IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

November 17, 2009 Session 

STATE OF TENNESSEE v. PHILLIP G. HARRIS

Direct Appeal from the Circuit Court for Coffee County

No. 28,817 Charles Lee, Judge

No. M2008-01819-CCA-R3-CD - Filed June 11, 2010

The Defendant-Appellant, Phillip G. Harris, pled guilty to aggravated sexual battery, a Class

B felony, in the Circuit Court for Coffee County. Pursuant to the plea agreement, he was

sentenced as a violent offender to eight years in the Tennessee Department of Correction.

The judgment order did not impose lifetime community supervision following the expiration

of Harris’ sentence as required by Tennessee Code Annotated section 39-13-524.

Consequently, the State filed a motion to amend the judgment order. The trial court entered

a corrected judgment order that imposed lifetime community supervision. On appeal, Harris

challenges the validity of his guilty plea and the constitutionality of the lifetime supervision

statute. The State contends this court lacks jurisdiction to hear this appeal because Rule 3

of the Tennessee Rules of Appellate Procedure does not provide for an appeal as of right.

Upon review, we agree with the State and dismiss Harris’ appeal.

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

CAMILLE R. MCMULLEN,J., delivered the opinion of the court, in which JERRY L. SMITH and

THOMAS T. WOODALL, JJ., joined.

Clayton M. Whittaker, Chattanooga, Tennessee, for the Defendant-Appellant, Phillip G.

Harris.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney

General; Charles E. Layne, District Attorney General; and Kenneth Shelton, Assistant

District Attorney General, for the Appellee, State of Tennessee.

OPINION

Background. The original judgment order was entered on October 30, 1998. On the

same day, Harris signed a document entitled “Plea of Guilty and Acknowledgment and
Waiver of Rights.” This document sets forth the rights waived by entering the plea

agreement. The final paragraph states:

The defendant represents and states further to the Court that he does not

desire to file a motion for a new trial or file an appeal in this cause and agrees,

upon conferring with counsel, that there is no basis for an appeal as there are

no errors in the record of this case.

Under the plea agreement, Harris was sentenced as a violent offender to eight years in the

Tennessee Department of Correction. The judgment order states that this sentence was to

be served consecutive to “any and all sentences previously imposed, including Marion

County Circuit Court case #4183.” The judgment order does not state that Harris reserved

a certified question of law.

On April 2, 2008, the State filed a “Motion to Amend Judgment Order.” It argued that

the judgment order failed to mandate lifetime community supervision as required by

Tennessee Code Annotated section 39-13-524. This statute applied to Harris because he was

convicted of aggravated sexual battery under section 39-13 -504. Section 39-13-524(a)

states:

In addition to the punishment authorized by the specific statute prohibiting the

conduct, any person who, on or after July 1, 1996, commits a violation of § 39-

13-502, § 39-13-504, § 39-13-522, or attempts to commit a violation of any of

these sections, shall receive a sentence of community supervision for life.

The motion requested the trial court to amend the judgment order pursuant to its authority

under Rule 36 of the Tennessee Rules of Appellate Procedure. The record includes a copy

of the corrected judgment order, which was entered on July 16, 2008. The order states that

it “is corrected to reflect that pursuant to 39-13-524 Defendant is sentenced to community

supervision for life following sentence expiration.” From the record presented, it does not

appear that Harris was given notice of the State’s motion to amend, that Harris responded to

the State’s motion prior to entry of the corrected judgment order, or that there was a hearing

to address the amendment.

Harris filed a timely notice of appeal on August 13, 2008. The notice does not state

under what rule of appellate procedure Harris appeals. We presume that he intended to

appeal as of right under Rule 3 of the Tennessee Rules of Appellate Procedure. On

September 4, 2008, Harris filed a “Motion for Withdrawal of Guilty Plea.” He submitted a

subsequent notice to withdraw this motion, which was granted by the trial court. The trial

court’s order, which was filed on February 4, 2009, states, “The Defendant has filed a notice

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to withdraw the Motion to Withdraw Guilty Pleas [sic], it being his desire to pursue relief

from the court of appeals and with knowledge of the potential waiver of rights.”

ANALYSIS

The State claims this court lacks jurisdiction because Rule 3(b) of the Tennessee

Rules of Appellate Procedure does not expressly provide for an appeal as of right from the

entry of a corrected judgment order. Harris did not address this issue in his brief, and he

failed to submit a reply brief. Nonetheless, he asserts that the guilty plea was void because

it was not entered into knowingly and voluntarily. He also claims that the lifetime

supervision requirement is unconstitutional. Upon review, we agree with the State that

Harris cannot appeal under Rule 3.

Tennessee Code Annotated section 39-13-524 mandates that anyone convicted of

aggravated sexual battery under section 39-13-504 shall receive lifetime community

supervision. The original judgment order did not include this requirement, and therefore it

constituted an illegal sentence. See State v. Bronson, 172 S.W.3d 600, 601-02 (Tenn. Crim.

App. 2005) (“[W]e hold that the failure to include the community supervision for life

provisions rendered the defendants’ sentences illegal.”). The trial court had jurisdiction to

correct this illegal sentence at any time. Id. at 602 (citing State v. Burkhart, 566 S.W.2d 871,

873 (Tenn. 1978); Cox v. State, 53 S.W.3d 287, 292 (Tenn. Crim. App. 2001)). We note that

the trial court’s authority to amend the judgment order did not derive from Rule 36 of the

Tennessee Rules of Criminal Procedure, as the omission of the supervision requirement was

not merely a clerical error. See Dennis J. Rountree, Jr. v. State, No.

M2008-02527-CCA-R3-PC, 2009 WL 3163132, at *1 (Tenn. Crim. App., at Nashville, Oct.

2, 2009); but see State v. Thomas Ray Bryant, No. M2005-02356-CCA-R3CD, 2006 WL

2956508, at *1-3 (Tenn. Crim. App., at Nashville, Oct. 13, 2006).

Following entry of the corrected judgment order, Harris had several options in

challenging his guilty plea. First, he could have filed a motion to withdraw his guilty plea

pursuant to Rule 32(f)(2) of the Tennessee Rules of Criminal Procedure. This motion must

be filed within thirty days of entry of the corrected judgment order. See State v. Green, 106

S.W.3d 646, 650 (Tenn. 2003); Dennis Eugene Evans v. State, No.

E2004-01059-CCA-R3-PC, 2004 WL 2853296, at *2 (Tenn. Crim. App., at Knoxville, Dec.

13, 2004) (stating that the thirty-day period is triggered upon entry of the corrected judgment

order). If the trial court denied his motion, Harris had the right to challenge the trial court’s

ruling on direct appeal. See State v. Peele, 58 S.W.3d 701, 706 (Tenn. 2001) (“A Tenn. R.

App. P. 3(b) direct appeal lies from a trial court’s denial of a motion to withdraw a guilty

plea raised under Tenn. R.Crim. P. 32(f).”); see also State v. Wilson, 31 S.W.3d 189, 195 n.

14 (Tenn. 2000). The record shows that Harris filed a “Motion for Withdrawal of Guilty

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Plea;” however, this motion was untimely. Harris also filed a subsequent notice to withdraw

this motion before the trial court made a ruling.

Second, Harris could have challenged the guilty plea through a post-conviction

proceeding. This court has repeatedly stated that a petition for post-conviction relief is “the

proper avenue for attacking an involuntary guilty plea.” Dennis Eugene Evans, 2004 WL

2853296, at *2 (citing Reiko Nolen v. State, No. W2001-03003-CCA-R3-CD, 2002 WL

31443174, at *4 (Tenn. Crim. App., at Jackson, Oct. 31, 2002)); see also Wilson, 31 S.W.3d

at 194; Archer v. State, 851 S.W.2d 157, 163-64 (Tenn. 1993). The one-year limitations

period with which to file a petition commenced upon entry of the corrected judgment. See

Dennis Eugene Evans, 2004 WL 2853296, at *2.

Harris was not permitted to appeal the corrected judgment order under Rule 3 of the

Tennessee Rules of Appellate Procedure. Rule 3(b) states:

In criminal actions an appeal as of right by a defendant lies from any judgment

of conviction entered by a trial court from which an appeal lies to the Supreme

Court or Court of Criminal Appeals: (1) on a plea of not guilty; and (2) on a

plea of guilty or nolo contendere, if the defendant entered into a plea

agreement but explicitly reserved the right to appeal a certified question of law

dispositive of the case pursuant to and in compliance with the requirements of

Rule 37(b)(2)(i) or (iv) of the Tennessee Rules of Criminal Procedure, or if the

defendant seeks review of the sentence and there was no plea agreement

concerning the sentence, or if the issues presented for review were not waived

as a matter of law by the plea of guilty or nolo contendere and if such issues

are apparent from the record of the proceedings already had. The defendant

may also appeal as of right from an order denying or revoking probation, and

from a final judgment in a criminal contempt, habeas corpus, extradition, or

post-conviction proceeding.

Subsection (2) provides three circumstances in which a defendant may directly appeal a

guilty plea; however, none of these are applicable. Harris did not reserve a certified question

of law under Rule 37 of the Tennessee Rules of Criminal Procedure. Although he challenges

his sentence, his sentence was included as part of his plea agreement. This requirement

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under subsection (2) was not negated by the absence of the lifetime supervision requirement

from his original judgment order or the State’s failure to include the lifetime supervision

requirement during the guilty plea hearing. Lastly, by pleading guilty, Harris waived hisright

The record includes the transcript from the plea hearing. The State informed the trial court of the 1

sentence Harris would receive under the plea agreement. 

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to directly appeal his sentence even though his sentence was amended. Harris cannot appeal

from the corrected judgment order under Rule 3, and therefore his appeal must be dismissed.

CONCLUSION

Based on the foregoing, Harris’ appeal is dismissed.

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CAMILLE R. McMULLEN, JUDGE

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