly contravenes an
applicable statute.” Tenn. R. Crim. P. 36.1(a)(2). The term “illegal sentence” “is
synonymous with the habeas corpus concept of a ‘void’ sentence.” Cox v. State, 53
S.W.3d 287, 292 (Tenn. Crim. App. 2001), overruled on other grounds, Moody v. State,
160 S.W.3d 512 (Tenn. 2005).

        “[F]ew sentencing errors [will] render [a sentence] illegal.” State v. Wooden, 478
S.W.3d 585, 595 (Tenn. 2015). Examples of illegal sentences 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 offense.” Id. Conversely, “attacks on the
correctness of the methodology by which a trial court imposed [a] sentence” will not rise
to the level of an illegal sentence. Id.

        Generally, a trial court’s error “in offender classification” will not “render the
sentence illegal so long as the classification falls with the purview of the Sentencing
Act.” Cantrell v. Easterling, 346 S.W.3d 445, 458 (Tenn. 2011). The only time an error
in the classification of an offender would ever rise to the level of an illegal sentence
would be if a trial court, somehow, classified a defendant in a category not available
under the Sentencing Act. Id. at 458-59. Put another way, an offender classification
would create an illegal sentence only if the trial court classified the defendant in a
category for which it did “not have the authority or the jurisdiction to classify a
defendant.” Id. at 458. Otherwise, “[c]orrection of an alleged error in offender
classification must be sought on direct appeal.” Id.

       Furthermore, our courts have long recognized “the ability of the 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). That appears to be just what occurred here as
the Appellant was charged with eight counts, including two counts of first degree murder
and two counts of attempted first degree murder. The Appellant pled guilty to second
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degree murder with a sentence of thirty-five years as a Range II, multiple offender and
the State dismissed all of the other charges. As such, we conclude that the Appellant
failed to present a colorable claim that his sentence was illegal.

        Upon consideration of the foregoing and the record as a whole, the judgment of
the trial court is affirmed.



                                                _________________________________
                                                D. KELLY THOMAS, JR., JUDGE




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