IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs January 10, 2017

STATE OF TENNESSEE v. MICHAEL O. BROWN

Direct Appeal from the Circuit Court for Lincoln County

No. 180-95 Forest A. Durard, Jr., Judge

No. M2016-01343-CCA-R3-CD

In 1991, the Defendant, Michael O. Brown, was convicted of sale of cocaine, and the trial 

court sentenced him to eleven years of incarceration. In 1996, the Defendant was 

convicted of sale of cocaine, and the trial court sentenced him to twenty years of 

incarceration to be served consecutively to his sentence for the 1991 conviction. In 2006, 

the Defendant filed a motion to correct an illegal sentence. The trial court concluded that 

the Defendant’s 1991 sentence had been improperly enhanced, so it modified the 

sentence to eight years. The trial court further concluded that this modification did not 

affect the Defendant’s sentence for his 1996 conviction. After filing multiple motions to 

correct an illegal sentence from 2006 to 2008, the Defendant filed a motion pursuant to 

Tennessee Rule of Criminal Procedure 36.1 in 2016, contending that his 1991 conviction 

was illegal and had been vacated, making the trial court’s use of it as an enhancement for 

his 1996 sentence improper. The trial court dismissed the Defendant’s motion and denied 

his subsequent motion to reconsider. The Defendant appeals, contending that his 

sentence for his 1996 conviction was improperly enhanced and that the trial court erred 

when it denied his motion to reconsider. After a thorough review of the record, we affirm 

the trial court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which THOMAS T.

WOODALL, P.J. and ROBERT L. HOLLOWAY, JR., J., joined.

Jonathan C. Brown, Fayetteville, Tennessee, for the appellant, Michael O. Brown.

Herbert H. Slatery III, Attorney General and Reporter and Brent C. Cherry, Senior 

Counsel, and Robert J. Carter, District Attorney General for the appellee, State of 

Tennessee.

02/17/2017
2

OPINION

I. Facts

This case originally stems from a jury convicting the Defendant in 1991 for the 

sale of cocaine. State v. Michael O. Brown, No. 01-C-019203-CC000083, 1991 WL

335920 (Tenn. Crim. App., at Nashville, Nov. 18, 1991), no perm. app. filed. The trial 

court sentenced the Defendant in the 1991 case to eleven years, as a Range I, standard 

offender. In 1996, a jury convicted the Defendant again of the sale of cocaine, and the 

State sought an enhanced sentence based on the Defendant’s prior convictions, including 

his 1991 conviction. The trial court sentenced him to twenty years as a Range II multiple 

offender to be served consecutively to his eleven-year sentence. In 2006, the Defendant 

filed a motion to correct an illegal sentence seeking to correct his 1991 sentence, and the 

trial court granted his motion based on the following set of facts and conclusions:

The Defendant testified that he was never addressed and sentenced 

in open court by the trial judge on any of these dates [when he appeared in 

court]. Indeed, [the Defendant] testified that he learned of his sentence 

while he was in jail.

Thus, the Defendant alleged that his sentence was “illegal and void.”

At the hearing on the Defendant’s motion [to correct an illegal 

sentence], [the Defendant] testified that one of the prior convictions 

attributed to him in the presentence report and in the Notice of Intent to 

Seek Enhanced Punishment was not [the Defendant’s]. The proof, a 

certified copy of the judgment in a case of another Michael Brown in 

Rutherford County, Tennessee, show unequivocally that [the Defendant] 

was the not the defendant in that case.

An Addendum to the Pre-Sentence Report dated March 25, 1993, 

also revealed that another prior conviction attributed to the Defendant was 

not his.

The trial court held that, because the Defendant was sentenced without a court 

appearance and based on a prior conviction not attributed to him, the Defendant was 

improperly sentenced for his 1991 conviction. As such, the trial court modified the 

Defendant’s sentence for that conviction from eleven years to eight years. Additionally, 

the trial court addressed the Defendant’s sentence for his 1996 conviction. It found that 

the Defendant had a prior history of criminal convictions sufficient to establish the 

appropriate sentencing range for his 1996 conviction and thus the trial court concluded 

that the Defendant’s subsequent sentence for his 1996 conviction was not affected by the 
3

modification of his sentence for his 1991 conviction. 

In 2006, the Defendant filed a second motion to correct an illegal sentence 

contending that his 1991 conviction could not have been used to enhance his sentence for 

his 1996 conviction. He claimed that he had not been “lawfully adjudicated” in 1991 and 

thus the conviction did not meet the criteria necessary to be designated a “judgment of 

conviction.” The trial court issued an order denying his motion, stating the following:

[The 1991 conviction] relied upon to enhance the sentencing in this 

case, was adjudicated on July 17, 1991 when the [Defendant] was 

convicted by a jury for the unlawful sale of a controlled substance. The 

[Defendant] committed another offense on January 25, 1996, over four 

years after [the 1991 conviction] was adjudicated. Therefore, the offense, 

which resulted in this case, occurred after the [1991 conviction] was 

adjudicated, and pursuant to Tenn. Code Ann. 40-35-106, the Court could 

and did rely on [the 1991 conviction] to enhance the sentence to twenty 

(20) years as a Range II, multiple offender.

In 2016, the Defendant filed a fourth1 motion to correct an illegal sentence, which

is the subject of this appeal. In it, the Defendant alleged that his sentence for the 1996 

conviction was illegal in light of the trial court’s ruling on his 2006 motion that his 1991 

sentence was improperly enhanced. This conclusion, he alleged, made his 1991

conviction a void judgment. He contended that it was then relied on by the State to 

enhance his sentence, classifying him as a Range II, multiple offender for the purposes of 

sentencing for his 1996 conviction. 

The trial court denied the Defendant’s motion, stating that his allegations were the 

same as those in his 2006 motion and were estopped by res judicata. The trial court 

further held that the Defendant’s sentence had expired and, thus, relief pursuant to Rule 

36.1 was not available to him. The Defendant subsequently filed a motion to reconsider, 

which the trial court denied in an order restating its conclusion that all the issues raised 

by the Defendant had been previously litigated and that the Defendant had not presented 

a colorable claim for Rule 36.1 relief. It is from this judgment that the Defendant now 

appeals.

II. Analysis

 

1

The Defendant filed a third motion to correct an illegal sentence in 2008; it is included in the technical 

record in this matter, however no order or other dispositional document is present. As the Defendant’s 

brief notes, “[t]he Clerk’s file is slim regarding the disposition of this motion;” however he notes that the 

motion was denied.
4

On appeal, the Defendant contends that his 1996 sentence is illegal because it was 

enhanced based on a void sentence pursuant to his 1991 conviction. He further contends 

that the trial court erred when it denied his motion to reconsider based on the “pretense”

that his sentence for his 1991 conviction had expired. The State responds that the 

Defendant’s motion failed to state a colorable claim and that his sentence has expired. 

The State further contends that the Defendant’s 1996 conviction was not improperly 

enhanced. It notes that the 1991 conviction remained valid and that the conviction was 

the basis for the enhancement of the 1996 sentence.

Tennessee Rule of Criminal Procedure 36.1 provides an avenue to seek correction 

of an illegal sentence:

(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. S. Ct. Rule 17 setting forth the correct 

sentence.
5

(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.

The Tennessee Supreme Court recently addressed “whether Rule 36.1 expands the 

scope of relief available . . . by permitting either the defendant or the State to correct 

expired illegal sentences.” State v. Brown, 479 S.W.3d 200, 205 (Tenn. 2015). Our 

Supreme Court held that “Rule 36.1 does not expand the scope of relief and does not 

authorize the correction of expired illegal sentences. Therefore, a Rule 36.1 motion may 

be summarily dismissed for failure to state a colorable claim if the alleged illegal 

sentence has expired.” Id. at 211.

The Defendant argues that his sentence for his 1996 conviction is illegal. The 

record reflects that the Defendant’s sentence for his 1996 conviction expired before he 

filed the Rule 36.1 motion at issue in this case. The judgment was entered on September 

17, 1996 and the Defendant was sentenced to twenty years of incarceration. The trial 

court noted in its order that, according to the felony offender information database, the 

Defendant’s sentence ended in 2011. Because the Defendant has completely served his 

sentence, Rule 36.1 may not be utilized to correct any illegality in the sentence. 

Accordingly, we conclude that the petition was properly dismissed by the trial court and 

that the trial court did not err when it denied his motion to reconsider.

III. Conclusion

After a thorough review of the record and the applicable law, we affirm the trial 

court’s judgment.

_________________________________

ROBERT W. WEDEMEYER, JUDGE