                                                                                           03/19/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs February 27, 2018

              STATE OF TENNESSEE v. TRACY LEBRON VICK

                Appeal from the Criminal Court for Hamilton County
                         No. 215412 Don W. Poole, Judge


                             No. E2017-01534-CCA-R3-CD


The Defendant, Tracy Lebron Vick, pleaded guilty to second degree murder and received
a forty-year, Range II sentence to be served at 85%. Nineteen years after his sentencing,
he filed a motion pursuant to Tennessee Rule of Criminal Procedure 36.1 alleging that his
sentence was illegal because 100% service was statutorily mandated but that the trial
court imposed 85% service in his case. The trial court summarily dismissed the motion
on the basis that it failed to state a colorable claim. We affirm the trial court’s judgment.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and D. KELLY THOMAS, JR., JJ., joined.

Tracy Lebron Vick, Wartburg, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
M. Neal Pinkston, District Attorney General; for the appellee, State of Tennessee.

                                        OPINION
        The Defendant’s conviction relates to the September 20, 1996 death of Melva
Moore, whom the Defendant shot as he attempted to enter Ms. Moore’s home to rob her
boyfriend. The Defendant was charged with first degree murder and agreed to plead
guilty to second degree murder as a Range II offender. The court imposed a maximum,
forty-year sentence to be served consecutively to the sentence for a prior conviction. A
handwritten notation on the judgment states that the Defendant is to serve his sentence “at
at least 85% pursuant to [Tennessee Code Annotated section] 40-35-501.” The transcript
of the guilty plea hearing reflects that the trial court advised the Defendant that he was a
Range II offender, that he would “have to serve eighty-five percent of that sentence
before [his] release-eligibility date,” and that the Defendant acknowledged his
understanding. The transcript of the sentencing hearing reflects the court’s comment,
“The law says you’re required to serve 35 percent of that [sentence] but another section
of the law that was enacted in TCA 40-35-501 says that you will serve 85 percent of that
sentence.”

       The Defendant appealed the length of his sentence and the imposition of
consecutive sentencing, and this court affirmed the trial court’s judgment. See State v.
Tracy Lebron Vick, No. 03C01-9803-CR-00100, 1999 WL 652452 (Tenn. Crim. App.
Aug. 27, 1999), perm. app. denied (Tenn. Feb. 28, 2000). The Defendant later pursued
post-conviction relief, which was denied. See Tracy Lebron Vick v. State, No. E2002-
01761-CCA-R3-PC, 2003 WL 21172319 (Tenn. Crim. App. May 20, 2003), perm. app.
denied (Tenn. Oct. 6, 2003).

      In May 2017, the Defendant filed a petition for post-conviction DNA analysis
pursuant to Tennessee Code Annotated sections 40-30-301 to -313. The trial court
denied the petition, and the Defendant’s appeal is pending in this court. See Tracy
Lebron Vick v. State, No. E2017-01333-CCA-R3-PC (Tenn. Crim. App. docketed
February 27, 2018).

        In June 2017, the Defendant filed the present motion for correction of an illegal
sentence. See Tenn. R. Crim. P. 36.1. He alleged that although 100% service was
statutorily mandated for his conviction offense, the sentence he received required 85%
service and was, therefore, illegal. The trial court summarily denied the motion on the
basis that Rule 36.1 relief was unavailable to a defendant whose plea agreement
contained a material component that was illegal but “to the defendant’s benefit.” See id.
On appeal, the Defendant contends that the trial court erred in summarily denying his
motion without a response from the State, appointment of counsel, and a hearing and that
Rule 36.1, Tennessee Code Annotated section 29-21-101, and other unspecified
Tennessee laws are unconstitutional because they do not provide him with an avenue for
relief.

      Tennessee Rule of Criminal Procedure 36.1 provides:

              (a)(1) Either the defendant or the state may seek to correct an illegal
      sentence by filing a motion to correct an illegal sentence in the trial court in
      which the judgment of conviction was entered. Except for a motion filed by
      the state pursuant to subdivision (d) of this rule, a motion to correct an
      illegal sentence must be filed before the sentence set forth in the judgment
      order expires. The movant must attach to the motion a copy of each
      judgment order at issue and may attach other relevant documents. The
      motion shall state that it is the first motion for the correction of the illegal

                                            -2-
sentence or, if a previous motion has been made, the movant shall attach to
the motion a copy of each previous motion and the court’s disposition
thereof or shall state satisfactory reasons for the failure to do so.

       (2) 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)(1) Notice of any motion filed pursuant to this rule shall promptly
be provided to the adverse party. The adverse party shall have thirty days
within which to file a written response to the motion.

        (2) The court shall review the motion, any response, and, if
necessary, the underlying record that resulted in the challenged judgment
order. If the court determines that the motion fails to state a colorable claim,
it shall enter an order summarily denying the motion.

        (3) If the motion states a colorable claim that the unexpired sentence
is illegal, the court shall determine if a hearing is necessary. If the court,
based on its review of the pleadings and, if necessary, the underlying
record, determines that the motion can be ruled upon without a hearing, it
may do so in compliance with subdivision (c) of this rule. If the court
determines that a hearing is necessary, and if the defendant is indigent and
is not already represented by counsel, the court shall appoint counsel to
represent the defendant. The court then shall promptly hold a hearing on the
motion.

      (c)(1) With or without a hearing, if the court determines that the
sentence is not an illegal sentence, the court shall file an order denying the
motion.

        (2) With or without a hearing, if the court determines that the
sentence is an illegal sentence, the court shall then determine whether the
illegal sentence was entered pursuant to a plea agreement. If not, the court
shall file an order granting the motion and also shall enter an amended
uniform judgment document, see Tenn. Sup. Ct. R. 17, setting forth the
correct sentence.

      (3) With or without a hearing, if the court determines that the illegal
sentence was entered pursuant to a plea agreement, the court shall

                                      -3-
determine whether the illegal aspect of the sentence was a material
component of the plea agreement.

       (A) If the illegal aspect was not a material component of the plea
agreement, the court shall file an order granting the motion and also shall
enter an amended uniform judgment document, see Tenn. Sup. Ct. R. 17,
setting forth the correct sentence.

       (B) If the illegal aspect was a material component of the plea
agreement but the illegal aspect was to the defendant’s benefit, the court
shall enter an order denying the motion.

        (C) If the illegal aspect was a material component of the plea
agreement and the illegal aspect was not to the defendant’s benefit, the
court shall give the defendant an opportunity to withdraw his or her plea. If
the defendant chooses to withdraw his or her plea, the court shall file an
order stating its findings that the illegal aspect was a material component of
the plea agreement and was not to the defendant's benefit, stating that the
defendant withdraws his or her plea, and reinstating the original charge
against the defendant. If the defendant does not withdraw his or her plea,
the court shall file an order granting the motion and also shall enter an
amended uniform judgment document, see Tenn. Sup. Ct. R. 17, setting
forth the correct sentence.

       (d) In any case in which the trial court failed to impose a statutorily
required sentence of community supervision for life in conjunction with
imposing a non-plea-bargained sentence, the state may file a motion under
this rule to correct the omission. Any motion filed pursuant to this
subdivision (d) must be filed no later than ninety days after the sentence
imposed in the judgment order expires.


        (e) An order granting or denying a motion filed under this rule shall
set forth the court’s findings of fact and conclusions of law as to the matters
alleged in the motion.

       (f) Upon the filing of an amended uniform judgment document in
those proceedings in which the court grants a motion filed under this rule,
or upon the filing of an order denying a motion filed under this rule, the


                                     -4-
        defendant or the state may initiate an appeal as of right pursuant to Rule 3,
        Tennessee Rules of Appellate Procedure.

The question of whether a Rule 36.1 motion states a colorable claim is one of law, which
we review de novo. See State v. Wooden, 478 S.W.3d 585, 589 (Tenn. 2015).

       The Defendant complains that his sentence is illegal because the relevant statute
required 100% service, but he was sentenced to 85% service. Based upon the record
before us, which does not include the plea agreement document, we question the
accuracy of the Defendant’s assertion that the plea agreement called for 85% service of
the sentence, rather than 100% service with the possibility of a 15% reduction due to
sentencing credits, as authorized by Code section 40-35-501(i)(2). As we have stated, the
judgment specified that the Defendant shall serve his sentence “at at least 85% pursuant
to [Tennessee Code Annotated section] 40-35-501.”1 The version of Code section 40-35-
501(i)(2) applicable to the Defendant’s case provides, in pertinent part, that a person
committing second degree murder “shall serve one hundred percent (100%) of the
sentence imposed by the court less sentence credits earned and retained. However, no
sentence reduction credits authorized by § 41-21-236, or any other provision of law, shall
operate to reduce the sentence imposed by the court by more than fifteen percent (15%).”
T.C.A. § 40-35-501(i)(2) (1997) (amended 1998, 1999, 2001, 2006, 2007, 2009, 2010,
2012, 2013, 2014, 2015, 2016).

       That said, resolution of the factual accuracy of the Defendant’s assertion regarding
the terms of his plea agreement is unnecessary for disposition of this appeal. Even
construing the Defendant’s allegations as true and assuming that the percentage of service
was a material component of the plea agreement, the alleged illegality is in his favor.
Subsection (c)(3)(B) states that relief pursuant to Rule 36.1 is not available in this
circumstance. See Tenn. R. Crim. P. 36.1(c)(3)(B). Thus, the trial court properly denied
the motion.


        1
           After he filed his notice of appeal, the Defendant filed a motion to consider post-judgment facts,
in which he alleged that his quarterly sentencing letter, generated by the Tennessee Department of
Correction after the trial court’s ruling, reflected 100% service of his sentence. He attached the
sentencing letter to his motion. This court denied the motion. The Defendant refers to the sentencing
letter in his brief. To the extent that the Defendant has a complaint about the contents of the sentencing
letter, his avenue for seeking redress lies with the Uniform Administrative Procedures Act and is not a
proper subject of this appeal. See T.C.A. § 4-5-101 to -325 (Uniform Administrative Procedures Act);
Stewart v. Schofield, 368 S.W.3d 457, 459 (Tenn. 2012) (stating that the Uniform Administrative
Procedures Act governs a challenge to the Department of Correction’s computation of an inmate’s release
eligibility date).

                                                    -5-
       We turn to the Defendant’s procedural argument that the trial court erred in
summarily denying the motion without requiring a response from the State, appointing
counsel, and holding a hearing. Although Rule 36.1 provides thirty days for the adverse
party to file a response, nothing in the rule compels the trial court to await a response if
no colorable claim is stated. See id. The rule permits summary dismissal of a motion
which fails to state a colorable claim. See id. at (b)(2). Further, the rule states that the
court shall determine whether a hearing is necessary “[i]f the motion states a colorable
claim,” and if the court determines that a hearing is required, it compels the appointment
of counsel if the defendant is indigent and unrepresented. See id. at (b)(3). In the present
case, the court correctly determined that no colorable claim was stated. Thus, neither a
hearing nor the appointment of counsel was required. We conclude that the trial court did
not err in summarily dismissing the motion without awaiting a response from the State,
appointing counsel, and conducting a hearing.

        Finally, we address the Defendant’s argument that Tennessee Rule of Criminal
Procedure 36.1, Tennessee Code Annotated section 29-21-101 (habeas corpus), and
unspecified other Tennessee laws are unconstitutional because they do not afford him a
means for challenging “a materially impossible illegal and void plea and sentence of
which a defendant entered into without any knowledge as to its illegality or no potential
for its enforcement.” He has raised this issue for the first time on appeal. He has not
alleged the constitutional basis upon which he relies, and we decline to speculate in this
regard. Further, any challenge to the constitutionality of the habeas corpus statute or
other, unspecified statutes is not cognizable in this appeal from the denial of his Rule
36.1 motion.

        In consideration of the foregoing and the record as a whole, the judgment of the
trial court is affirmed.


                                            _____________________________________
                                             ROBERT H. MONTGOMERY, JR., JUDGE




                                            -6-
