### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE Assigned on Briefs May 20, 2015

STATE OF TENNESSEE v. RODNEY BATES

Appeal from the Criminal Court for Hamilton County

No. 162235, 164970 Rebecca J. Stern

, Judge

No. E2014

- 02381

- CCA

- R3

- CD

– Filed June 30, 2015

The Petitioner, Rodney Bates , appeals the Hamilton County Criminal Court’s summary dismissal of his motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. On appeal, the Petitioner argu es that t he trial court erred by summarily dismissing his motion. The State conce des that this case should be reversed

and remanded to the trial court. Upon review , we reverse the trial court’s judgment and

remand the case for further proceedings.

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

and Remanded

C AMILLE R. M C M ULLEN

, J., delivered the opinion of the court, in which T HOMAS T.

W OODALL

, P.J., and D. K ELLY T HOMAS

, J R

., J

. , joined.

Rodney Bates

, Atlanta, Georgia

, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah , Assistant Attorney General; Neal Pinkston , District Attorney General, for the Appellee, State of

Tennessee.

OPINION

O n November 13, 1985, the Petitioner, Rodney Bates, was indicted by t he

Ha milto n County Grand Jury for grand larceny in case number 162235. After h e was

arrest ed on August 22, 1985, t he Petitioner was released on bond on November 6, 1985

. While the case was pending , the Petitioner committed an armed robbery on May 9, 1986

. As a result, the Hamilton County Grand Jury returned an indictment in case number

164970 charging the Petitioner with robbery by use of a deadly we apon

. The Petitioner entered guilty pleas to both offense s and was sentenced as a Range I, standard offender to three years for grand larceny and ten years for armed robbery. The judgments of- 2

-

conviction , which were entered on May 16, 1986 and on October 20, 1986, did not

sp ecify the alignment of the two sentenc es.

On November 3 , 20 14 , the Petitioner filed a pro se motion to correct his sentences pursuant to Tennessee Rule of Criminal Procedure 36.1. Specifically, t he Peti tioner

a ssert ed that because he committed the armed robbery in case number 164970 while released on bond for grand larceny in case number 162235 , the trial court should have imposed consecutive sentencing . The Petitioner argued that his concurrent sentences

were illegal and in direct contravention of Tennessee Code Annotated section 40

- 20

- 111(b)

. On November 10, 2014, the Hamilton County Criminal Court summarily

dismissed the Petitioner’s motion. The Petitioner then timely appealed the trial court ’s

order.

ANALYSIS

On appeal, the Petitioner argues that the trial court erred in summarily dismissing his motion to correct an illegal sentence. The State agree s that the trial court erred in dismissing the motion without appointment of counsel or consideration of the merits of
the Petitioner’s claim.

The Tennessee Rules of Criminal Procedure were amended effective July 1, 2013, with the addition of Rule 36.1 which provides as follows:

(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 stat utes 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 in digent 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.- 3

- (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. Sup. Ct. R. 17, setting forth the

correct sentence.

(3) If the illegal sente nce 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 c hooses 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 again st 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.

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

and if the court fi nds that the illegal provision was not a material component of the plea agreement, then the court shall enter an amended uniform judgment document setting forth the correct sentence.

(d) Upon the filing of an amended uniform judgment document or

order otherwise disposing of a motion filed pursuant to this rule, the defendant or the state may initiate an appeal as of right pursuant to Rule 3, Tennessee Rules of Appellate Procedure.

Tenn. R. Crim. P. 36.1. Prior to the adoption of this Rule, an illegal sentence could generall y be challenged only through habeas corpus or post

- conviction proceedings. See Moody v. State , 160 S.W.3d 512, 516 (Tenn. 2005) (“[T]he proper procedure for challenging an illegal sentence at the trial level is through a petition for writ of habeas corpus, the grant or denial of which can then be appealed under the Rules of Appellate

Procedure

. ”) ; see also

, Cantrell v. Easterling , 346 S.W.3d 445, 453, 453 n.7 (Tenn. 2011).

There fore

, Rule 36.1 provided a new mechanism for a defend ant or the State to seek

relief based on an illegal sentence. See Tenn. R. Crim. P. 36.1, Advisory Comm’n Cmts.

The requirements for a Rule 36.1 motion are more lenient than for a habeas corpus petition or a petition for post

- conviction relief ; notably, in a Rule 36.1 motion, a defendant is required only to state a colorable claim in t h e motion but is not required to attach supporting documents in order to avoid summary dismissal, and the motion may be filed “at any time,” even after the senten ce has expired. See State v. Sean Blake , No.- 4

-

W2014

- 00856

- CCA

- R3

- CO, 2015 WL 112801, at *2 (Tenn. Crim. App. Jan. 8, 2015); State v. John Talley , No. E2014

- 01313

- CCA

- R3

- CD, 2014 WL 7366257, at *2 (Tenn.

Crim. App. Dec. 26, 2014) ; see also George William Br ady v. State , No. E2013

- 00792

- CCA

- R3

- PC, at *6 (Tenn. Crim. App. Dec. 19, 2013) (“Under the liberal terms of Rule 36.1, the petitioner’s raising a colorable claim would entitle him to the appointment of counsel and a hearing on his claim, even without any documentation from the underlying record to support his claim.”). Although Rule 36.1 does not define what constitutes a

“colorable clai m,” this court has adopted the definition 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 entit le petitioner to relief[.]” State v. David Morrow , No. W2014

- 00338

- CCA

R3

- CO, 2014 WL 3954071, at *2 (Tenn. Crim. App. Aug. 13, 2014) ; Tenn. Sup. Ct. R. 28 § 2(H).

Here, the appellate record does not reflect why the trial court summarily dismissed

the Petitioner’s motion. However, the Petitioner alleges in his brief that the trial court stated, “ O verruled as the defendant has now received all credit due .” The State agrees that the trial court erred by summarily dismissing the Petitioner’s motion to co rrect an illegal sentence without appointing counsel or conducting a hearing.

As previously noted, Rule 36.1 expressly states that a defendant may “at any time” seek correction of an illegal sentence. C onsidering all of the Petitioner’s assertions as true and viewing them in the light most favorable to him, we conclude that he has presented a colorable claim for relief. The Petitioner alleges that because he committed the felony offense of armed robbery in case number 164970 while he was released on bail for grand larceny in case number 162235, the sentencing court was required to impose

consecutive sentenc es

. Tennessee Code Annotated section 40

- 20

- 111(b) provide s:

In any case in which a defendant commits a felony while th e defendant was released on bail in accordance with chapter 11, part 1 of this title, and the defendant is convicted of both offenses, the trial judge shall not have discretion as to whether the sentences shall run concurrently or cumulatively, but shall o rder that the sentences be served cumulatively.

T

. C

. A

. § 40

- 20

- 111(b)

. See also Tenn. R. Crim. P. 32(c)(3)(C) (mandating consecutive sentences when a defendant commits a felony while the defendant is released on bail, and

the defendant is convicted of b oth offenses).

Because the Petitioner set forth a colorable claim that his concurrent sentences are in direct contravention of a statute, the trial court erred by summarily dismissing the

Petitioner’ s motion. Accordingly, we remand this matter to the trial court for further- 5

-

proceedings pursuant to Tennessee Rule of Criminal Procedure 36.1. The trial court shall appoint counsel to the P etitioner if necessary and, unless both parties waive a hearing,

conduct a h earing to determine the merits of the P etitioner ’ s colorable claim.

CONCLUSION

Upon review, we reverse t he judgment of the Hamilton County Criminal C ourt
and remand this case for further proceedings consistent with th is opinion

.

_____________________________ CAMILLE R. McMULLEN , JUDGE