                                                                                          07/16/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs April 23, 2019

          STATE OF TENNESSEE v. ASHTON MONTRELL JONES

                Appeal from the Circuit Court for Hardeman County
                   No. 12-CR-72        J. Weber McCraw, Judge
                     ___________________________________

                           No. W2018-01845-CCA-R3-CD
                       ___________________________________

Defendant, Ashton Montrell Jones, appeals from the trial court’s order denying
Defendant’s Tennessee Rule of Criminal Procedure 36 motion (“Rule 36 motion”) to
correct a clerical error in a community corrections revocation order. The trial court
summarily denied the motion without an evidentiary hearing on the sole basis of “lack of
jurisdiction.” Under the particular circumstances of this case, we reverse the trial court’s
order and remand to the trial court for proper consideration of the motion.

                      Tenn. R. App. P. 3 Appeal as of Right;
               Judgment of the Circuit Court Reversed and Remanded

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

Ashton Montrell Jones, Tiptonville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Katharine K. Decker, Assistant
Attorney General; and D. Michael Dunavant, District Attorney General, for the appellee,
State of Tennessee.

                                        OPINION

       On April 12, 2012, Defendant pled guilty in the Circuit Court of Hardeman
County to one count of aggravated burglary, one count of burglary, and one count of
being a convicted felon in possession of a handgun. He received an effective sentence of
seven years, to be served in community corrections after 180 days incarceration,
decreased by 102 days of jail credit.

       From April 12, 2012 through the date of the revocation order which is the subject
of this appeal, multiple revocation petitions were filed. Various multiple revocations
were ordered with some incarceration, and with placement back on community
corrections. Credit for both time spent in community corrections in compliance with the
rules of his sentence, and for jail credits for days spent incarcerated pending court
hearings was awarded to Defendant.

       The order which is the subject of this appeal reflects that the community
corrections sentence as to the effective sentence of seven years was revoked, and the
sentence was ordered to be served by incarceration. The trial court ordered that
Defendant was entitled to 474 days credit for time spent in compliance of all rules of
community corrections, plus 477 days of credit for time spent in jail awaiting hearings.

       In his Rule 36 motion Defendant acknowledges that he is entitled to the amount of
951 days credit reflected in the revocation order of August 12, 2016. However, the
essence of his pro se motion is that because of a clerical error, he was deprived of credit
for time he spent in jail awaiting disposition of the last revocation petition. He asserts
that he is entitled to an additional credit of 492 days, pursuant to Tennessee Code
Annotated section 40-23-101(c), from April 8, 2015 through the date of the revocation
order, August 12, 2016. The record indicates that the bench warrant executed for
Defendant as a result of the pertinent petition to revoke his community corrections
sentence was executed by an officer on April 8, 2015. This is consistent with
Defendant’s allegation that he was placed in custody on April 8, 2015. The initial bond
was set at $100,000.00.

       On April 17, 2015, another petition to revoke was filed alleging commission of
new offenses pending in General Sessions Court, but neither the date of the offenses, nor
the date of his arrest for the new charges are stated. The petition did set forth that he was
incarcerated in the McNairy County Jail, rather than the Hardeman County Jail, for the
new offenses.

        Also, Defendant was on community corrections for cases in two separate
indictments. The sentences involved in this appeal are in indictment number 2012-CR-
72, imposed when he pled guilty on April 12, 2012. Defendant committed a new offense
on October 18, 2012, possession of a weapon by a convicted felon, and this charge led to
a violation of his community corrections sentence in indictment number 2012-CR-72.
The new charge is in indictment number 2013-CR-62. According to the record, on May
9, 2013, Defendant’s community corrections sentence in indictment number 2012-CR-72
was revoked and “resentenced to begin anew.” On the same day, Defendant pled guilty
to the charge in number 2013-CR-62, and he was sentenced to community corrections for
two years consecutive to the sentence in number 2012-CR-72.



                                            -2-
       The two petitions to revoke community corrections filed December 17, 2014, and
April 26, 2015, the orders for two capiases to be issued, and each capias had both trial
court docket numbers, but the order which Defendant says should be corrected pertains
only to case number 2012-CR-72.

       Our disposition of his case is a result of the trial court’s findings and conclusions
contained in its order denying the motion. The order denying the Rule 36 motion lists
only case number 2012-CR-72, which is consistent with the order revoking community
corrections, but, as indicated above, it is inconsistent with the petitions for revocation,
orders authorizing capias, and the capiases/warrants issued, all of which pertained to both
case numbers.

       The entire order is as follows:

              ORDER DENYING MOTION TO CORRECT JUDGMENT
               PURSUANT TO RULES OF CRIMINAL PROCEDURE,
                   RULE 36, DUE TO CLERICAL MISTAKES

              This case came to be heard September 4, 2018, on the paper
        writing styled “Motion to Correct Judgment Pursuant to Rules of
        Criminal Procedure, Rule 36, Due to Clerical Mistake” filed by
        [Defendant], and the record as a whole.

              FROM ALL OF WHICH THE COURT FINDS that petitioner
        complains the Department of Correction will not give proper jail credits.
        Upon review, it appears that [Defendant] has earned certain sentence
        credits as shown by the Courts Order, and those credits may not
        properly appear on the paperwork of Department of Correction. A
        challenge to the propriety of a release eligibility date or questions about
        parole or sentence credits have no bearing upon the validity of the
        conviction. Questions such as this, because the Department of
        Correction is an agency of the state government, should be addressed
        through the Administrative Procedures Act. Tenn. Code Ann. §§ 4-5-
        101 to -324. Thereafter, any judicial review must first be in the
        Chancery Court of Davidson County, in Nashville. Brigham v. Lack,
        755 S.W.2d 469, 471 (Tenn. Crim. App. 1988); Tenn. Code Ann. § 4-5-
        323.

              IT IS THEREFORE ORDERED, ADJUDGED AND DECREED
        that the paper writing styled “Motion to Correct Judgment Pursuant to

                                           -3-
        Rules of Criminal Procedure, Rule 36, Due to Clerical Mistake” is
        hereby denied for lack of jurisdiction.

                ENTERED his 4th day of September, 2018

                                                   /s/ J. Weber McCraw, Judge
                                                   J. Weber McCraw, Judge
(Emphasis added).

        We have carefully reviewed Defendant’s motion. Contrary to what the trial court
found, Defendant did not complain that the Department of Correction was failing to give
him proper jail credits. The motion plainly sets forth that there was a clerical error by the
trial court in its order of August 12, 2016, by omission of jail credits to which he was
entitled in case number 2012-CR-72 for incarceration from April 8, 2015 through August
12, 2016. Defendant did attach to his Rule 36 motion Department of Correction data
pertaining to his sentence as an exhibit, but it was to show how he has been affected by a
clerical error in the order.

       Furthermore, even though the trial court’s order denying the motion includes the
correct legal conclusion that challenges to sentence credits “have no bearing upon the
validity of the conviction,” the trial court’s reliance upon this to deny the motion is
puzzling. Defendant does not assert that his conviction is invalid. Also, the trial court’s
error in framing the motion as a complaint on how the Department of Correction is
applying the sentence credits set forth in the order caused the trial court to erroneously
dismiss the motion based upon a “lack of jurisdiction.”

        Finally, we note that in the order denying the motion, the trial court included its
finding that based upon its review of the record, “it appears that [Defendant] has earned
certain sentence credits as shown by the Court[’]s Order, and those credits may not
properly appear on the paperwork of [the] Department of Correction.” We are unable to
determine which order the trial court was referring to, or whether the trial court was
referring to an omission of sentence credits by the trial court.

       In any event, it is clear that the trial court failed to correctly address the assertions
by Defendant and the basis of his claim. The trial court relied upon an improper legal
standard to deny the claim based upon the conclusion that the “validity of the conviction”
could not be challenged even though Defendant did not challenge the validity of his
convictions. Finally, the trial court erroneously dismissed the motion based upon the
erroneous conclusion that the trial court did not have jurisdiction to rule on a Rule 36
motion.

                                             -4-
       In his appellate brief, Defendant sets forth his argument that a clerical error of
omission by the trial court denied him pre-sentence jail credits for the period of
incarceration from April 8, 2015 to August 12, 2016.

       The State argues that Defendant did not attach a transcript of the revocation
hearing held August 12, 2016, and without that, there is no way to determine if the trial
court verbally ordered jail credit for April 8, 2015 through August 12, 2016, which was
not included in the order of revocation due to a clerical error. Also, the State correctly
argues that the record shows additional new charges with April 2015 court dates. The
State asserts that a transcript would be necessary to show that Defendant was not
incarcerated for the new charges instead of the petition to revoke his community
corrections sentence.

Analysis

      Tennessee Rule of Criminal Procedure 36 states as follows:

          Rule 36. Clerical Mistakes. – After giving any notice it considers
        appropriate, the court may at any time correct clerical mistakes in
        judgments, orders, or other parts of the record, and errors in the record
        arising from oversight or omission. Upon filing the corrected judgment
        or order, or upon the court’s denial of a motion filed pursuant to this
        rule, the defendant or the state may initiate an appeal as of right pursuant
        to Rule 3, Tennessee Rules of Appellate Procedure.

Tenn. R. Crim. P. 36. (Emphasis added).

       In Cantrell v. Easterling, 346 S.W.3d 446 (Tenn. 2011), our supreme court quoted
from an unreported decision of the Tennessee Court of Criminal Appeals wherein the
Court set forth the proper use of Rule 36 to correct an error in sentencing,

             In making changes for clerical error, the record in the case
             must show that the judgment entered omitted a portion of the
             judgment of the court or that the judgment was erroneously
             entered. The most reliable indicator that clerical error was
             made is the transcript of the hearing or other papers filed in
             connection with the proceedings which show the judgment
             was not correctly entered. In the absence of these supporting
             facts, a judgment may not be amended under clerical error
             rule after it has become final.

                                           -5-
        State v. Thomas, C.C.A. No. 03C01-9504-CR-00109, 1995 WL 676396,
        at *1 (Tenn. Crim. App. Nov. 15, 1995).

Cantrell, 346 S.W.3d at 449 n. 2 (emphasis added).

       The State argues that there is nothing in the record to support Defendant’s claim
that there is a clerical error in the order revoking community corrections, primarily
relying upon the fact that the incarcerated Defendant did not provide a transcript of the
revocation hearing. Relying on State v. Brown, 479 S.W.3d 200, 213 (Tenn. 2015), the
State asserts that the transcript is the most reliable way to determine whether the sentence
ordered at the hearing is the same as the sentence recorded in the judgment or order.

       Notwithstanding the State’s argument, the trial court’s order denying the Rule 36
motion and other portions of the record discussed above requires a reversal of the trial
court’s order and remand for further proceedings.

       The trial court’s decision on a Rule 36 motion is reviewed for an abuse of
discretion. Marcus Deangelo Lee v. State, No. W2013-01088-CCA-R3-CD, 2014 WL
902450, at *3 (Tenn. Crim. App. March 7, 2014). “An abuse of discretion occurs
when [a] trial court applies an incorrect legal standard or reaches a conclusion that
is ‘illogical or unreasonable and causes an injustice to the party complaining.’”
State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007) (quoting State v. Ruiz, 204
S.W.3d 772, 778 (Tenn. 2006)). The standard recognizes that the trial court’s
discretion “‘is to be guided by sound legal principles.’” Id. (quoting Martha S.
Davis, Standard of Review; Judicial Review of Discretionary Decisionmaking, 2 J.
App. Prac. & Process 47, 58 (2000)).

      The trial court’s erroneous interpretation of Defendant’s claims in his motion, the
erroneous conclusion that the motion could not be used to attack the validity of the
conviction when Defendant did not ask for that relief, and the dismissal of the Rule 36
motion because of a “lack of jurisdiction” based upon the erroneous findings and legal
conclusions meets the test to show an abuse of discretion.

      Our review of the motion, as indicated above, reveals that Defendant alleges that
because of a clerical error, as defined in Rule 36, Defendant’s jail credits for April 8,
2015 through August 12, 2016 were omitted from the revocation order entered August
12, 2016. That is the sole issue presented. The record indicates the motion was
summarily dismissed without a response filed by the State or an evidentiary hearing.
Upon remand, if Defendant desires to file a transcript of the revocation hearing, he should


                                           -6-
be given ample time to do so. If indigent, he can request the trial court to order a
transcript of the hearing to be prepared. The State should file a response to the motion.

        Also, the fact that the trial court indicated in its order that Defendant, for some
undisclosed reason, might be failing to receive all his jail credits is an additional reason
we are remanding the case for further proceedings. Finally, it is not clear if any
disposition in case number 2013-CR-62 was made in the revocation hearing, or what
effect that may have on proper jail credits.

                                     CONCLUSION

       For the reasons set forth, the order denying the Rule 36 motion is reversed, and the
matter is remanded for further proceedings consistent with this opinion.


                                   ____________________________________________
                                   THOMAS T. WOODALL, JUDGE




                                           -7-
