IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs July 07, 2015

STATE OF TENNESSEE v. TONY SAMUEL

Appeal from the Circuit Court for Lauderdale County

No. 7691 Joe H. Walker, III, Judge

No. W2014-02085-CCA-R3-CD - Filed July 21, 2015

_____________________________

The petitioner, Tony Samuel, filed an untimely notice of appeal of the trial court‟s denial 

of his motion to correct an illegal sentence. Following our review, we conclude that the 

interest of justice does not warrant a waiver of the notice requirement because the 

petitioner failed to state a colorable claim for relief. Therefore, we dismiss this appeal as 

untimely. 

Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which THOMAS T.

WOODALL, P.J., and D. KELLY THOMAS, JR., J., joined.

Tony Samuel, Whiteville, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; and Jonathan H. Wardle, Assistant 

Attorney General, for the Appellee, State of Tennessee.

OPINION

The petitioner was convicted of one count of aggravated rape, a Class A felony,

and one count of aggravated kidnapping, a Class B felony. On direct appeal, this court 

affirmed the petitioner‟s convictions and effective thirty-five-year sentence. State v. 

Samuel, 243 S.W.3d 592, 595 (Tenn. Crim. App. 2007). Recognizing that neither the 

petitioner nor the State had raised the issue of substantive due process in regard to the 

petitioner‟s aggravated kidnapping conviction, this court sua sponte noted that the 

petitioner‟s due process rights under State v. Anthony were not affected so as to 
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necessitate plain error review. Id. at 603 n.2. The petitioner subsequently filed a petition 

for post-conviction relief, alleging that the trial court did not have subject matter 

jurisdiction over the case and that trial counsel was ineffective. Tony Samuel v. State, 

No. W2008-02346-CCA-R3-PC, 2009 WL 3832695 (Tenn. Crim. App. Nov. 16, 2009). 

On appeal, this court affirmed the denial of the petition. Id. at *1. 

On July 1, 2014, the petitioner filed a “Motion for Correction of Clerical Errors 

and Motion to Correct Illegal Sentence.” The motion raised a litany of claims, including 

that he did not receive pretrial jail credit; that his sentence was excessive; that his 

sentence was illegal under Blakely v. Washington because a jury did not find the

applicable enhancement factors; and numerous claims of ineffective assistance of 

counsel. The petitioner also filed several “Judicial Notice[s] of Law,” including a July 7, 

2014 notice that he would later copy and submit as his appellate brief. 

The trial court denied the motion without appointing counsel or conducting a 

hearing after finding that the petitioner failed to state a colorable claim for relief. The 

petitioner‟s sentences were to be served consecutively to a prior sentence, and the trial 

court found that pretrial jail credits were properly applied to the prior sentence. The trial 

court found that the issue of the petitioner‟s sentence was addressed on appeal and that he 

failed to state a colorable claim. The court also found that the petitioner had a postconviction hearing in which trial counsel was found to be effective and that this finding 

was affirmed on appeal. The order denying the motion was entered on August 15, 2014. 

On October 22, 2014, the petitioner filed a “Motion to File Delayed Notice of 

Appeal and Notice of Appeal.” In the motion, the petitioner contended that he mailed his 

motion for permission to appeal to the Court of Criminal Appeals on September 15, 2014. 

He wrote a letter to the clerk of this court on October 1, 2014, inquiring about the status 

of his appeal. This letter is included in the record and was file stamped by the trial court 

clerk on October 8, 2014. The petitioner stated that this court returned his notice of 

appeal to the trial court. He claimed that the trial court then notified him on October 15, 

2014, that it received the notice of appeal and informed him that he needed to file his 

notice in the trial court. He requested that he be permitted to file a delayed appeal. The 

petitioner attached a document titled “Permission to Appeal” to his motion, and that 

document has a handwritten date of September 15, 2014. 

On February 24, 2015, the petitioner filed a “Judicial Notice of Law” as his 

appellate brief. On February 25, 2015, the petitioner filed a motion to waive the timely 

filing of his notice of appeal. He contended that he erroneously filed his “original 

appeal” before filing his notice of appeal in the trial court. He requested that this court 

accept his appeal as filed. He also attached a memorandum from the warden at the 

Hardeman County Correctional Facility that addressed the “Lockdown Status” of the 
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facility. The memorandum is dated February 12, 2015, and contains a handwritten 

notation next to the words “Lockdown Status” that reads “Still Effective 2/14/2015.” It 

appears that the petitioner intended this memorandum to explain why his brief, which 

was due February 16, 2015, was not submitted until February 24, 2015. This court 

deferred consideration of the motion because the petitioner had already filed his appellate 

brief. 

The petitioner filed several motions “for Court to Take Judicial Notice” in this 

court. This court issued an order stating that it would “take judicial notice of the law in 

accordance with Rule 202 of the Tennessee Rules of Evidence.” 

ANALYSIS

It appears that the petitioner argues that his sentence is illegal, in addition to a host 

of other claims. The State contends that the appeal should be dismissed for a failure to 

timely file a notice of appeal and that the petitioner‟s claims of an illegal sentence are 

without merit. 

Tennessee Rule of Appellate Procedure 4(a) states that the notice of appeal “shall 

be filed with and received by the clerk of the trial court within 30 days after the date of 

entry of the judgment appealed from.” Here, the trial court issued its order on August 15, 

2014, and the petitioner‟s notice of appeal was file stamped October 22, 2014, over two 

months after the trial court‟s entry of judgment. Therefore, his notice of appeal was 

untimely. However, in a criminal case, “the „notice of appeal‟ document is not 

jurisdictional and the filing of such document may be waived in the interest of justice.” 

Id. “In determining whether waiver is appropriate this Court shall consider the nature of 

the issues for review, the reasons for the delay in seeking relief, and other relevant factors 

presented in each case.” Michelle Pierre Hill v. State, No. 01C01-9506-CC-00175, 1996 

WL 63950, at *1 (Tenn. Crim. App. Feb. 13, 1996). “Waiver is not automatic and should 

occur only when „the interest of justice‟ mandates waiver.” State v. Rockwell, 280 

S.W.3d 212, 214 (Tenn. Crim. App. 2007). 

As the reason for the delay, the petitioner contends that he timely but incorrectly 

sent his notice of appeal to this court instead of the trial court. Although there is no 

postmark indicating that his notice was received or returned by this court, the document 

contains a handwritten date of September 15, 2014, which would have made the notice 

timely. 

Turning to the issues for review, it is not clear precisely which issues the petitioner 

wishes to or attempts to raise on appeal. Although the record reflects that the petitioner‟s 

appellate brief was submitted on February 24, 2015, there are several documents that 
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could be construed as appellate briefs. The first is the February 24, 2015 “Judicial Notice 

of Law.” Although the document did not satisfy any of the requirements for the content 

and format of an appellate brief as enumerated in Tennessee Rule of Appellate Procedure 

27, it is the only document with a file stamp date of February 24, 2015. In this document, 

the petitioner appears to assert that he is entitled to reopen post-conviction proceedings

and that his claims are not procedurally defaulted, and he cites to a variety of United 

States Supreme Court cases. He also argues that he would not have been convicted in 

light of the Tennessee Supreme Court‟s decision in State v. White, 352 S.W.3d 559 

(Tenn. 2012). However, these arguments are not a challenge to the legality of the 

petitioner‟s sentence; instead, the claims amount to an attack on his convictions. Rule 

36.1 is intended “to provide an avenue for correcting allegedly illegal sentences. The 

Rule does not provide an avenue for seeking the reversal of convictions.” State v. Jimmy 

Wayne Wilson, No. E2013-02354-CCA-R3-CD, 2014 WL 1285622, at *2 (Tenn. Crim. 

App. Mar. 31, 2014), perm. app. denied (Tenn. Nov. 19, 2014). Therefore, this document

contains no colorable claim for relief pursuant to Rule 36.1. 

The second document most resembling a brief is the petitioner‟s “Notice of 

Appeal,” file stamped October 22, 2014. In this document, he raises numerous claims, 

including a White claim, claims of ineffective assistance of counsel, and an argument that 

his claims are not procedurally defaulted, that in reality are challenges to his convictions. 

Such challenges are not within the ambit of Rule 36.1, and we do not address these 

claims in considering the denial of his 36.1 motion. In regards to his sentence, he argues 

that it is illegal in light of Blakely v. Washington because he was entitled to have a jury 

find applicable enhancement factors and that the trial court erroneously applied several 

enhancement factors. However, an alleged Blakely violation operates only to make a 

judgment voidable, not void. See Timothy R. Bowles v. State, No. M2006-01685-CCAR3-HC, 2007 WL 1266594, at *2-3 (Tenn. Crim. App. May 1, 2007). Thus, “[b]ecause a 

Blakely violation does not meet the Rule 36.1 definition of an illegal sentence and does 

not establish a void or otherwise illegal judgment,” the petitioner fails to state a colorable 

claim for relief. State v. Rafael Antonio Bush, No. M2014-01193-CCA-R3-CD, 2014 

WL 7204637, at *4 (Tenn. Crim. App. Dec. 18, 2014), perm. app. denied (Tenn. Mar. 12, 

2015). Further, this court addressed the issue of the petitioner‟s sentence on direct appeal

and concluded that his sentence was proper. Samuel, 243 S.W.3d at 605-608. The 

petitioner was sentenced as a Range II offender and received within-range sentences of 

thirty-five years for aggravated rape and eighteen years for aggravated kidnapping. Id. at 

605. There is nothing illegal about the petitioner‟s sentence. 

None of the issues raised by the petitioner in either document state a colorable 

claim that his sentence is illegal. Therefore, we conclude that the interest of justice does 

not mandate waiver of the timely notice of appeal in this case. As a result, we dismiss the 

appeal as untimely. The petitioner is not entitled to relief. 
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CONCLUSION

Based upon the foregoing, the petitioner‟s appeal is dismissed as untimely. 

_________________________________

JOHN EVERETT WILLIAMS, JUDGE