        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs March 3, 2015

                  STATE OF TENNESSEE v. DAMIEN CLARK

                 Appeal from the Criminal Court for Shelby County
                   No. 05-04275 Carolyn W. Blackett, Judge


                No. W2014-01729-CCA-R3-CD - Filed April 20, 2015


The Defendant, Damien Clark, was convicted of second degree murder in 2006 and received
a twenty-year sentence at 100% service. Seven years later, the Defendant filed a motion
pursuant to Tennessee Criminal Procedure Rule 36.1 requesting that the trial court correct
an illegal sentence because his sentence was in violation of Tennessee Code Annotated
section 40-35-120(g) (2014). The trial court summarily denied relief for failure to state a
colorable claim. On appeal, he contends that the trial court erred in denying him relief. We
affirm the judgment of the trial court.

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

R OBERT H. M ONTGOMERY, J R., J., delivered the opinion of the court, in which R OBERT W.
W EDEMEYER and T IMOTHY L. E ASTER, JJ., joined.

Damien Clark, Whiteville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; John H. Bledsoe, Senior Counsel; and
Amy P. Weirich, District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

        In 2006, the Defendant was convicted of the 2005 killing of Demetrius Green, and the
trial court sentenced him to twenty years’ confinement at 100% service. The Defendant
appealed his conviction, and this court denied relief. See State v. Damien Clark, No. W2007-
00651-CCA-R3-CD, 2009 WL 890886 (Tenn. Crim. App. Apr. 1, 2009), perm. app. denied
(Tenn. Aug. 17, 2009). The Defendant also sought post-conviction relief on the ground that
he received the ineffective assistance of counsel. The post-conviction court denied relief,
and this court affirmed the denial. See Damien Clark v. State, No. W2011-02168-CCA-R3-
PC, 2013 WL 1282316 (Tenn. Crim. App. Mar. 28, 2013), perm. app. denied (Tenn. Sept.
10, 2013).

       On July 16, 2014, the Defendant filed a motion to correct an illegal sentence pursuant
to Tennessee Criminal Procedure Rule 36.1. He alleged that his twenty-year sentence
requiring 100% service was in violation of Tennessee Code Annotated section 40-35-120(g).
He also alleged that the State’s notices of impeachment pursuant to Tennessee Rule of
Evidence 609 and of its intent to seek enhanced punishment failed to identify him as a repeat
violent offender and that as a result, the pretrial notices failed to comply with Code section
40-35-120(i)(2). The trial court summarily denied relief, finding that the sentence was legal
because the Defendant was sentenced pursuant to Code section 40-35-501(i)(1) (2010)
(amended 2012, 2013, 2014) and that his second degree murder conviction required 100%
service. The court found that the sentence was not imposed pursuant to Code section 40-35-
120. This appeal followed.

       The Defendant contends that the trial court erred by denying his motion for a corrected
sentence. He argues the trial court’s sentencing him as a repeat violent offender was in direct
violation of Tennessee Code Annotated section 40-35-120(g). The State responds that trial
court properly denied the motion. We agree with the State.

       Tennessee Criminal Procedure Rule 36.1 states, in relevant part, that

       (a) Either the defendant or the state may, at any time, seek the correction of an
       illegal sentence by filing a motion to correct an illegal sentence in the trial
       court in which the judgment of conviction was entered. For purposes of this
       rule, an 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). A defendant is entitled to a hearing and the appointment of
counsel if the motion states a colorable claim for relief. Id. at 36.1(b). Further, the trial court
is required to file an order denying the motion if it determines that the sentence is not illegal.
Id. at 36.1(c)(1).

       Tennessee Code Annotated section 40-35-120 classifies a repeat violent offender as
a defendant who has been convicted of at least three violent felonies as defined in
subsections (b)(1) and (b)(2). A review of the Notice of Impeachment and the Notice of
Intent to Seek Enhanced Punishment filed by the State before the trial shows that the
Defendant did not qualify as a repeat violent offender pursuant to Code section 40-35-120.
Nothing in the comment section of the judgment reflects that the Defendant was sentenced
pursuant to this provision of law.

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      In any event, Tennessee Code Annotated section 40-35-501(i)(1) applies to a
defendant convicted of second degree murder and states,

       There shall be no release eligibility for a person committing [second degree
       murder], on or after July 1, 1995 . . . . The person shall serve one hundred
       percent (100%) of the sentence imposed by the court less sentence credits
       earned and retained. However, no sentence reduction credits . . . shall operate
       to reduce the sentence imposed by the court by more than fifteen percent
       (15%).

The 100% service requirement of the Defendant’s twenty-year sentence was mandated by
Code section 40-35-501(i)(1), and the trial court was required to order 100% service of the
sentence. The judgment’s failure to note the service requirement was imposed pursuant to
Code section 40-35-501(i)(1) is of no legal consequence. The trial court properly denied the
motion for a corrected sentence pursuant to Rule 36.1, and the Defendant is not entitled to
relief.

       The judgment of the trial court is affirmed.




                                          _______________________________________
                                          ROBERT H. MONTGOMERY, JR., JUDGE




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