06/15/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

STATE OF TENNESSEE v. FELICIA ANNETTE MITCHELL

Appeal from the Circuit Court for Sullivan County

No. S58151 R. Jerry Beck, Judge

No. E2015-01822-CCA-R3-CD

The pro se Appellant, Felicia Annette Mitchell, appeals as of right from the Sullivan

County Circuit Court’s order summarily dismissing her motion to correct illegal 

sentences. Tenn. R. Crim. P. 36.1. The State has filed a motion to affirm the trial court’s 

order pursuant to Tennessee Court of Criminal Appeals Rule 20. Following our review, 

we conclude that the State’s motion is well-taken and affirm the order of the trial court.

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

Pursuant to Rule 20, Rules of the Court of Criminal Appeals.

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES 

CURWOOD WITT, JR., and D. KELLY THOMAS,JR., JJ., joined.

Felicia Annette Mitchell, Memphis, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Assistant 

Senior Counsel, for the appellee, State of Tennessee.

MEMORANDUM OPINION

On October 11, 2013, the Appellant pleaded guilty to various drug offenses and 

was sentenced to an effective five years. On August 27, 2015, the Appellant filed a 

motion to correct illegal sentences, alleging that her plea was not knowingly and 
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voluntarily entered. On the same day, the trial court summarily denied the motion, 

finding that it was untimely if treated as a petition for post-conviction relief and did not 

raise a colorable claim for the correction of an illegal sentence. The Appellant filed a 

timely notice of appeal.

On appeal the Appellant argues that the trial court’s summary denial was 

erroneous and that the court’s noncompliance with Tennessee Rule of Criminal 

Procedure 11 renders her sentences illegal. The State argues that this court should affirm 

the trial court’s summary dismissal by memorandum opinion because the Appellant

failed to state a colorable claim pursuant to Rule 36.1.

Tennessee Criminal Procedure Rule 36.1 states, in relevant part, that

(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.

Tenn. R. Crim. P. 36.1(a). A defendant is entitled to a hearing and the appointment of 

counsel if the motion states a colorable claim for relief. Id. at 36.1(b). Further, the trial 

court is required to file an order denying the motion if it determines that the sentence is 

not illegal. Id. at 36.1(c)(1).

Whether a defendant states a colorable claim is a question of law and is reviewed 

de novo. State v. Wooden, 478 S.W.3d 585, 588 (Tenn. 2015). A colorable claim is 
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defined as “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.” Id. at 593. A 

motion filed pursuant to Rule 36.1 “must state with particularity the factual allegations on 

which the claim for relief from an illegal sentence is based.” Id. at 594. A trial court 

“may consult the record of the proceeding from which the allegedly illegal sentence 

emanated” when determining whether a motion states a colorable claim for relief. Id.

Only fatal errors result in an illegal sentence and “are so profound as to render the 

sentence illegal and void.” Id. at 595; see State v. Cantrell, 346 S.W.2d 445, 452 (Tenn. 

2011). Fatal errors include sentences imposed pursuant to an inapplicable statutory 

scheme, sentences that designate release eligibility dates when early release is prohibited, 

sentences that are ordered to be served concurrently when consecutive service is required, 

and sentences that are not authorized by statute. Wooden, 478 S.W.3d at 595. Errors 

which are merely appealable, however, do not render a sentence illegal and include 

“those errors for which the Sentencing Act specially provides a right of direct appeal.” 

Id.; see Cantrell, 346 S.W.2d at 449. Appealable errors are “claims akin to . . . 

challenge[s] to the sufficiency of the evidence supporting a conviction” and “involve 

attacks on the correctness of the methodology by which a trial court imposed sentence.”

Wooden, 478 S.W.3d at 595; see Cantrell, 346 S.W.2d at 450-52.

In this case, the Appellant claims her sentence is illegal because her 2013 guilty 

pleas were not knowingly and voluntarily entered. Such a claim is not fatal to a sentence, 
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but rather, is an appealable error not apt to Rule 36.1 challenges. See State v. Markhayle 

Jackson, No. W2015-02068-CCA-R3-CD, 2016 WL 7664771, at *2 (Tenn. Crim. App. 

May 31, 2016). Having not raised a colorable claim in her 36.1 motion, the trial court 

was obliged to summarily dismiss the motion.

Accordingly, we affirm the judgment of the trial court pursuant to Tennessee 

Court of Criminal Appeals Rule 20.

_____________________________________

ROBERT H. MONTGOMERY, JR., JUDGE