IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs January 5, 2017

STATE OF TENNESSEE v. COREY JERMAINE HART

 Appeal from the Circuit Court for Henderson County

Nos. 05-009-1, 05-010-1 Roy B. Morgan, Jr., Judge

No. W2016-00565-CCA-R3-CD

The Defendant, Corey Jermaine Hart, appeals from the trial court’s dismissal of his 

motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 

36.1 for failure to assert a colorable claim. Discerning no error, we affirm the judgment 

of the trial court. 

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT 

WILLIAMS and CAMILLE R. MCMULLEN, JJ., joined.

George Morton Googe, District Public Defender; and Hewitt Chatman, Assistant Public 

Defender, for the appellant, Corey Jermaine Hart.

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

Attorney General; James G. (Jerry) Woodall, District Attorney General; and Angela R. 

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

OPINION

FACTS

On April 25, 2005, in two separate cases, 05-009-1 and 05-010-1, the Defendant 

pled guilty to possession of a Schedule II controlled substance with intent to sell or 

deliver, possession of drug paraphernalia, aggravated assault, and reckless endangerment 

involving a deadly weapon. The trial court merged the drug convictions and imposed a 

sentence of ten years for that conviction. The court imposed a sentence of eight years for 

the aggravated assault conviction and four years for the reckless endangerment 

conviction. The trial court ordered that all of the sentences run concurrently for an 

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effective term of ten years. On June 30, 2005, the trial court entered an amended 

judgment for the aggravated assault conviction, crediting the Defendant with pretrial jail 

service.

On August 6, 2015, the Defendant filed a motion to correct an illegal sentence 

pursuant to Tennessee Rule of Criminal Procedure 36.1, alleging that his sentences for

the aggravated assault and reckless endangerment convictions were illegal because they 

were run concurrently with his other sentence despite the fact that he was on bail at the 

time he committed the offenses.1 In his Rule 36.1 motion, the Defendant also claimed 

that his sentences were illegal because the trial court “did not enter a judg[]ment that 

includes the award of [pretrial jail] credits.” On August 12, 2015, the trial court entered 

an order appointing counsel to represent the Defendant at a hearing on the motion. The 

parties agreed to continue the hearing to November 13, 2015. On February 19, 2016, the 

trial court denied the motion in light of State v. Brown, 479 S.W.3d 200, 208-09 (Tenn. 

2015), in which our supreme court held that Rule 36.1 was inapplicable to expired 

sentences, and found that the Defendant’s sentences had expired on August 14, 2013. 

The Defendant appealed. 

ANALYSIS

Rule 36.1 provides “a mechanism for the defendant or the State to seek to correct 

an illegal sentence.” Brown, 479 S.W.3d at 208-09. When a defendant files a motion 

under Rule 36.1, the trial court must determine whether the motion “states a colorable 

claim that the sentence is illegal.” Tenn. R. Crim. P. 36.1(b). If it does, the trial court 

should appoint counsel for the defendant and hold a hearing to consider the motion.2 Id. 

In the context of Rule 36.1, a colorable claim is 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). Rule 36.1 “does 

not authorize the correction of expired illegal sentences,” and “a Rule 36.1 motion may 

be summarily dismissed for failure to state a colorable claim if the alleged illegal 

sentence has expired.” Brown, 479 S.W.3d at 211.

The Defendant argues that, when he filed his motion to correct an illegal sentence 

on August 6, 2015, the law regarding the applicability of Rule 36.1 to expired sentences 

was unsettled. He points to two unpublished opinions of this court as well as an order by 

a trial court judge granting a Rule 36.1 motion in another defendant’s case to show that 

 

1

The record contains a probation revocation hearing transcript seemingly regarding unrelated 

charges that does not appear to have any relevance to the Rule 36.1 motion or this appeal. 

2 Rule 36.1 was amended in part effective July 1, 2016. The prior version is applicable to this 

case.
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the law was unsettled at the time. Essentially, the Defendant argues that he is entitled to 

relief because it is possible that some court might have granted him relief under the state 

of the law when he filed his motion. 

The Defendant’s sentences expired before he filed his Rule 36.1 motion, but 

Brown resolved this issue. Id. The trial court had no authority or procedural mechanism 

to afford the Defendant relief on his expired sentences at the time the court ruled on the 

Defendant’s motion.

Moreover, to the extent the Defendant’s argument might be construed as a 

complaint regarding the delay between the filing of his Rule 36.1 motion and the trial 

court’s ultimate ruling on it, the Defendant consented to the continuance and cannot now 

challenge the delay.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgment of the 

trial court. 

_________________________________ 

ALAN E. GLENN, JUDGE