IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs March 21, 2017

STATE OF TENNESSEE v. MAURICE ALLEN MILLS, JR.

Appeal from the Criminal Court for Knox County

No. 104374 Steven Wayne Sword, Judge

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No. E2016-01118-CCA-R3-CD

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The pro se defendant, Maurice Allen Mills, Jr., appeals as of right from the Knox County 

Criminal Court’s summary denial of his Tennessee Rule of Criminal Procedure 36.1

(“Rule 36.1”) motion to correct an illegal sentence. The defendant contends his motion 

stated a colorable claim for relief, so the trial court erred in summarily denying it. 

Discerning no error, we affirm the judgment of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS 

and TIMOTHY L. EASTER, JJ., joined.

Maurice Allen Mills, Jr., Whiteville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Assistant Attorney 

General; Charme P. Allen, District Attorney General; and Jacob Wilson, Assistant 

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

OPINION

Facts and Procedural History

On June 10, 2015, the defendant pled guilty to one count of possession with intent 

to sell a Schedule II controlled substance within 1000 feet of a school, one count of 

possession with intent to deliver a Schedule II controlled substance within 1000 feet of a 

school, one count of possession with intent to sell a Schedule II controlled substance 

within 1000 feet of a child care agency, one count of possession with intent to deliver a 

Schedule II controlled substance within 1000 feet of a child care agency, one count of 

04/21/2017
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simple possession of a Schedule IV controlled substance, and one count of failure to 

appear at an arraignment. The guilty plea included the prosecutor’s recommended 

sentences, but the final judgments are noticeably absent from the record. The defendant 

subsequently filed a motion to correct illegal sentence on June 22, 2015, arguing: his 

sentence was illegally enhanced; the arresting officers performed an illegal search and 

seizure; he did not receive judicial diversion; and he received ineffective assistance of 

counsel during his sentencing hearing. On February 1, 2016, the trial court entered an 

order denying the defendant’s motion, finding: 

After reviewing the motion, the court finds that the defendant has failed to 

assert a colorable claim pursuant to Rule 36.1 of the Tennessee Rules of 

Criminal Procedure. The defendant’s motion raises issues regarding his 

guilty plea that do not fall within the purview of Rule 36.1. There are no 

issues raised [regarding] the legality of the defendant’s sentence. 

Therefore, the defendant’s motion is hereby dismissed.

It is unclear when the defendant received the trial court’s order because on March 15, 

2016 and May 16, 2016, he filed motions asking for the status of the proceedings. The

defendant subsequently filed an untimely notice of appeal on May 31, 2016.

On appeal, the defendant reasserts the arguments made in his motion to correct 

illegal sentence and asserts the trial court abused its discretion when denying the motion. 

The defendant further contends the trial court erred when failing to appoint counsel to 

investigate his ineffective assistance of counsel claim. The State argues the defendant’s 

claims do not entitle him to relief under Rule 36.1. Upon review of the record and the 

briefs, we agree with the State and affirm the judgment of the trial court. 

Analysis

I. Untimely Notice of Appeal

At the outset, we note the defendant filed an untimely notice of appeal. The 

Tennessee Rules of Appellate Procedure require an appellant to file a notice of appeal 

within thirty days of the judgment being appealed. Tenn. R. App. P. 4(a). A timely filed 

notice of appeal is not jurisdictional in this Court, and we may elect to waive the 

requirement in the interest of justice. Tenn. R. App. P. 4(a). “‘In determining whether 

waiver is appropriate, this [C]ourt will consider the nature of the issues presented for 

review, the reasons for and the length of the delay in seeking relief, and any other 

relevant factors presented in the particular case.’” State v. Rockwell, 280 S.W.3d 212, 
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214 (Tenn. Crim. App. 2007) (quoting State v. Markettus L. Broyld, No. M2005-00299-

CCA-R3-CO, 2005 WL 3543415, at *1 (Tenn. Crim. App. Dec. 27, 2005)).

Based on statements made in his brief, the defendant appears unaware the trial 

court entered an order dismissing his motion to correct illegal sentence, and the State has 

not raised the untimely notice in its brief. Regardless, the defendant has failed to state 

cognizable grounds for relief under Rule 36.1, so the interests of justice do not require the 

waiver of the timely filing of a notice of appeal. Because “‘nothing in Rule 36.1 

precludes the filing of subsequent petitions for relief, which would allow [the defendant] 

to correct the deficiencies in his pleadings and begin the process anew,’” in the interest of 

judicial economy, this Court has previously addressed the merits of similarly waived 

Rule 36.1 claims. State v. Kenneth Lebron Wynn, No. E2015-00575-CCA-R3-CD, 2015 

WL 5993406, at *2 (Tenn. Crim. App. Oct. 14, 2015) (quoting State v. Marcus Deon 

Jarnigan, No. E2015-00061-CCA-R3-CD, 2015 WL 5014514, at *1 (Tenn. Crim. App. 

Aug. 25, 2015). For this reason, we will also address the merits of the defendant’s claims 

on appeal. 

II. Rule 36.1

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

under Rule 36.1, is a question of law so de novo review applies. Summers v. State, 212 

S.W.3d 251, 255 (Tenn. 2007). Rule 36.1 provides that the defendant “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.” Tenn. R. Crim. P. 

36.1(a). A sentence is illegal if it is not authorized by the applicable statutes or directly 

contravenes an applicable statute. Id. If the motion states a colorable claim, the trial 

court shall appoint counsel if the defendant 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). 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). 

“[F]ew sentencing errors render [a sentence] illegal.” Id. at 595. Rather, 

sentencing errors may be clerical, appealable, or fatal, and only fatal errors render a 

sentence illegal. Id. Clerical errors “‘arise simply from a clerical mistake in filling out 

the uniform judgment document’ and may be corrected at any time under Tennessee Rule 

of Criminal Procedure 36.” Id. at 595 (quoting Cantrell v. Easterling, 346 S.W.3d 445, 

453 (Tenn. 2011)). Appealable errors are “‘those errors for which the Sentencing Act 

specifically provides a right of direct appeal’” and are generally attacks on the 

methodology used by the trial court when imposing a sentence. Id. Fatal errors are those 

errors “‘so profound as to render the sentence illegal and void” and include “sentences 
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imposed pursuant to an inapplicable statutory scheme, sentences designating release 

eligibility dates where early release is statutorily prohibited, sentences that are ordered to 

be served concurrently where statutorily required to be served consecutively, and 

sentences not authorized by any statute for the offense.” Id. 

Even taking the defendant’s claims as true, the defendant’s brief is void of a single 

claim that would entitled him to relief under Rule 36.1. His challenges to the 

methodology used by the trial court when imposing his sentence, including the use of 

enhancement factors and denial of judicial diversion, could have and should have been 

raised on direct appeal following the sentencing hearing. Likewise, a Rule 36.1 motion 

to correct illegal sentence is not the proper mechanism by which to challenge the 

sufficiency of trial counsel nor do the defendant’s illegal search and seizure claims give 

rise to relief under Rule 36.1. The defendant raises only appealable errors that do not 

render his sentence void or illegal. See State v. Markhayle Jackson, No. W2015-02068-

CCA-R3-CD, 2016 WL 7664771, at * 2 (Tenn. Crim. App. May 31, 2016) (finding the 

defendant’s claims he received ineffective assistance of counsel and did not knowingly 

and voluntarily enter his guilty plea were appealable errors, not fatal errors). The 

defendant is not entitled to relief on this issue.

Conclusion

Based on the foregoing, we affirm the judgment of the trial court. 

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 J. ROSS DYER, JUDGE