                                                                                           07/23/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs May 22, 2018

          STATE OF TENNESSEE v. BRYANT EUGENE PAGE, JR.
                    Appeal from the Criminal Court for Knox County
                         No. 107822     G. Scott Green, Judge



                              No. E2017-01344-CCA-R3-CD
                        _____________________________

The Defendant, Bryant Eugene Page, Jr., pleaded guilty to aggravated assault, a Class C
felony, as a Range III offender, with an agreed sentence of twelve years, but with a
Range II release eligibility of 35% rather than a Range III release eligibility of 45%.
More than a year later, the Defendant filed a motion to reduce his sentence, asking the
trial court for a sentence of six years, at 35%, arguing that his sentence was not in range.
The trial court summarily dismissed his motion. On appeal, the Defendant contends that
the trial court erred when the trial court did not reduce his sentence because: (1) his
motion was timely but the court clerk refused to file his motion; (2) his sentence is illegal
because it is out of range. After review, we affirm the trial court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and THOMAS T. WOODALL, J., joined.

Bryant Eugene Page, Jr., Mountain City, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Charme P. Allen, District Attorney General; TaKisha M. Fitzgerald,
Assistant Attorney General, for the appellee, State of Tennessee.

                                        OPINION
                                         I. Facts

       This case arises from the Defendant’s assault of the victim, also the mother of his
child, on August 21, 2015. For this offense, the State filed an information for aggravated
assault, and the Defendant waived an indictment or presentment and agreed to proceed by
information. The Defendant filed an affidavit that he was indigent, the trial court
appointed counsel, and the Defendant and the State reached a plea agreement.

        At the guilty plea hearing, the trial court first noted that the parties agreed that, if
the Defendant pleaded guilty, a gang enhancement would be dismissed. The trial court
ensured that the Defendant understood that he was facing one felony charge, aggravated
assault, a Class C felony, which had a sentencing range of between three and fifteen
years. The trial court articulated that the Defendant, for purposes of this plea agreement,
had been classified as a Range III, persistent offender, meaning his range of punishment
was between ten and fifteen years, and that he had agreed to a sentence of twelve years.
The trial court further ensured the Defendant understood that, while he was pleading as a
Range III offender, the plea agreement contemplated that his release eligibility would be
that of a Range II offender, meaning at 35% rather than the Range III release eligibility of
45%. The trial court also explained that the release eligibility did not mean that the
Defendant was guaranteed release at that time, but rather that he was eligible for release
at that time. The Defendant acknowledged understanding all of these facts. The
Defendant said that he wanted to plead guilty in exchange for a sentence of twelve years,
to be served at 35%.

       The Defendant, twenty-six years old at the time of the hearing, said that he had a
ninth or tenth grade education and could read and write without difficulty. He said he
lived in Knoxville with his mother and that he had always resided with her. His work
history was sporadic, but it included some employment at fast food restaurants, a car
wash, and a tree service.

      The trial court reviewed the Defendant’s constitutional rights and the guilty plea
documents. The Defendant waived his rights and stated he had reviewed and
acknowledged understanding of all the associated guilty plea documents.

         The State then articulated the facts that it would have presented had the case gone
to trial, stating:

       [I]f called to trial in this matter we would call the witnesses listed on the
       information. The testimony would be that on August 21st, 2015, at . . .
       West Scott Avenue the victim . . . and the [D]efendant were present there.
       They [were]. . . in a domestic relationship and . . . they share a child
       together.

              The victim and the [D]efendant were arguing over the custody of the
       child. At which time the [D]efendant became irate, armed himself with a
       black handgun and fired rounds into the vehicle that the victim was
       occupying. The victim was not struck, but his actions placed the victim in
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       fear of death and [risk of] serious bodily injury.

              When the officers arrived, officers did find a bullet hole in the hood
       of the car and the back left window was shot out. Officers did recover two
       []9 millimeter casings located at the scene.

       The trial court informed the Defendant that, given those facts, he was subject to
being indicted for a much greater offense than aggravated assault. The Defendant said he
understood. The trial court accepted the Defendant’s guilty plea to aggravated assault.
The judgment of conviction is dated April 19, 2016.

        On May 31, 2017, the Defendant filed a motion to reduce his sentence. He asked
the trial court to reduce his sentence from twelve years to six years, at 35%. In support of
his request, the Defendant submitted (and we quote precisely from his submission) the
following:

              At the time of sentencing the [D]efendant stated that he understood
       the agreement of the guilty plea. Even though he did not have knowledge,
       nor was he fully aware of the guilty plea. (Boykin vs. Alabama 395 U.S.
       238, 242 (1969) Held that the record must show any guilty plea has made
       voluntarily and knowin[gly]. If it not voluntarily and knowingly it has been
       entered in violation of Due Process and is, therefore void.

              The range for the [D]efendant[’]s punishment was outside of the
       sentenceing [sic] range that the [D]efendant was suppose[d] to have fell
       under. If the [D]efendant would have known he was going to receive a
       sentence outside of his range he would have not accepted the plea and
       proceeded to take the case to trial.

              Furthermore the [D]efendant agreed to the sentence of 12yrs. As a
       persistent offender @ 35%. Even though he lacked the criminal history to
       justify sentencing within this range. The [D]efendant[’]s prior felony
       conviction consist[s] of 3 prior felony convictions. According to T.C.A. [§
       40-35-107(a) A persistent offender is a defendant who has received (1) Any
       combination of five (5) or more prior felony convictions within the
       conviction class or higher or within the next two (2) lower felony classes,
       where applicable.

       The trial court summarily dismissed the Defendant’s motion, finding that it had
not been timely submitted. It is from this judgment that the Defendant now appeals.

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                                       II. Analysis

        On appeal, the Defendant contends that he timely submitted his motion to reduce
his sentence but that the “trial court clerk refused to file sosaid [sic] motion within a
timely manner.” The Defendant expressed his belief that the clerk “intentionally
withheld his timely filed” motion. The Defendant notes that the “certificate of service”
that he filled out when he created the motion listed the date as July 2016. He further
contends that he was coerced into entering a plea of guilty and was entitled to a reduction
of his sentence. The State counters that the Defendant received a very favorable plea deal
to a within range sentence, considering the facts of the case, and that he entered his plea
agreement knowingly and voluntarily. It further contends that the Defendant’s motion
was not timely.

       Tennessee Rule of Criminal Procedure 35, which governs the reduction of
sentences, provides:

       (a) Timing of Motion. The trial court may reduce a sentence upon motion
       filed within 120 days after the date the sentence is imposed or probation is
       revoked. No extensions shall be allowed on the time limitation. No other
       actions toll the running of this time limitation.

       (b) Limits of Sentence Modification. The court may reduce a sentence only
       to one the court could have originally imposed.

       (c) Hearing Unnecessary. The trial court may deny a motion for reduction
       of sentence under this rule without a hearing.

       (d) Appeal. The defendant may appeal the denial of a motion for reduction
       of sentence but shall not be entitled to release on bond unless already under
       bond. If the court modifies the sentence, the state may appeal as otherwise
       provided by law.

Tenn. R. Crim. P. 35. The Advisory Commission Comment to Rule 35 states, “The
intent of this rule is to allow modification only in circumstances where an alteration of
the sentence may be proper in the interests of justice.” In order to receive Rule 35 relief,
a defendant must “show that post-sentencing information or developments ha[ve] arisen
to warrant a reduction of his sentence in the interest of justice.” State v. McDonald, 893
S.W.2d 945, 948 (Tenn. Crim. App. 1994).

       The denial of a Rule 35 motion is reviewed under an abuse of discretion standard.
State v. Edenfield, 299 S.W.3d 344, 346 (Tenn. Crim. App. 2009); State v. Irick, 861
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S.W.2d 375, 376 (Tenn. Crim. App. 1993). A trial court abuses its discretion only when
it “has applied an incorrect legal standard, or has reached a decision which is illogical or
unreasonable and causes an injustice to the party complaining.” State v. Ruiz, 204
S.W.3d 772, 778 (Tenn. 2006) (citing Howell v. State, 185 S.W.3d 319, 337 (Tenn.
2006)).

       We agree with the trial court’s determination that the Defendant’s Rule 35 motion
was untimely. The judgment of conviction in this case was entered April 19, 2016. The
Defendant had 120 days, which ended sometime in July 2016 to file his motion to reduce
sentence under Rule 35. The Defendant filed his motion on May 31, 2017. We find
unpersuasive the Defendant’s contention that the trial court clerk held his motion without
properly filing it for ten months after his filing date. The Defendant’s listing of “July
2016” on the certificate of service is clearly either an intentional or inadvertent clerical
error. Accordingly, we conclude that the Defendant did not timely file his motion.

       Further, as to his contention that he timely gave his motion to prison personnel to
be mailed, Tennessee Rule of Criminal Procedure 49(d)(1) states, “If a paper required or
permitted to be filed pursuant to the rules of criminal procedure is prepared by or on
behalf of a pro se litigant incarcerated in a correctional facility and is not received by the
court clerk until after the deadline for filing, the filing is timely if the paper was delivered
to the appropriate individual at the correctional facility within the time set for filing.”
Under this rule, a pro se inmate has the burden of showing that he delivered the filing to
the appropriate individual at the correctional facility within the time set for filing. Tenn.
R. Crim. P. 49(d)(1), (3). The Defendant has failed to satisfy his burden of showing that
he delivered his motion to the appropriate individual at the correctional facility on or
before July 2016.

       Because we have concluded that the Rule 35 motion was untimely, our
consideration of the Defendant’s claim that his sentence is illegal and should be reduced
is unnecessary. We, however, briefly note that his twelve-year sentence is within the
range for a Class C felony. The record evinces that the Defendant knew that he was
pleading guilty to a sentence two years greater than a Range II offender in exchange for a
Range II release eligibility date of 35% rather than 45%. The record also evinces that the
Defendant understood that, had he not pleaded guilty, the State would have sought an
indictment for a greater offense rather than proceed on the information of aggravated
assault. Further, the State declined to pursue a gang enhancer as part of the plea
agreement. Finally, the Defendant’s complaints relate to the trial court’s imposition of an
improper sentence at the sentencing hearing, and we have already noted that such claims
do not constitute a basis for Rule 35 relief. See McDonald, 893 S.W.2d at 948 (stating
that a defendant must “show that post-sentencing information or developments ha[ve]
arisen to warrant a reduction of his sentence in the interest of justice”). In any case,
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because the Defendant was sentenced to a within range sentence, his sentence is not
illegal or unconstitutional. See Bise, 380 S.W.3d at 696-99. He is not entitled to relief.

                                    III. Conclusion

       In accordance with the foregoing reasoning and authorities, we affirm the trial
court’s judgment.

                                                _________________________________
                                                ROBERT W. WEDEMEYER, JUDGE




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