IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs August 2, 2022

STATE OF TENNESSEE v. DARYL BOBO

Appeal from the Criminal Court for Shelby County

No. 11-03987 Chris Craft, Judge

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No. W2021-00811-CCA-R3-CD

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Defendant, Daryl Bobo, appeals the trial court’s summary dismissal of a motion filed 

pursuant to Rule 36 of the Tennessee Rules of Criminal Procedure in which Defendant 

challenged the legality of his effective 60-year sentence as a Range III, persistent offender 

resulting from multiple drug-related convictions. We affirm the judgment of the trial court. 

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER, J., joined. JOHN EVERETT WILLIAMS, P.J., not participating.1

Daryl Bobo, Wartburg, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Senior Assistant 

Attorney General; Steven J. Mulroy, District Attorney General; and Melanie Headley Cox,

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

OPINION

Defendant was convicted in 2013 of possession with intent to sell 0.5 grams or more 

of cocaine in a drug-free school zone, a Class A felony, and possession with intent to sell 

0.5 ounces or more of marijuana in a drug-free school zone, a Class D felony. The trial 

court sentenced Defendant as a Range III, persistent offender to 60 years for his cocaine 

conviction and 12 years for his marijuana conviction, to be served concurrently. A panel 

 

1

Judge Williams, the Presiding Judge of the Court of Criminal Appeals, died on September 2, 

2022. The members of this panel of the Court acknowledge Judge Williams's steadfast leadership, sharp 

wit, and overall positive influence on the judiciary during his many years of service to Tennessee. He will 

be greatly missed by all of his colleagues.

09/29/2022
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of this Court affirmed Defendant’s convictions on direct appeal, and our supreme court 

declined to review that decision. State v. Daryl Bobo, No. W2013-02008-CCA-R3-CD, 

2014 WL 3954066, at *1 (Tenn. Crim. App. Aug. 13, 2014), perm app. denied (Tenn. Dec. 

19, 2014). 

In 2015, Defendant sought post-conviction relief, contending that his trial counsel 

was ineffective. The post-conviction court denied relief, and this Court affirmed. Daryl 

Bobo v. State, No. W2016-00477-CCA-R3-PC, 2016 WL 6803176, at *5 (Tenn. Crim. 

App. Nov. 16, 2016), perm app. denied (Tenn. Feb. 28, 2017).

In June 2021, Defendant filed a motion to correct an illegal sentence pursuant to 

Rule 36.1 of the Tennessee Rules of Criminal Procedure, alleging that the trial court 

improperly considered his prior convictions in determining the appropriate range and in 

failing to impose the minimum sentence within the applicable range. The trial court denied 

his motion, finding that the sentence imposed was authorized under the statutory scheme 

and was not illegal and that Defendant, therefore, failed to establish a colorable claim. This 

appeal followed. 

Analysis

Defendant argues that his sentence is illegal and that the trial court erred in 

dismissing his motion pursuant to Rule 36.1 because he was sentenced to the maximum 

number of years under the statutory scheme. He asserts that the sentencing court

“abandoned and ignored” the plain language of Tennessee Code Annotated section 40-35-

210(c)(1), and the intent of the legislature, in imposing the maximum sentence instead of 

the presumptive statutory minimum sentence. Defendant does not pursue in this appeal his 

claim from his motion that the trial court erroneously considered his prior convictions in 

determining the applicable range. The State responds that the trial court did not err in 

summarily dismissing the motion because Defendant has failed to state a colorable claim 

for relief. We agree with the State. 

Rule 36.1 permits a defendant to seek correction of an unexpired illegal sentence at 

any time. See State v. Brown, 479 S.W.3d 200, 211 (Tenn. 2015). “[A]n illegal sentence 

is one that is not authorized by the applicable statutes or that directly contravenes an 

applicable statute.” Tenn. R. Crim. P. 36.1(a). Our supreme court has interpreted the 

meaning of “illegal sentence” as defined in Rule 36.1 and concluded that the definition “is 

coextensive, and not broader than, the definition of the term in the habeas corpus context.” 

State v. Wooden, 478 S.W.3d 585, 594-95 (Tenn. 2015). 

As noted by our supreme court, “mistakes in sentencing are inevitable, but few 

sentencing errors render sentencing illegal.” Id. at 595 (citing State v. Cantrell, 346 S.W.2d 
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445, 448-49 (Tenn. 2011). Only fatal errors result in an illegal sentence and “are so 

profound as to render the sentence illegal and void.” Id. (citing Cantrell, 346 S.W.2d at 

452). Fatal errors include “sentences imposed pursuant to an inapplicable statutory 

scheme, sentences designating release eligibility dates where early release is statutorily 

prohibited, sentences that are ordered to be served concurrently where statutorily required 

to be served consecutively, and sentences not authorized by any statute for the offenses.” 

Id. (citing Davis v. State, 313 S.W.3d 751, 759 (Tenn. 2011)). Errors which are merely

appealable, however, do not render a sentence illegal and include “those errors for which 

the Sentencing Act specifically provides a right of direct appeal.” Id.; see Cantrell, 346 

S.W.2d at 449. Appealable errors are “claims akin to . . . challenge[s] to the sufficiency of 

the evidence supporting a conviction” and “involve attacks on the correctness of the 

methodology by which a trial court imposed sentence.” Wooden, 478 S.W.3d at 595; see 

Cantrell, 346 S.W.2d at 450-52. 

A trial court may summarily dismiss a defendant’s Rule 36.1 motion if the motion 

fails to state a colorable claim. Tenn. R. Crim. P. 36.1(b)(2). A colorable claim is a claim 

that, “if taken as true in a light most favorable to the moving party, would entitle the moving 

party to relief under Rule 36.1.” Wooden, 478 S.W.3d at 593. A motion filed pursuant to 

Rule 36.1 “must state with particularity the factual allegations on which the claim for relief 

from an illegal sentence is based.” Id. at 594. A trial court “may consult the record of the 

proceeding from which the allegedly illegal sentence emanated” when determining 

whether a motion states a colorable claim for relief. Id. Whether a motion states a 

colorable claim for relief is a question of law and reviewed de novo. Id. at 588. 

As a Range III, persistent offender, Defendant was subject to a sentence of 40 to 60 

years for the cocaine conviction as a Class A felony and 8 to 12 years for the marijuana 

conviction as a Class D felony. See T.C.A. §§ 39-17-417(c)(1), (g)(1); 39-17-432(a) (Supp. 

2010); 40-35-112(e). The trial court sentenced Defendant to the maximum sentence within 

each range. Defendant asserts that the trial court failed to apply Tennessee Code Annotated 

section 40-35-210(c)(1), which provides that “[t]he minimum sentence within the range of 

punishment, because the general assembly set the minimum length of sentence for each 

felony class to reflect the relative seriousness of each criminal offense in the felony 

classifications.” However, this is an advisory sentencing guideline which the trial court 

must consider but by which the trial court is not bound. T.C.A. § 40-35-210(c). 

Furthermore, the imposition of a maximum within-range sentence for an offense does not 

render a sentence illegal. See Wooden, 478 S.W.3d at 596 (“A sentence which is 

‘statutorily available but ordinarily inapplicable to a given defendant’ is not an illegal 

sentence[.]”) (quoting Cantrell, 346 S.W.2d at 454). 

Defendant’s allegations, even if true, would not create fatal errors entitling him to 

Rule 36.1 relief. Defendant’s claim challenges the “methodology” for which the trial court 
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reached its sentencing determination. Such claims fall within the second category of 

sentencing errors – appealable errors, which must be addressed on direct appeal. See, e.g., 

Wooden, 478 S.W.3d at 596; Cantrell, 346 S.W.2d at 454. Thus, the trial court did not err 

in concluding that Defendant failed to state a colorable claim for relief. 

CONCLUSION

Based on the foregoing, we affirm the trial court’s judgment. 

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TIMOTHY L. EASTER, JUDGE