                                                                                      12/11/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                       Assigned on Briefs December 4, 2018

       STATE OF TENNESSEE v. RODRICUS ANTWAN JOHNSON

                 Appeal from the Criminal Court for Shelby County
                      No. 02-07973       Chris Craft, Judge
                     ___________________________________

                          No. W2018-00950-CCA-R3-CD
                      ___________________________________

Rodricus Antwan Johnson, Movant, filed a Tennessee Rule of Criminal Procedure 36.1
motion seeking correction of what he claimed was an illegal sentence because the trial
court applied enhancement factors that were required by Blakely v. Washington, 542 U.S.
296 (2004) to be determined by the jury. The trial court summarily dismissed the motion
for failure to state a colorable claim. Discerning no error, we affirm.


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


ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and ROBERT H. MONTGOMERY, JR., JJ., joined.

Rodricus Antwan Johnson, Tiptonville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Karen Cook, Assistant
District Attorney General, for the appellee, State of Tennessee.



                                      OPINION

                        Procedural and Factual Background

      Movant and several other men drove to Oak Park Apartments in Memphis to
avenge an earlier shooting incident in which Michael Williams shot into a vehicle driven
by Patrick Parham. They located Christopher Williams, Michael’s brother, who fled
when he saw them approaching with weapons. Numerous shots were fired at Christopher
Williams as he fled. Although they missed the intended target, one bullet struck and
killed a ten-year-old boy playing football with his father on the playground of the
apartments. State v. Rodicus Johnson,1 No. W2004-02556-CCA-R3-CD, 2007 WL
316403, at *1 (Tenn. Crim. App. Feb. 2, 2007), no perm. app. filed; see also State v.
Herman Parham, No. W2004-00059-CCA-R3-CD, 2005 WL 2372755, at *2 (Tenn.
Crim. App. Sept. 27, 2005), no perm. app. filed.

       Movant “was indicted for first degree murder, felony murder, attempted
premeditated murder, and conspiracy to commit premeditated first degree murder. He
was later indicted for aggravated perjury relating to his testimony during a pre-trial
hearing on his motion to suppress.” Rodicus Johnson, 2005 WL 316403 at *1. On June
11, 2004, a jury convicted Movant of second degree murder, reckless endangerment, and
aggravated perjury. Id. On July 28, 2004, the trial court sentenced Movant to twenty-five
years for second degree murder, six months for reckless endangerment, and two years
and six months for aggravated perjury and ordered the aggravated perjury sentence to be
served consecutively to the sentence for second degree murder, for a total effective
sentence of twenty-seven years and six months. Id.

       In his direct appeal, Movant claimed there was insufficient evidence to support his
aggravated perjury conviction or to corroborate the testimony of an accomplice, that the
language of the indictment was insufficient to allege the offense of aggravated perjury,
and that the prosecution failed to disclose a key witness’s testimony. Id. Movant did not
appeal his sentences. Id. Movant’s convictions were affirmed. Id.

                                          Rule 36.1 Motion

       On February 21, 2018, Movant filed a Rule 36.1 motion, seeking correction of
what he claimed was an illegal sentence because the trial court used “two enhancement
factors that w[ere] inapplicable . . . pursuant to Blakely, as well as under state law.” On
May 4, 2018, the trial court summarily dismissed the motion, finding that “all of
[Movant’s] sentences were within the appropriate range (Range 1) for the offenses
convicted, Blakely was decided prior to [Movant]’s motion for new trial and appeal, and
no appeal was ever made of [Movant]’s sentences.” The court noted that “[a]t best, any
allegation that his sentences were inappropriate would be alleged appealable error as
described” in State v. Wooden, 478 S.W.3d 585 (Tenn. 2015).




        1
         In accordance with this court’s practice, the opinion was styled in the name that appeared in the
indictment: Rodicus Johnson. Movant was referred to as Rodricus Johnson elsewhere in that record.
Rodicus Johnson, 2005 WL 316403, at *1 n.1.
                                                  -2-
                                         Analysis

        Movant now timely appeals, claiming that the trial court (1) “applied the wrong
legal standard” in summarily dismissing his Rule 36.1 motion, (2) erred in finding that
the errors set out in his motion were appealable errors, and (3) erred in not finding that
his Blakely issue had been preserved and “that he was entitled to the benefit of the ruling
applying a new legal principle impacting Tennessee’s sentencing law.” The State argues
that the trial court acted properly in summarily dismissing the motion for failure to state a
colorable claim. We agree with the State.

        Tennessee Rule of Criminal Procedure 36.1 allows a defendant or the State to seek
correction of an illegal sentence. As provided in Rule 36.1, 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)(2), see also Wooden, 478 S.W.3d at 594. “[A] Rule
36.1 motion must include factual allegations concerning the basis of the illegal sentence
claim in order to state a colorable claim for relief.” Id. at 593. Under Rule 36.1, a
colorable claim is “a claim that, if taken as true and viewed in a light most favorable to
the moving party, would entitle the moving party to relief[.]” Id. Whether Movant’s
Rule 36.1 motion states a colorable claim is a question of law that we review de novo.
Id. at 589.

        Sentencing errors are divided “into three categories—clerical errors, appealable
errors, and fatal errors.” Id. at 595; see also Cantrell v. Easterling, 346 S.W.3d 445, 449-
52 (Tenn. 2011). “Clerical errors ‘arise simply from a clerical mistake in filling out the
uniform judgment document[.]’” Wooden, 478 S.W.3d at 595 (quoting Cantrell, 346
S.W.3d at 452). Appealable errors are “‘those errors for which the Sentencing Act
specifically provides a right of direct appeal.’” Id. (quoting Cantrell, 346 S.W.3d at 449).
Fatal errors are “‘so profound as to render the sentence illegal and void.’” Id. (quoting
Cantrell, 346 S.W.3d at 452). Only fatal errors may be corrected under Rule 36.1. Id.

       Blakely was decided on June 24, 2004, see Blakely, 542 U.S. 296, approximately
two weeks after Movant was convicted by a jury and one month before he was sentenced.
In Blakely, the Supreme Court specifically reaffirmed the rule it had expressed in
Apprendi: “‘Other than the fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be submitted to a jury and
proved beyond a reasonable doubt.’” Blakely, 542 U.S. at 301, quoting Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000). Blakely defined the “statutory maximum” as “the
maximum sentence a judge may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant.” Blakely, 542 U.S. at 303. (emphasis in
original). At the time Movant was sentenced, the maximum sentence that a judge in
Tennessee could “impose without any additional findings” for Class A, B, C, D, and E
                                            -3-
felonies was the presumptive sentence. State v. Gomez (Gomez II), 239 S.W.3d 733, 738
(Tenn. 2007). The presumptive sentence was tied to the statutorily available sentence.
The statutorily available sentence for a Range I offender convicted of second degree
murder, a Class A felony, was “not less than fifteen (15) nor more than twenty-five (25)
years[,]” Tenn. Code Ann. § 40-35-112(a)(1) (2004), and the statutorily available
sentence for a Range I offender convicted of aggravated perjury, a Class D felony, was
“not less than two (2) nor more than four (4) years[.]” Tenn. Code Ann. § 40-35-
112(a)(4) (2004). The presumptive sentence for a Class A felony was twenty years, the
midpoint of the range, and the presumptive sentence for a Class D felony was two years,
the minimum sentence in the range. Tenn. Code Ann. § 40-35-210(c)(2004).

       The trial court sentenced Movant above the presumptive sentence for second
degree murder and aggravated perjury based on enhancement factors determined by the
trial court. Although we agree with Movant’s claim that Blakely was applicable to
Movant’s sentencing, even if the trial court erred by sentencing Movant above the
presumptive statutory minimum based on enhancement factors that should have been, but
were not, determined by the jury; such an error was an appealable error because the
Sentencing Act specifically provided to Movant a right of direct appeal “from the length,
range or the manner of service of the sentence imposed by the sentencing court.” Tenn.
Code Ann § 40-35-401(a) (2004), see also Wooden, 478 S.W.3d at 595.

       Movant’s claim in this case is similar to the claim made by the defendant in
Wooden. Mr. Wooden claimed that his sentence directly contravened the applicable
statute and was illegal “because the trial court increased the sentence above the
presumptive statutory minimum” without finding “any enhancement factors to support
the increase[.]” Wooden, 478 S.W.3d at 595. The supreme court determined that a “trial
court’s erroneous ‘consideration of . . . mitigating and enhancement factors’” must be
addressed on direct appeal because it does not render the sentences illegal for the
purposes of Rule 36.1 as long as the defendant received a sentence that was statutorily
available. Id. at 596. Just like the sentencing error in Wooden, a Blakely violation is an
erroneous application of an enhancement factor that must be addressed on direct appeal.

        A statutorily available sentence imposed in violation of Blakely is not a fatal error
and “[o]nly fatal error render sentences illegal” under Rule 36.1. Id. at 595, see also
State v. Rafael Antonio Bush, No. M2016-01537-CCA-R3-CD, 2017 WL 2376825, at *7
(Tenn. Crim. App. June 1, 2017) (“a Blakely violation would not render a judgment void
and does not meet the definition of an illegal sentence under Rule 36.1”), no perm. app.
filed; State v. James Mario Starnes, No. M2016-02274-CCA-R3-CD, 2018 WL 446202,
at *1 (Tenn. Crim. App. Jan. 17, 2018), (“a Blakely violation would not rise to the level
of an illegal sentence for Rule 36.1 purposes”), no perm. app. filed.

                                            -4-
                                      Conclusion

      Movant received a statutorily available within-range sentence for each of his
felony convictions. Movant’s sentences were not illegal. The trial court correctly
determined that Movant failed to state a colorable claim for relief under Rule 36.1. The
judgment of the trial court summarily dismissing Movant’s Rule 36.1 motion is affirmed.



                                               _________________________________
                                               ROBERT L. HOLLOWAY, JR., JUDGE




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