IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs May 22, 2018

STATE OF TENNESSEE v. BRYANT EUGENE PAGE, JR.

Appeal from the Criminal Court for Knox County

No. 107822 G. Scott Green, Judge

No. E2017-01344-CCA-R3-CD

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The Defendant, Bryant Eugene Page, Jr., pleaded guilty to aggravated assault, a Class C 

felony, as a Range III offender, with an agreed sentence of twelve years, but with a 

Range II release eligibility of 35% rather than a Range III release eligibility of 45%. 

More than a year later, the Defendant filed a motion to reduce his sentence, asking the 

trial court for a sentence of six years, at 35%, arguing that his sentence was not in range. 

The trial court summarily dismissed his motion. On appeal, the Defendant contends that 

the trial court erred when the trial court did not reduce his sentence because: (1) his 

motion was timely but the court clerk refused to file his motion; (2) his sentence is illegal 

because it is out of range. After review, we affirm the trial court’s judgment. 

Tenn. R. App. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed 

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which JOHN EVERETT 

WILLIAMS, P.J., and THOMAS T. WOODALL, J., joined.

Bryant Eugene Page, Jr., Mountain City, Tennessee, Pro Se.

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

Attorney General; Charme P. Allen, District Attorney General; TaKisha M. Fitzgerald, 

Assistant Attorney General, for the appellee, State of Tennessee.

OPINION

I. Facts

This case arises from the Defendant’s assault of the victim, also the mother of his 

child, on August 21, 2015. For this offense, the State filed an information for aggravated 

assault, and the Defendant waived an indictment or presentment and agreed to proceed by 

information. The Defendant filed an affidavit that he was indigent, the trial court 

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appointed counsel, and the Defendant and the State reached a plea agreement. 

At the guilty plea hearing, the trial court first noted that the parties agreed that, if 

the Defendant pleaded guilty, a gang enhancement would be dismissed. The trial court 

ensured that the Defendant understood that he was facing one felony charge, aggravated 

assault, a Class C felony, which had a sentencing range of between three and fifteen 

years. The trial court articulated that the Defendant, for purposes of this plea agreement, 

had been classified as a Range III, persistent offender, meaning his range of punishment 

was between ten and fifteen years, and that he had agreed to a sentence of twelve years. 

The trial court further ensured the Defendant understood that, while he was pleading as a 

Range III offender, the plea agreement contemplated that his release eligibility would be 

that of a Range II offender, meaning at 35% rather than the Range III release eligibility of 

45%. The trial court also explained that the release eligibility did not mean that the 

Defendant was guaranteed release at that time, but rather that he was eligible for release 

at that time. The Defendant acknowledged understanding all of these facts. The 

Defendant said that he wanted to plead guilty in exchange for a sentence of twelve years, 

to be served at 35%.

The Defendant, twenty-six years old at the time of the hearing, said that he had a 

ninth or tenth grade education and could read and write without difficulty. He said he 

lived in Knoxville with his mother and that he had always resided with her. His work 

history was sporadic, but it included some employment at fast food restaurants, a car 

wash, and a tree service.

The trial court reviewed the Defendant’s constitutional rights and the guilty plea 

documents. The Defendant waived his rights and stated he had reviewed and 

acknowledged understanding of all the associated guilty plea documents.

The State then articulated the facts that it would have presented had the case gone

to trial, stating:

[I]f called to trial in this matter we would call the witnesses listed on the 

information. The testimony would be that on August 21st, 2015, at . . . 

West Scott Avenue the victim . . . and the [D]efendant were present there. 

They [were]. . . in a domestic relationship and . . . they share a child 

together.

The victim and the [D]efendant were arguing over the custody of the 

child. At which time the [D]efendant became irate, armed himself with a 

black handgun and fired rounds into the vehicle that the victim was 

occupying. The victim was not struck, but his actions placed the victim in 
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fear of death and [risk of] serious bodily injury.

When the officers arrived, officers did find a bullet hole in the hood 

of the car and the back left window was shot out. Officers did recover two 

[]9 millimeter casings located at the scene.

The trial court informed the Defendant that, given those facts, he was subject to 

being indicted for a much greater offense than aggravated assault. The Defendant said he 

understood. The trial court accepted the Defendant’s guilty plea to aggravated assault.

The judgment of conviction is dated April 19, 2016. 

On May 31, 2017, the Defendant filed a motion to reduce his sentence. He asked 

the trial court to reduce his sentence from twelve years to six years, at 35%. In support of 

his request, the Defendant submitted (and we quote precisely from his submission) the 

following:

At the time of sentencing the [D]efendant stated that he understood 

the agreement of the guilty plea. Even though he did not have knowledge, 

nor was he fully aware of the guilty plea. (Boykin vs. Alabama 395 U.S. 

238, 242 (1969) Held that the record must show any guilty plea has made 

voluntarily and knowin[gly]. If it not voluntarily and knowingly it has been 

entered in violation of Due Process and is, therefore void.

The range for the [D]efendant[’]s punishment was outside of the 

sentenceing [sic] range that the [D]efendant was suppose[d] to have fell 

under. If the [D]efendant would have known he was going to receive a 

sentence outside of his range he would have not accepted the plea and 

proceeded to take the case to trial.

Furthermore the [D]efendant agreed to the sentence of 12yrs. As a 

persistent offender @ 35%. Even though he lacked the criminal history to 

justify sentencing within this range. The [D]efendant[’]s prior felony 

conviction consist[s] of 3 prior felony convictions. According to T.C.A. [§ 

40-35-107(a) A persistent offender is a defendant who has received (1) Any 

combination of five (5) or more prior felony convictions within the 

conviction class or higher or within the next two (2) lower felony classes, 

where applicable.

The trial court summarily dismissed the Defendant’s motion, finding that it had 

not been timely submitted. It is from this judgment that the Defendant now appeals. 
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II. Analysis

On appeal, the Defendant contends that he timely submitted his motion to reduce 

his sentence but that the “trial court clerk refused to file sosaid [sic] motion within a 

timely manner.” The Defendant expressed his belief that the clerk “intentionally 

withheld his timely filed” motion. The Defendant notes that the “certificate of service” 

that he filled out when he created the motion listed the date as July 2016. He further 

contends that he was coerced into entering a plea of guilty and was entitled to a reduction 

of his sentence. The State counters that the Defendant received a very favorable plea deal 

to a within range sentence, considering the facts of the case, and that he entered his plea 

agreement knowingly and voluntarily. It further contends that the Defendant’s motion 

was not timely.

Tennessee Rule of Criminal Procedure 35, which governs the reduction of 

sentences, provides:

(a) Timing of Motion. The trial court may reduce a sentence upon motion 

filed within 120 days after the date the sentence is imposed or probation is 

revoked. No extensions shall be allowed on the time limitation. No other 

actions toll the running of this time limitation.

(b) Limits of Sentence Modification. The court may reduce a sentence only 

to one the court could have originally imposed.

(c) Hearing Unnecessary. The trial court may deny a motion for reduction 

of sentence under this rule without a hearing.

(d) Appeal. The defendant may appeal the denial of a motion for reduction 

of sentence but shall not be entitled to release on bond unless already under 

bond. If the court modifies the sentence, the state may appeal as otherwise 

provided by law.

Tenn. R. Crim. P. 35. The Advisory Commission Comment to Rule 35 states, “The 

intent of this rule is to allow modification only in circumstances where an alteration of 

the sentence may be proper in the interests of justice.” In order to receive Rule 35 relief, 

a defendant must “show that post-sentencing information or developments ha[ve] arisen 

to warrant a reduction of his sentence in the interest of justice.” State v. McDonald, 893 

S.W.2d 945, 948 (Tenn. Crim. App. 1994).

The denial of a Rule 35 motion is reviewed under an abuse of discretion standard. 

State v. Edenfield, 299 S.W.3d 344, 346 (Tenn. Crim. App. 2009); State v. Irick, 861 
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S.W.2d 375, 376 (Tenn. Crim. App. 1993). A trial court abuses its discretion only when 

it “has applied an incorrect legal standard, or has reached a decision which is illogical or 

unreasonable and causes an injustice to the party complaining.” State v. Ruiz, 204 

S.W.3d 772, 778 (Tenn. 2006) (citing Howell v. State, 185 S.W.3d 319, 337 (Tenn. 

2006)).

We agree with the trial court’s determination that the Defendant’s Rule 35 motion 

was untimely. The judgment of conviction in this case was entered April 19, 2016. The 

Defendant had 120 days, which ended sometime in July 2016 to file his motion to reduce 

sentence under Rule 35. The Defendant filed his motion on May 31, 2017. We find 

unpersuasive the Defendant’s contention that the trial court clerk held his motion without 

properly filing it for ten months after his filing date. The Defendant’s listing of “July 

2016” on the certificate of service is clearly either an intentional or inadvertent clerical 

error. Accordingly, we conclude that the Defendant did not timely file his motion.

Further, as to his contention that he timely gave his motion to prison personnel to 

be mailed, Tennessee Rule of Criminal Procedure 49(d)(1) states, “If a paper required or 

permitted to be filed pursuant to the rules of criminal procedure is prepared by or on 

behalf of a pro se litigant incarcerated in a correctional facility and is not received by the 

court clerk until after the deadline for filing, the filing is timely if the paper was delivered 

to the appropriate individual at the correctional facility within the time set for filing.” 

Under this rule, a pro se inmate has the burden of showing that he delivered the filing to 

the appropriate individual at the correctional facility within the time set for filing. Tenn. 

R. Crim. P. 49(d)(1), (3). The Defendant has failed to satisfy his burden of showing that 

he delivered his motion to the appropriate individual at the correctional facility on or 

before July 2016. 

Because we have concluded that the Rule 35 motion was untimely, our 

consideration of the Defendant’s claim that his sentence is illegal and should be reduced

is unnecessary. We, however, briefly note that his twelve-year sentence is within the 

range for a Class C felony. The record evinces that the Defendant knew that he was 

pleading guilty to a sentence two years greater than a Range II offender in exchange for a 

Range II release eligibility date of 35% rather than 45%. The record also evinces that the 

Defendant understood that, had he not pleaded guilty, the State would have sought an 

indictment for a greater offense rather than proceed on the information of aggravated 

assault. Further, the State declined to pursue a gang enhancer as part of the plea 

agreement. Finally, the Defendant’s complaints relate to the trial court’s imposition of an 

improper sentence at the sentencing hearing, and we have already noted that such claims 

do not constitute a basis for Rule 35 relief. See McDonald, 893 S.W.2d at 948 (stating 

that a defendant must “show that post-sentencing information or developments ha[ve] 

arisen to warrant a reduction of his sentence in the interest of justice”). In any case, 
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because the Defendant was sentenced to a within range sentence, his sentence is not 

illegal or unconstitutional. See Bise, 380 S.W.3d at 696-99. He is not entitled to relief.

III. Conclusion

In accordance with the foregoing reasoning and authorities, we affirm the trial 

court’s judgment. 

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ROBERT W. WEDEMEYER, JUDGE