IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs December 2, 2014

FREDERICK O. EDWARDS v. STATE OF TENNESSEE

Appeal from the Circuit Court for Weakley County

No. 2000-CR4 William B. Acree, Judge

No. W2014-01463-CCA-R3-CO - Filed December 30, 2014

The Petitioner, Frederick O. Edwards, appeals the Weakley County Circuit Court’s summary

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

Procedure 36.1. The Petitioner contends that the trial court erred by treating his Rule 36.1

motion as a petition for post-conviction relief and further asserts that he has presented a

colorable claim for relief. We agree that the trial court’s treatment of the Petitioner’s motion

to correct an illegal sentence as a petition for post-conviction relief was error, but because

we conclude that the Petitioner has not presented a colorable claim, the trial court’s order

denying relief is affirmed.

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

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

WITT, JR., and ROGER A. PAGE, JJ., joined.

Frederick O. Edwards, Memphis, Tennessee, pro se.

Herbert H. Slatery, III, Attorney General and Reporter; and Rachel E. Willis, Senior Counsel,

for the appellee, State of Tennessee.

OPINION

PROCEDURAL BACKGROUND

In November 1996, a jury found the Petitioner guilty of four counts of sale of less than

.5 grams of cocaine. On November 4, 1996, the trial court sentenced the Petitioner to six

years on each count, to be served concurrently, for a total effective sentence of six years. On

appeal, this court reversed one conviction and affirmed the remaining three convictions, as

well as the sentences. State v. Frederick Ottitus Edwards, No 02C01-9704-CC-00157, 1998

WL 208056, at *6 (Tenn. Crim. App. Apr. 29, 1998).
On February 29, 2000, while on probation for the sale of cocaine convictions, the

Petitioner pled guilty to one count of aggravated robbery. The trial court imposed a sentence

of twelve years, to be served concurrently to the Petitioner’s existing six-year sentence. The

trial court entered an order revoking the Petitioner’s probation on April 20, 2000.

On July 8, 2014, the Petitioner filed a motion to correct an illegal sentence and vacate

his guilty plea pursuant to Tennessee Rule of Criminal Procedure 36.1. The Petitioner

argued that the trial court was required to order that his twelve-year sentence for aggravated

robbery be served consecutively to his six-year sentence for sale of cocaine because he was

on probation when he committed the robbery. He further argued that the illegal sentence was

a material element of his plea agreement and concluded that he should be allowed to

withdraw his guilty plea.

On July 10, 2014, the trial court entered an order summarily dismissing the motion.

The trial court treated the motion as a petition for post-conviction relief and denied it as

being untimely filed. This appeal followed.

ANALYSIS

On appeal, the Petitioner contends that the trial court erred by treating his Rule 36.1

motion as a petition for post-conviction relief. He further asserts that he has made a

colorable claim that his sentence is illegal. In particular, the Petitioner alleges that his

sentences were required to run consecutively and that the order of concurrent service was in

direct contravention of applicable statutes. The State concedes that the trial court erred in

construing the Petitioner’s motion as a petition for post-conviction relief. However, the State

argues that the Petitioner has failed to present a colorable claim and, therefore, asserts that

he is not entitled to relief. We agree with the State.

Tennessee Rule of Criminal Procedure 36.1 states in relevant part:

(a) 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.

(b) Notice of any motion filed pursuant to this rule shall be promptly provided

to the adverse party. If the motion states a colorable claim that the sentence

is illegal, and if the defendant is indigent and is not already represented by

counsel, the trial court shall appoint counsel to represent the defendant. The

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adverse party shall have thirty days within which to file a written response to

the motion, after which the court shall hold a hearing on the motion, unless all

parties waive the hearing.

(c)(1) If the court determines that the sentence is not an illegal sentence, the

court shall file an order denying the motion.

. . . .

(Emphasis added). A motion to correct an illegal sentence is a remedy separate and distinct

from habeas corpus or post-conviction relief. See State v. Jonathan T. Deal, No. E2013-

02623-CCA-R3-CD, 2014 WL 2802910, at *2 (Tenn. Crim. App. June 17, 2014). Relief

pursuant to Tennessee Rule of Criminal Procedure 36.1 is available at any time upon motion

of either the defendant or the State. Therefore, we agree with both the Petitioner and the

State that the trial court erred by treating the Rule 36.1 motion as a petition for postconviction relief and by finding that it was not timely filed. However, this does not conclude

our inquiry.

The Petitioner further contends that he has presented a colorable claim for relief and

that we should, therefore, remand his case to the trial court for the appointment of counsel

and a hearing to determine whether he received an illegal sentence. See Tenn. R. Crim. P.

36.1(b). As we have previously held,

[b]ecause Rule 36.1 does not define “colorable claim,” we have adopted the

definition of a colorable claim used in the context of post-conviction

proceedings from Tennessee Supreme Court Rule 28 § 2(H): “A colorable

claim is a claim . . . that, if taken as true, in the light most favorable to the

petitioner, would entitle petitioner to relief . . . .”

State v. David Morrow, No. W2014-00338-CCA-R3-CO, 2014 WL 3954071, at *2 (Tenn.

Crim. App. Aug. 13, 2014) (citing State v. Mark Edward Greene, No. M2013-02710-CCAR3-CD, 2014 WL 3530960, at *3 (Tenn. Crim. App. July 16, 2014)).

In support of his contention that he has presented a colorable claim for relief, the

Petitioner first directs us to Tennessee Rule of Criminal Procedure 32(c). The Petitioner

contends that Rule 32(c) requires that a trial court impose a consecutive sentence when a

defendant commits a felony offense while on probation. Rule 32(c)(3) states that

[w]hen the defendant has additional sentences not yet fully served as the result

of convictions in the same or other courts and the law requires consecutive

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sentences, the sentence shall be consecutive whether the judgment explicitly

so orders or not. This rule shall apply:

(A) to a sentence for a felony committed while on parole for a felony;

(B) to a sentence for escape or for a felony committed while on escape;

(C) to a sentence for a felony committed while the defendant was

released on bail and the defendant is convicted of both offenses; and

(D) for any other ground provided by law.

We find nothing in the language of Rule 32(c) that would require the imposition of

consecutive sentencing when a defendant commits a felony offense while on probation. In

fact, Tennessee Code Annotated section 40-35-115, discussed more fully below, makes it

clear that a trial court has discretion to impose a consecutive sentence when a defendant is

sentenced for an offense committed while on probation. The Petitioner’s argument is without

merit.

The Petitioner also contends that his concurrent sentence was imposed in direct

contravention of Tennessee Code Annotated section 40-35-210. The Petitioner contendsthat

subsection 40-35-210(b) contains mandatory language requiring the court to consider certain

criteria when determining an appropriate sentence. We agree, however, this section does

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not mandate a certain outcome—it merely sets forth guidelines for the trial court to follow

during the sentencing phase and is, therefore, not dispositive of the issue in the instant case.

Next, the Petitioner points us to Tennessee Code Annotated section 40-35-115(d),

which states that “[s]entences shall be ordered to run concurrently if the criteria noted in

subsection (b) are not met, unless consecutive sentences are specifically required by statute

or the Tennessee Rules of Criminal Procedure.” Subsection (b)(6) states that “[t]he court

may order sentences to run consecutively if the court finds by a preponderance of the

evidence that . . . [t]he defendant is sentenced for an offense committed while on probation.”

Tenn. Code Ann. § 40-35-115(b) (emphasis added). The Petitioner argues that, because he

meets the criterion in subsection (b)(6), the trial court was required to order a consecutive

sentence in his aggravated robbery case.

Subsection (b) states that “[t]o determine the specific sentence and the appropriate combination of 1

sentencing alternatives that shall be imposed on the defendant, the court shall consider the following . . . .” 

(Emphasis added). The statute then lists seven criteria for the court to consider. 

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The Petitioner misconstrues the impact of the permissive and mandatory language

contained in subsections (b) and (d). Subsection (b) sets forth circumstances under which

the trial court may order a sentence to run consecutively. Subsection (d) states that a court

must order a sentence to run concurrently “if the criteria in subsection (b) are not met.” In

other words, subsection (b) vests the trial court with discretion to impose a consecutive

sentence where certain criteria are present, while subsection (d) takes that power away in

cases where none of the criteria are satisfied. Nothing in these subsections would mandate,

as the Petitioner contends, that a consecutive sentence be ordered every time any one of the

criterion in subsection (b) is met. See Jason Settles v. State, No. W2008-00370-CCA-R3-PC,

2009 WL 1026006, at *4 (Tenn. Crim. App. Apr. 15, 2009) (construing section 40-35-

115(b)(6) as providing for discretionary consecutive sentencing when a defendant is

sentenced for an offense committed while on probation). Accordingly, we conclude that the

Petitioner has failed to show that he was sentenced in contravention of any applicable statute

and, thus, has not presented a colorable claim for relief pursuant to Tennessee Rule of

Criminal Procedure 36.1.

CONCLUSION

Upon consideration of the foregoing and the record as a whole, the judgment of the

trial court is affirmed.

_________________________________

D. KELLY THOMAS, JR., JUDGE

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