State of Tennessee v. Andre De'Lane Ross

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs September 15, 2015

STATE OF TENNESSEE v. ANDRE DE’LANE ROSS

Appeal from the Criminal Court for Hamilton County
No. 251011 Don W. Poole, Judge

No. E2014-02563-CCA-R3-CD – Filed November 24, 2015

The Appellant, Andre De‟Lane Ross, appeals from the Hamilton County Criminal
Court‟s denial of his Tennessee Rule of Criminal Procedure 36 motion for correction of a
clerical error on the face of his possession of cocaine judgment. In this appeal, the
Appellant submits that the trial court erred in denying his motion because, at the guilty
plea hearing, the court found that his plea to this charge lacked a sufficient factual basis
but a guilty judgment was, thereafter, erroneously entered. Based on our review, we
dismiss the appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ALAN E. GLENN, JJ., joined.

Andre De‟Lane Ross, Adelanto, California, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; and M. Todd Ridley, Assistant
Attorney General, for the appellee, State of Tennessee.

OPINION
FACTUAL BACKGROUND

On September 15, 2004, a Hamilton County grand jury indicted the Appellant in
Case Number 251011 for possession of .5 grams or more of cocaine with the intent to sell
or deliver (Count One), a Class B felony, and introduction of contraband into a penal
institution (Count Two), a Class C felony. See Tenn. Code Ann. §§ 39-16-201, -17-417.
The Appellant pled guilty on January 26, 2005, to possession of less than .5 grams of
cocaine with the intent to sell or deliver, a Class C felony, and introduction of contraband
into a penal institution. Pursuant to the terms of the plea agreement, the Appellant
received concurrent terms of four years and three years, respectively, and that effective
four-year sentence was to be served on “intensive probation” and consecutively to a prior,
suspended four-year sentence in Case Number 248505.1 His probation in Case Number
248505 was revoked by agreement, and his manner of service was “stepped up to
intensive probation” upon recommendation of his probation officer. Accordingly, the
Appellant was agreeing to a cumulative sentence of eight years of supervised probation
for both cases.

The guilty plea transcript is a part of the record on appeal. At the outset of the
hearing, defense counsel stated that “the delay” in the proceedings was “largely” due to
the fact that the Appellant had requested another attorney from the beginning of her
representation of him and that she had, therefore, “taken some time” to “make sure that
[the Appellant] underst[ood] the full range of what he [was] doing” by pleading guilty.
Defense counsel then indicated that she believed that the Appellant was “ready to enter a
plea.”

The State outlined the terms of the plea agreement and provided the following
factual bases for the Appellant‟s pleas:

I believe he will stipulate to a factual basis, but police officer Adam Emory
responded to a dispatch call to a black male selling narcotics in the 1700
block of Wilson Street. When the police arrived at Wilson Street, they
observed [the Appellant] who was walking back and forth from his house to
the porch. Subsequent to that the police officer stopped [the Appellant] and
an amount of cocaine was found on his front porch and then once he was
arrested, there was cocaine found in his anal cavity.

The trial court thereafter reviewed with the Appellant the various rights he was waiving,
and the Appellant indicated his understanding and his desire to plead guilty. During this
discussion, the Appellant affirmed that, by his pleas of guilty, he was “stipulating” there
were factual bases for the convictions.

At the conclusion of the plea colloquy, when the Appellant was asked if he was
entering his “plea of [his] own free will,” he stated that defense counsel was “okay” but
that he wanted to hire an attorney to “fight the case.” The trial court informed the
Appellant that he was “not taking anything” and had the right to hire an attorney if he so
required. Defense counsel then indicated that it might be appropriate for her to withdraw
from representing the Appellant: “I am concerned that he wants out of jail just not to go

1
In outlining the procedural history of these two cases, the trial court noted that, on April 5, 2004, the
Appellant pled guilty in Case Number 248505 to “possession of cocaine for resale” and was sentenced to
four years on probation.
-2-
to jail today so badly that he is not comprehending. He has asked several times for
another attorney and I think I have a duty to withdraw. I don‟t want to do anything to
hurt him.” The trial court then set aside the guilty plea and scheduled a probation
revocation hearing on Case Number 248505 for later that afternoon. The court recessed
until 1:30 p.m.

When court reconvened, the Appellant and his attorney returned to court. The
prosecutor announced that, “after [a] lengthy discussion with counsel,” the Appellant was
ready to accept the earlier plea agreement and plead guilty. Defense counsel stated that
she was “prepared to withdraw [her] motion to withdraw” and affirmed her belief that the
Appellant understood that “he [was] looking at eight years in prison” if he violated the
terms of his probation. After again reviewing the various rights with the Appellant that
he was waiving, and the Appellant evidencing his understanding of the consequences of
pleading guilty, the trial court accepted the Appellant‟s guilty pleas.

The record reflects that, on February 6, 2008, the Appellant‟s probation in Case
Number 251011 was revoked, and he was ordered to serve the “balance” of his sentence
in the Community Corrections Program. He was also given credit for time served.

Thereafter, in 2012, the Appellant filed a “Motion to Correct Clerical Error”; a
“Petition for Writ of Habeas Corpus ad testificandum and Motion to Appear”; and a
“Motion to Dismiss” Count One of the indictment in Case Number 251011, possession of
cocaine with the intent to sell or deliver. Quoting from the August 6, 2012 order of the
trial court, the trial court understood the Appellant‟s allegations from these collective
documents, along with “several letters from the [Appellant,]” which do not appear in the
appellate record, to be as follows:

(1) that his original counsel . . . no longer practices law in this area and he
cannot locate her;

(2) that the conviction on the first count is a clerical error, the Honourable
[sic] Jon Kerry Blackwood, sitting by designation, having found an
insufficient factual basis for the conviction on that count; and

(3) that he is or was subject to the enhancement of a federal sentence on the
basis of the erroneous conviction.

The trial court noted that the Appellant appeared to be, at that time, an inmate in a federal
prison in California.

The trial court also stated that, in addition to the February 2008 revocation
proceeding, a second revocation proceeding was dismissed on January 7, 2010, “the
-3-
[Appellant] having received a twenty-year federal sentence, and the judgments were
amended „to remove from probation/comm[unity] corr[ections].‟” See United States v.
Ross, 434 Fed. Appx. 536 (6th Cir. 2011) (discussing the Appellant‟s federal conviction
and sentence). The January 7, 2010 amended judgments reflected two four-year
sentences for these convictions, according to the trial court.2

The trial court, treating “the subject motions as a single collective motion to
correct a clerical error in the judgment on the first count to reflect the dismissal of that
count[,]” ruled as follows:

The recording of the pleas, however, reflects that, on the day of the pleas,
after advising the [Appellant] of his rights, hearing and addressing his
concerns, adjourning to give him additional time to consult with counsel
about his pleas, and again advising him of his rights, Judge Blackwood did
finally accept guilty pleas on both counts to possession of cocaine for resale
and introduction of contraband into a penal institution, respectively. Thus,
the conviction on the first count is not a clerical error in the judgment.

The trial court continued, making the following observation:

[T]o any extent that the subject motion alleges that there was no factual
basis for conviction on the first count, it does not state a claim for the writ
of habeas corpus. See [Eric L.] Anderson v. [Howard] C[arl]ton[, Warden,
No. E2008-00096-CCA-R3-HC, 2008 WL 4367532, at *1-2 (upholding
the summary dismissal of an application for the writ of habeas corpus
challenging, among other things, the sufficiency of the factual basis for a
guilty plea on the ground that the petition did not state a cognizable claim).

Sua sponte, the trial court ordered correction of the January 7, 2010 amended judgment
on Count Two, introduction of contraband into a penal institution, to reflect the proper
sentence of three years, not four years. That concluded the trial court‟s findings.

In a document titled “Petition for Extension to Appeal” filed with the trial court
clerk on August 20, 2012, the Appellant requested an extension of time to appeal the trial
court‟s order. No reason why an extension was necessary was given, and it does not
appear from the record that the Appellant ever filed any appeal to this court from that
order.

The Appellant next wrote a letter filed March 3, 2013, making similar allegations
regarding Count One and requesting “recordings from the Hamilton County Court

2
These January 7, 2010 amended judgments do not appear in the appellate record.
-4-
Records.” The trial court issued an order on March 28, 2013, treating the letter as a
motion for a copy of the court recording and as a second motion to correct the alleged
clerical error. The trial court denied the Appellant relief because the “present motions”
had previously been ruled upon, but it ordered the trial court clerk to forward to the
Appellant “copies of his plea agreement and judgments in this case.”

The Appellant then wrote a third letter to the trial court clerk, which was filed on
November 17, 2014. The Appellant stated that he was “asking for . . . help to investigate
an irregularity within the sentencing transcript in the charge possession of crack cocaine
(#251011).” While he acknowledged that he signed the plea petition, the Appellant
further contended,

The transcript does not have none [sic] of the questions that, Judge
Blackwood, asked on my behalf pertaining to where the drugs were found,
where was I when the officer arrived, and how much drugs were found.
The Honorable Judge Blackwood, did ask the prosecutor these question[s]
an[d] they are not in the transcripts.

He again asserted that Judge Blackwood found him not guilty of the cocaine possession
charge “for lack of evidence[,]” despite the fact that he had signed the plea petition
during the recess in the proceedings.

Although the trial court noted that the “subject letter [was] the [Appellant‟s] third
request for correction of the same judgment on the same grounds[,]” the trial court went
on to again address the merits of the Appellant‟s claim by entry of an order dated
November 21, 2014. The court first restated its findings from the August 6, 2012 order
that addressed the motion to correct a clerical error in the cocaine possession judgment
and any possibility of habeas corpus relief. The court next treated the letter as a petition
for post-conviction relief, noting that “any insufficiency in the factual basis for a guilty
plea [was] not a ground [by itself] for post-conviction relief[.]” The trial court also
determined that any other claims such as ineffective assistance of counsel or the
voluntary nature of the guilty pleas were barred by the one-year statute of limitations for
post-conviction relief and that due process did not necessitate tolling. The trial court
instructed the Appellant that he had thirty days to appeal, and the Appellant filed an
appeal on December 18, 2014.

ANALYSIS

It is from this ruling that the Appellant now appeals, contending that the trial court
erred in denying his “claims to correct an illegal sentence in the trial court‟s documents”

-5-
regarding his cocaine possession conviction in Case Number 251011.3 Specifically, he
argues that “[t]he trial court judge f[ound] [him] not guilty of possession of cocaine after
the 1:30 p.m. recess, for lack of evidence[,]” and the transcript does not include questions
asked by the trial judge “to the district attorney on behalf of the [Appellant‟s] arrest and
the factual basi[s] to the charge.” According to the Appellant, a review of the
“oral/digital recording” from the January 26, 2005 would reflect these omissions.4

The trial court treated the Appellant‟s November 17, 2014 letter as a “motion to
correct a clerical error in the judgment on the first count to reflect the dismissal of that
count[.]” On appeal, the Appellant cites to both Rule 36 and Rule 36.1 of the Tennessee
Rules of Criminal Procedure in support of his argument that the trial court erred.5 In
order to properly dispose of this appeal, we must determine whether the trial court
properly classified the Appellant‟s allegations as a motion to correct a clerical error.

Some errors arise simply from a clerical mistake in filling out the uniform
judgment document. See Cantrell v. Easterling, 346 S.W.3d 445, 449 (Tenn. 2011). As
to these types of errors, Tennessee Rule of Criminal Procedure 36 provides that, “[a]fter
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.” In considering whether there has been a clerical error, this
court has made the following observations,

3
The Appellant, for the first time on appeal, argues that the trial court was without jurisdiction to correct
the January 7, 2010 amended judgment on Count Two to reflect the proper sentence of three years.
Neither the January 7, 2010 amended judgment form nor the corrected form appear in the record on
appeal. However, any notation that the sentence for the Appellant‟s conviction for introduction of
contraband into a penal institution was four years, rather than three years, was subject to correction
pursuant Tennessee Rule of Criminal Procedure 36 “at any time[.]”
4
This court has previously denied the Appellant‟s motion to compel production of “the oral/digital
recording” based upon the fact that “[t]he trial clerk transmitted the certified and authenticated transcript
as a supplement to the appellate record on April 2, 2015.” The Appellant also states that he was not
provided with “a copy of the certified and authenticated transcript[.]” However, this court directed the
record be properly supplemented, in compliance with Tennessee Rule of Appellate Procedure 24(a), after
receiving “from the pro se [A]ppellant a purported copy of a transcript of the January 26, 2005 guilty plea
submission hearing in this case.” We note that the certified and authenticated transcript ultimately
received from the trial court clerk and the copy initially provided by the Appellant are exactly the same.
5
We feel constrained to note that, while the Appellant‟s issues were first adjudicated by the trial court in
2012, nothing in Rule 36 or 36.1 of the Tennessee Rules of Criminal Procedure precludes the filing of
subsequent motions for relief, allowing an appellant to correct any deficiencies in his pleadings and begin
the process anew. Therefore, we will address the Appellant‟s case on the merits.
-6-
 When changes are made for illegal sentences, the judgment must
show on its face the sentence is illegal. 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
the clerical error rule after it has become final.

State v. Jack Lee Thomas, Jr., No. 03C01-9504-CR-00109, 1995 WL 676396, at *1
(Tenn. Crim. App. Nov. 15, 1995) (emphasis added); see also Adrian Wilkerson v.
Howard Carlton, Warden, No. E2007-02453-CCA-R3-HC, 2008 WL 4949227, at *5
(Tenn. Crim. App. Nov. 20, 2008) (internal citation omitted).

Claims of illegal sentences cannot be challenged through Rule 36 motions to
correct clerical errors but must be challenged through either Rule 36.1 of the Tennessee
Rules of Criminal Procedure or habeas corpus proceedings. See George William Brady
v. State, No. E2013-00792-CCA-R3-PC, 2013 WL 6729908, at *5 (Tenn. Crim. App.
Dec. 19, 2013) (citations omitted), perm. app. denied (Tenn. May 28, 2014). An illegal
sentence is one which is “in direct contravention of the express provisions of [an
applicable statute], and consequently [is] a nullity.” State v. Burkhart, 566 S.W.2d 871,
873 (Tenn. 1978). Also included within the rubric of “illegal sentences” are those
sentences which are not authorized under the applicable statutory scheme. Cantrell v.
Easterling, 346 S.W.3d at 452 (citing State v. Davis, 313 S.W.3d 751, 759 (Tenn. 2010)).
Examples of illegal sentences include

(1) a sentence imposed pursuant to an inapplicable statutory scheme; (2) a
sentence designating a [release eligibility date] where . . . specifically
prohibited by statute; (3) a sentence ordered to be served concurrently
where statutorily required to be served consecutively; and (4) a sentence not
authorized for the offense by any statute.

Id. at 452-53 (citing Davis, 313 S.W.3d at 759) (additional citations omitted). Moreover,
for purposes of Rule 36.1, “an illegal sentence is one that is not authorized by the
applicable statutes or that directly contravenes an applicable statute.”

A trial court must confirm that there is a factual basis for the plea. Tenn. R. Crim.
P. 11(b)(3). Typically, any argument in this respect is that the factual basis provided was
insufficient to support the plea, see Stephanie D. Cooley v. State, No. M2013-00205-
CCA-R3-HC, 2013 WL 5975135, at *4 (Tenn. Crim. App. Nov. 8, 2013), perm. app.
denied (Tenn. Apr. 10, 2014), or that the trial court failed to make the required finding of
-7-
a factual basis, see Roger Steve Yant v. State, No. M2007-01936-CCA-R3-PC, 2008 WL
5330459, at *8 (Tenn. Crim. App. Dec. 22, 2008). The Appellant‟s novel argument is
that the trial court did, in fact, determine that there was no factual basis to support his
plea for cocaine possession and entered a judgment of not guilty on that count, although
such is not reflected in the transcript, and that, therefore, a guilty judgment for that
offense was later entered erroneously. He makes no argument that the four-year sentence
imposed for the offense was incorrect in any way; rather, he is challenging the validity of
the underlying conviction, which we do not believe Rule 36.1 was designed to remedy.
See Tenn. R. Crim. P. 36.1(c)(3) (providing a defendant the opportunity to withdraw a
guilty plea when an illegal sentence was entered pursuant to a plea agreement and the
illegality was a material component of the agreement.) In accordance with the law cited
above, we conclude that, in the context of Rule 36 or 36.1, the trial court properly
classified the Appellant‟s argument as seeking correction of a clerical error rather that as
one challenging an illegal sentence.

The trial court reviewed the Appellant‟s motion on the merits and simply
concluded that no clerical error existed on the face of the judgment for possession of less
than .5 grams of cocaine with the intent to sell or deliver. This court has repeatedly held
that Tennessee Rule of Appellate Procedure 3(b) provides no appeal as of right from the
denial of a Rule 36 motion, and this court lacks jurisdiction to entertain such an appeal.
See State v. Travis Davison, No. W2011-02167-CCA-R3-CO, 2012 WL 5868928, at *2
(Tenn. Crim. App. Nov. 20, 2012); Jonathan Malcolm Malone v. State, No. M2004-
02826-CCA-R3-CO, 2005 WL 1330792, at *2 (Tenn. Crim. App. June 6, 2005); State v.
Timmy Herndon, No. W2001-02981-CCA-R3-CD, 2003 WL 21339297, at *2 (Tenn.
Crim. App. May 2, 2003). This outcome is not changed by any of the recent amendments
to Rules 36 and 3(b). See James William Taylor a/k/a Lutfi Shafq Talal v. State, No.
M2012-01549-CCA-R3-PC, 2013 WL 2145776, at *5-6 (Tenn. Crim. App. May 15,
2013), reh‟g denied (Sept. 23, 2013).

In rare cases, this court may treat an improperly filed appeal as a petition for writ
of certiorari. State v. Moore, 262 S.W.3d 767, 772 (Tenn. Crim. App. 2008). The writ of
certiorari may be granted “in all cases where an inferior tribunal . . . has exceeded the
jurisdiction conferred, or is acting illegally, when, in the judgment of the court, there is
no other plain, speedy, or adequate remedy.” Tenn. Code Ann. § 27-8-101. The trial
court aptly addressed the Appellant‟s contentions on three separate occasions. There is
no evidence that the trial court exceeded its jurisdiction or acted illegally because the
Appellant‟s claim that he was found not guilty of the offense is not supported by the
record. Accordingly, we conclude that there is no basis for treating this appeal as a
petition for review by way of the writ of certiorari.

-8-
 CONCLUSION

Upon consideration of the foregoing and the record as a whole, we conclude that
there is no basis for this court to entertain an appeal of the trial court‟s order denying the
Appellant‟s motion to correct his judgment for possession of less than .5 grams of
cocaine with the intent to sell or deliver. Accordingly, the appeal is dismissed.

_________________________________
D. KELLY THOMAS, JR., JUDGE

-9-