### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs May 14, 2024

STATE OF TENNESSEE v. CAMDEN A. MILLER

Appeal from the Circuit Court for Montgomery County

No. CC20-CR-362 William R. Goodman, III, Judge

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No. M2023-01067-CCA-R3-CD

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The Defendant, Camden A. Mille r, pled guilty to two counts of aggravated sexual battery of a victim under the age of thirteen and was sentenced to serve an effective sentence of twenty years. Thereafter, the Defendant fi led a motion pursuant to Tennessee Rule of Criminal Procedure 36.1, seeking to have hi s aggregate sentence declared illegal because it contravenes his status as a Range I, sta ndard offender. The trial court summarily dismissed the motion, and the Defendant appeal ed to this court. Upon our review, we respectfully affirm the judg ment of the trial court.

Tenn. R. App. P. 3 Ap peal as of Right; Judgment of the Circuit Court Affirmed

T OM G REENHOLTZ , J., delivered the opinion of the court, in which J. R OSS D YER and K YLE A. H IXSON , JJ., joined.

Camden A. Miller, Only, Tennessee, Pro Se.

Jonathan Skrmetti, Attorney General and Reporter; Raym ond J. Lepone, Assistant Attorney General; and Robert J. Nash, District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

On September 20, 2021, the Defendant pled guilty to two counts of aggravated sexual battery involving a victim under the age of thirteen. Tenn. Code Ann. § 39-13- 504(a)(4). The trial court sent enced the Defendant to serve te n years for each conviction,2 and it aligned the sentences consecutively for a total effective sentence of twenty years. 1 The judgments also ordered that the Defendant serve 100% of the sentences pursuant to Tennessee Code Annotated section 40-35-501(i).

On March 30, 2023, the De fendant filed a motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. The Defendant asserted that his aggregate sentence was illegal because it was “‘ outside’ his legal range of punishment as a Range I, Standard Offender.” He clarified that he was ch allenging only his erroneous sentence and “not the judgment, conviction, or in this instance, the plea.”

On April 28, 2023, the tria l court summarily dismissed the motion, th ough it made no specific findings or conclusi ons. The Defendant filed an untimely notice of appeal on July 26, 2023. In his notice of appeal, the Defendant acknowledged the untimely notice, requested a waiver of the timely-filing requirem ent, and asserted that he did not receive a copy of the trial court’s order until July 6, 2023.

STANDARD OF APPELLATE REVIEW

With respect to every issu e on appeal, our supreme cour t has recognized that a reviewing court must ask, “[W]hat is th e appropriate standard of review?” State v. Enix
, 653 S.W.3d 692, 698 (Tenn. 2022). The sole issue in this case is whether the trial court correctly found that the Defend ant failed to state a colorable claim for correction of an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. 2 This question is one of law that we revi ew de novo on appeal. See State v. Wooden , 478 S.W.3d 585, 589 (Tenn. 2015); State v. Watson , No. E2022-01321-CCA-R3-CD , 2023 WL 5925717, at *8

1 The record does not contain the original plea agreement or show whether the sentences were imposed pursuant to a plea agreement or by the tr ial court following a sentencing hearing. However, the trial court clerk’s recitation of the case history in dicates that the Defendant entered an open plea, and and the State does not dispute this fact.

2 In his notice of appeal, the Defendant identifie d that he was appealing the trial court’s order “denying his Motions to proceed in forma pauperis, Motion to Amend and/or Correct Sentence, Motion to [Recuse] Judge and Motion for a Scheduling Order with Appointment of Counsel tendered on April 28, 2023.” However, in his brief, the Defendant argues only that the trial court erred in summarily dismissing his motion to correct an illegal senten ce. As such, we limit our opinion here to the single issue raised and argued by the Defendant. See, e.g.
, State v. Molthan , No. M2021-01108-CCA-R3-CD, 2022 WL 17245128, at *2 (Tenn. Crim. App. Nov. 28, 2022) (“The Defe ndant does not make any argument in support of this issue in his brief, and he does not cite to any author ities or appropriate references in the record. Because of the inadequacy of the Defendant’s brief, we must conclude that the Defendant has waived appellate consideration of this issue.”), no perm. app. filed

.3 (Tenn. Crim. App. Sept. 12, 2023) (“Whether a se ntence is illegal is a question of law that we review de novo.”), no perm. app. filed

.

ANALYSIS

A. U NTIMELY N OTICE OF A PPEAL

As an initial matter, we must address the tim eliness of the Defendant’s appeal. “It is no secret that under Tennessee Rule of Appe llate Procedure 4(a), the notice of appeal must be filed within 30 days after the date of entry of the judgment appealed from.” State v. James , No. E2021-00559-CCA-R3-CD, 2022 WL 6 33540, at *1 (Tenn. Crim. App. Mar. 4, 2022) (citation and internal quotation marks omitted), no perm. app. filed . In this case, the order dismissing the Defendant’s motion wa s entered on April 28, 2023, when it was filed with the court clerk. As such, the De fendant had thirty days , or until May 28, 2023, to file a notice of appeal. Tenn. R. App. P. 4(a). Thus, the Defenda nt’s notice of appeal, which was not filed until nearly two months after that de adline passed, was untimely.

“An untimely notice of appeal can, and of ten does, result in a dismissal of the appeal.” State v. Manning , No. E2022-01715-CCA-R3-CD, 2023 WL 7439203, at *3 (Tenn. Crim. App. Nov. 9, 2023), perm. app. denied (Tenn. May 16, 2024). That said, the Rules of Appellate Procedure pr ovide that the requirement of a timely-filed notice of appeal “may be waived in the interest of justice.” Tenn. R. App. P. 4(a). When considering whether a waiver on an untimel y notice of appeal is appropri ate, “this court will consider the nature of the issues presen ted for review, the reasons for and the length of the delay in seeking relief, and any other re levant factors presented in the particular case.” State v. Rockwell , 280 S.W.3d 212, 214 (Tenn. Crim. App. 2007). Th e appealing party “bears the responsibility to properly perfect his [or her] appeal or to demonstrate th at the ‘interests of justice’ merit waiver of an untimely filed notice of appeal.” State v. Thomas , No. W2022- 00109-CCA-R3-CD, 2023 WL 328337, at *3 (Tenn. Cr im. App. Jan. 20, 2023), perm. app. denied (Tenn. June 7, 2023); Tenn. R. App. P. 4(a).

In this case, the length of th e delay in filing a notice of ap peal, some fifty-nine days, weighs against granting a waiver. However, the Defendant asserts that his delay was attributable to circumstances beyond his control, i.e. , that he did not receive a copy of the order dismissing his motion until well after the time for filing a notice of appeal. The pro se Defendant also filed his noti ce within twenty days of when he claims to have received the order, and he submitted proo f that, if credited, would s upport his claim. We have previously found that this ci rcumstance weighs in favor of waiving the requirement of a timely notice of appeal. See, e.g.
, State v. Bennington , No. E2021-01163-CCA-R3-CD, 2022 WL 2966264, at *2 (Tenn. Crim. App. July 27, 2022), perm. app. denied (Tenn. Dec. 14, 2022).4 Moreover, the Defendant acknowledged the issue regarding the untimely filing in his notice of appeal and his principal brief, a nd he affirmatively requested a waiver of the timely filing requirement. He responded to th e State’s motion to dismiss and filed a reply brief again raising the issue. As such, th is is not a case in which the Defendant has disregarded the issue, failed to request a wa iver, or ignored arguments advanced by the State. Cf. Manning

, 2023 WL 7439203, at *5 . Under these circumstances, we exercise our discretion to address the Defe ndant’s issue on its merits.

B. T ENNESSEE R ULE OF C RIMINAL P ROCEDURE 36.1

The Defendant argues that his aggregate sent ence of twenty year s to be served at 100% release eligibility is an illegal sentence. Tennessee Rule of Criminal Procedure 36.1 provides that a defendant “may seek to correct an illegal sentence by filing a motion . . . in the trial court in which the judgment of co nviction was entered.” Tenn. R. Crim. P. 36.1(a)(1). An illegal sentence is “one that is not authorized by the applicable statutes or that directly contravenes an applicable statute.” Tenn. R. Crim. P. 36.1(a)(2).

Our supreme court has observed that “f ew sentencing errors render sentences illegal.” Wooden , 478 S.W.3d at 595. Sentencing erro rs may be classified as clerical, appealable, or fatal errors, but “only fatal errors render sentences illegal.” State v. Reid

, 620 S.W.3d 685, 689 (Tenn. 2021) (citation a nd internal quotation marks omitted). These fatal errors may include “sente nces imposed pursuant to an in applicable statutory scheme, sentences designating release eligibility dates wh ere early release is statutorily prohibited, sentences that are ordered to be served concur rently where statutorily required to be served consecutively, and sentences not authorized by any statute for the offenses.” Wooden , 478 S.W.3d at 595. On the other hand, “attack s on the correctness of the methodology by which a trial court imposed sentence” amount to a ppealable errors only and do not render a sentence illegal. Id.

In this case, the Defendant was originally convicted of two counts of aggravated sexual battery involving a victim of less than thirteen years of age. The trial court imposed a sentence in each count of ten years, and it re cognized that each sent ence would be served at 100% of the sentence imposed.

Aggravated sexual battery is a Class B felony offense, and the range of sentence is between eight and twelve years for a Range I, standard offender. Tenn. Code Ann. §§ 39- 13-504(b); 40-35-112(a)(2). Although a Range I sentence is typically subject to 30% release eligibility, Tenn. Code Ann. § 40-3 5-501(c), a sentence for aggravated sexual battery must be served at 100% of the se ntence imposed, Tenn. Code Ann. § 40-35- 501(i)(2)(H). We conclude that because the a pplicable sentencing statutes authorize each of the Defendant’s individual sentence s, the sentences are not illegal.5 The Defendant first takes issue with the aggregate term of tw enty years resulting from the trial court’s decision to impose cons ecutive sentences. However, a claim that the trial court improperly imposed consecutive sent ences challenges the me thod by which the court imposed those sentences. As such, while this claim could be addressed on direct appeal, any error would not re nder the sentences illegal. See, e.g.
, State v. Howard , No. M2019-01900-CCA-R3-CO, 2020 WL 3408794, at *2 (Tenn. Crim. App. June 22, 2020) (“The finding concerning the imposition of consecutive or concurrent sentences is appealable by either party. Therefore, a ny error by the trial court in the imposition of discretionary consecutive sentences pursuant to Tennessee Code An notated section 40-35- 115(b) would be an appealable error, not a fatal error.”) (citation and internal quotation marks omitted), no perm. app. filed . The Defendant is not entitle d to relief on this ground.

The Defendant also asserts that the orde r requiring him to serve 100% of the sentence imposed contravenes his status as a Range I, standard offender. However, he overlooks that a person convicted of aggrav ated sexual battery “shall serve one hundred percent (100%) of the sentence imposed by the court less sentence credits earned and retained.” Tenn. Code Ann. § 40-35-501(i)(1), (i)(2 )(H). As such, the trial court’s order eliminating the release eligib ility is authorized—indeed, re quired—by a specific statute and is thus not illegal. See, e.g.
, State v. Evans , No. M2021-00963 -CCA-R3-CD, 2022 WL 663082, at *2 (Tenn. Crim. App. Mar. 7, 2022) (“Conv ictions for rape of a child and aggravated sexual battery require 100% of the sentence imposed to be served. Thus, the trial court’s imposition of 100% service for the petitioner’s sentences for his convictions for rape of a child and aggravated sexual battery were authorized by the applicable statutory scheme. As a result, the petitioner cannot demo nstrate a fatal error which would render his sentences illegal.” (citations omitted)), no perm. app. filed . As such, the Defendant is not entitled to relief on this ground.

CONCLUSION

In summary, we hold that the Defendant’s effective tw enty-year sentence for two convictions of aggravated sexual battery is not illegal. The sentencing statutes specifically authorize the length of the individual sentence s and provide that the sentences be served without release eligibility. We respectfully affirm the judgment of the trial court denying the Defendant’s motion for relief under Tenn essee Rule of Criminal Procedure 36.1.

___________________ ________________ TOM GREENHOLTZ, JUDGE