IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 7, 2017

STATE OF TENNESSEE v. TORRY HOLLAND

Appeal from the Criminal Court for Shelby County

No. 12-00532, 13-00791 Lee V. Coffee, Judge

No. W2017-00691-CCA-R3-CD

The defendant, Torry Holland, appeals the summary dismissal of his petition, filed 

pursuant to Tennessee Rule of Criminal Procedure 36.1, to correct what he believes to be 

an illegal sentence imposed for his convictions of drug and firearms possession. 

Discerning no error, we affirm the trial court’s order of summary dismissal. Although we 

affirm the order dismissing the defendant’s motion, we do notice a clerical error in the 

judgment form for count 3 in case number 12-00532 that requires entry of a corrected 

judgment in that count.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY 

THOMAS, JR., and ROBERT L. HOLLOWAY, JR.,JJ., joined.

Torry Holland, Tiptonville, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant 

Attorney General; Amy P. Weirich, District Attorney General; and Aland Dwyer, 

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

OPINION

In case number 12-00532, the Shelby County Grand Jury charged the 

defendant via an 11-count indictment with alternative counts of possession with intent to 

sell or deliver 26 grams or more of cocaine, alternative counts of possession with intent to 

sell or deliver methylenedioxymethamphetamine, alternative counts of possession with 

intent to sell or deliver oxycodone, alternative counts of possession with intent to sell or 

deliver dihydrocodeinone, alternative counts of possession with intent to sell or deliver

alprazolam, and one count of possession with intent to sell one-half ounce or more of 

marijuana. In case number 13-00791, the Shelby County Grand jury charged the 

12/21/2017
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defendant via a 13-count indictment with alternative counts of possession with intent to 

sell or deliver .5 grams or more of cocaine, alternative counts of possession with intent to 

sell or deliver methylenedioxymethamphetamine, alternative counts of possession with 

intent to sell or deliver dihydrocodeinone, possession of a firearm with the intent to go 

armed during the commission of a dangerous offense after having been previously 

convicted of possession of a controlled substance, possession of a firearm by a convicted 

felon, possession of a handgun after having been previously convicted of driving 

following designation as a Motor Vehicle Habitual Offender, alternative counts of the 

possession with intent to sell or deliver marijuana, and alternative counts of possession 

with intent to sell or deliver promethazine/codeine. In March 2014, the defendant entered 

into a plea agreement with the State that provided for the following disposition:

Case No. 12-00532

Count Charged Offense Conviction Offense

1 possession with intent to sell 26 

grams or more of cocaine

possession with intent to sell less than .5 

grams cocaine

2 possession with intent to deliver 

26 grams or more of cocaine

dismissed

3 possession with intent to sell 

methylenedioxymethamphetamine

criminal attempt to possess with intent to 

sell methylenedioxymethamphetamine

4 possession with intent to deliver 

methylenedioxymethamphetamine

dismissed

5 possession with intent to sell 

oxycodone

same

6 possession with intent to deliver 

oxycodone

dismissed

7 possession with intent to sell 

dihydrocodeinone

same

8 possession with intent to deliver 

dihydrocodeinone

dismissed

9 possession with intent to sell 

alprazolam

same

10 possession with intent to deliver 

alprazolam

dismissed

11 possession with intent to sell onehalf ounce or more of marijuanapossession with intent to sell marijuana

Case No. 13-00791

Count Charged Offense Conviction Offense

1 possession with intent to sell .5 

grams or more of cocaine

same
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2 possession with intent to deliver .5 

grams or more of cocaine

dismissed

3 possession with intent to sell 

methylenedioxymethamphetamine

same

4 possession with intent to deliver 

methylenedioxymethamphetamine

dismissed

5 possession with intent to sell 

dihydrocodeinone

dismissed

6 possession with intent to deliver 

dihydrocodeinone

dismissed

7 possession of a firearm with the 

intent to go armed during a 

dangerous felony having been 

previously convicted of a drug 

offense

possession of a firearm

8 possession of a firearm by a 

convicted felon

dismissed

9 possession of a handgun having 

previously been declared a motor 

vehicle habitual offender

dismissed

10 possession with intent to sell onehalf ounce or more of marijuanadismissed

11 possession with intent to deliver 

one-half ounce or more of 

marijuana

dismissed

12 possession with intent to sell 

promethazine/codeine

dismissed

13 possession with intent to deliver 

promethazine/codeine

dismissed

The agreement provided for a total effective sentence in case number 12-00532 of five 

years’ incarceration with a 30 percent release eligibility percentage. In case number 13-

00791, the agreement provided for a total effective sentence of 11 years’ incarceration, 

with the three years of the sentence attributable to the defendant’s firearm conviction to 

be served at 100 percent and the remaining eight years to be served at 30 percent. 

Because the agreement also provided that the effective sentences in case number 12-

00532 and case number 13-00791 are to be served consecutively, the total effective 

sentence is 16 years with three years to be served at 100 percent and 13 years to be served 

at 30 percent.
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In December 2016, the defendant moved the court to correct what he 

believed to be an illegal sentence imposed pursuant to his plea agreement. The defendant 

claimed that the trial court had ordered that he serve 100 percent of his entire 16-year 

total effective sentence in violation of his plea agreement and in direct contravention of 

the applicable law. The defendant also claimed that the trial court had imposed 

concurrent sentences where consecutive sentence alignment was required by law. The 

trial court summarily dismissed the motion, finding that the defendant had “grossly and 

intentionally” misstated the terms of Code section 39-17-1324 relative to the possession 

of a firearm during the commission of a dangerous felony as well as “grossly 

misinterpreting the judgments that were entered on these convictions.” The court pointed 

out that a corrected judgment had been entered in August 2014 to clearly effectuate the 

agreed sentence of 16 years, three years of which was to be served at 100 percent.

In this appeal, the defendant asserts that the trial court erred by summarily 

dismissing his motion. He also adds that the trial court erred by entering a corrected 

judgment form without holding a hearing. The State contends that summary dismissal 

was appropriate.

Rule 36.1 provides the defendant and the State an avenue to “seek the 

correction of an illegal sentence,” defined as a sentence “that is not authorized by the 

applicable statutes or that directly contravenes an applicable statute.” Tenn. R. Crim. P. 

36.1; see also State v. Wooden, 478 S.W.3d 585, 594-95 (Tenn. 2015) (holding that “the 

definition of ‘illegal sentence’ in Rule 36.1 is coextensive with, and not broader than, the 

definition of the term in the habeas corpus context”). To avoid summary denial of an 

illegal sentence claim brought under Rule 36.1, a defendant must “state with particularity 

the factual allegations,” Wooden, 478 S.W.3d at 594, establishing “a colorable claim that 

the sentence is illegal,” Tenn. R. Crim. P. 36.1(b). “[F]or purposes of Rule 36.1 . . . 

‘colorable claim’ means 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.” Wooden,

478 S.W.3d at 593. The determination whether a Rule 36.1 “motion states a colorable 

claim for correction of an illegal sentence under Rule 36.1 is a question of law, to which 

de novo review applies.” Id. at 589 (citing Summers v. State, 212 S.W.3d 251, 255 

(Tenn. 2007)).

Simply put, the record does not support either of the claims made by the 

defendant. The judgment forms filed on March 6, 2014, effectuated the agreed sentence 

of 16 years with 3 years to be served at 100 percent and 13 years to be served at 30 

percent. Although the handwritten notation in the Special Conditions portion of the 

judgment form for the firearm offense could be more legible, it does read, “Effective 

Sentence 16 years TDOC, 3 @ 100%.” The corrected judgment form filed on August 18, 

2014, does not alter terms of the agreed sentence but contains a typewritten instead of 
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handwritten note in the Special Conditions portion of the judgment form that reads, 

“Effective Sentence 16 Years Tdoc. 3 years At 100%.” The trial court acted well within 

its authority to file the corrected judgment under the terms of Rule 36. See Tenn. R. 

Crim. P. 36 (“After giving any notice it considers appropriate, the court may at any time 

correct clerical mistakes in judgments, orders, or other parts of the record, and errors in 

the record arising from oversight or omission.”).

Although the trial court did not directly address the defendant’s claim 

regarding sentence alignment, we find that it similarly lacks merit. It appears that the 

defendant claims that he was on bond for the offenses contained in case number 12-

00532 when he committed the offenses at issue in case number 13-00791. He is correct 

that the law mandates consecutive alignment of offenses committed while released on 

bail. See T.C.A. § 40-20-111(b); Tenn. R. Crim. P. 32(c)(3)(C). That is exactly what 

happened in this case. Pursuant to the plea agreement, the 11-year effective sentence 

imposed in case number 13-00791 is to be served consecutively to the 5-year effective 

sentence imposed in case number 12-00532. As indicated, the judgment forms effectuate 

the terms of the plea agreement.

Although we discern no merit to the defendant’s claims of an illegal 

sentence, we do discern a clerical error in the judgment form for count 3 of case number 

12-00532. The defendant was charged in that count with the possession with intent to 

sell methylenedioxymethamphetamine. Methlyenedioxymethamphetamine, also 

commonly known as MDMA or Ecstacy, is a Schedule I controlled substance, see T.C.A. 

§ 39-17-406(d)(24), and the possession with intent to sell 

methylenedioxymethamphetamine is prohibited by Code section 39-17-417, see id. § 39-

17-417(a)(4). The punishment for a violation of Code section 39-17-417 with relation to 

methylenedioxymehtamphetamine is a Class B felony. Methamphetamine, “meth” in the 

common parlance, is a Schedule II controlled substance, see id. § 39-17-408(d)(2), and at 

the time of the defendant’s guilty plea, the possession with intent to sell 

methamphetamine was also governed by Code section 39-17-417, but the punishment for 

a violation of that section with respect to methamphetamine was a Class C felony unless

the amount alleged was .5 grams or more.1 Despite that possession with intent to sell 

methylenedioxymethamphetamine and possession with intent to sell methamphetamine 

are distinct and entirely unrelated offenses, a handwritten notation on the judgment form 

for count 3 indicates that the defendant was charged with possession with intent to sell 

“meth” and convicted of the criminal attempt to possess with intent to sell “meth.” The 

terms of the plea agreement as well as the judgment form provide for a sentence 

 

1 Offenses related to the manufacture, sale, or delivery or the possession with intent to sell or 

deliver methamphetamine are now located in Code section 39-17-434. See T.C.A. § 39-17-434(c) (“If the 

violation is for methamphetamine, the defendant shall be charged, indicted, prosecuted and convicted 

under this section rather than §§ 39-17-417 or 39-17-418.”).
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commensurate with a conviction of the criminal attempt to possess with intent to sell 

methylenedioxymethamphetamine. Consequently, the handwritten notation on the 

judgment form indicating that the defendant was charged with and convicted of an 

offense related to “meth” appears to be a clerical error. Nevertheless, it must be 

corrected.

Accordingly, we affirm the dismissal of the defendant’s motion but remand 

the case to the trial court for the entry of a corrected judgment form in count 3 of case 

number 12-00532.

_________________________________ 

JAMES CURWOOD WITT, JR., JUDGE