### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE February 13, 2001 S ession
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 kn

owing and voluntar

y, and that his sente

nce is illegal. The trial court concl uded 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 di smissal of th e petitioner's illegal sentence claim was erroneous. Because, however, the petitione r is not entitled to relief on that claim, the judgment of the trial court is affirmed.

Tenn. R. App. P. 3; Judgm ent of the Trial Cou

rt Affirmed.
G ARY R. W ADE , P.J., delivered the opinion of the court, in which A LAN E. G LENN and R OBERT W. W EDEMEYER , JJ., joined.
Claudia S. Jack, District Public Defender, Columbia, Tennessee, for the appellant, Gregory Hatton.
Paul G. Summers, Attorne y General & Repor

ter; David H. Findle

y, Assistant Attorne

y 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 k idnapping, assault with intent to commit murder, grand larceny, and rape. The trial court imp osed sente nces as follows: 30 years for the armed robbery; five to 15 years for the burglary; four toten 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 guilt y pleas. The trial court, whic h elected to consi

der the motion as a

petition for postconvic tion relief , appointed counsel and held an evidentiary hearing. At the conclusion of the-2-

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 fileda 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-co nviction 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, 19 94, t he petitioner was subject to the following statute o

f limitations:
A prisoner in custody under sentence of a court of this s

tatemust 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. § 40-3 0-102 (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. Absto n v. State , 749 S.W.2d 487, 488 (Tenn. Crim. App. 1988). With the exception of the illeg a l 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 deter

mined." See Tenn. Code Ann. § 40-30-112(a) (repealed 199 5). Be cause the petitioner failed to raise a

ny ineffective a

ssistance of coun

sel claim in his

first post- conviction petition, that ground has been waived. See Tenn. Code Ann. § 40-30-112(b)(1 ) (repealed 1 995); 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 fa

iled 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 tria

l court had t he power and duty to correct an illegal sentence at any time).-3-

Typically, a challenge to an illegal sentence by an incarcer

ated defendant

is by petition for writ of habeas corpus. See Stephenson v. Carlton , 28 S.W.3d 910 (Tenn. 2000); Freddie Cupples v. S tate , 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 o f post-conviction petition, holding that the action is not barred by the applicable

statute of limitatio

ns. Kevin Lavell Abston v. Sta

te , 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. Stat e , No. 01C01-9801-CR-00014, slip op. at 6 (Tenn. Crim. App., at Nashville, May 6, 1999).
A sentence is illega

l if it directly con

travened a statu

te in existenc e 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 senten ce were imposed." Marvin Anthony Matthews v. Charles C. Noles , No. 02C01-9206-CC-00140, slip op. at 4 (Tenn. Crim. App. , a t Jackson, Feb. 24, 1993), app. denied (Tenn. June 1, 1993). Here, the petitioner

argues that the c

onsecutive sente

ncing was illegal b

ecause it "violated the statutory and Ten

nessee Supreme Co

urt case law in ef

fect at the time" a

nd because

there was no presentencereport 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.
Initia lly, this court affirmed the constitutionality of the petitioner's guilty pleas in the f irs t post-conviction proceeding. See Hatton , No. 81-275-III, slip op. at 4 ("[The pe

titioner] was pla

inly advised that the trial judge was not bound by any agreement between the prosecuting attorney and defense counsel and decl

ined the opportunit

y to withdraw his p

lea of guilty to the charges."). In 1977, the following

sentencing statut

e 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 cum ulatively in the discretion of the trial judge; provided, that the exercise of the discretion of the trial judge shall be rev

iewable by the Supr

eme Court on appea

l.
Tenn. Code Ann. § 40-2711 (1975) (subsequently Tenn

. Code Ann. § 40 -20-111(a)) (repealed 1995). The sentence i m posed is well within the statutory limitations. See Burkhart , 566 S.W.2d at 873. "While the imp osition of c onsecutive 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 illeg

al sentences." State v. Carl Steven McGill , No. 03C01-9409-CR -00345, slip

op.-4-

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. M19 99-01821-S C-R11CD (Tenn. May 4, 2001). Even if the consecutive sentences were erro neously imp osed, 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.

___________________________________ GARY R. WADE, PRESIDING JUDGE