IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs October 14, 2015

STATE OF TENNESSEE v. RONALD BENNETT

Appeal from the Criminal Court for Hamilton County

Nos. 182619, 182621, 182672, 182674, 182676, 182678, 182680, 182682, 182683, 

182684, 182685, 182686 Rebecca J. Stern, Judge

No. E2015-00510-CCA-R3-CD – Filed December 14, 2015

_____________________________

Defendant, Ronald Bennett, appeals the summary dismissal of his motion to correct an 

illegal sentence filed pursuant to Tennessee Rule of Criminal Procedure 36.1. Because 

Defendant‟s sentences have long since expired, he has not asserted a colorable claim for 

relief. Therefore, we affirm the trial court‟s decision to summarily dismiss the motion. 

However, we remand the matter to the trial court for the entry of corrected judgments 

pursuant to Tennessee Rule of Criminal Procedure 36.

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

and Remanded

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which ROBERT H.

MONTGOMERY, JR., J., joined. JAMES CURWOOD WITT, JR., J., filed a separate concurring 

opinion.

Ronald Paul Bennett, Memphis, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant 

Attorney General; and Neal Pinkston, District Attorney General, for the appellee, State of 

Tennessee.

OPINION

Factual and Procedural Background

Twenty-five years ago, Defendant was indicted on at least twelve different theftrelated offenses. The indictments alleged that he committed an aggravated burglary and a 
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theft over $1000 on January 31, 1990; an aggravated burglary and a theft over $1000 on 

March 13, 1990; an aggravated burglary and a theft over $1000 on March 29, 19901; and 

a theft over $1000 and five counts of fraudulent use of a credit card on April 5, 1990.2 

Defendant pled guilty to all charges on January 17, 1991. On April 26, 1991, the trial 

court sentenced Defendant to six years for each aggravated burglary conviction, four 

years for each theft conviction, and eleven months and twenty-nine days for each 

fraudulent use of a credit card conviction. The judgment forms specify that all sentences 

were to run concurrently, for a total effective sentence of six years.

On February 2, 2015, Defendant—now an inmate at the Federal Correctional 

Institution in Memphis—filed a pro se motion to correct an illegal sentence pursuant to 

Tennessee Rule of Criminal Procedure 36.1. Defendant alleged that his concurrent 

sentences were illegal because he was on bond for the offenses committed on January 31, 

1990, when he committed the subsequent offenses. See T.C.A. § 40-20-111; Tenn. R. 

Crim. P. 32(c)(3)(C). Defendant also asserted that the judgment forms fail to reflect the 

trial court‟s finding of guilt, thereby further rendering his sentences illegal. See Tenn. R. 

Crim. P. 32(e). On February 12, 2015, the trial court summarily denied the motion, 

finding that the record indicated that Defendant was not arrested until after the 

commission of the April 5, 1990 offenses and that the record properly reflected the trial 

court‟s finding of guilt despite the omission of a corresponding mark on the judgment 

forms. Defendant filed a timely notice of appeal.

Analysis

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

motion to correct an illegal sentence pursuant to Rule 36.1. He asserts that he made a 

colorable claim that his sentences were illegal and that this case should be remanded to 

the trial court for the appointment of counsel and a hearing to determine whether the 

illegality was a material component of his guilty plea. While the State concedes that the 

appellant stated a colorable claim and is therefore entitled to counsel and to a hearing, we 

are not bound by such a concession. See State v. Mitchell, 137 S.W.3d 630, 639 (Tenn. 

Crim. App. 2003).

Rule 36.1 of the Tennessee Rules of Criminal Procedure became effective on July 

1, 2013, providing a procedural mechanism to seek correction of an illegal sentence. In 

pertinent part, it provides:

 

1 The judgment forms for these two convictions reflect an offense date of February 26, 1990.

2 The plea petition, appointment of counsel form, and order of conviction indicate that Defendant 

was charged with a fourth count of aggravated burglary in case number 182670. However, that 

indictment and judgment form do not appear in the record.
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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. . . .

Tenn. R. Crim. P. 36.1(a). The trial court may summarily dismiss the motion if the 

defendant does not “state[] 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.” State v. James D. Wooden, __ S.W.3d __, No. 

E2014-01069-SC-R11-CD, 2015 WL 7748034, at *6 (Tenn. Dec. 2, 2015). Although the 

movant is not required to support a Rule 36.1 claim by providing documentation from the 

record, see id. (citing George William Brady v. State, No. E2013-00792-CCA-R3-PC, 

2013 WL 6729908, at *6 (Tenn. Crim. App. Dec. 19, 2013), perm. app. denied (Tenn. 

May 28, 2014)), the trial court, “when determining whether a Rule 36.1 motion 

sufficiently states a colorable claim, . . . may consult the record of the proceeding from 

which the allegedly illegal sentence emanated.” Id.

The Tennessee Supreme Court recently held that “Rule 36.1 does not expand the 

scope of relief available for illegal sentence claims and therefore does not authorize the 

correction of expired illegal sentences.” State v. Adrian R. Brown, __ S.W.3d __, No. 

E2014-00673-SC-R11-CD, 2015 WL 7748275, at *9 (Tenn. Dec. 2, 2015). The supreme 

court expressly rejected the interpretation of the phrase “at any time” advanced by 

Defendant and accepted by the State in this case, holding that such an “interpretation is 

not reasonable in light of the expressed purpose of Rule 36.1, its language, and the 

jurisprudential background from which it developed.” Id. at *7. 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 *8.

In this case, Defendant‟s total effective sentence of six years would have expired 

in 1997. However, he did not file his motion to correct an illegal sentence until 2015, 

eighteen years later.3 Because Defendant‟s sentences have long since expired, relief is 

not available under Rule 36.1. See id. Due to the expiration of his sentences, Defendant 

has not asserted a colorable claim for relief. Therefore, we affirm the decision of the trial 

court to dismiss his motion. 

 

3 We note that while Rule 36.1 did not exist at the time Defendant was serving his sentences, 

motions to correct illegal sentences were often filed in trial courts and then subsequently appealed 

through the discretionary common law writ of certiorari. See Moody v. State, 160 S.W.3d 512, 515 

(Tenn. 2005) (citing Cox v. State, 53 S.W.3d 287, 291 (Tenn. Crim. App. 2001)). Additionally, 

Defendant could have filed a petition for a writ of habeas corpus as long as he was “imprisoned or 

restrained of liberty.” T.C.A. § 29-21-101(a).
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As to Defendant‟s contention that his sentences are illegal because the judgment 

forms do not reflect the trial court‟s finding of guilt as required by Tennessee Rule of 

Criminal Procedure 32(e), we hold that such an omission is a clerical error. “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.” 

James D. Wooden, 2015 WL 7748034, at *7 (quoting Cantrell v. Easterling, 346 S.W.3d 

445, 452 (Tenn. 2011)). In reviewing this claim, the trial court found that the Order of 

Conviction, filed at the time Defendant entered his guilty pleas and setting the matter for 

a sentencing hearing, reflects the findings of the original trial court. The record clearly 

reflects the original trial court‟s finding of guilt; therefore, the omission of a 

corresponding mark on the judgment forms constitutes a clerical error rather than an 

illegal sentence. Correction of a clerical error under Rule 36 “so that the record 

accurately reflects the sentence imposed does not amount to granting relief from expired 

illegal sentences.” Adrian R. Brown, 2015 WL 7748275, at *9. Therefore, we remand 

the matter to the trial court for the correction of the clerical error.

Conclusion

Based on the foregoing and the record as a whole, we affirm the judgments of the 

trial court. However, we remand this matter to the trial court for correction of the clerical 

errors in accordance with Rule 36.

_________________________________

TIMOTHY L. EASTER, JUDGE