        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                  Assigned on Briefs October 21, 2014 at Knoxville

                    KEVIN DAWS v. STATE OF TENNESSEE

                Appeal from the Circuit Court for Henderson County
                     No. 99-073-1 Roy B. Morgan, Jr., Judge


               No. W2014-01002-CCA-R3-CO - Filed January 8, 2015


The Appellant, Kevin Daws, filed a Tennessee Rule of Criminal Procedure 36.1 motion to
correct an illegal sentence. The trial court summarily dismissed the Appellant’s motion, and
he appealed. Following our review of the record, we conclude that the Appellant’s motion
fails to present a colorable claim that his sentences were illegal. We, therefore, affirm the
trial court’s summary dismissal of the motion.

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

R OBERT L. H OLLOWAY, J R., J., delivered the opinion of the Court, in which J AMES C URWOOD
W ITT, J R., and D. K ELLY T HOMAS, J R., JJ., joined.

Kevin Daws, pro se, as the appellant.

Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Jerry Woodall, District Attorney General; and Angela R. Scott, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                          Factual and Procedural Background

       On May 12, 2014, the Appellant filed the instant pro se “Motion Pursuant to
Tennessee Rules of Criminal Procedure Rule 36.1 to Correct an Illegal Sentence,” asserting
that the trial court violated Tennessee Code Annotated section 40-20-111(b) by running
“Case No. 99-CR-540 concurrent with Case No. 990731.” On May 16, 2014, the trial court
dismissed the Appellant’s motion finding that the Appellant failed to state a colorable claim
because the “court record in Henderson County Circuit Court No. 99-073-1 fails to reflect
any agreement or plea that allowed Defendant’s sentences to run concurrently with any other
sentence.” We agree with the trial court.

       According to the Rule 36.1 motion, the Appellant was arrested on August 9, 1998,
(Case No. 99-CR-5401 ) and was released on bail. While out on bail, he committed and was
arrested for aggravated robbery and possession of a weapon (Case No. 99-073-1).

       On December 2, 1999, the Appellant pleaded guilty to aggravated robbery in Count
1 of Case No. 99-073-1 and was sentenced to eight years and pleaded guilty to possession
of a weapon in Count 2 of Case No. 99-073-1 and was sentenced to two years. The
judgments show that the sentences in Count 1 and Count 2 were ordered to be served
concurrently. The judgments do not state that the sentences in Case No. 99-073-1 will run
concurrently with Case No. 99-CR-540. In fact, the judgments in Count 1 and Count 2 in
Case No. 99-073-1 make no reference whatsoever to Case No. 99-CR-540.

                                               Analysis

       The Appellant contends that his motion to correct an illegal sentence raised a
colorable claim, and therefore, the trial court erred when it summarily dismissed the motion.

       On July 1, 2013, Tennessee Rule of Criminal Procedure 36.1 became effective. Rule
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).


        1
         The Appellant’s motion does not state in what county or for what offenses he was arrested on
August 9, 1998. The Appellant did not attach or include any documents related to Case No. 99-CR-540 with
his motion. Based on the trial court’s order, it appears that Case No. 99-CR-540 is out of Decatur County.

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       On its face, Rule 36.1 does not limit the time within which a person seeking relief
must file a motion, nor does it require the person seeking relief to be restrained of liberty.
Also, Rule 36.1 does not define the term “colorable claim.” In interpreting Rule 36.1, this
Court has looked to post-conviction and habeas corpus relief cases for guidance. For
example, this Court has adopted the definition for “colorable claim” from the post-conviction
context: “A colorable claim is a claim . . . that, if taken as true, in the light most favorable
to the [appellant], would entitle [appellant] to relief . . . .” State v. David Morrow, No.
W2014-00338-CCA-R3-CO, 2014 WL 3954071, at *2 (Tenn. Crim. App. Aug. 13, 2014)
(quoting Tennessee Supreme Court Rule 28, § 2(H)) (citation omitted).

       Tennessee Code Annotated section 40-20-111(b) provides that if a defendant
commits a felony while released on bail and is convicted of both offenses, the trial judge has
no discretion as to whether the sentences shall run concurrently or cumulatively but must
order that the sentences run cumulatively. Tenn. Code Ann. § 40-20-111 (1990) (employing
the term “cumulatively” rather than the term “consecutively”). Similarly, Rule 32(c)(3)(C),
which mandates consecutive sentences when a defendant commits a felony while released
on bail and is eventually convicted of both offenses, provides:

       (3) Mandatory Consecutive Sentences. When a defendant is convicted of
       multiple offenses from one trial or when the defendant has additional
       sentences not yet fully served as the result of convictions in the same or other
       courts and the law requires consecutive sentences, the sentence shall be
       consecutive whether the judgment explicitly so orders or not. This rule shall
       apply:

       (A) to a sentence for a felony committed while on parole for a felony;
       (B) to a sentence for escape or for a felony committed while on escape;
       (C) to a sentence for a felony committed while the defendant was released on
       bail and the defendant is convicted of both offenses; and
       (D) for any other ground provided by law.

Tenn. R. Crim. P. 32(c)(3)(C) (1990).

       Because the Henderson County judgments are silent as to whether the sentences run
consecutively or concurrently with any prior sentence or felony for which the Appellant was
released on bail, the eight-year Henderson County sentence would, by rule, run consecutively
to any such sentences. As explained by our Supreme Court:




                                              -3-
       Rule 32(c)(3) mandates that new sentences run consecutively to the prior
       sentence “whether the judgment explicitly so orders or not.” Thus, the new
       sentences run consecutively to the prior sentence even if the judgment is silent
       in this regard.

Hogan v. Mills, 168 S.W.3d 753, 756 (Tenn. 2005).

       We recognize that any sentences in Case No. 99-CR-540 may not be the “prior”
sentence and that any judgment in Case No. 99-CR-540 that was entered after entry of the
judgments in the case now on appeal (Case No. 99-073-1) might provide for concurrent
service of the 99-CR-540 sentence with the earlier sentences imposed in Case No. 99-073-1.
The Appellant, however, has elected to challenge the sentencing provision in Case No. 99-
073-1, and as we have said, these judgments do not mention Case No. 99-CR-540. We have
no challenge to sentencing of the Appellant in Case No. 99-CR-540 before us.

        The motion filed by the Appellant, even if taken as true and in the light most favorable
to the Appellant, fails to establish that the sentences in Henderson County Circuit Court No.
99-073-1 were ordered to be served concurrently with Decatur County Case No. 99-CR-540.
We conclude that the Appellant’s motion does not present a colorable claim that his sentence
was illegal.

                                         Conclusion

      Based on the foregoing, we affirm the trial court’s summary dismissal of the Rule 36.1
motion.

                                            ____________________________________
                                            ROBERT L. HOLLOWAY, JR., JUDGE




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