                                                                                          08/31/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs August 1, 2017

          STATE OF TENNESSEE v. CARLOS RICHARD MORRIS
                    Appeal from the Circuit Court for Madison County
                         No. 06-335      Donald H. Allen, Judge



                              No. W2017-00129-CCA-R3-CD
                        _____________________________

The Defendant, Carlos Richard Morris, pleaded guilty to two counts of possession of .5
grams or more of cocaine with the intent to sell, one count of possession of one-half
ounce or more of marijuana, one count of possession of drug paraphernalia, and one
count of failing to obey a stop sign. The trial court merged the two possession with intent
to sell convictions, and it sentenced the Defendant to an effective sentence of eight years.
It ordered that the Defendant’s eight-year sentence from Madison County run
concurrently with any remaining sentences from two previous Henderson County
possession with intent to sell cocaine convictions. The Defendant filed a Tennessee Rule
of Criminal Procedure 36.1 motion to correct his allegedly illegal sentence, which the
trial court summarily dismissed. On appeal, we affirm the trial court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and Timothy L. Easter, JJ. joined.

Carlos Richard Morris, Madison, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Jody S. Pinkens, District Attorney General; and Al Earls, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION
                                         I. Facts

        This case arises from drug offenses committed by the Defendant. From what we
glean from the record, it appears that the Defendant’s main complaint is that his sentence
is illegal because the trial court improperly sentenced him to concurrent sentencing rather
than consecutive sentences.

       The Defendant filed a Rule 36.1 motion in support of his contention. While it is
unclear whether he attached the necessary documentation to that motion or whether he
submitted it to the trial court, attached to his brief are his judgments of conviction. On
February 24, 2000, in Henderson County, the Defendant pleaded guilty and was
convicted of possession of cocaine with the intent to sell, an offense occurring on
February 25, 1998. At the same time, and as part of his plea agreement, he pleaded guilty
to possession of cocaine with the intent to sell, an offense occurring on June 10, 1999.
The Henderson County trial court sentenced him as a Range I offender to serve
concurrent eight-year sentences through Community Corrections for each offense.

       On October 25, 2006, in Madison County, the Defendant pleaded guilty to four
offenses: two counts of possession of .5 grams or more of cocaine with the intent to sell;
possession of marijuana; possession of drug paraphernalia; and failure to obey a stop
sign. The Madison County trial court sentenced the Defendant as a Range I, standard
offender, to an effective sentence of eight years. The judgment form indicated that the
Defendant agreed that his Henderson County probation was revoked. The judgment form
also indicated that the Madison County trial court ordered that the Madison County
sentence be served concurrently with the remaining effective sentence from Henderson
County.

       On August 3, 2015, the Henderson County trial court issued a probation violation
order for both of the Defendant’s Henderson County Community Corrections sentences.
On the same date, the Madison County trial court issued an order revoking the
Defendant’s probation for his Madison County offenses upon the same basis. The
Madison County trial court remanded the Defendant into Tennessee Department of
Correction custody.

       On March 21, 2016, the Defendant filed this Rule 36.1 motion alleging that his
sentence was illegal. In his motion, he alleged that he was on bail for one of the
Henderson County offenses when he committed the other Henderson County offense, so
the sentence was illegal in that the sentences were ordered to run concurrently rather than
consecutively. He further alleged that the trial court illegally ordered his Madison
County sentence to run concurrently with the remainder of his sentence for his Henderson
County convictions. He finally complained that he was not properly awarded jail credit.

       The State filed a response in which it stated that the Henderson County sentences
were entered February 24, 2000, and, as such, they were expired and could not properly
be the subject of a Rule 36.1 sentence. The State further alleged that the Defendant could
not have been on bail for the Henderson County sentences when he was sentenced for the
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Madison County convictions on October 23, 2006. Finally, the State asserted that any
error of the trial court running the sentences concurrently was to the Defendant’s benefit
and was therefore, not proper grounds for Rule 36.1 relief.

       The Madison County trial court dismissed the Rule 36.1 motion, finding that the
Henderson County sentences had expired. It further found that the Defendant could not
have been on bail for the Henderson County offenses at the time that he was sentenced.
Finally, the trial court found:

            Even if there was error in running sentences concurrent rather than
      consecutive the error is to the benefit of the movant [the Defendant] and
      cannot by the express provisions of rule 36.1 be the basis of a rule 36.1
      motion.

             Rule 36.1(c)(3)(b) provides that if the illegal portion of the plea was
      to the [D]efendant’s benefit the Court shall enter an order dismissing the
      petition. Clearly it is to the benefit of the movant to serve concurrent
      sentences as opposed to consecutive sentences.

        On December 29, 2016, the Defendant filed a motion to reconsider, alleging that
his Henderson County sentences were both currently active and not expired. He
reiterated that he was improperly denied applicable pretrial jail credits. On January 12,
2017, the trial court denied the Defendant’s motion to reconsider.

      It is from this judgment that the Defendant now appeals.

                                      II. Analysis

        On appeal, the Defendant contends that the trial court erred when it found that he
had not asserted a colorable claim for relief because his sentence is illegal. He explains
that his sentence is illegal because it was imposed with “two plea offenses that [were]
illegal sentences.” He further contends that the Rule 36.1 motion should have been
granted on the basis that he was not properly awarded his pretrial jail credits.

      At the time that the Defendant filed his Rule 36.1 motion, Tennessee Rule of
Criminal Procedure 36.1 provided 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
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       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) (statute amended effective July 2016 to exclude the
language “at any time.” See Tenn. R. Crim. P. 36.1(a) (2016)).

       A “colorable claim” within the language of Rule 36.1 is defined as “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. Brown, 479 S.W.3d 200, 213 (Tenn.
2015) (citing State v. Wooden, 478 S.W.3d 585, 595-96 (Tenn. 2015)).

        After review of the record, we note that absent are any of the Defendant’s
judgments of conviction or any proof that he was on bail at any point in time. The
Defendant has included what purports to be the judgments of conviction as an appendix
to his appellate brief, but he did not include the documents in the record itself. This court
has previously noted that “[d]ocuments attached to briefs are not cognizable as part of an
appellate record.” LaBryant King v. State, No. M2004-01371-CCA-R3-PC, 2005 WL
1307802, at *3 n.3 (Tenn. Crim. App. June 1, 2005), perm. app. denied (Tenn. Dec. 19,
2005); see State v. Matthews, 805 S.W.2d 776, 783-84 (Tenn. Crim. App. 1990); State v.
Kenneth Shane Story, No. M2005-02281-CCA-R3-CD, 2006 WL 2310534, at *4 (Tenn.
Crim. App. Aug. 9, 2006), perm. app. denied (Tenn. Dec. 27, 2006). “While our Rules of
Appellate Procedure permit an appellant to file an appendix containing relevant portions
of a record, see Tennessee Rule of Appellate Procedure 28, the documents must also be
included in the record itself.” King, 2005 WL 1307802, at *3 n.3 (citing Matthews, 805
S.W.2d at 783-84). This court is precluded from considering an issue when the record is
incomplete and does not contain the proceedings and documents relevant to the issue.
State v. Bennett, 798 S.W.2d 783, 789 (Tenn. Crim. App. 1990). Because the
Defendant’s argument turns on whether he was on bail when he committed subsequent
offenses, whether his sentences have expired, and whether he was awarded pretrial jail
credits, the judgments of conviction and further documentation supporting his
contentions should have been made a part of the appellate record. Without a complete
record, we cannot determine whether the Defendant has stated a colorable claim. As
such, we conclude that the trial court properly dismissed the Defendants Rule 36.1
motion.
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                                  III. Conclusion

       In accordance with the foregoing reasoning and authorities, we affirm the trial
court’s judgment.

                                              _________________________________
                                              ROBERT W. WEDEMEYER, JUDGE




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