        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs February 3, 2015


           MARCUS DEANGELO LEE v. STATE OF TENNESSEE


                   Appeal from the Criminal Court for Shelby County
              Nos. 95-10473, 95-11561-62 James Lammey, Jr., Judge



                No. W2014-00994-CCA-R3-CO - Filed May 13, 2015



       John Everett Williams, J., dissenting.

        Something rather odd appears to be happening in this case and others similar to it.
It appears that this defendant pled guilty to three offenses and received an agreed-to
effective sentence of three years in December 1995. His sentences should have expired in
December 1998. Yet this court has either denied or dismissed this defendant’s challenges
to his convictions in 2007, 2009, 2010, 2011, and 2012. And now in 2015, almost 20
years later, we feel obligated to set this defendant’s convictions aside as illegal and allow
him to withdraw his 1995 guilty pleas because he did not receive twice as much time in
jail as he should have in 1995. What makes this case stranger is that it is not the State
who is asking for relief; rather, the defendant complains that he did not get consecutive
sentencing when he should have in 1995. It is a rare case indeed when a defendant
complains about not getting more time in jail. If the defendant was seeking the remedy of
serving additional jail time because the law required it at the time he pled guilty, I would
be happy to oblige him. But he is not. He is attempting to have his conviction set aside
and presumably to have a trial, whereupon if he is found guilty, he will have to do
additional time to that ordered in 1995. What, if anything, has changed to allow such a
seemingly absurd result to take place?


        The majority feels compelled by case law and Tennessee Rule of Criminal
Procedure 36.1 to allow this defendant to withdraw his 1995 guilty pleas. Adopted in
2013, Tennessee Rule of Criminal Procedure 36.1 contains no statute of limitations or
limitations on the type of evidence that may be received in proving a conviction illegal.

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Armed with Rule 36.1, defendants now seem to think they have been given new life in
regard to attacking convictions that have long since expired.


        In the past, similar types of attacks were made using the habeas corpus statute. As
a result, the legislature in 2009 passed T. C. A. § 29-21-101(b)(1), which reads: persons
restrained of their liberty, pursuant to a guilty plea and negotiated sentence are not
entitled to the benefits of this writ on any claim that: the petitioner received concurrent
sentencing where there was a statutory requirements for consecutive sentencing.


       The record in this case reveals that the trial judge accepted the agreement between
the defendant and the State concerning three charges, and all sentences were running
concurrently. I wish to note that the trial judge was never informed that the defendant was
out on bond for the first offense when he committed the two other offenses. The trial
judge could have searched the records himself to determine whether this defendant was
out on bond at any time. I would suggest in the future in keeping with the majority
opinion (in order to protect the judgment at hand), a trial judge should diligently seek to
determine whether the defendant meets any criteria which would require the serving of
his sentences consecutively. Should the trial judge accept an agreement between the
State and the defendant without such an inquiry, then the conviction stands at risk
forever, if Rule 36.1 allows for the relief this defendant now seeks.


        There are an ever increasing number of these types of cases appearing in this court
for review, and most involve federal prisoners collaterally attacking prior convictions.
Rule 36.1 allows the State or the defendant to seek relief. I cannot imagine the outcry
should the State start using Rule 36.1 to jail untold numbers of citizens that by all
indications have completely served their sentences and are now being told, some 20 years
later, that a mistake was made.




        After studying the history, the case law, the statutes, and the rules, I conclude that
Rule 36.1 was not intended to provide relief after the expiration of a sentence. The
doctrine of mootness ensures that courts grant relief only when a live controversy is
before the court. McIntyre v. Traughber, 884 S.W.2d 134, 137 (Tenn. Crim. App. 1994).
“A case will generally be considered moot if it no longer serves as a means to provide
relief for the prevailing party.” Id. In State v. Adrian R. Brown, No. E2014-00673-CCA-

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R3-CD, 2014 WL 5483011, at *6 (Tenn. Crim. App. Oct. 29, 2014), the petitioner had
served his sentence in its entirety, leading me to conclude that there was no available
remedy and that the issue was moot. The same reasoning applies to the case at bar. The
petitioner’s sentence has been fully served and is expired. As a result, there is no longer
a live controversy for which this court may grant relief. Therefore, I would dismiss the
defendant’s claim as his sentences have expired.




                                          ________________________________
                                          JOHN EVERETT WILLIAMS, JUDGE




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