CASES ON TRCP 36.1 MOTIONS
thru 3/13/15 –compiled by Judge Chris Craft
RULE 36.1. CORRECTION OF ILLEGAL SENTENCE. C
(a) Either the defendant or the state may, at any time, seek the correction of an illegal sentence by filing a motion to correct an illegal sentence in the trial court in which the judgment of conviction was entered. For purposes of this rule, an illegal sentence is one that is not authorized by the applicable statutes or that directly contravenes an applicable statute.
(b) Notice of any motion filed pursuant to this rule shall be promptly provided to the adverse party. If the motion states a colorable claim that the sentence is illegal, and if the defendant is indigent and is not already represented by counsel, the trial court shall appoint counsel to represent the defendant. The adverse party shall have thirty days within which to file a written response to the motion, after which the court shall hold a hearing on the motion, unless all parties waive the hearing.
(c) (1) If the court determines that the sentence is not an illegal sentence, the court shall file an order denying the motion.
(2) If the court determines that the sentence is an illegal sentence, the court shall then determine whether the illegal sentence was entered pursuant to a plea agreement. If not, the court shall enter an amended uniform judgment document, see Tenn. Sup. Ct. R. 17, setting forth the correct sentence.
(3) If the illegal sentence was entered pursuant to a plea agreement, the court shall determine whether the illegal provision was a material component of the plea agreement. If so, the court shall give the defendant an opportunity to withdraw his or her plea. If the defendant chooses to withdraw his or her plea, the court shall file an order stating its finding that the illegal provision was a material component of the plea agreement, stating that the defendant withdraws his or her plea, and reinstating the original charge against the defendant. If the defendant does not withdraw his or her plea, the court shall enter an amended uniform judgment document setting forth the correct sentence.
(4) If the illegal sentence was entered pursuant to a plea agreement, and if the court finds that the illegal provision was not a material component of the plea agreement, then the court shall enter an amended uniform judgment document setting forth the correct sentence.
(d) Upon the filing of an amended uniform judgment document or order otherwise disposing of a motion filed pursuant to this rule, the defendant or the state may initiate an appeal as of right pursuant to Rule 3, Tennessee Rules of Appellate Procedure.
[Effective 7/1/13]
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THE PETITIONER MUST PRESENT A COLORABLE CLAIM
It is not enough for the defendant to claim his sentence was improper (too large, wrong range, etc.). He must claim that his sentence was Aeither not authorized by or directly contravene an applicable statute.@State v. Ford, 2015 Tenn. Crim. App. LEXIS 166 (Tenn. Crim. App. Mar. 11, 2015). See alsoState v. Ledford, 2015 Tenn. Crim. App. LEXIS 119 (Tenn. Crim. App. Feb. 23, 2015).
AThe following are examples of illegal sentences:(1) a sentence imposed pursuant to an inapplicable statutory scheme; (2) a sentence designating a [Release Eligibility Date (RED)] where a RED is specifically prohibited by statute; (3) a sentence ordered to be served concurrently where statutorily required to be served consecutively; and (4) a sentence not authorized for the offense by any statute. Davis v. State, 313 S.W.3d 751, 759 (Tenn. 2010) (internal citations omitted). The Appellant's challenge to the sentence for his 2003 aggravated robbery conviction does not fall under any of these examples.Rather, the Appellant argues that his sentence is illegal because the sentencing court erred in classifying him as a career offender. Generally, a trial court's error "in offender classification" will not "render the sentence illegal so long as the classification falls within the purview of the Sentencing Act." Cantrell v. Easterling, 346 S.W.3d 445, 458 (Tenn. 2011). This is because an error in the offender classification does not create a sentence that is not authorized by the applicable statutes or that directly contravenes an applicable statute.@ Yates v. State, 2015 Tenn. Crim. App. LEXIS 11, 8-9 (Tenn. Crim. App. Jan. 8, 2015).
WHAT IS A COLORABLE CLAIM?
ABecause Rule 36.1 does not define ‘colorable claim,’ we have adopted the definition of a colorable claim used in the context of post-conviction proceedings from Tennessee Supreme Court Rule 28 ' 2(H): ‘A colorable claim is a claim . . . that, if taken as true, in the light most favorable to the petitioner, would entitle petitioner to relief ....’@ Withers v. State, 2015 Tenn. Crim. App. LEXIS 109, 4-5 (Tenn. Crim. App. Jan. 28, 2015).
THE TIME OR DATE OF THE SENTENCE IS NOT RELEVANT
Defendant was not precluded from seeking correction of his allegedly illegal sentence because he was sentenced before the inception of Tenn. R. Crim. P. 36.1. State v. Giddens, 2015 Tenn. Crim. App. LEXIS 118 (Tenn. Crim. App. Feb. 20, 2015)
BEING SENTENCED CONCURRENTLY WITH A CRIME COMMITTED WHILE ON PROBATION DOES NOT MAKE THE SENTENCE ILLEGAL
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ATennessee Code Annotated section 40-35-115(b) provides that ‘[t]he court may order sentences to run consecutively if the court finds by a preponderance of the evidence that ... [t]he defendant is sentenced for an offense committed while on probation.’ Tenn. Code Ann. ' 40-35-115(b)(6) (emphasis added). Section 40-35-310(a), which relates to the revocation of a suspended sentence, provides that in any case of revocation of suspension on account of conduct by the defendant that has resulted in a judgment of conviction against the defendant during the defendant's period of probation, the trial judge may order that the term of imprisonment imposed by the original judgment be served consecutively to any sentence that was imposed upon the conviction. (Emphasis added). Neither of these sections mandate consecutive sentences when a defendant is sentenced for an offense committed while on probation.@ Withers v. State, 2015 Tenn. Crim. App. LEXIS 109, 4-5 (Tenn. Crim. App. Jan. 28, 2015); See also State v. Dunn, 2015 Tenn. Crim. App. LEXIS 52 (Tenn. Crim. App. Jan. 14, 2015); Edwards v. State, 2014 Tenn. Crim. App. LEXIS 1167 (Tenn. Crim. App. Dec. 30, 2014)
BUT BEING SENTENCED CONCURRENTLY WITH A CRIME COMMITTED WHILE ON BAIL DOES MAKE THE SENTENCE ILLEGAL
Tennessee Code Annotated section 40-20-111(b) provides that in "any case in which a defendant commits a felony while the defendant was released on bail . . . and the defendant is convicted of both offenses, the trial judge shall not have discretion as to whether the sentences shall run concurrently or cumulatively, but shall order that the sentences be served cumulatively." Therefore, the Defendant's motion stated a colorable claim. Accordingly, we remand this matter to the trial court for a hearing on the motion. It appearing that the Defendant is indigent, the trial court shall appoint counsel to represent the Defendant in this matter. Should the Defendant prove the allegations in his motion, the trial court must then determine if the illegal sentence was a material component of the Defendant's plea agreement. Frazier v. State, 2014 Tenn. Crim. App. LEXIS 557, 4-5 (Tenn. Crim. App. June 16, 2014).
ABecause the Defendant set forth a colorable claim that his sentences are in direct contravention of a statute because they were ordered to run concurrently instead of consecutively [because one was committed while on bail for the other] , the trial court erred by dismissing the Defendant's motion summarily. Accordingly, we remand this matter to the trial court for further proceedings pursuant to Rule 36.1.@ State v. Deal, 2014 Tenn. Crim. App. LEXIS 561 (Tenn. Crim. App. June 17, 2014)
THERE IS NO REQUIREMENT THAT THE DEFENDANT STILL BE SERVING THE SENTENCE, BE RESTRAINED OF LIBERTY OR FILE WITHIN A YEAR OF THE JUDGMENT=S BEING FINAL
AOn its face, Rule 36.1 does not limit the time within which a person seeking relief must file a motion, nor does it require the person seeking relief to be restrained of liberty. Also, Rule 36.1 does not define the term ‘colorable claim.’ In interpreting Rule 36.1, this Court has looked to post-conviction and habeas corpus relief cases for guidance. For example, this Court has adopted the definition for ‘colorable claim’ from the post-conviction context: ‘A colorable claim is a claim . . . that, if taken as true, in the light most favorable to the [appellant], would entitle [appellant] to relief . . . .’State v. David Morrow, No. W2014-00338-CCA-R3-CO, 2014 Tenn. Crim. App. LEXIS 788, 2014 WL 3954071, at *2 (Tenn. Crim. App. Aug. 13, 2014) (quoting Tennessee Supreme Court Rule 28, ' 2(H)) (citation omitted).@ Daws v. State, 2015 Tenn. Crim. App. LEXIS 8 (Tenn. Crim. App. Jan. 8, 2015).
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AA motion to correct an illegal sentence is a remedy separate and distinct from habeas corpus or post-conviction relief. See State v. Jonathan T. Deal, No. E2013-02623-CCA-R3-CD, 2014 Tenn. Crim. App. LEXIS 561, 2014 WL 2802910, at *2 (Tenn. Crim. App. June 17, 2014). Relief pursuant to Tennessee Rule of Criminal Procedure 36.1 is available at any time upon motion of either the defendant or the State. Therefore, we agree with both the Petitioner and the State that the trial court erred by treating the Rule 36.1 motion as a petition for post-conviction relief and by finding that it was not timely filed.@ Edwards v. State, 2014 Tenn. Crim. App. LEXIS 1167, 4-5 (Tenn. Crim. App. Dec. 30, 2014).
AAppellant ... pleaded guilty to two counts of attempted second degree murder, two counts of aggravated robbery, two counts of attempted aggravated robbery, and robbery. Appellant subsequently filed a motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1, which the trial court summarily dismissed because appellant's sentences had expired. On appeal, appellant argues that the trial court erred by summarily dismissing his motion because an illegal sentence may be challenged at any time pursuant to Rule 36.1. The State concedes that this case should be reversed and remanded to the trial court. Following our review of the parties' briefs, the record, and the applicable law, we reverse the trial court's judgment and remand for proceedings consistent with this opinion.@ State v. Blake, 2015 Tenn. Crim. App. LEXIS 7, 1-2 (Tenn. Crim. App. Jan. 8, 2015)
Several otherjudges have been reversed for dismissing because the defendants= sentences had Aexpired@: State v. Talley, 2014 Tenn. Crim. App. LEXIS 1156 (Tenn. Crim. App. Dec. 26, 2014); State v. Wall, 2014 Tenn. Crim. App. LEXIS 1150 (Tenn. Crim. App. Dec. 23, 2014); State v. Robinson, 2014 Tenn. Crim. App. LEXIS 971 (Tenn. Crim. App. Oct. 22, 2014).
CASES IN WHICH THE DEFENDANT DID NOT PREVAIL
The trial court properly denied appellant's Tenn. R. Crim. P. 36.1 motion to correct an illegal sentence where he was not entitled to benefit from the redefinition of aggravated kidnapping and its reclassification from a Class A felony to a Class B felony. State v. Brimmer, 2014 Tenn. Crim. App. LEXIS 1138 (Tenn. Crim. App. Dec. 18, 2014)
AThe Petitioner ... asserted that his sentence was illegal because he had received the ineffective assistance of counsel, which caused him to enter a guilty plea involuntarily. We conclude that the Petitioner's claim is not properly before this Court. Rule 36.1 contemplates correction of illegal sentences. In this issue, the Defendant is attacking the validity of the plea. Adams v. State, 2014 Tenn. Crim. App. LEXIS 1128 (Tenn. Crim. App. Dec. 17, 2014).
THE TRIAL JUDGE SHOULD MAKE FINDINGS
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A‘Defendant's Motion is denied and dismissed.’ There were no factual findings made by the trial court, ... . Thus, taking the Appellant's assertions in the motion as true and viewing them in the light most favorable to him, the Appellant committed a felony offense while released on bail and received concurrent sentences, in direct contravention of Tennessee Code Annotated section 40-20-111 and Rule 32(c)(3)(C) of the Tennessee Rules of Criminal Procedure. We conclude that the Appellant's motion presents a colorable claim that his sentence was illegal. Accordingly, the plain language of Rule 36.1 requires the trial court to determine indigency and, if necessary, appoint counsel for the Appellant.” State v. Terrell, 2014 Tenn. Crim. App. LEXIS 1099, 9-10 (Tenn. Crim. App. Dec. 8, 2014).
FAILURE TO AWARD CORRECT PRETRIAL JAIL CREDITS RENDERS THE SENTENCE ILLEGAL (BUT IF HAS ALREADY BEEN SERVED, THAT FACT RENDERS THE PETITION MOOT)
A[T]he failure to award pretrial jail credits [as opposed to sentence reduction credits awarded by the TDOC] is not merely a clerical error within the ambit of Tennessee Rule of Criminal Procedure 36, but rather an illegal sentence. See George William Brady v. State, No. E2013-00792-CCA-R3-PC, 2013 Tenn. Crim. App. LEXIS 1117, 2013 WL 6729908, at *5 (Tenn. Crim. App. Dec. 19, 2013). Tennessee Code Annotated section 40-23-101(c) provides:
The trial court shall, at the time the sentence is imposed and the defendant is committed to jail, the workhouse or the state penitentiary for imprisonment, render the judgment of the court so as to allow the defendant credit on the sentence for any period of time for which the defendant was committed and held in the city jail or juvenile court detention prior to waiver of juvenile court jurisdiction, or county jail or workhouse, pending arraignment and trial. The defendant shall also receive credit on the sentence for the time served in the jail, workhouse or penitentiary subsequent to any conviction arising out of the original offense for which the defendant was tried.
The language [of Code section 40-23-101(c)] leaves no room for discretion, and when the word 'shall' is used in constitutions or statutes it is ordinarily construed as being mandatory and not discretionary.'" Tucker, 335 S.W.3d at 123 (quoting Stubbs v. State, 216 Tenn. 567, 393 S.W.2d 150, 154 (Tenn. 1965)). Thus, pursuant to the statute, a pretrial detainee has "'an absolute right to credit for time in jail'" spent in pretrial incarceration arising out of the original offense for which he was convicted.@ State v. Greene, 2014 Tenn. Crim. App. LEXIS 694, 5-6 (Tenn. Crim. App. July 16, 2014).
Because the defendant=s allegedly illegally lengthy sentences were fully served, there was no longer any remedy he could seek from the court to correct any illegality in his sentences, and his controversy was, therefore, moot. Aside from the question of mootness, the defendant=s challenges not involving pretrial jail credits would at most have rendered his convictions voidable, and not void, and thus were not within the ambit of Tenn. R. Crim. P. 36.1. State v. Brown, 2014 Tenn. Crim. App. LEXIS 983 (Tenn. Crim. App. Oct. 29, 2014).
THE PETITION, UNLIKE A HABEAS CORPUS CLAIM, IS NOT REQUIRED TO HAVE SUPPORTING DOCUMENTS ATTACHED
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"We note that in contrast to the requirements to survive summary dismissal of a habeas corpus claim, Rule 36.1 requires a defendant to state a colorable claim in his motion but does not require that he attach supporting documents." State v. Brandon Rollen, No. W2012-01513-CCA-R3-CD, 2013 Tenn. Crim. App. LEXIS 785, *11 (Tenn. Crim. App. Sept. 11, 2013); see George William Brady v. State, No. E2013-00792-CCA-R3-PC, 2013 Tenn. Crim. App. LEXIS 1117, 2013 WL 6729908, at *6 (Tenn. Crim. App. Dec. 19, 2013) ("Under the liberal terms of Rule 36.1, the petitioner's raising a colorable claim would entitle him to the appointment of counsel and a hearing on his claim, even without any documentation from the underlying record to support his claim.").” State v. Morrow, 2014 Tenn. Crim. App. LEXIS 788 (Tenn. Crim. App. Aug. 13, 2014).
THIS RULE DOES NOT VOID A TRIAL CONVICTION
“We emphasize that the purpose of this new Rule is to provide an avenue for correcting allegedly illegal sentences. The Rule does not provide an avenue for seeking the reversal of convictions. See Cantrell v. Easterling, 346 S.W.3d 445, 455-56 (Tenn. 2011) (recognizing that convictions and sentences are distinct aspects of a judgment order).” State v. Wilson, 2014 Tenn. Crim. App. LEXIS 292, 4-5 (Tenn. Crim. App. Mar. 31, 2014).
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