IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs May 3, 2016

STATE OF TENNESSEE v. JOHN A. BAILEY

Appeal from the Circuit Court for Gibson County

No. 7289 Clayburn Peeples, Judge

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No. W2015-02330-CCA-R3-CD - Filed July 22, 2016

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On October 26, 2007, the defendant, John A. Bailey, pled guilty to aggravated robbery 

and evading arrest and received an eight-year sentence for aggravated robbery, two-year 

sentence for evading arrest, and almost five years of pretrial jail credit. The trial court 

then imposed alternative sentences of unsupervised state probation for both convictions. 

The sentences were to be served concurrent with one another and a prior federal sentence, 

for which the defendant was already incarcerated. The defendant’s state sentences

expired on December 21, 2010, yet he filed a Tennessee Rule of Criminal Procedure 36.1 

motion to correct an illegal sentence on July 6, 2015, asserting in part that he illegally 

received probation for the aggravated robbery conviction. The trial court summarily 

denied the motion without a hearing and without appointing counsel for the defendant. 

The defendant now appeals, maintaining that his sentence was illegal. After a thorough 

review of the record, we affirm the trial court’s denial of the defendant’s untimely motion 

to correct his sentence.

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

J. ROSS DYER, J., delivered the opinion of the court, in which ALAN E. GLENN and

CAMILLE R. MCMULLEN, JJ., joined.

John Anthony Bailey, Memphis, Tennessee, appellant, pro se. 

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant 

Attorney General; Garry G. Brown, District Attorney General; and Hillary Lawler 

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

On October 26, 2007, the defendant pled guilty to aggravated robbery and evading 

arrest by motor vehicle, and the trial court dismissed a charge of possession of a weapon 

by a convicted felon. The trial court sentenced the defendant as a Range I, standard 

offender, to eight years for aggravated robbery and two years for evading arrest and then 

imposed alternative sentences of unsupervised state probation for both. The sentences 

were to be served concurrently. The defendant had previously been convicted of a related 

federal charge, so the sentences were also to be served concurrent with his federal 

sentence. The trial court granted the defendant almost five years of pretrial jail credit. 

On July 6, 2015, the defendant filed a Rule 36.1 motion to correct an illegal 

sentence, asserting that the sentence imposed was in direct contravention of the 

sentencing schemes mandated by Tenn. Code Ann. §§ 40-35-106 and 40-35-210(b), in 

part because the trial court sentenced him to probation for aggravated robbery. In 

response, the State argued the trial court should deny the defendant’s Rule 36.1 motion 

because the defendant’s sentence expired prior to the filing of the motion. On November 

19, 2015, the trial court denied the Rule 36.1 motion without the appointment of counsel 

and without a hearing. 

The defendant timely appealed the trial court’s decision. On appeal, the defendant 

contends he made a colorable showing that the sentences imposed were in direct 

contravention of Tenn. Code Ann. §§ 40-35-210 and 40-35-303, so the trial court erred in 

summarily denying his motion to correct an illegal sentence without the appointment of 

counsel and a hearing. The State responds that the defendant’s sentence has expired and

there is no longer any relief available to him under Rule 36.1, so the trial court correctly 

denied the motion. We find the defendant’s sentence expired almost four years prior to 

the filing of his Rule 36.1 motion and affirm the trial court’s denial of it.

Tennessee Rule of Criminal Procedure 36.1 provides the following mechanism for 

seeking the correction of an illegal sentence:

(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 
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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 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.

(2) If the court determines that the sentence is an illegal sentence, the court 

shall then determine whether the illegal sentence was entered pursuant to a 

plea agreement. If not, the court shall enter an amended uniform judgment 

document, see Tenn. S.Ct. Rule 17 setting forth the correct sentence.

(3) If the illegal sentence was entered pursuant to a plea agreement, the 

court shall determine whether the illegal provision was a material 

component of the plea agreement. If so, the court shall give the defendant 

an opportunity to withdraw his or her plea. If the defendant chooses to 

withdraw his or her plea, the court shall file an order stating its finding that 

the illegal provision was a material component of the plea agreement, 

stating that the defendant withdraws his or her plea, and reinstating the 

original charge against the defendant. If the defendant does not withdraw 

his or her plea, the court shall enter an amended uniform judgment 

document setting forth the correct sentence.

Tenn. R. Crim. P. 36.1.

1

The Tennessee Supreme Court recently addressed “whether Rule 36.1 expands the 

scope of relief available . . . by permitting either the defendant or the State to correct 

expired illegal sentences.” State v. Brown, 479 S.W.3d 200, 205 (Tenn. 2015). Our 

supreme court held that “Rule 36.1 does not expand the scope of relief and does not 

authorize the correction of expired illegal sentences. 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 211.

 

1

Tennessee Rule of Criminal Procedure 36.1 was amended effective July 1, 2016. We 

reach the same conclusion under the amended rule.
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The record reflects that the defendant’s sentence expired long before he filed his 

Rule 36.1 motion. On October 26, 2007, the trial court imposed an eight-year sentence 

for aggravated robbery and a two-year sentence for evading arrest and ordered that the 

defendant serve the sentences concurrent with one another and a prior federal sentence. 

The trial court then imposed the alternative sentence of unsupervised state probation. The 

defendant received pretrial jail credit from December 21, 2002 through October 26, 2007,

totaling approximately 1769 days. The defendant’s eight-year concurrent sentence began 

on December 21, 2002, the date he was incarcerated and began receiving pretrial credit. 

The defendant’s concurrent eight-year sentence, including the unsupervised state 

probation, therefore ended on December 21, 2010, over four years before the defendant 

filed his Rule 36.1 motion.

The defendant argues that the trial court imposed an illegal sentence. However, he 

waited until July 6, 2015, after he had completely served the challenged sentence, to file 

his Rule 36.1 motion. At that point, there was no longer a remedy to correct any illegality 

in the defendant’s sentence. Accordingly, we conclude the trial court properly denied the 

defendant’s Rule 36.1 motion without first appointing counsel or holding a hearing.

CONCLUSION

Based on the foregoing, we affirm the judgment of the trial court. 

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J. ROSS DYER, JUDGE