Opinion
E2020-00968-CCA-R3-CD
11-30-2021
STATE OF TENNESSEE v. MARVIN MAGAY JAMES GREEN
Marvin Magay James Green, Memphis, Tennessee, Pro Se. Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant Attorney General; Barry P. Staubus, District Attorney General, for the appellee, State of Tennessee.
Assigned on Briefs July 27, 2021
Appeal from the Criminal Court for Sullivan County Nos. S52, 556 William K. Rogers, Judge
The Defendant pleaded guilty to several drug offenses stemming from a 2006 arrest, and the trial court sentenced him to a fifteen-year sentence. The Defendant appealed, it was denied, and he filed multiple motions challenging his convictions. Most recently, he filed a motion to correct an illegal sentence or correct a clerical error, contending that he had not received 128 days of pretrial jail credits. The trial court denied the motion, finding that it did not have jurisdiction to amend his sentence and that any alleged error in calculating time should be directed to the Tennessee Department of Correction. It is from that judgment that the Defendant now appeals. After review, we affirm the trial court's judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
Marvin Magay James Green, Memphis, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant Attorney General; Barry P. Staubus, District Attorney General, for the appellee, State of Tennessee.
ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which D. KELLY THOMAS, JR., J., joined. JOHN EVERETT WILLIAMS, P.J., filed a separate concurring opinion.
OPINION
ROBERT W. WEDEMEYER, JUDGE
I. Facts
This case arises originally from the Defendant's 2008 convictions for drug related offenses. The judgment forms indicate that the Defendant was given the mandatory minimum sentence of fifteen years and that he was to receive jail credits for the days between August 18, 2006 and January 8, 2008.
Since his conviction, the Defendant has unsuccessfully filed a multitude of pro se filings, all of which were denied and many of which he appealed to this court. He has filed a "Motion to enjoin enforcement of the Tennessee Drug Free Zone Act § 39-17-432"; "Motion to quash indictment"; "Motion to correct a clerical error"; a letter requesting an appeal to get a parole date; a petition for post-conviction relief; and a petition for a writ of habeas corpus relief.
In this most recent filing, the Defendant has filed a motion to correct an illegal sentence and or a motion to correct a clerical error. He contended that he did not receive 128 days of jail credits. His motion specifically contends "Comes the petitioner now moves this court to grant all mandatory pre trial jail credits (pretrial behavior credits of 128 days) that I earned until the imposition of the sentence in light of T.C.A. § 40-23-101 and T.C.A. § 41-21-236." (emphasis added). Tennessee Code Annotated section 40-23-101 is the code section regarding credit for "pretrial detention and jail time pending appeal." Tennessee Code Annotated section 41-21-236 is the code section regarding "sentence reduction credits," also commonly referred to as sentencing credit for good behavior. The trial court denied the motion, finding:
This court has no jurisdiction to amend this sentence as the judgment orders have long been entered, (January 9, 2008). If the defendant feels there is an error regarding his calculation of time questions should be directed to the Tennessee Department of Corrections, State of Tennessee.
It is from this judgment that the Defendant now appeals.
II. Analysis
On appeal, the Defendant's contention is not entirely clear. His original motion cites to code sections that address pretrial jail credit and also sentencing reduction credits for good behavior. The entirety of his brief reads:
The mandatory minimum sentence length of 15 yrs on the Uniform Judgment [See T. Record page 11] is in conflict with T.C.A. § 40-23-101 and the plea agreement in transcript [See T. Record page 15 line 1] when trial court stated Appellant would receive all credit for time served.
Tennessee Code Annotated section 40-23-101, cited by the Defendant's motion, governs the commencement of sentence, time served, and credit. It states:
(a) When a person is sentenced to imprisonment, the judgment of the court shall be rendered so that the sentence shall commence on the day on which
the defendant legally comes into the custody of the sheriff for execution of the judgment of imprisonment.
....
(c) The trial court shall, at the time the sentence is imposed and the defendant is committed to jail, the workhouse or the state penitentiary for imprisonment, render the judgment of the court so as to allow the defendant credit on the sentence for any period of time for which the defendant was committed and held in the city jail or juvenile court detention prior to waiver of juvenile court jurisdiction, or county jail or workhouse, pending arraignment and trial. The defendant shall also receive credit on the sentence for the time served in the jail, workhouse or penitentiary subsequent to any conviction arising out of the original offense for which the defendant was tried.
Rule 36 states that "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." Tenn. R. Crim. P. 36. "Clerical errors 'arise simply from a clerical mistake in filling out the uniform judgment document.'" State v. Wooden, 478 S.W.3d 585, 595 (Tenn. 2015) (quoting Cantrell v. Easterling, 346 S.W.3d 445, 449 (Tenn. 2011)). Correcting clerical mistakes may include "supply[ing] omitted or overlooked information." State v. Allen, 593 S.W.3d 145, 154 (Tenn. Jan. 29, 2020); see, e.g., Steven Anderson v. Russell Washburn, Warden, No. M2018-00661-SC-R11-HC, - S.W.3d -, 2019 WL 3071311, at *1 (Tenn. June 27, 2019) (a failure to award pretrial jail credits would constitute a clerical error).
The awarding of pretrial jail credits is mandatory. State v. Brown, 479 S.W.3d 200, 212 (Tenn. 2015). In this case, the trial court properly, on each relevant judgment, granted jail credits of 508 days (from August 18, 2006 to January 8, 2008). Those jail credits will be applied to the Defendant's mandatory minimum sentence of fifteen years. It is unclear from the record whether the Defendant is stating that he is entitled to only 128 days of jail credit, an additional 128 days of jail credit, or whether he mistakenly thinks he is only getting 128 days of jail credit when in fact his judgments awarded him 508 days of jail credit. The Defendant is not entitled to relief on this issue.
In the Defendant's reply brief, he pivots his argument and raises the issue of whether the "day for day and/or 100% sentence in count two deprived [him] of the right to received [sic] sentence reduction credits for good institutional behavior prior to the imposition of sentence." The Defendant references his "Request For Acceptance of Plea of Guilty Waiver of Rights" form, upon which under count 2 it states that he will plead guilty to possession of cocaine for sale or delivery within 1000 feet of a school zone. A star addendum to that count indicates that "must be served @ 100%, day for day."
This Court has repeatedly stated, "Where a period of confinement is imposed, an order of day-for-day service is impermissible because a trial court cannot deny a defendant the statutory right to earn good conduct credits or authorized work credits where the defendant receives a sentence of split confinement and becomes a county jail inmate. See State v. Jeannie Hudson, No. E2001-00377-CCA-R3-CD, 2002 WL 264625, at *4-5 (Tenn. Crim. App., at Knoxville, Feb. 19, 2002), perm. app. denied (Tenn. July 1, 2002). Importantly, in this case, the Defendant's judgment of conviction in Count 2 does not include that he serve his sentence "day for day." The sentence imposed by the judgment of conviction includes that he serve fifteen years in the Tennessee Department of Corrections and includes that his release eligibility be determined in accordance with laws applicable to "Drug Free Zone" offenses. There is nothing awry or illegal in the judgment of conviction, and it appears in good order.
The trial court has authority pursuant to Rule 36 to amend the judgments with regard to pretrial jail credits but it does not have such authority with regard to sentence reduction credits. The judgments as entered do not appear to have an error of any kind. Accordingly, we affirm the trial court's judgment dismissing the Defendant's motion to correct an illegal judgment. The Defendant is not entitled to relief.
III. Conclusion
After a thorough review of the record and the applicable law, we affirm the trial court's judgment.
JOHN EVERETT WILLIAMS, PRESIDING JUDGE
I write separately because I disagree with the majority's interpretation of the issue raised on appeal by the Defendant. The majority, concluding that the Defendant's contention is unclear, addresses the issue as one of pretrial jail credits or day-for-day service. I believe that, on the contrary, the Defendant asserts that his sentence is illegal or contains a clerical error because he was denied 128 days of sentence reduction credits which he earned prior to the imposition of his sentence. Because this type of claim must be addressed via the Uniform Administrative Procedures Act, I would affirm the denial of relief on this basis.
The Defendant pled guilty in 2008 to simple possession of marijuana, possession of 0.5 grams or more of cocaine with intent to sell in a drug-free school zone, maintaining a dwelling where controlled substances are used or sold, and possession of drug paraphernalia. See T.C.A. § 39-17-418; T.C.A. § 39-17-417, T.C.A. § 39-17-432; T.C.A. § 53-11-401; T.C.A. § 39-17-425. All of his sentences were to run concurrently with his fifteen-year sentence for the drug-free school zone offense, and the judgment forms reflect that he was granted 508 days of pretrial jail credit, from August 18, 2006, to January 8, 2008.
The Defendant is no stranger to post-judgment litigation. See State v. Marvin Green, No. E2018-00251-CCA-R3-CD, 2019 WL 1569255, at *2 (Tenn. Crim. App. Apr. 11, 2019), no perm. app. filed; State v. Marvin Magay James Green, No. E2013-02425-CCA-R3-CD, 2014 WL 2957716, at *4 (Tenn. Crim. App. June 30, 2014) (concluding that the drug-free school zone offense contained a clerical error in designating a release eligibility date when such a date was prohibited by statute requiring the service of the entire fifteen years), perm. app. denied (Tenn. Nov. 20, 2014); Marvin Green v. Jerry Lester, Warden, No. W2013-02525-CCA-R3-HC, 2014 WL 2941237
(Tenn. Crim. App. June 26, 2014), perm. app. denied (Tenn. Nov. 19, 2014); Marvin Green v. Avril Chapman, Warden, No. M2013-02715-CCA-R3-HC, 2014 WL 2001031, at *2 (Tenn. Crim. App. May 14, 2014) (denying habeas corpus relief and noting that T.C.A. § 39-17-432 "required full service of the minimum sentence") perm. app. denied (Tenn. Sept. 19, 2014).
On November 22, 2019, the Defendant filed a motion to correct a clerical error or motion to correct an illegal sentence under Tennessee Rule of Criminal Procedure 36 and 36.1. In his motion, the Defendant asserted he had been denied 128 days of "pretrial behavior credits." He elaborated that the trial court had orally ordered him to receive credit for the time he had actually served but that "none of the uniform judgment[s] reflect[] the mandatory 128 pretrial behavior credits." The trial court denied the Rule 36 and Rule 36.1 motion.
While I agree with the majority that the Defendant's appellate brief is less than clear in framing the issue, the Defendant asserts in his reply brief that he did not receive "sentence reduction credits for good institutional behavior prior to imposition of [the] sentence" and cites to Tennessee Code Annotated section 41-21-236(e), which concerns sentence reduction credits. The Defendant distinguishes the 508 days of pretrial jail credit which he received for time he actually served prior to trial, and he states that he is not contesting pretrial jail credits. Accordingly, I would not rely on Tennessee Code Annotated section 40-23-101, which concerns pretrial jail credits, to analyze the Defendant's claim.
Instead, I believe the claim raised by the Defendant should be analyzed under Tennessee Code Annotated section 41-21-236, which concerns "[t]ime reduction credits" and provides that an inmate who exhibits good behavior may earn up to eight days each month in "time credits" toward the sentence imposed. T.C.A. § 41-21-236(a)(2)(A), (e)(2). Subsection (e) states that "[s]entence reduction credits for good institutional behavior as authorized by this section shall also be awarded to all convicted felons for the time incarcerated prior to the imposition of sentence." T.C.A. § 41-21-236(e)(1). While such credits are generally awarded automatically absent an objection from the superintendent or jailer, "no convicted felon shall have a right to the credits nor shall the felon have a right to appeal the superintendent's or jailer's determination concerning the number of sentence reduction credits a particular felon should be awarded as set out in the superintendent's or jailer's written objection to the department." T.C.A. § 41-21-236(e)(3). The Defendant is asserting that during the 508 days (or sixteen months) that he was in jail prior to the plea, he earned eight days each month, for a total of 128 days.
The Defendant contends the absence of the credits in the judgment form renders the judgment illegal or is a clerical error. However, the Defendant cites to no authority that such sentence reduction credits must appear in the judgment or that their absence would render the judgment illegal. Compare State v. Brown, 479 S.W.3d 200, 212 (Tenn. 2015) (awarding of pretrial jail credits is mandatory but failure to include them in the judgment does not render the judgment illegal). Although the statute concerning pretrial jail credits requires the court to "render the judgment of the court so as to allow the defendant credit on the sentence for any period of time for which the defendant was committed and held in the … county jail or workhouse, pending arraignment and trial," there is no analogous provision in the statute concerning sentence reduction credits, which is found in Title 41 of Tennessee Code Annotated, a title which governs Correctional Institutions and Inmates. T.C.A. § 40-23-101(c); see T.C.A. § 41-21-236.
On the contrary, unlike pretrial jail credits, which are awarded by the court, sentence reduction credits are calculated by the Department of Correction and must be reviewed via the Uniform Administrative Procedures Act. Jackson v. Parker, 366 S.W.3d 186, 190 (Tenn. Crim. App. 2011), distinguished by Yates v. Parker, 371 S.W.3d 152, 156 (Tenn. Crim. App. 2012); see T.C.A. § 4-5-101, et seq.; State v. Jackie Phillip Lester, No. M2016-00700-CCA-R3-CD, 2017 WL 253165, at *2 (Tenn. Crim. App. Jan. 17, 2017); see also James A. Vaughn v. State, No. 01C01-9308-CR-00258, 1994 WL 53845, at *1 (Tenn. Crim. App. Feb. 24, 1994) (citing State v. Christopher Oliver, 1993 WL 152408, at *2 (Tenn. Crim. App. May 11, 1993), and Matthew P. Finlaw v. Anderson County Jail, No. 03C01-9212-CR-0048, 1993 WL 310312, at *2 (Tenn. Crim. App. Aug. 13, 1993), for the proposition that sentence reduction credits have been awarded by courts only in limited circumstances where the parties were in agreement that a clerical error was made). Because sentence reduction credits fall under a different procedural mechanism, this court ought not "'conflate[] sentence reduction credits, which are governed solely by the Department of Correction, with pretrial and post-judgment jail credits, which can be awarded only by the trial court.'" Yates, 371 S.W.3d at 156 (quoting Tucker v. Morrow, 335 S.W.3d 116, 122 (Tenn. Crim. App. 2009), overruled on other grounds by Brown, 479 S.W.3d at 212).
I note parenthetically that, under Tennessee Code Annotated section 39-17-432, a defendant sentenced for a violation of the prohibition against selling drugs in a drug-free school zone must serve at least the minimum sentence in the range, and that "[a]ny sentence reduction credits the defendant may be eligible for or earn shall not operate to permit or allow the release of the defendant prior to full service of the minimum sentence." T.C.A. § 39-17-432(c) (2008). The Defendant was sentenced to the minimum in his range. See Marvin Green v. Avril Chapman, Warden, 2014 WL 2001031, at *1-2 (observing that the Petitioner was sentenced to the minimum in his range and that statute "required full service of the minimum sentence").
The Defendant here does not raise any issue regarding pretrial jail credit. Neither does he contest an order of day-for-day service of a sentence of less than one year in a county jail. See supra, citing Jeannie Hudson, No. E2001-00377-CCA-R3-CD, 2002 WL 264625, at *4-5 (relying on T.C.A. § 41-2-111(b), which governs credits earned by inmates sentenced to less than one year in a county jail or workhouse). Because I believe that the Defendant's claim concerns sentence reduction credits and must be addressed via the Uniform Administrative Procedures Act, I concur in the conclusion that the trial court properly dismissed the case.