IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 10, 2015

STATE OF TENNESSEE v. DERRICK CAREY

Appeal from the Criminal Court for Davidson County

No. 93-B-762 Seth W. Norman, Judge

No. M2015-00185-CCA-R3-CD – Filed July 6, 2015

The Petitioner, Derrick Carey, appeals the Davidson County Criminal Court‟s summary 

dismissal of his motion to correct an illegal sentence pursuant to Tennessee Rule of 

Criminal Procedure 36.1. On appeal, the Petitioner argues that the trial court erred by 

summarily dismissing his motion. Upon review, we affirm the judgment of the trial 

court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the Court, in which THOMAS T.

WOODALL, P.J., and JOHN EVERETT WILLIAMS, J., joined.

Derrick Carey, Only, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant 

Attorney General; Glenn R. Funk, District Attorney General; and Dan Hamm, Assistant 

District Attorney General, for the Appellee, State of Tennessee.

OPINION

On September 16, 1993, the Petitioner, Derrick Carey, pleaded guilty to first 

degree felony murder and especially aggravated robbery, a Class A felony. Pursuant to 

the plea agreement, he was sentenced to life imprisonment and 20 years at 30 percent, to 

be served consecutively. The Petitioner subsequently filed a petition for post-conviction 

relief alleging that his plea was not freely and voluntarily entered and that he received 

ineffective assistance of counsel. See Derrick M. Carey v. State, No. 01C01-9612-CR00528, 1997 WL 766463 (Tenn. Crim. App. Dec. 12, 1997), perm. app. denied (Tenn. 

May 18, 1998; Mar. 15, 1999). This court affirmed the post-conviction court‟s denial of 

relief on appeal, and the Tennessee Supreme Court denied the Petitioner‟s application for 

permission to appeal. Id. 
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The Petitioner then sought habeas corpus relief, arguing that the Davidson County 

Criminal Court lacked jurisdiction to order consecutive sentencing because “Count 2 was 

ordered to run consecutively to Count 3 and Count 3 was ordered to run consecutively to 

Count 2” in the judgment forms. See Derrick M. Carey v. State, No. M2007-00683-

CCA-R3-HC, 2008 WL 1699445, at *1 (Tenn. Crim. App. Apr. 11, 2008), perm. app. 

denied (Tenn. Sept. 15, 2008). The habeas corpus court summarily dismissed the 

petition, and this court affirmed. Id.

On December 30, 2014, the Petitioner filed a “Motion for Order Correcting Error 

in Judgment” pursuant to Tennessee Rule of Criminal Procedure 36.1. In the motion, the 

Petitioner asserted that his punishment was out-of-range and was not authorized by any 

sentencing statute. On January 16, 2015, the trial court entered an order summarily 

denying the motion. The order stated, in pertinent part:

The Petitioner contends that his plea to 20 years on especially 

aggravated robbery is illegal in that it is greater than the statutorily 

prescribed minimum sentence of 15 years as a Range I offender, or 

alternatively, 13.5 years as a mitigated offender. He claims that he should 

have been sentenced as such and that the Court‟s imposition of a sentence 

greater than the statutory minimum is in contravention of T.C.A. § 40-35-

210(c)(1).

T.C.A. § 40-35-210 sets forth the provisions governing the 

imposition of sentences in criminal cases. However, the very first lines of 

the aforementioned section of the statute indicates that the guidelines 

therein are to be followed by the sentencing court “[a]t the conclusion of 

the sentencing hearing.” T.C.A. 40-35-210(a) (emphasis added). The

convictions in the case under examination were imposed as the result of a 

guilty plea agreement. “[A] plea-bargained sentence is legal so long as it 

does not exceed the maximum punishment authorized for the plea offense.” 

Hicks v. State, 945 S.W.2d 706, 707 (Tenn. 1997). As the agreed-upon 

sentence in this matter was not greater than the 60-year maximum sentence 

for a class A felony, it does not appear as though the sentence in this matter 

is illegal. See T.C.A § 40-35-111(b)(1). 

The Petitioner filed a timely notice of appeal to this court. 

ANALYSIS

On appeal, the Petitioner argues that the trial court erred in summarily dismissing 

his motion to correct an illegal sentence. He maintains that he “unfortunately has pled 
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guilty to an impermissible sentence” and that “his punishment extends beyond that which 

is authorized by statute[.]” As a result, the Petitioner asserts that the trial court accepted a 

guilty plea that deviated from applicable sentencing statutes. The State responds that the 

trial court properly dismissed the motion because the Petitioner failed to state a colorable 

claim of an illegal sentence. We agree with the State.

Pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure, “[e]ither the 

defendant or the state may, at any time, seek the correction of an illegal sentence[.]” 

Tenn. R. Crim. P. 36.1(a). “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.” 

Id. A petitioner is only entitled to a hearing and appointment of counsel “[i]f the motion 

states a colorable claim that the sentence is illegal.” Tenn. R. Crim. P. 36.1(b); see

Marcus Deangelo Lee v. State, No. W2013-01088-CCA-R3-CO, 2014 WL 902450, at *6

(Tenn. Crim. App. Mar. 7, 2014). This court has stated that a colorable claim “„is a claim 

. . . that, if taken as true, in the light most favorable to the [petitioner], would entitle [the 

petitioner] to relief[.]‟” State v. David A. Brimmer, No. E2014-01393-CCA-R3-CD, 

2014 WL 201759, at *2 (Tenn. Crim. App. Dec. 18, 2014) (citing and quoting State v. 

Mark Edward Greene, No. M2013-02710-CCA-R3-CD, 2014 WL 3530960, at *3 (Tenn. 

Crim. App. July 16, 2014)); Tenn. Sup. Ct. R. 28 § 2(H).

In his brief, the Petitioner contends that his life sentence is illegal under the 1989 

Sentencing Act because as a Range I, standard offender sentenced to a Class A felony,

his sentence should not have exceeded 25 years. He further asserts that because there 

were no enhancement factors or prior felonies in his record, “the punishment should be 

reduced to that of 13.5 years as a class A felony [for a mitigated offender].” 

Additionally, he appears to argue that the trial court erred in not imposing a “specific” 

length for his life sentence. 

Considering all of the Petitioner‟s assertions as true and viewing them in the light 

most favorable to him, we conclude that he has not presented a colorable claim for relief. 

Regarding the Petitioner‟s claim that his life sentence is illegal, we note that a first degree 

felony murder conviction is not a Class A felony. See Leslie L. Coleman v. Jim Morrow, 

No. E2010-02299-CCA-R3-HC, 2011 WL 3667724, at *2 (Tenn. Crim. App. Aug. 22, 

2011), perm. app. denied, (Tenn. Dec. 14, 2011) (“First degree murder, including felony 

murder, is not now and was not then a Class A felony. It was, and remains, in a class by 

itself, an offense classified even higher than a Class A felony”). At the time of the 

Petitioner‟s offense, first degree felony murder was punishable by a mandatory minimum 

of life imprisonment. T.C.A. § 39-13-202(a)(2), (b)(3) (1993). Therefore, the Petitioner 

received an authorized sentence. Regarding his contention that a life sentence is 

impermissible because it is not a “determinate” sentence, we note that the 1989 

Sentencing Act provides that “[s]pecific sentences for a felony shall be for a term of 
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years or months or life[.]” T.C.A. § 40-35-211(1) (1993). Thus, life imprisonment 

clearly qualifies as a determinate sentence within the meaning of the statute. Finally, the 

Petitioner‟s mid-range 20-year sentence for especially aggravated robbery was 

permissible, and the trial court was authorized to impose consecutive sentencing for the

multiple convictions. See T.C.A. §§ 39-13-403(b), 40-35-112(a)(1), -115 (1993). 

Because the Petitioner‟s sentences were authorized by law, we affirm the summary 

dismissal of his Rule 36.1 motion.

CONCLUSION

Upon review, we affirm the judgment of the trial court.

_________________________________

CAMILLE R. MCMULLEN, JUDGE