                                                                                       05/05/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs January 5, 2017

           STATE OF TENNESSEE v. COREY JERMAINE HART

                 Appeal from the Circuit Court for Henderson County
                Nos. 05-009-1, 05-010-1  Roy B. Morgan, Jr., Judge


                            No. W2016-00565-CCA-R3-CD



The Defendant, Corey Jermaine Hart, appeals from the trial court’s dismissal of his
motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure
36.1 for failure to assert a colorable claim. Discerning no error, we affirm the judgment
of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and CAMILLE R. MCMULLEN, JJ., joined.

George Morton Googe, District Public Defender; and Hewitt Chatman, Assistant Public
Defender, for the appellant, Corey Jermaine Hart.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; James G. (Jerry) Woodall, District Attorney General; and Angela R.
Scott, Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                        FACTS

       On April 25, 2005, in two separate cases, 05-009-1 and 05-010-1, the Defendant
pled guilty to possession of a Schedule II controlled substance with intent to sell or
deliver, possession of drug paraphernalia, aggravated assault, and reckless endangerment
involving a deadly weapon. The trial court merged the drug convictions and imposed a
sentence of ten years for that conviction. The court imposed a sentence of eight years for
the aggravated assault conviction and four years for the reckless endangerment
conviction. The trial court ordered that all of the sentences run concurrently for an
effective term of ten years. On June 30, 2005, the trial court entered an amended
judgment for the aggravated assault conviction, crediting the Defendant with pretrial jail
service.

        On August 6, 2015, the Defendant filed a motion to correct an illegal sentence
pursuant to Tennessee Rule of Criminal Procedure 36.1, alleging that his sentences for
the aggravated assault and reckless endangerment convictions were illegal because they
were run concurrently with his other sentence despite the fact that he was on bail at the
time he committed the offenses.1 In his Rule 36.1 motion, the Defendant also claimed
that his sentences were illegal because the trial court “did not enter a judg[]ment that
includes the award of [pretrial jail] credits.” On August 12, 2015, the trial court entered
an order appointing counsel to represent the Defendant at a hearing on the motion. The
parties agreed to continue the hearing to November 13, 2015. On February 19, 2016, the
trial court denied the motion in light of State v. Brown, 479 S.W.3d 200, 208-09 (Tenn.
2015), in which our supreme court held that Rule 36.1 was inapplicable to expired
sentences, and found that the Defendant’s sentences had expired on August 14, 2013.
The Defendant appealed.

                                              ANALYSIS

       Rule 36.1 provides “a mechanism for the defendant or the State to seek to correct
an illegal sentence.” Brown, 479 S.W.3d at 208-09. When a defendant files a motion
under Rule 36.1, the trial court must determine whether the motion “states a colorable
claim that the sentence is illegal.” Tenn. R. Crim. P. 36.1(b). If it does, the trial court
should appoint counsel for the defendant and hold a hearing to consider the motion.2 Id.
In the context of Rule 36.1, a colorable claim 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). Rule 36.1 “does
not authorize the correction of expired illegal sentences,” and “a Rule 36.1 motion may
be summarily dismissed for failure to state a colorable claim if the alleged illegal
sentence has expired.” Brown, 479 S.W.3d at 211.

        The Defendant argues that, when he filed his motion to correct an illegal sentence
on August 6, 2015, the law regarding the applicability of Rule 36.1 to expired sentences
was unsettled. He points to two unpublished opinions of this court as well as an order by
a trial court judge granting a Rule 36.1 motion in another defendant’s case to show that

        1
          The record contains a probation revocation hearing transcript seemingly regarding unrelated
charges that does not appear to have any relevance to the Rule 36.1 motion or this appeal.
        2
            Rule 36.1 was amended in part effective July 1, 2016. The prior version is applicable to this
case.
                                                    -2-
the law was unsettled at the time. Essentially, the Defendant argues that he is entitled to
relief because it is possible that some court might have granted him relief under the state
of the law when he filed his motion.

       The Defendant’s sentences expired before he filed his Rule 36.1 motion, but
Brown resolved this issue. Id. The trial court had no authority or procedural mechanism
to afford the Defendant relief on his expired sentences at the time the court ruled on the
Defendant’s motion.

       Moreover, to the extent the Defendant’s argument might be construed as a
complaint regarding the delay between the filing of his Rule 36.1 motion and the trial
court’s ultimate ruling on it, the Defendant consented to the continuance and cannot now
challenge the delay.

                                    CONCLUSION

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

                                                  _________________________________
                                                  ALAN E. GLENN, JUDGE




                                            -3-
