06/27/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
STATE OF TENNESSEE v. DAVID WAYNE HEARING
Appeal from the Criminal Court for Greene County
No. 05CR193 Thomas J. Wright, Judge
No. E2016-00566-CCA-R3-CD
The pro se appellant, David Wayne Hearing, appeals as of right from the Greene County
Criminal Court’s order denying his motion for correction of clerical mistake. Tenn. R.
Crim. P. 36. The State has filed a motion requesting that this court affirm the trial court’s
denial of relief pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal
Appeals. Following our review, we conclude that the State’s motion is well-taken and
affirm the judgment of the Greene County Criminal Court.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed
Pursuant to Rule 20, Rules of the Court of Criminal Appeals.
NORMA MCGEE OGLE, J., delivered the opinion of the Court, in which JAMES CURWOOD
WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
David Wayne Hearing, Clifton, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Dan E. Armstrong, District Attorney General, for the appellee, State of
Tennessee.
MEMORANDUM OPINION
This court has detailed previously the procedural history of the appellant’s
challenges to his first degree murder convictions:
The Appellant pleaded guilty to two counts of first degree murder
and pursuant to a plea agreement, was sentenced to serve a life sentence of
incarceration. Less than thirty days after accepting a guilty plea, the
Appellant filed a motion to withdraw his guilty plea. The trial court
interpreted this motion as a petition for post-conviction relief, and denied
the motion. This court reversed and remanded for the trial court to view the
motion as a motion to withdraw a guilty plea. David Wayne Hearing v.
State, No. E2006-00362-CCA-R3-PC, 2006 WL 3813625, at *1 (Tenn.
Crim. App. December 28, 2006). Following a hearing, the trial court
denied the Appellant’s motion to withdraw his guilty plea, and this court
affirmed the trial court’s decision. David Wayne Hearing v. State, No.
E2007-00778-CCA-R3-PC, 2008 WL 481781, at *1 (Tenn. Crim. App.
February 22, 2008), perm. app. denied (Tenn. June 23, 2008).
Next, the Appellant filed a petition for post-conviction relief, which
the trial court denied. This court affirmed the trial court’s denial of the
Appellant’s petition for post-conviction relief. David Wayne Hearing v.
State, No. E2009-02430-CCA-R3-PC, 2010 WL 3837535, at *1 (Tenn.
Crim. App. October 4, 2010), perm. app. denied (Tenn. March 9, 2011).
Thereafter, the Appellant filed a petition for a writ of error coram
nobis. The trial court denied this petition and the Appellant appealed.
Before this court issued its opinion affirming the denial of error coram
nobis relief,1 the Appellant filed a motion to correct an illegal sentence
under Rule 36.1 (first Rule 36.1 motion). The trial court appointed counsel,
and the State filed a response arguing “that the trial court should dismiss
the motion without a hearing because the issue had been previously raised
and determined and because the appellant’s judgments of conviction
showed that he pled guilty to two counts of first degree murder and
received life sentences.” Thereafter, the trial court dismissed the
Appellant’s motion finding that the motion failed to state a colorable claim.
On appeal, this court affirmed the dismissal. State v. David Wayne
Hearing, No. E2014-01908-CCA-R3-CD, 2015 WL 2128600, at *1 (Tenn.
Crim. App. May 6, 2015).
On September 29, 2014, nineteen days after the trial court denied the
Appellant’s first Rule 36.1 motion and seven days after counsel for
Appellant filed the notice of appeal in the Appellant’s first Rule 36.1 case,
the Appellant filed pro se a second Rule 36.1 motion. On January 9, 2015,
the trial court summarily dismissed the Appellant’s motion finding the
motion was “a rehash of the same issue about release eligibility that has
been litigated in this Court before.” The Appellant filed his notice of
appeal on January 23, 2015.
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State v. Hearing, No. E2015-00173-CCA-R3-CD, 2015 WL 4710393, at *1-2 (Tenn.
Crim. App. Aug. 7, 2015), perm. app. denied (Dec. 10, 2015). On appeal, this court
affirmed the trial court’s summary dismissal of the appellant’s second Rule 36.1 motion,
concluding that
The Appellant in his second Rule 36.1 motion argues that his
sentence was illegal because he bargained for life with possibility of parole
but was sentenced to life. That is the same argument he made in the first
Rule 36.1 motion. That argument has no more merit now than it did when
his first Rule 36.1 motion was denied by the trial court and the trial court’s
decision was affirmed on appeal by this court.
Id. at *2.
On December 28, 2015, the appellant filed a motion to correct clerical mistake
pursuant to Tennessee Rule of Criminal Procedure 36, alleging once more that his
judgments for first degree murder were erroneous because they did not indicate that he
was sentenced to life “with the possibility of parole.”1 On February 3, 2016, the trial
court summarily denied the motion, noting the “continued rehash” of this issue and ruling
that there is no such thing as a sentence of life with the possibility of parole, that the
original trial judge had misspoken when referring to the life sentence as one “with the
possibility of parole,” and that any further attempt to correct or modify the judgments
was without merit. The appellant filed a timely notice of appeal.
On appeal, the defendant asserts that the trial court explained at his guilty plea
submission hearing that the life sentence was one “with the possibility of parole” and that
the judgments should so reflect. The State asserts that the trial court correctly denied the
motion to correct clerical mistake because there is no clerical mistake in the judgments.
As stated previously by this court
The Appellant in [this Rule 36] motion argues that his sentence was illegal
because he bargained for life with possibility of parole but was sentenced to
life. That is the same argument he made in the first Rule 36.1 motion. That
argument has no more merit now than it did when his first Rule 36.1
motion was denied by the trial court and the trial court’s decision was
affirmed on appeal by this court.
Id.
1
The appellant has filed a motion to supplement the record with the motion to correct clerical mistake that is
missing from the technical record. Because it is apparent from the appellant’s brief that he is attempting to relitigate
the issue concerning the life sentences, we conclude that supplementation is unnecessary under these circumstances.
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Accordingly, we affirm the judgment of the Greene County Criminal Court
pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals.
The pro se appellant’s motion to supplement the record is DENIED.
_________________________________
NORMA MCGEE OGLE, JUDGE
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