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State of Tennessee v. Raymond Deshun Ross
Citation: Not availableDocket: W2016-01220-CCA-R3-CD
Court: Court of Criminal Appeals of Tennessee; August 24, 2017; Tennessee; State Appellate Court
Original Court Document: View Document
Raymond Deshun Ross appeals the dismissal of his motion under Tennessee Rule of Criminal Procedure 36.1, seeking to correct what he claims is an illegal sentence related to his 2005 convictions for aggravated assault, carjacking, felony theft, and misdemeanor reckless endangerment. The original convictions resulted in a 30-year sentence, later reduced to 18 years after the merger of the aggravated assault and reckless endangerment convictions. Ross previously filed a post-conviction relief petition alleging ineffective assistance of counsel, which was denied, and an appeal was dismissed due to untimeliness and lack of merit. In January 2016, Ross filed a pro se motion asserting illegal sentencing under the amended 2005 Sentencing Act without an ex post facto waiver and improper enhancement of his sentence per Blakely v. Washington. The trial court held a hearing focused on arguments rather than evidence. The appellate court affirmed the trial court's dismissal, finding no error in the proceedings. On March 29, 2016, the trial court dismissed the defendant's motion for failing to present a colorable claim. The defendant filed an untimely notice of appeal, which was accepted by the court in the interest of justice. In this appeal, he asserts entitlement to Rule 36.1 relief, claiming his sentence was illegally enhanced under Blakely and that he did not waive his ex post facto protections. He also requests a review of his sentence for plain error. Rule 36.1 allows for the correction of an illegal sentence, defined as one not authorized by applicable statutes or that contravenes such statutes. To successfully claim an illegal sentence under Rule 36.1, a defendant must provide specific factual allegations that establish a colorable claim of illegality. A "colorable claim" is one that, if accepted as true and viewed favorably towards the moving party, would warrant relief. The court determined that even if the defendant's Blakely argument were valid, it would not render the sentence illegal or the judgment void, as a Blakely violation does not meet the definition of an illegal sentence. Previous rulings already addressed the defendant's Blakely issues, which cannot be relitigated under Rule 36.1. Regarding the ex post facto claim, prior decisions indicate that sentencing under the 2005 amendments without a waiver would only make the sentence voidable, not void. Additionally, the defendant did not satisfy the requirements for plain error review. Consequently, the trial court's judgment is affirmed.