IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 9, 2020

STATE OF TENNESSEE v. ERIC BERNARD HOWARD

Appeal from the Criminal Court for Davidson County

No. 95-D-2451 Jennifer Smith, Judge

___________________________________

No. M2019-01900-CCA-R3-CO

___________________________________

Eric Bernard Howard, Movant, filed a pro se “Motion to Correct Judgment Pursuant to 

Tennessee Rules of Criminal Procedure 36.1” (the Rule 36.1 Motion). The trial court 

found that the Rule 36.1 Motion failed to state a colorable claim and summarily denied 

the Rule 36.1 Motion. We affirm.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which THOMAS T.

WOODALL and TIMOTHY L. EASTER, JJ., joined.

Eric Bernard Howard, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Katharine K. Decker, Assistant 

Attorney General; and Glenn R. Funk, District Attorney General, for the appellee, State 

of Tennessee.

OPINION

Procedural Background

The Davidson County Grand Jury indicted Movant for two separate aggravated 

robberies that occurred within a span of approximately fifteen minutes on the campus of 

Vanderbilt University on August 15, 1995. State v. Eric Bernard Howard, No. 01C01-

9805-CR-00198, 1999 WL 701413, at *1 (Tenn. Crim. App. Sept. 10, 1999), perm. app. 

denied (Tenn. Mar. 6, 2000). Movant was convicted by a jury of the charged offenses, 

and following a sentencing hearing, the trial court found that Movant was a Range II 

multiple offender and imposed consecutive seventeen-year sentences. The judgment of 

06/22/2020
- 2 -

conviction in Count 1 shows that the sentence was also to be served consecutively to an

unexpired Tennessee Department of Correction sentence. This court affirmed the 

judgments of the trial court, and the Tennessee Supreme Court denied Movant’s 

application for permission to appeal. Id.

On August 14, 2019, Movant filed the Rule 36.1 Motion in which he alleged that 

the term of his sentence was not authorized by statute, that the trial court was required to 

merge his convictions because they occurred within a twenty-four-hour period, and that 

the trial court abused its discretion in imposing consecutive sentences.

On October 4, 2019, the trial court entered a comprehensive written order finding

that Movant’s seventeen-year sentences were within the applicable range for a Class B 

felony, were authorized by statute, and were not illegal. Concerning Movant’s other 

claims, the order provided:

[Movant] has now filed a motion to correct his judgment pursuant to Rule 

36.1, contending that his convictions for aggravated robbery should have 

merged into a single judgment. [Movant] further contends that the trial 

court abused its discretion by imposing consecutive sentencing. Neither of 

his claims is cognizable in a motion under Rule 36.1, as both are issues that 

must be addressed on direct appeal. 

The trial court denied the Rule 36.1 Motion without a hearing. Movant filed a 

timely notice of appeal. 

Analysis

Standard of Review

Whether a motion states a colorable claim for correction of an illegal sentence 

pursuant to Tennessee Rule of Criminal Procedure 36.1 is a question of law, which this 

court reviews de novo. State v. Wooden, 478 S.W.3d 585, 589 (Tenn. 2015). A colorable 

claim is “a claim that, if taken as true and viewed in the light most favorable to the 

moving party, would entitle the moving party to relief under Rule 36.1.” Id. at 593.

Rule 36.1

The purpose of Rule 36.1 “is to provide an avenue for correcting allegedly illegal 

sentences.” State v. Jimmy Wayne Wilson, No. E2013-02354-CCA-R3-CD, 2014 WL 

1285622, at *2 (Tenn. Crim. App. Mar. 31, 2014) (citations omitted), perm. app. denied

(Tenn. Nov. 19, 2014). “The Rule does not provide an avenue for seeking the reversal of 
- 3 -

convictions.” Id. (emphasis in original). “If the court determines that the motion fails to 

state a colorable claim, it shall enter an order summarily denying the motion.” Tenn. R. 

Crim. P. 36.1(b)(2). If the court determines that the motion states a colorable claim, the 

court shall appoint counsel for an unrepresented indigent defendant and conduct a hearing 

if the court deems that a hearing is necessary. Tenn. R. Crim. P. 36.1(b)(3). 

Sentencing Errors

“Sentencing errors fall into three categories—clerical errors, appealable errors, 

and fatal errors.” Wooden, 478 S.W.3d at 595. A “mistake in filling out the uniform 

judgment document” is a clerical error. Cantrell v. Easterling, 346 S.W.3d 445, 449 

(Tenn. 2011). A clerical error does not render a sentence illegal and may be corrected at 

any time under Tennessee Rule of Criminal Procedure 36. Wooden, 478 S.W.3d at 595. 

Appealable errors are “errors for which the Sentencing Act specifically provides a right 

of direct appeal.” Cantrell, 346 S.W.3d at 449. Fatal errors are errors that are “so 

profound as to render the sentence illegal and void.” Id. at 452. For purposes of Rule 

36.1, “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)(2). Imposition of 

an illegal sentence is a fatal error which may be corrected by the State or a defendant 

filing a Rule 36.1 motion before the sentence has expired. Wooden, 478 S.W.3d at 595.

Length of the Sentence

“Robbery is the intentional or knowing theft of property from the person of 

another by violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a)

(1995). Aggravated robbery is robbery “(1) [a]ccomplished with a deadly weapon or by 

display of any article used or fashioned to lead the victim to reasonably believe it to be a 

deadly weapon; or (2) [w]here the victim suffers serious bodily injury.” Tenn. Code 

Ann. § 39-13-402(a) (1995). Aggravated robbery is a Class B felony. Tenn. Code Ann. 

§ 39-13-402(b) (1995). The sentencing range for a Range II offender convicted of a 

Class B felony “is not less than twelve (12) nor more than twenty (20) years[.]” Tenn. 

Code Ann. § 40-35-112(b)(2) (1997). The seventeen-year sentences imposed by the trial 

court for each of the two aggravated robberies were legal sentences authorized by the 

applicable statute.

Consecutive Sentences

“The finding concerning the imposition of consecutive or concurrent sentences is 

appealable by either party.” Tenn. Code Ann. § 40-35-115(c) (1997). Therefore, any 

error by the trial court in the imposition of discretionary consecutive sentences pursuant 

to Tennessee Code Annotated section 40-35-115(b) would be an appealable error, not a 
- 4 -

fatal error. See State v. Eddie Readus, No. M2017-02339-CCA-R3-CD, 2019 WL 

3064049, at *3 (Tenn. Crim. App. July 12, 2019), perm. app. denied (Tenn. Dec. 4, 

2019). Appealable errors may not be corrected under Rule 36.1. Wooden, 478 S.W.3d at 

595.

Merger of Sentences

Movant claims that his two aggravated robbery convictions should have been 

merged because they occurred within a twenty-four-hour period. This claim has no merit

whatsoever. The “twenty-four-hour merger rule,” which is codified at Tennessee Code 

Annotated sections 40-35-106(b)(4), 40-35-107(b)(4), and 40-35-108(b)(4) provides:

Except for convictions for which the statutory elements include serious 

bodily injury, bodily injury, threatened serious bodily injury or threatened 

bodily injury to the victim or victims, or convictions for the offense of 

aggravated burglary under [Tennessee Code Annotated section] 39-14-403, 

convictions for multiple felonies committed within the same twenty-fourhour period constitute one (1) conviction for the purpose of determining 

prior convictions[.]

The twenty-four-hour merger rule had no relevance whatsoever to merger of 

Movant’s two aggravated robbery convictions. The twenty-four-hour merger rule 

governs how the number of a defendant’s prior convictions are calculated in determining

whether a defendant is a multiple offender, a persistent offender, or a career offender. 

Additionally, the failure of a court to properly merge offenses pursuant to the twentyfour-hour merger rule would be an appealable error, not a fatal error that could be 

corrected under Rule 36.1.

Conclusion

The trial court correctly determined that that Movant’s sentences were authorized 

by the applicable statute and did not directly contravene an applicable statute. The trial 

court also correctly determined that Movant’s claims concerning the consecutive 

alignment of the seventeen-year sentences and merger of the convictions were not

“cognizable in a motion under Rule 36.1, as both are issues that must be addressed on 

direct appeal.” The Rule 36.1 Motion failed to state “a claim that, if taken as true and 

viewed in the light most favorable to the moving party, would entitle the moving party to 

relief under Rule 36.1.” The trial court’s summary denial of the Rule 36.1 Motion is 

affirmed.

____________________________________

ROBERT L. HOLLOWAY, JR., JUDGE
- 5 

-