IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs January 29, 2020

STATE OF TENNESSEE v. DANIEL WADE WILSON

Appeal from the Criminal Court for Sullivan County

No. S42735 William K. Rogers, Judge

___________________________________

No. E2019-00772-CCA-R3-CD

___________________________________

Daniel Wade Wilson, Petitioner, challenges the trial court’s denial of his motion filed 

pursuant to Tennessee Rule of Criminal Procedure 36.1 in which he sought to correct 

what he alleged was an illegal sentence for felony murder. Petitioner argues that the 

conviction violated the prohibitions against double jeopardy and that the trial court failed 

to follow the mandate of this Court after retrial. After a review of the record and the 

issues, we affirm the judgment of the trial court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER, J., joined. ROBERT H. MONTGOMERY, JR., J., not participating. 

Daniel Wade Wilson, Wartburg, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant 

Attorney General; Barry Staubus, District Attorney General; and Joseph Eugene Perrin, 

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

OPINION

Nearly twenty-one years ago, Petitioner murdered David Vestal at Steele’s Creek 

Park, in Bristol, TN. See State v. Daniel Wade Wilson, No. E2000-01885-CCA-R3-CD, 

2001 WL 872442, at *1 (Tenn. Crim. App. Aug. 2, 2001), perm. app. denied (Tenn. Mar. 

11, 2002) (“Wilson I”). In what appears to be his fifth appeal, Petitioner is again 

challenging convictions resulting from his indictment by a Sullivan County Grand Jury 

for one count of first degree felony murder, one count of first degree premeditated 

murder, and one count of especially aggravated robbery. Id. At his first trial, Petitioner 

02/24/2020
- 2 -

was convicted of felony murder, second degree murder, and especially aggravated 

robbery. The trial court merged his convictions for felony murder and second degree 

murder and sentenced Petitioner to life imprisonment. The trial court also sentenced 

Petitioner to twenty-three years for especially aggravated robbery, and ordered the 

sentences to be served consecutively. Id.

On direct appeal, a panel of this Court reversed Petitioner’s convictions for felony 

murder and especially aggravated robbery after determining that the trial court did not 

instruct the jury on lesser-included offenses. Id. at *13, *15. This Court affirmed 

Petitioner’s conviction for second degree murder and instructed the trial court as follows: 

We reverse the Defendant’s felony murder and especially aggravated 

robbery convictions, and remand the case for a new trial on both counts. 

The Defendant’s conviction for second degree murder, which the trial court 

originally merged into the felony murder conviction, is hereby reinstated 

and remanded for sentencing. Following retrial of the felony murder count, 

the trial court is instructed to merge any resulting conviction of felony 

murder or of a lesser included offense with the Defendant’s second degree 

murder conviction.

Id. at *19. The Tennessee Supreme Court denied Petitioner’s application for permission 

to appeal.

According to the judgment forms, the trial court sentenced Petitioner to twentyfive years for second degree murder on August 3, 2002. Petitioner was then retried for 

felony murder and especially aggravated robbery in January 2003 and convicted as 

charged of both counts. On March 17, 2003, he was sentenced to consecutive sentences 

of life imprisonment and twenty-three years, respectively. The judgment form for the 

felony murder count, which is included in the record on appeal, states in the special 

conditions section that the “[c]onviction for [second] degree murder in Count #1 will 

merge with this conviction.” This Court affirmed Petitioner’s convictions for felony 

murder and especially aggravated robbery on appeal. State v. Daniel Wade Wilson, No. 

E2003-02070-CCA-R3-CD, 2004 WL 1171710, at *9 (Tenn. Crim. App. May 26, 2004), 

no perm. app. filed (“Wilson II”).

Petitioner then filed a petition for post-conviction relief on July 7, 2008, alleging 

that he received ineffective assistance of counsel and that his confession was coerced. 

See Daniel Wade Wilson v. State, No. E2010-00451-CCA-R3-PC, 2011 WL 3911084, at 

*2 (Tenn. Crim. App. Sept. 7, 2011), perm. app. denied (Tenn. Jan. 11, 2012) (“Wilson 

III”). Petitioner asserted that the statute of limitations should be tolled because his 

attorney failed to withdraw from representation and never filed an application to appeal 
- 3 -

his case to the supreme court. Id. This Court held that Petitioner was not entitled to due 

process tolling of the statute of limitations and dismissed the appeal. Id. at *11. 

On March 5, 2015, Petitioner filed pro se the petition for writ of habeas corpus 

alleging that the trial court failed to follow the instructions of this Court from his first 

appeal when it merged the conviction for second degree murder into the conviction for 

felony murder and that his conviction for felony murder violated the protection against 

double jeopardy because he was already serving his sentence for second degree murder. 

Daniel Wade Wilson v. Randy Lee, No. E2015-00791-CCA-R3-HC, 2015 WL 7424887, 

at *1 (Tenn. Crim. App. Nov. 23, 2015), no perm. app. filed (“Wilson IV”). The habeas 

corpus court entered an order summarily dismissing the petition and this Court affirmed 

its dismissal on appeal. Id. Specifically, this Court noted that we

[D]isagree[d] with Petitioner’s reading of this Court’s instruction that the 

conviction for felony murder must be merged into the conviction for second 

degree murder. Under the law of merger, when the defendant is convicted 

under two alternative theories for the same offense, “the greater charge 

stands and the guilty verdict on the lesser charge merges into the greater 

charge.” State v. Banes, 874 S.W.2d 73, 81 (Tenn. Crim. App. 1993), 

overruled on other grounds by State v. Williams, 977 S.W.2d 101, 105 

(Tenn. 1998). Therefore, the trial court did not violate the law of the case 

doctrine when it merged Petitioner’s conviction for second degree murder 

into his conviction for felony murder.

Id. at *3.

Subsequently, Petitioner filed a motion to correct an illegal sentence pursuant to 

Tennessee Rule of Criminal Procedure 36.1. In the motion, Petitioner complained that 

his sentence for felony murder was illegal because it violated double jeopardy and 

because the trial court did not follow the instructions with regard to merger given by this 

Court after retrial. The trial court denied the motion for failure to state a colorable claim. 

Petitioner appealed.

Analysis

On appeal, Petitioner claims that the trial court erred by dismissing his motion to 

correct an illegal sentence. Specifically, Petitioner argues that his sentence for felony 

murder violates the prohibitions against double jeopardy and that the felony murder 

sentence is illegal because the trial court did not follow this Court’s instructions with 

regard to how he was to be sentenced for a second conviction following his retrial for 

first degree felony murder and the underlying felony of especially aggravated robbery. 
- 4 -

Rule 36.1 provides that the petitioner “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.” A sentence is illegal if it is not authorized by the applicable 

statutes or directly contravenes an applicable statute. Tenn. R. Crim. P. 36.1(a)(2). If the 

motion states a colorable claim, the trial court shall appoint counsel if the petitioner is 

indigent and not already represented by counsel and hold a hearing on the motion, unless 

the parties waive the hearing. Tenn. R. Crim. P. 36.1(b)(3). A “‘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. Wooden, 478 S.W.3d 

585, 593 (Tenn. 2015). Whether a motion states a colorable claim for correction of an 

illegal sentence under Rule 36.1 is a question of law calling for de novo review. Wooden, 

478 S.W.3d at 589 (citing Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007).

Petitioner challenges his sentence in two ways – arguing that his sentence for 

felony murder violates double jeopardy and that the trial court did not follow this Court’s 

instructions for sentencing after retrial. Neither of these complaints amount to a 

colorable claim. Petitioner’s argument that a violation of double jeopardy occurred is an 

attack on his underlying convictions, not the legality of his sentence. See State v. Travis 

Eugene Taylor, No. M2017-00302-CCA-R3-CD, 2018 WL 703098, at *2 (Tenn. Crim. 

App. Dec. 13, 2017), no perm. app. filed (finding complaint that sentences violated 

double jeopardy was not a complaint that his sentence was illegal, but rather an attack on 

an underlying conviction and was not a colorable claim for purposes of relief under 36.1). 

Moreover, Petitioner’s claim that the trial court failed to follow the instructions of this 

Court in Wilson I after retrial is an appealable error, as opposed to fatal error. Sentencing 

errors fall into three categories—clerical errors, appealable errors, and fatal errors. 

Cantrell v. Easterling, 346 S.W.3d 445, 449-52 (Tenn. 2011). Only fatal errors render 

sentences illegal. Id. at 452. Because Petitioner is complaining about an appealable 

error, it does not state a colorable claim. Additionally, as we noted above, this Court has 

already rejected Petitioner’s argument. At the conclusion of Wilson I, this Court 

instructed the trial court as follows, “[f]ollowing retrial of the felony murder count, the 

trial court is instructed to merge any resulting conviction of felony murder or of a lesser 

included offense with [Petitioner’s] second degree murder conviction.” Wilson I, 2001 

WL 872442, at *19. Here, Petitioner insists that this Court meant any felony murder 

conviction would be merged into the second degree murder conviction, essentially only 

allowing the trial court to sentence Petitioner to a maximum sentence for second degree 

murder. Not so. In Wilson III, 2015 WL 7424887, at *3, this Court “disagree[d] with 

Petitioner’s reading of this Court’s instruction that the conviction for felony murder must 

be merged into the conviction for second degree murder.” Because Petitioner has failed 

to present a colorable claim, he is not entitled to relief.
- 5 -

Conclusion

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

____________________________________

TIMOTHY L. EASTER, JUDGE