08/02/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs January 10, 2017

STATE OF TENNESSEE v. ANTONIO BRADEN

Appeal from the Circuit Court for Williamson County

No. II-CR012317 James G. Martin, III, Judge

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No. M2016-00992-CCA-R3-CD

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Petitioner, Antonio Braden, appeals from the denial of his Tennessee Rule of Criminal 

Procedure 36.1 motion alleging that his sentence is illegal because the trial court erred by 

applying enhancement factors and sentencing him four years “beyond the statutory 

minimum.” Following our review, we affirm the trial court’s judgment. 

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

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER, and ROBERT L. HOLLOWAY, JR., JJ., joined.

Antonio Braden, Only, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;

and Kim R. Helper, District Attorney General, for the appellee, State of Tennessee.

OPINION

Background

Following a jury trial, Petitioner was convicted of attempted second-degree 

murder. He received a sentence of twelve years in the Department of Correction as a 

Range I standard offender. This Court affirmed the judgment on direct appeal. State v. 

Antonio Braden, No. M2007-02544-CCA-R3-CD, 2008 WL 4735443 (Tenn. Crim. App. 

Oct. 27, 2008). On March 7, 2016, Petitioner filed a “MOTION TO CORRECT 

ILLEGAL SENTENCE & APPOINTMENT OF COUNSEL TO REPRESENT 

PETITIONER.” In his motion Petitioner alleged that his twelve-year sentence was illegal 

because the trial court erroneously applied enhancement factors to his sentence after the 

State failed to file a statutorily required notice to seek enhanced punishment ten days 
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before trial. See T.C.A. § 40-35-202(a). The trial court summarily denied Petitioner’s 

motion. 

Analysis

Tennessee Rule of Criminal Procedure 36.1 provides, in part:

(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.

(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 indigent 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.

Therefore, pursuant to Rule 36.1, a defendant would be entitled to a hearing and 

the appointment of counsel if he or she stated a colorable claim for relief. Tenn. R. Crim. 

P. 36.1(b). Prior to the adoption of Rule 36.1, a defendant generally had to seek relief 

from an illegal sentence through post-conviction or habeas corpus proceedings. See 

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

The Tennessee Supreme Court has stated that a colorable claim pursuant to Rule

36.1 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). As noted above, Rule 36.1 defines an illegal sentence as 

“one that is not authorized by the applicable statutes or that directly contravenes an 

applicable statute.” Tenn. R. Crim. P. 36.1(a). Our supreme court has stated:

Sentencing errors fall into three categories - clerical errors, appealable 

errors, and fatal errors. Only fatal errors render sentences illegal. 

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. The second category -

appealable errors - consists of “those errors for which the Sentencing Act 

specifically provides a right of direct appeal.” Included in this category 

are claims “akin to . . . challenge[s] to the sufficiency of the evidence 
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supporting a conviction,” such as claims that the record does not support 

the trial court’s factual findings regarding sentencing. Claims of 

appealable error generally involve attacks on the correctness of the 

methodology by which a trial court imposed sentence. The final 

category is fatal errors, and these errors are “so profound as to render the 

sentence illegal and void.” This category consists of any sentence “that 

is not authorized by the applicable statutes or that directly contravenes an 

applicable statute.” Included in this category are sentences 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 offenses.

Wooden, 478 S.W.3d at 595 (citations omitted)(emphasis added).

Petitioner in this case argues that the trial court improperly denied his motion to 

correct an illegal sentence under Tenn. R. Crim. P. 36.1. He contends that the State failed 

to timely file its notice of intent to seek enhanced punishment and therefore, the trial 

court erred by applying enhancement factors to his sentence and ordering him to serve 

twelve years for attempted second degree murder, four years above the statutory 

minimum sentence. It appears that Petitioner is relying on T.C.A. § 40-35-202 in support 

of his claim, which states:

(a) If the district attorney general believes that a defendant should be 

sentenced as a multiple, persistent or career offender, the district 

attorney general shall file a statement thereof with the court and 

defense counsel not less than ten (10) days before trial or acceptance 

of a guilty plea; provided, that notice may be waived by the 

defendant in writing with the consent of the district attorney general 

and the court accepting the plea. The statement, which shall not be 

made known to the jury determining the guilt or innocence of the 

defendant on the primary offense, must set forth the nature of the 

prior felony convictions, the dates of the convictions and the identity 

of the courts of the convictions. The original or certified copy of the 

court record of any prior felony conviction, bearing the same name 

as that by which the defendant is charged in the primary offense, is 

prima facie evidence that the defendant named in the record is the 

same as the defendant before the court, and is prima facie evidence

of the facts set out in the record.
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(b) In all cases following a finding of guilt, the court may require that:

(1) The district attorney general file a statement with the court setting 

forth any enhancement or mitigating factors the district attorney general 

believes should be considered by the court; and

(2) The defendant file a statement with the court setting forth all 

mitigating factors known to the defendant and indicating any mitigating 

factors the defendant believes should be considered by the court.

T.C.A. § 40-35-202.

As stated by the trial court, Petitioner was not sentenced as a multiple, persistent 

or career offender. He was sentenced as a Range I standard offender. Therefore, T.C.A. 

§ 40-35-202(a) has no application to Petitioner’s case, and his sentence is not illegal. See 

State v. Teresa Turner, No. M2013-00827-CCA-R3-CD, 2014 WL 310388 (Tenn. Crim. 

App. Jan. 29, 2014)(“[T]he Defendant was not sentenced as a multiple[,] persistent[,] or 

career offender but as a standard offender. Therefore the rule and statute upon which the 

Defendant relies is inapplicable to this case.”). The record reflects that the State filed a 

proper notice of enhancement factors after Petitioner was convicted and prior to 

sentencing. T.C.A. § 40-35-202(b)(1). 

Petitioner has not presented a colorable claim in his motion, and he is not entitled 

to relief under Rule 36.1. 

CONCLUSION

Having carefully reviewed the record before us and the briefs of all the parties, we 

find no error and affirm the trial court’s denial of Petitioner’s motion.

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THOMAS T. WOODALL, PRESIDING JUDGE