IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

February 13, 2001 Session

GREGORY HATTON v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Giles County

No. 6947 Jim T. Hamilton, Judge

No. M2000-00756-CCA-R3-PC - Filed May 25, 2001

The petitioner, Gregory Hatton, sought post-conviction relief on the grounds that his trial counsel

was ineffective, that his guilty pleas were not knowing and voluntary, and that his sentence is illegal.

The trial court concluded that the petition was barred by the statute of limitations. Insofar as an

illegal sentence is subject to correction at any time, the trial court's dismissal of the petitioner's

illegal sentence claim was erroneous. Because, however, the petitioner is not entitled to relief on

that claim, the judgment of the trial court is affirmed.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed.

GARY R. WADE, P.J., delivered the opinion of the court, in which ALAN E. GLENN and ROBERT W.

WEDEMEYER, JJ., joined.

Claudia S. Jack, District Public Defender, Columbia, Tennessee, for the appellant, Gregory Hatton.

Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General;

Richard H. Dunavant, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

On July 18, 1977, the petitioner pled guilty to armed robbery, first degree burglary, two

counts of simple kidnapping, assault with intent to commit murder, grand larceny, and rape. The

trial court imposed sentences as follows: 30 years for the armed robbery; five to 15 years for the

burglary; four to ten years for each of the kidnappings; three to 21 years for the assault; three to ten

years for the larceny; and life imprisonment for the rape. The trial court ordered concurrent

sentences except for the armed robbery sentence, which was ordered to be served consecutively. The

effective sentence was life plus thirty years. A petition to rehear was denied.

On February 19, 1981, the petitioner filed a motion for new trial challenging the validity of

his guilty pleas. The trial court, which elected to consider the motion as a petition for postconviction relief, appointed counsel and held an evidentiary hearing. At the conclusion of the
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hearing, the trial court found that the guilty pleas were knowingly and voluntarily made. This court

affirmed on appeal. State v. Gregory Hatton, No. 81-275-III (Tenn. Crim. App., at Nashville, Aug.

13, 1982).

In 1996, the petitioner filed a petition for writ of habeas corpus asserting that the judgment

entered on his rape conviction was void because the indictment failed to allege the mens rea of the

crime. The trial court denied the petition. This court affirmed pursuant to Rule 20 of the Rules of

the Tennessee Court of Criminal Appeals. Gregory L. Hatton v. State, No. 02C01-9611-CC-00407

(Tenn. Crim. App., at Jackson, Feb. 19, 1997).

On October 21, 1994, prior to his petition for writ of habeas corpus, the petitioner had filed

this petition for post-conviction relief, his second. The trial court appointed counsel and two

amended petitions were subsequently filed. On March 3, 2000, the trial court denied the petition,

concluding that it was barred by the three-year statute of limitations contained in Tennessee Code

Annotated § 40-30-102 (repealed 1995). In October, 1994, the petitioner was subject to the

following statute of limitations:

A prisoner in custody under sentence of a court of this state must petition for postconviction relief under this chapter within three (3) years of the date of the final

action of the highest state appellate court to which an appeal is taken or consideration

of such petition shall be barred.

Tenn. Code Ann. § 40-30-102 (repealed 1995). There was no statute of limitations under the original

post-conviction procedure act. See Tenn. Code Ann. § 40-30-102 (1982) (originally Tenn. Code

Ann. § 40-3802) (repealed 1995). The three-year statute of limitations, adopted in 1986, began to

run on July 1, 1986, and expired on July 3, 1989. Abston v. State, 749 S.W.2d 487, 488 (Tenn.

Crim. App. 1988). With the exception of the illegal sentence claim, the trial court did not err by

denying the petitioner's claims on the ground that they were barred by the statute of limitations. 

In his first post-conviction petition, the petitioner had contended that his guilty pleas were

neither knowingly nor voluntarily entered. Thus, the same issue presented in this petition is barred

as "previously determined." See Tenn. Code Ann. § 40-30-112(a) (repealed 1995). Because the

petitioner failed to raise any ineffective assistance of counsel claim in his first post-conviction

petition, that ground has been waived. See Tenn. Code Ann. § 40-30-112(b)(1) (repealed 1995);

House v. State, 911 S.W.2d 705, 711 (Tenn. 1995).

The petitioner, who also asked for a delayed appeal, argues that the trial court failed to rule

on the request. That is not, however, a basis for relief. The statute of limitations for post-conviction

relief applies to delayed appeals. Handley v. State, 889 S.W.2d 223, 224 (Tenn. Crim. App. 1994).

With regard to the petitioner's illegal sentence claim, the general rule is that an illegal

sentence may, in fact, be corrected at anytime. State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978)

(noting that the trial court had the power and duty to correct an illegal sentence at any time). 
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Typically, a challenge to an illegal sentence by an incarcerated defendant is by petition for writ of

habeas corpus. See Stephenson v. Carlton, 28 S.W.3d 910 (Tenn. 2000); Freddie Cupples v. State,

No. 02C01-9511-CC-00333, slip op. at 3 (Tenn. Crim .App., at Jackson, Oct. 22, 1996), app. denied

(Tenn. Feb. 10, 1997). This court has also considered an attack on an illegal sentence by way of

post-conviction petition, holding that the action is not barred by the applicable statute of limitations.

Kevin Lavell Abston v. State, No. 02C01- 9807-CR-00212, slip op. at 3 (Tenn. Crim. App., at

Jackson, Dec. 30, 1998) (citing State v. Mahler, 735 S.W.2d 226, 228 (Tenn. 1987)); see also James

Gordon Coons, III v. State, No. 01C01-9801-CR-00014, slip op. at 6 (Tenn. Crim. App., at

Nashville, May 6, 1999).

A sentence is illegal if it directly contravened a statute in existence at the time it was

imposed. Taylor v. State, 995 S.W.2d 78, 85 (Tenn. 1999). A sentence is not illegal when the

defendant claims only prosecutorial misconduct or judicial vindictiveness. See Luttrell v. State, 644

S.W.2d 408, 409 (Tenn. Crim. App. 1982) (noting that alleged constitutional violations are properly

addressed in post-conviction, not habeas corpus, proceedings). "Technical violations related to the

judgment forms and committal documents . . . would not render [a] petitioner's confinement illegal

as long as a valid conviction and resultant legal sentence were imposed." Marvin Anthony

Matthews v. Charles C. Noles, No. 02C01-9206-CC-00140, slip op. at 4 (Tenn. Crim. App., at

Jackson, Feb. 24, 1993), app. denied (Tenn. June 1, 1993).

Here, the petitioner argues that the consecutive sentencing was illegal because it "violated

the statutory and Tennessee Supreme Court case law in effect at the time" and because there was no

presentence report or sentencing hearing. The petitioner also complains that the trial court did not

offer him an opportunity to withdraw his guilty pleas and failed to advise him that he had the right

to appeal his sentence. 

Initially, this court affirmed the constitutionality of the petitioner's guilty pleas in the first

post-conviction proceeding. See Hatton, No. 81-275-III, slip op. at 4 ("[The petitioner] was plainly

advised that the trial judge was not bound by any agreement between the prosecuting attorney and

defense counsel and declined the opportunity to withdraw his plea of guilty to the charges."). In

1977, the following sentencing statute was in effect:

When any person has been convicted of two (2) or more offenses, judgment shall be

rendered on each conviction after the first, providing that the terms of imprisonment

to which such person is sentenced shall run concurrently or cumulatively in the

discretion of the trial judge; provided, that the exercise of the discretion of the trial

judge shall be reviewable by the Supreme Court on appeal.

Tenn. Code Ann. § 40-2711 (1975) (subsequently Tenn.CodeAnn. § 40-20-111(a)) (repealed 1995).

The sentence imposed is well within the statutory limitations. See Burkhart, 566 S.W.2d at 873.

"While the imposition of consecutive sentences by a trial court may be erroneous because not

warranted under the facts and sentencing laws, consecutive sentences for multiple convictions are

not considered illegal sentences." State v. Carl Steven McGill, No. 03C01-9409-CR-00345, slip op.
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at 6 (Tenn. Crim. App., at Knoxville, Sept. 19, 1995); see also State v. Edward Lorenzo Samuels,

No. M1998-01821-CCA-RMCD (Tenn. Crim. App., at Nashville, Dec. 30, 1999), aff'd, State v.

Samuels, ___ S.W.3d ___, No. M1999-01821-SC-R11CD (Tenn. May 4, 2001). Even if the

consecutive sentences were erroneously imposed, no relief would be available at this late date.

Because the sentence was not illegal, the petitioner is not entitled to relief.

Accordingly, the judgment of the trial court is affirmed.

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GARY R. WADE, PRESIDING JUDGE