        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs August 9, 2016

              STATE OF TENNESSEE v. CHARLES WARD, JR.

              Appeal from the Criminal Court for Davidson County
 No. B-2889, B-6418, B-6430, C-3719, C-3648, C-1228, C-1229, C-1230, D-1395, D-
                       0973 J. Randall Wyatt, Jr., Judge
                    ___________________________________

              No. M2016-00214-CCA-R3-CD – Filed September 9, 2016
                     ___________________________________

The defendant, Charles Ward, Jr., appeals as of right from the Davidson County Criminal
Court’s denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an
illegal sentence. The defendant contends that the trial court erred in concluding that Rule
36.1 relief was not available because the alleged illegal sentences had expired prior to the
filing of the motion. Following our review, we affirm the trial court’s denial of the
defendant’s Rule 36.1 motion.

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

J. ROSS DYER, J., delivered the opinion of the court, in which THOMAS T. WOODALL, P.J.,
and ROBERT H. MONTGOMERY, JR., J., joined.

Charles Ward, Jr., Atlanta, Georgia, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Glenn Funk, District Attorney General; and Amy Hunter, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                        OPINION

      Between 1973 and 1982, the defendant committed and pled guilty to numerous
crimes, including armed robbery, burglary, involuntary manslaughter, and escape. The
defendant committed many of these crimes while he was either on bond, on parole, or on
escape status. In 1983, the defendant pled guilty to two counts of armed robbery and one
count of escape. For these convictions, the defendant received an effective sentence of 25
years to be served consecutive to a prior unexpired sentence.1

        On December 17, 2014, the defendant filed a motion seeking “Correction of
Illegal Sentences” pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure.
In the motion, the defendant generally alleged that the sentences he served for his
numerous convictions were illegal because they should have been served consecutively to
one another rather than concurrently. In its order dismissing the defendant’s Rule 36.1
motion, the trial court summarized its findings as follows:

        According to the motion, the [d]efendant was convicted of several offenses
        in 10 separate cases throughout the 1970s. He claims that his sentences
        were illegal because he was arrested on some of the charges while he was
        on bond for others and received concurrent sentences. The last sentence
        challenged in the motion appears to have ended sometime in 2009
        (concurrent 25-year sentences imposed in 1983 for armed robbery and
        escape convictions consecutive to a prior sentence). It does not appear from
        the motion or the Court’s files that the sentences for any of these cases were
        in effect when the motion was filed.

Relying on State v. Brown, 479 S.W.3d 200 (Tenn. 2015), the trial court dismissed the
defendant’s motion for failure to state a colorable claim as the defendant’s sentences had
expired prior to the filing of his motion. This appeal followed.

                                               Analysis

        On appeal, the defendant contends that the trial court erred in denying his Rule
36.1 motion to correct an illegal sentence. The defendant concedes that his sentences
have expired and that our Supreme Court has recently held that Rule 36.1 “does not
authorize the correction of expired illegal sentences.” However, he argues that Brown
was “not guided by sound legal princ[i]ples” because it is in “direct conflict with the
plain language of the statute.” The State responds that the defendant’s motion failed to
state a colorable claim because the alleged illegal sentences have expired.

       A Rule 36.1 motion provides defendants with a remedy separate and distinct from
habeas corpus or post-conviction relief. See State v. Jonathan T. Deal, No. E2013-
02623-CCA-R3-CD, 2014 WL 2802910, at *2 (Tenn. Crim. App. June 17, 2014). At the
time the defendant filed his motion, Rule 36.1 provided that either the defendant or the

        1
        It is unclear from the record exactly what sentence the defendant was serving when the trial court
imposed the armed robbery and escape sentences in 1983.
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state could “at any time” seek the correction of an illegal sentence. Tenn. R. Crim. P.
36.1 (2013). The rule defined “illegal sentence” as “one that is not authorized by the
applicable statutes or that directly contravenes an applicable statute.” Id. “[A] sentence
ordered to be served concurrently where statutorily required to be served consecutively”
is an illegal sentence. Davis v. State, 313 S.W.3d 751, 759 (Tenn. 2010).

        However, as found by the trial court, our Supreme Court in Brown concluded that
Rule 36.1 “does not authorize the correction of expired illegal sentences,” and a motion
may be dismissed “for failure to state a colorable claim if the alleged illegal sentence has
expired.” 479 S.W.3d at 211. As noted above, the defendant conceded that the alleged
illegal sentences have expired.

        With respect to the defendant’s argument that Brown was wrongly decided, we
note that once “the Tennessee Supreme Court has addressed an issue, its decision
regarding that issue is binding on the lower courts,” and we have “no authority to
overrule or modify” our supreme court’s opinions. Webb v. Nashville Area Habitat for
Humanity, Inc., 346 S.W.3d 422, 430 (Tenn. 2011) (quoting Morris v. Grusin, No.
W2009-00033-COA-R3-CV, 2009 WL 4931324, at *4 (Tenn. Ct. App. Dec. 22, 2009))
(internal quotation marks omitted). If the defendant wishes to challenge the holding in
Brown, he must seek review from the Supreme Court. Accordingly, we conclude that the
trial court did not err in denying the defendant’s Rule 36.1 motion to correct an illegal
sentence. The judgment of the trial court is affirmed.



                                             ____________________________________
                                             J. ROSS DYER, JUDGE




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