State of Tennessee v. Perry Mitchell Kirkman
M2016-02248-CCA-R3-CD
| Tenn. Crim. App. | Jun 2, 2017Background
- In 2009 Kirkman was indicted on multiple child-sex offenses; in 2010 he pleaded guilty to two counts of aggravated sexual battery (Class B felonies) under a negotiated plea.
- The plea agreement provided for a 15-year sentence at 100% service and dismissal of remaining counts; the plea forms and judgments reflected a Range II classification and cited Hicks.
- In 2016 Kirkman filed a Rule 36.1 motion to correct an illegal sentence, claiming he was a Range I offender and the 15-year Range II sentence was unauthorized.
- The trial court summarily dismissed the Rule 36.1 motion after reviewing the plea hearing transcript and finding Kirkman’s plea to the out-of-range sentence was knowing and voluntary under Hicks.
- Kirkman appealed; the Court of Criminal Appeals affirmed, holding the plea-bargained sentence was not illegal because it did not exceed the statutory maximum for a Class B felony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 15-year sentence is an illegal sentence because Kirkman was a Range I offender | Kirkman: sentence is illegal and null because he was actually a Range I offender and the court lacked authority to impose a Range II sentence | State: plea knowingly accepted an out-of-range sentence under Hicks; sentence does not exceed statutory maximum for the offense | Motion dismissed; sentence not illegal because plea-bargained term did not exceed the crime’s statutory maximum |
| Whether Rule 36.1 required an evidentiary hearing / appointment of counsel | Kirkman: asserted illegal sentence entitles him to relief and hearing | State: no colorable claim alleged because plea waived offender-classification irregularity and sentence is authorized | No hearing required; summary dismissal appropriate because no colorable claim shown |
| Whether plea involuntariness or ineffective assistance of counsel rendered the sentence illegal | Kirkman: alleged (on appeal) plea was involuntary and counsel ineffective | State: those claims were not raised in Rule 36.1 motion and, in any event, are collateral/appealable errors, not fatal errors making the sentence illegal | Claims not considered on Rule 36.1; prior post-conviction proceedings rejected those claims |
| Standard for determining a "colorable" Rule 36.1 claim | Kirkman: asserted facts showed illegality | State: court may consult record and must dismiss if claim is not colorable | Court applied de novo review and concluded the motion failed to state a colorable claim |
Key Cases Cited
- Hicks v. State, 945 S.W.2d 706 (Tenn. 1997) (a knowing and voluntary guilty plea waives irregularity as to offender classification or release eligibility)
- Wooden v. State, 478 S.W.3d 585 (Tenn. 2015) (defines "colorable" Rule 36.1 claim and permits trial court to consult record when assessing Rule 36.1 motions)
- Hoover v. State, 215 S.W.3d 776 (Tenn. 2007) (plea-bargained sentence may exceed range so long as it does not exceed statutory maximum for the offense)
- Cantrell v. State, 346 S.W.2d 445 (Tenn. 2011) (distinguishes fatal errors that render sentences illegal from appealable sentencing errors)