                                                                                       04/29/2020
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE

      STATE OF TENNESSEE v. LAVONTA LAVER CHURCHWELL

               Appeal from the Criminal Court for Davidson County
                    No. 2009-A-260     Jennifer Smith, Judge
                    ___________________________________

                          No. M2019-01673-CCA-R3-CD
                      ___________________________________


The Appellant, Lavonta Laver Churchwell, is appealing the trial court’s denial of his
motion 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

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

Lavonta Laver Churchwell, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior
Assistant Attorney General, for the Appellee, State of Tennessee.

                             MEMORANDUM OPINION

        In 2009, the Appellant was indicted on two counts of first degree premeditated
murder, two counts of first degree felony murder, and two counts of especially
aggravated robbery. He was convicted of two counts of felony murder, two counts of
especially aggravated robbery, and two counts of criminally negligent homicide. The
trial court merged the Appellant’s convictions for criminally negligent homicide into his
felony murder convictions. The Appellant was sentenced to an effective life sentence
with all sentences running concurrently. This Court affirmed the convictions and
sentences on direct appeal. State v. Lavonta Laver Churchwell, No. M2011-00950-CCA-
R3-CD, 2013 WL 430118 (Tenn. Crim. App. Feb. 4, 2013). The Appellant was
unsuccessful in his subsequent pursuit of post-conviction relief. Lavonta Laver
Churchwell v. State, No. M2015-01567-CCA-R3-PC, 2016 WL 5253203 (Tenn. Crim.
App. Sep. 21, 2016). In July 2019, the Appellant filed a motion to correct an illegal
sentence. Tenn. R. Crim. P. 36.1. The trial court summarily denied relief. The
Appellant now appeals. In response to the filing of the record on appeal and the
Appellant’s brief, the State has 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.

       Rule 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 has
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). That
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. Commenting on appealable errors,
the court stated that those “generally involve attacks on the correctness of the
methodology by which a trial court imposed sentence.” Id. In contrast, 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. A trial court may summarily
dismiss a Rule 36.1 motion if it does not state a colorable claim for relief. Tenn. R. Crim.
P. 36.1(b)(2).

      Citing the applicable authority discussed above, the trial court ruled as follows on
the Appellant’s motion:

               Defendant now seeks relief pursuant to Rule 36.1. But his motion
       does not challenge the legality of his sentences but trial errors that could
       have been raised on direct appeal. He requests that this court vacate or
       correct his sentence because: (1) the Court committed “plain error” and
       violated Defendant’s right to a fair and impartial trial by jury by allowing
       the [S]tate to introduce personal details about the victim; (2) the
       prosecutor’s repeated reference to gang affiliation violated the sentencing
       statute, which forbade the use of gang enhancements for some offenses; (3)
       Defendant was improperly sentenced on both a lesser-included offense and
       the greater offense; and (4) double jeopardy and due process prohibit the
       use of the element of “bodily injury” to prove both especially aggravated
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       robbery and felony murder. Rule 36.1 provides no avenue for the relief on
       any of the Defendant’s claims.
                                         ...

              First, the Defendant’s claims that this Court violated his right to a
       fair and impartial trial and his rights under the sentencing statute address
       evidentiary concerns, not the legality of his sentence. Second, Defendant’s
       claim that he was improperly sentenced on a greater and lesser-included
       offense address the validity of his convictions, not the legality of his
       sentences. And beyond that, he is simply mistaken. “It is well settled in
       Tennessee that, under certain circumstances, two convictions or dual guilty
       verdicts must merge into a single conviction to avoid double jeopardy
       implications. For example, merger is required when a jury returns verdicts
       of guilt on two offenses and one of the guilty verdicts is a lesser-included
       offense of the other offense.” State v. Berry, 503 S.W.3d 360, 362 (Tenn.
       2015) (citing State v. Davis, 466 S.W.3d 49, 77 (Tenn. 2015)). The
       judgment in Defendant’s case reflects that the Court merged his dual
       convictions for felony murder and criminally negligent homicide as
       required by Berry. Third, Defendant’s double jeopardy and due process
       claims related to the use of the same element of “bodily injury” to prove
       both especially aggravated robbery and felony murder are trial errors that
       could have been raised on direct appeal. The claims are also meritless. A
       conviction for felony murder and the underlying felony of especially
       aggravated robbery does not violate double jeopardy principles or due
       process. State v. John Robert Tory, No. 03C01-9306-CR-00202, 1994 WL
       398808 (Tenn. Crim. App. Aug. 3, 1994) (perm. app. denied) (citing State
       v. Blackburn, 694 S.W.2d 934 (Tenn. 1985)).

              In short, Defendant does not claim that the sentences imposed by
       this Court were not authorized by the applicable statutes or that they
       directly contravene an applicable statute. And even if he articulated such a
       claim, he would not prevail. Life imprisonment - Defendant’s sentence on
       each of his two felony murder convictions - is a statutorily authorized
       sentence for first-degree murder. Especially aggravated robbery, a Class A
       felony, carries a sentence range of fifteen to sixty years in prison.
       Defendant’s twenty-year sentences for especially aggravated robbery are
       plainly within that range. Defendant’s sentence is entirely consistent with
       the Criminal Sentencing Act.

       The trial court did not err in denying the Appellant’s motion. The Appellant
received a statutorily authorized sentence of life imprisonment for his first degree murder
                                           -3-
convictions. Tenn. Code Ann. § 39-13-202(c). As to the two especially aggravated
robbery convictions, a Class A felony, the statutory maximum is sixty years, and a Range
I sentence for the offense is fifteen to twenty-five years. Tenn. Code Ann. §§ 40-35-
111(b)(1) and 112(a)(1). The Appellant was sentenced to twenty years for each
especially aggravated robbery conviction. Accordingly, as the trial court correctly held,
the Appellant’s sentences were authorized by the applicable statutory scheme. Moreover,
as the trial court also correctly held, Rule 36.1 provides no avenue for relief on any of the
Appellant’s claims because they present appealable, not fatal, errors. The Appellant also
raises other claims for the first time on appeal. Issues raised for the first time on appeal
are considered waived, however. State v. Johnson, 970 S.W.2d 500, 508 (Tenn. Crim.
App. 1996).

      In light of the discussion above, the trial court did not err in denying relief to the
Appellant. The ruling of the trial court is, therefore, affirmed pursuant to Court of
Criminal Appeals Rule 20.


                                                         Judge Robert L. Holloway, Jr.




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