IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs September 1, 2020

STATE OF TENNESSEE v. ALBERT O. DEWALT

Appeal from the Circuit Court for Dyer County

Nos. C07-216, 09-CR-107, 09-CR-108, 09-CR-274 Russell Lee Moore, Jr., Judge

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No. W2020-00309-CCA-R3-CD

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The Defendant, Albert O. Dewalt, pleaded guilty over the course of five years to multiple 

charges: two counts of sale of cocaine weighing more than .5 grams (C07-216); two 

counts of sale of cocaine weighing more than .5 grams (09-CR-107); one count of felony 

possession with intent to deliver or sell cocaine weighing more than .5 grams (09-CR108); and one count of attempted second degree murder (09-CR-274). The trial court 

imposed an effective sentence of twenty-two years. After multiple unrelated filings, in 

2020, the Defendant filed a motion pursuant to Tennessee Rule of Criminal Procedure 

36.1, seeking to amend his sentence for attempted second degree murder. The trial court 

denied the Defendant’s motion on the grounds that he had agreed to his sentence and that 

the Defendant had not stated a basis for relief. On review, having determined that the

Petitioner has failed to state a colorable claim for Rule 36.1 relief, we affirm the 

judgment of the trial court.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which CAMILLE R.

MCMULLEN and J. ROSS DYER, JJ., joined.

Albert O. Dewalt, Only, Tennessee, Pro Se.

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

Attorney General; Danny H. Goodman, Jr., District Attorney General, for the appellee, 

State of Tennessee.

OPINION

I. Facts and Procedural History

10/09/2020
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This case arises from four separate indictments which resulted in six convictions

spanning from 2007 to 2012: in case no. C07-216, the Defendant pleaded guilty to two 

counts of sale of cocaine weighing more than .5 grams, resulting in concurrent twelveyear sentences, which were eventually paroled to probation; in case no. 09-CR-107 which 

the Defendant pleaded guilty to two counts of sale of cocaine weighing more than .5 

grams, resulting in concurrent twelve-year sentences; in case no. 09-CR-108 the 

Defendant pleaded guilty to one count of possession of cocaine with the intent to sell or 

deliver, resulting in a twelve-year sentence; and in case no. 09-CR-274 the Defendant 

pleaded guilty to attempted second degree murder, resulting in a ten-year prison sentence.

The trial court ordered that the Defendant’s sentences in case nos. 09-CR-107, 09-

CR-108, and C07-216 be served concurrently. The trial court ordered that his ten-year 

sentence in case no. 09-CR-274 be served consecutively to his concurrent twelve-year 

sentences for a total effective sentence of twenty-two years; this effective sentence was 

ordered to be served concurrently with a federal sentence. 

In 2013, the Defendant filed a motion pursuant to Tennessee Rule of Criminal 

Procedure 36.1 requesting clarification of the manner of service of his sentences and to 

claim omitted jail credits to which he was allegedly entitled. Appointed counsel later 

filed a Petition for Relief from Conviction or Sentence, claiming that the plea agreement 

in case no. 09-CR-274 was invalid because the Defendant did not knowingly agree to the 

terms of his sentence. The trial court issued an order, clarifying that the Defendant was 

entitled to receive a certain amount of jail credit, correcting the judgment error in case no. 

09-CR-274, and finally, clarifying that all the Defendant’s sentences were to run 

concurrent with his federal sentence. In 2018, the Defendant filed another Rule 36.1 

motion seeking to correct clerical errors or omitted jail credits, alleging that his jail 

credits had been incorrectly applied. The trial court denied the motion because it 

involved an administrative matter to be handled by the prison. 

In 2020, the Defendant filed a motion, which is the subject of this appeal, to 

correct and/or amend his sentence, pursuant to Rule 36.1. In it, he contended that his 

sentence in case no. 09-CR-274 was improperly enhanced by utilizing prior felonies 

“contrary to statute.” The Defendant filed a proposed order to correct his ten-year

sentence to 7.2 years to be served at 20% as a Range I, Standard Offender. He also 

requested a hearing. The trial court summarily denied the motion, clarifying that the 

twelve-year sentence imposed in case no. 09-CR-274 had been ordered to run 

consecutively to his other State convictions but concurrently with his federal sentence, 

for a total effective sentence of twenty-two years. The trial court concluded that the 

Defendant had not stated any basis for relief and was serving sentences he had agreed to 

in his guilty plea. It is from this judgment that the Defendant now appeals. 
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II. Analysis

On appeal, the Defendant asserts that the trial court erred when it denied his 

motion because of the availability of a “remedial cure” to amend or correct his sentence 

based on a “liberal construction of applicable statutes.” The State responds that the 

Defendant’s bargained-for ten-year sentence for his Class B felony attempted second 

degree murder conviction, as a Range I, Standard Offender, was authorized by applicable 

statutes, and therefore, the trial court did not err when it denied his motion to amend or 

correct the sentence. We agree with the State.

Tennessee Rule of Criminal Procedure 36.1 provides in pertinent 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.

(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.

Tenn. R. Crim. P. 36.1(a), (b) (2014). Rule 36.1 does not define the term “colorable 

claim.” Nevertheless, our supreme court has explained that “for purposes of Rule 36.1, . .

. ‘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). 

“Whether a sentence is illegal pursuant to Rule 36.1 is a question of law that we 

review de novo with no presumption of correctness.” Id. at 589 (citing Summers v. State, 

212 S.W.3d 251, 255 (Tenn. 2007); State v. Livingston, 197 S.W.3d 710, 712 (Tenn. 

2006) (applying de novo review to determine whether a sentence is illegal for purposes of 

habeas corpus relief); Arnold v. State, 143 S.W.3d 784, 786 (Tenn. 2004); Burnett v. 

State, 92 S.W.3d 403, 406 (Tenn. 2002) (reviewing de novo the issue of whether a postconviction petition states a colorable claim for relief)).

The following are examples of illegal sentences:
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(1) a sentence imposed pursuant to an inapplicable statutory scheme; (2) a 

sentence designating a [Release Eligibility Date (RED)] where a RED is 

specifically prohibited by statute; (3) a sentence ordered to be served 

concurrently where statutorily required to be served consecutively; and (4) 

a sentence not authorized for the offense by any statute.

Davis v. State, 313 S.W.3d 751, 759 (Tenn. 2010) (internal citations omitted). 

The Defendant does not explain in his brief how his sentence is illegal. He merely 

alleges that a fatal error renders his sentence void. The trial court, he argues, used his 

prior felonies to “upgrade the judgment” in this case and then “mitigate the same” to a 

Class B felony before using the prior felonies again in the sentencing phase to enhance 

his sentence from the minimum to a ten-year sentence. He argues that this fails to 

observe the “legislative application” of section 40-35-202(a), which requires notice of 

intent to seek an enhanced punishment more than ten days prior to trial. 

The Notice of Intent to Seek an Enhanced Punishment is not included in the 

record, and so, we have no way of knowing whether it was filed more than ten days prior 

to the entry of the Defendant’s guilty plea. Timing of the same aside, from our review of 

the record, we have determined that the Petitioner has failed to state a colorable claim for 

Rule 36.1 relief. He entered a guilty plea to a lesser-included offense, attempted seconddegree murder, and received a bargained-for sentence within the appropriate sentencing 

range. Accordingly, the trial court did not err when it denied his motion for Rule 36.1 

relief. The Defendant is not entitled to relief.

III. Conclusion

In accordance with the aforementioned reasoning and authorities, we affirm the 

judgment of the trial court.

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ROBERT W. WEDEMEYER, JUDGE