IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs December 6, 2016

STATE OF TENNESSEE v. ERIC D. WALLACE

Appeal from the Criminal Court for Shelby County

Nos. 95-03053, 95-03054, 95-03055 J. Robert Carter, Jr., Judge

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No. W2016-00907-CCA-R3-CD

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Eric D. Wallace (“the Defendant”) filed a Motion to Correct Illegal Sentence under Rule 

36.1 of the Tennessee Rules of Criminal Procedure, alleging that his sentences for first 

degree felony murder and attempted first degree murder were illegal because the trial 

court constructively amended the corresponding indictments by instructing the jury on 

“alternative theories for felony murder.” The trial court summarily denied relief, and this 

appeal followed. 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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which NORMA 

MCGEE OGLE and ROBERT H. MONTGOMERY,JR., JJ., joined.

Eric D. Wallace, Tiptonville, Tennessee, Pro Se. 

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;

Amy P. Weirich, District Attorney General; and Carrie Shelton-Bush, Assistant District 

Attorney General, for the appellee, State of Tennessee.

OPINION

In 1995, a Shelby County jury convicted the Defendant of first degree felony 

murder and attempted first degree murder, for which the Defendant received a sentence 

of life plus fifteen years in the Department of Correction. The Defendant appealed, and

this court affirmed the Defendant’s convictions and sentence. See State v. Eric D. 

Wallace, No. 02-C-01-9604-CR-00125, 1997 WL 421011, at * 1 (Tenn. Crim. App. July 

28, 1997), perm. app. denied (Tenn. Apr. 6, 1998). Thereafter, the Defendant filed a pro 

se petition for post-conviction relief, which was denied by the post-conviction court and 

01/31/2017
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affirmed by this court on appeal. See Eric Wallace v. State, No. W2000-02854-CCA-R3-

CD, 2002 WL 1483204, at *7 (Tenn. Crim. App. Feb. 19, 2002), perm. app. denied

(Tenn. Sept. 9, 2002); see also Eric Dewayne Wallace v. State, No. W2008-00867-CCAR3-PC, 2009 WL 321294, at *2 (Tenn. Crim. App. Feb. 6, 2009) (affirming the denial of

the Defendant’s motion to re-open post-conviction proceedings). 

The Defendant subsequently filed four separate petitions for writ of habeas corpus, 

all of which were summarily dismissed by the respective habeas corpus courts, and the 

dismissals were affirmed on appeal. See Eric D. Wallace v. James M. Dukes, Warden, 

No. W2002-00882-CCA-R3-CO, 2002 WL 31895727, at *2 (Tenn. Crim. App. Dec. 31, 

2002), perm. app. denied (Tenn. Mar. 10, 2003); Eric D. Wallace v. Stephen Dotson, 

Warden, No. W2006-00908-CCA-R3-HC, 2007 WL 852173, at *2 (Tenn. Crim. App. 

Mar. 22, 2007), perm. app. denied (Tenn. Aug. 13, 2007); Eric D. Wallace v. Stephen 

Dotson, Warden, No. W2010-01784-CCA-R3-HC, 2011 WL 2120103, at *11 (Tenn.

Crim. App. May 17, 2011); Eric D. Wallace v. Arvil Chapman, Warden, No. M2012-

00749-CCA-R3-HC, 2012 WL 5543055, at *1 (Tenn. Crim. App. Nov. 9, 2012), perm. 

app. denied (Tenn. Mar. 5, 2013); see also Eric DeWayne Wallace v. State, No. W2013-

02761-CCA-R3-PC, 2014 WL 6634436, at *1 (Tenn. Crim. App. Nov. 24, 2014) 

(affirming, pursuant to Rule 20 of the Rules of the Court of Criminal Appeals, the trial 

court’s denial of the Defendant’s second petition for post-conviction relief).

On April 5, 2016, the Defendant filed a pro se Motion to Correct Illegal Sentence 

and/or Illegal Conviction pursuant to Rule 36.1 of the Tennessee Rules of Criminal 

Procedure. In the motion, the Defendant alleged that his sentences and convictions were 

void and illegal because the trial court constructively amended the indictments for first 

degree felony murder and attempted first degree murder based on its instructions to the 

jury. Specifically, he asserted that he was indicted for “recklessly killing . . . Venita 

Swift during an attempt to perpetrate murder first degree” and for the attempted first 

degree murder of Jimmy Weddle. He alleged, however, that at trial the court instructed 

the jury that the State must have proven “[t]hat the [D]efendant unlawfully killed [Ms. 

Swift]; and . . . [t]hat the killing was committed in the perpetration or the attempt to 

perpetrate the alleged murder first degree[.]” The Defendant contended that the trial 

court’s instruction was based on “alternative theories for felony murder,” thereby 

allowing the jury “to convict the [Defendant] on . . . elements not charged in the 

indictments.” He further argued that the jury instruction for first degree felony murder 

“provided insufficient evidence to enable the [Defendant] to know the accusation to 

which he had to answer[.]” The trial court summarily denied the Defendant’s motion, 

and this timely appeal followed. 
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Analysis

On appeal, the Defendant asserts that his sentences are illegal based on the trial 

court’s constructive amendment of the indictments at trial. He contends that the trial 

court erroneously instructed the jury on the charge of first degree felony murder, thereby 

allowing the jury to convict the Defendant on “elements not found by the grand jury” and 

resulting in a void sentence and conviction. The State responds that the trial court 

properly dismissed the Defendant’s Rule 36.1 motion to correct an illegal sentence. We 

agree with the State. 

Rule 36.1 of the Tennessee Rules of Criminal Procedure provides, in pertinent 

part:

(a)(1) Either the defendant or the state may seek to correct an illegal 

sentence by filing a motion to correct an illegal sentence in the trial court in 

which the judgment of conviction was entered. Except for a motion filed 

by the state pursuant to subdivision (d) of this rule, a motion to correct an 

illegal sentence must be filed before the sentence set forth in the judgment 

order expires. The movant must attach to the motion a copy of each 

judgment order at issue and may attach other relevant documents. The 

motion shall state that it is the first motion for the correction of the illegal 

sentence or, if a previous motion has been made, the movant shall attach to 

the motion a copy of each previous motion and the court’s disposition 

thereof or shall state satisfactory reasons for the failure to do so.

(2) 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)(1) Notice of any motion filed pursuant to this rule shall promptly 

be provided to the adverse party. The adverse party shall have thirty days 

within which to file a written response to the motion.

(2) The court shall review the motion, any response, and, if 

necessary, the underlying record that resulted in the challenged judgment 

order. If the court determines that the motion fails to state a colorable 

claim, it shall enter an order summarily denying the motion.

Tenn. R. Crim. P. 36.1(a)-(b) (2016). A “colorable claim” is defined as “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.” State v. Wooden, 478 S.W.3d 585, 593 (Tenn. 
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2015). Whether the Defendant’s motion states a colorable claim under Rule 36.1 “is a 

question of law, to which de novo review applies.” Id. at 589. 

In Wooden, our supreme court explained that there are three categories of 

sentencing errors—clerical, appealable, and fatal—but that only fatal errors “are so 

profound as to render the sentence illegal and void.” Id. at 595 (quoting Cantrell v.

Easterling, 346 S.W.3d 445, 450-51 (Tenn. 2011) (internal quotation marks omitted). 

Fatal errors include sentences imposed pursuant to an inapplicable statutory scheme, 

sentences that designate release eligibility dates when early release is prohibited, 

sentences that are ordered to be served concurrently when consecutive service is required, 

and sentences that are not authorized by statute. Id. (citing Davis v. State, 313 S.W.3d 

751, 759 (Tenn. 2010). However, errors that are merely appealable, which include “those 

errors for which the Sentencing Act specially provides a right of direct appeal,” do not 

render a sentence illegal. Id. (quoting Cantrell, 346 S.W.3d at 449) (internal quotation 

marks omitted). “Clerical errors ‘arise simply from a clerical mistake in filling out the 

uniform judgment document’ and may be corrected at any time under Tennessee Rule of 

Criminal Procedure 36.” Id. (quoting Cantrell, 346 S.W.3d at 452).

In this case, the Defendant failed to allege a colorable claim that his sentences are 

illegal under Rule 36.1. The Defendant’s assertion—that the trial court constructively 

amended the indictments based on an erroneous instruction to the jury on first degree 

felony murder—is an attack on the first degree murder conviction itself, not the sentence 

the Defendant received for the conviction. See e.g., State v. Roger W. Christy, No. 

M2011-00852-CCA-R3-CD, 2012 WL 804064, at *5-6 (Tenn. Crim. App. Mar. 12, 

2012) (reversing the defendant’s conviction after concluding that a variance between the 

essential elements alleged in the indictment and the proof presented at trial resulted in a 

constructive amendment of the indictment). The express purpose of Rule 36.1 is “to 

provide a mechanism for the defendant or the State to seek to correct an illegal 

sentence.” Tenn. R. Crim. P. 36.1, Advisory Comm’n Cmt. (emphasis added); see also

Wooden, 478 S.W.3d at 591. Because the Defendant did not allege a fatal sentencing 

error, he failed to state a colorable claim under Rule 36.1, and the trial court’s summary 

dismissal of the Defendant’s motion was proper. 

Moreover, the record reflects that the Defendant was sentenced to life for first 

degree felony murder and to a consecutive sentence of fifteen years, as a Range I 

standard offender, for attempted first degree murder. This court has previously 

determined that the Defendant’s sentences were properly imposed and were not illegal:

Here, the [Defendant’s] sentences were not imposed in direct contravention 

of a statute. The [Defendant] was sentenced to life imprisonment for his 

felony murder conviction, which resulted from the killing of Venita Swift 
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in July 1992. At the time the [Defendant] committed these offenses, a 

person convicted of felony murder “shall be punished by death or by 

imprisonment for life.” Tenn. Code Ann. § 39-13-202 (1991). Because the 

[Defendant] was sentenced in accordance with the applicable statute, his 

life imprisonment sentence is not illegal. In much the same way, the 

[Defendant’s] fifteen-year sentence for his attempted first degree murder 

conviction is not illegal because he was sentenced in accordance with the 

applicable statutes. See Tenn. Code Ann. § 40-35-112 (1991); § 39-11-117 

(1991).

Eric D. Wallace, 2012 WL 5543055, at *4. The Defendant is not entitled to relief under 

Rule 36.1.

Conclusion

For these reasons, the judgment of the trial court is affirmed.

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ROBERT L. HOLLOWAY, JR., JUDGE