State of Tennessee v. Shawn Rafael Bough

                                                                                        12/18/2023
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs August 29, 2023

            STATE OF TENNESSEE v. SHAWN RAFAEL BOUGH

                  Appeal from the Criminal Court for Knox County
                       No. 123124 Steven W. Sword, Judge


                            No. E2022-01788-CCA-R3-CD


The petitioner, Shawn Rafael Bough, appeals the Knox County Criminal Court’s summary
denial of his motion to correct an illegal sentence, filed pursuant to Tennessee Rule of
Criminal Procedure 36.1. Discerning no error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN, P.J., and JILL BARTEE AYERS, J., joined.

Shawn Rafael Bough, Pikeville, Tennessee, pro se.

Jonathan Skrmetti, Attorney General and Reporter; Caroline Weldon, Assistant Attorney
General; and Charme P. Allen, District Attorney General, for the appellee, State of
Tennessee.

                                       OPINION

              In June 2001, a Knox County Criminal Court jury convicted the petitioner of
felony murder and especially aggravated robbery for the shooting death and robbery of
Billy Oldham, for which he received an effective life sentence. State v. Bough, 

 (Tenn. 2004). On appeal, this court determined that the petitioner had waived
most of his claims due to an untimely motion for new trial and affirmed his convictions.
State v. Shawn Rafael Bough, No. E2002-00717-CCA-R3-CD, 

, at *1
(Tenn. Crim. App., Knoxville, Jan. 12, 2004). Our supreme court affirmed the convictions,
concluded that the motion for new trial was timely filed, and remanded to this court for
review of the petitioner’s remaining issues. Bough, 

. On remand, this
court again affirmed the convictions. State v. Shawn Rafael Bough, No. E2004-02928-
CCA-RM-CD, 

, at *1 (Tenn. Crim. App. Jan. 19, 2005).
               The petitioner filed a timely but unsuccessful petition for post-conviction
relief, arguing, among other things, that trial counsel performed deficiently by failing to
challenge the trial court’s instructing the jury on especially aggravated robbery rather than
simple robbery as the underlying felony to the felony murder charge. Shawn Rafael Bough
v. State, No. E2007-00475-CCA-R3-PC, 

, at *1 (Tenn. Crim. App.,
Knoxville, Oct. 18, 2007). The post-conviction court concluded that the defendant was not
prejudiced by the incorrect jury instruction, and this court affirmed. Id. at *8.

               The petitioner then sought habeas corpus relief, arguing that the trial court
“incorrectly instructed the jury that the underlying felony on the first degree felony murder
charge was especially aggravated robbery, rather than simple robbery as charged in the
indictment.” Shawn Rafael Bough v. Jim Morrow, Warden, No. E2010-01194-CCA-R3-
HC, 

, at *1 (Tenn. Crim. App., Knoxville, May 24, 2011). The habeas
corpus court dismissed the petition and concluded that the issue was not cognizable in a
habeas corpus proceeding, and this court affirmed. Id. at *2.

              The petitioner next sought relief via a petition for a writ of error coram nobis
on the ground of newly discovered evidence. The coram nobis court deemed the evidence
incredible and dismissed the petition, and this court affirmed. Shawn Bough v. State, No.
E2017-00015-CCA-R3-ECN, 

, at *1 (Tenn. Crim. App., Knoxville, July
17, 2017).

              In November 2022, the petitioner filed a pro se motion to correct an illegal
sentence filed pursuant to Tennessee Rule of Criminal Procedure 36.1, raising the same
claim raised in his habeas corpus petition. In his petition, he asserts that the trial court
illegally amended the indictment when it incorrectly instructed the jury on especially
aggravated robbery rather than simple robbery as the underlying felony to the felony
murder charge. The trial court denied the defendant’s motion for failure to state a colorable
claim under Rule 36.1.

                In this timely appeal, the petitioner reasserts his argument that the trial court
illegally amended the indictment by giving erroneous jury instructions. The State argues
that the petitioner’s claim is not cognizable under Rule 36.1.

               Rule 36.1 provides the defendant and the State an avenue to “seek to correct
an illegal sentence,” defined as a sentence “that is not authorized by the applicable statutes
or that directly contravenes an applicable statute.” Tenn. R. Crim. P. 36.1; see also State
v. Wooden, 

 (Tenn. 2015) (holding that “the definition of ‘illegal
sentence’ in Rule 36.1 is coextensive with, and not broader than, the definition of the term
in the habeas corpus context”). To avoid summary denial of an illegal sentence claim
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brought under Rule 36.1, a defendant must “state with particularity the factual allegations,”
Wooden, 

, establishing “a colorable claim that the unexpired sentence is
illegal,” Tenn. R. Crim. P. 36.1(b). “[F]or purposes of Rule 36.1 . . . ‘colorable claim’
means a claim that, if taken as true and viewed in a light most favorable to the moving
party, would entitle the moving party to relief under Rule 36.1.” Wooden, 

. The determination whether a Rule 36.1 “motion states a colorable claim for correction
of an illegal sentence under Rule 36.1 is a question of law, to which de novo review
applies.” 

 at 589 (citing Summers v. State, 

 (Tenn. 2007)).

               We note that the petitioner raises the same claim that he previously raised in
his habeas corpus petition and that this court previously determined was not cognizable in
habeas corpus proceedings. See Shawn Rafael Bough, 

, at *2. Because
the definition of an “illegal sentence” in Rule 36.1 “mirrors” the definition of an illegal
sentence that courts have applied in the habeas corpus context, State v. Brown, 

 (Tenn. 2015), the petitioner is not entitled to relief under Rule 36.1 for claims that
he previously raised and that this court rejected in habeas corpus proceedings.
Furthermore, this court has already determined that “the petitioner was not prejudiced by
the trial court’s instructing the jury on the greater offense” as the underlying felony on the
felony murder count. Shawn Rafael Bough, 

, at *8. The petitioner may
not continue to relitigate issues that have been previously determined. See State v. Ricky
Flamingo Brown, No. M2015-01754-CCA-R3-CD, 

, at *2 (Tenn. Crim.
App., Nashville, Mar. 15, 2016). Finally, the defendant’s claim is a challenge to the legality
of his conviction, which, even if true, does not render his sentence illegal. See State v.
Marcus Thomas, No. W2017-00692-CCA-R3-CD, 

, at *1 (Tenn. Crim.
App., Jackson, Nov. 22, 2017) (“The defendant’s claim . . . is merely an attack on his
convictions, which would not affect the legality of his sentence and would not, therefore,
be cognizable in a Rule 36.1 proceeding.”). Accordingly, we conclude that the trial court
properly denied the petitioner’s Rule 36.1 motion and that the petitioner is not entitled to
relief.

              Accordingly, we affirm the judgment of the trial court.


                                                    __________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




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