                                                                                       06/28/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs May 2, 2017

                STATE OF TENNESSEE v. JARVIS D. COHEN

                  Appeal from the Criminal Court for Shelby County
       Nos. 98-10932-35; 98-05756-60; 98-10946   John W. Campbell, Judge


                            No. W2016-01320-CCA-R3-CD


The Defendant, Jarvis D. Cohen, appeals the trial court’s denial of his motion to correct
an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. After review,
we affirm the denial of the Defendant’s Rule 36.1 motion.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which ROBERT L. HOLLOWAY,
JR. and J. ROSS DYER, JJ., joined.

Terrell L. Tooten, Cordova, Tennessee, for the appellant, Jarvis D. Cohen.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy P. Weirich, District Attorney General; and Kirby May, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                       OPINION

                                        FACTS

       The Defendant confessed to killing Mr. Choong Rau while in the process of
robbing Bryan’s Grocery Store on February 6, 1998. See Jarvis D. Cohen v. State, No.
W2002-00828-CCA-R3-PC, 2003 WL 21339278, at *1 (Tenn. Crim. App. May 15,
2003), perm. app. denied (Tenn. Oct. 6, 2003). At the same time that he pled guilty to
felony murder for the killing of Mr. Rau, the Defendant pled guilty to attempted first
degree murder, two counts of especially aggravated robbery, eight counts of aggravated
robbery, two counts of attempted aggravated robbery, two counts of aggravated assault,
and one count of possession of marijuana with the intent to sell or deliver, arising from
other indictments. Id. The Defendant was sentenced to life for the felony murder
conviction, twenty years for the attempted first degree murder, twenty years for each
count of especially aggravated robbery, twelve years for each count of aggravated
robbery, six years for each count of attempted aggravated robbery, six years for each
count of aggravated assault, and one year for possession of marijuana with the intent to
sell or deliver, with all sentences to run concurrently for an effective life sentence. Id.

       On August 24, 2015, the Defendant filed a motion to correct an illegal sentence
pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure. In his motion, the
Defendant contended that he was released on bond when he committed some of the
offenses, and, therefore, the trial court was required to impose consecutive sentencing on
those sentences.

       On January 11, 2016, the State filed a response to the Defendant’s motion. In its
response, the State gave a detailed recitation of the facts underlying the Defendant’s
numerous charges and acknowledged that eight of the indictments against the Defendant
related to incidents occurring when the Defendant was out on bond and that those
sentences should have been run consecutively to one another. However, the State
asserted that the Defendant failed to show that the concurrent sentencing was a material
component of the plea agreement. The State later filed an amended response on March
28, 2016, asserting the same argument.

       The trial court held a hearing on May 20, 2016, at which the Defendant testified
that concurrent sentencing in all of his cases was a material part of why he entered into
the plea agreement.

        After the hearing, the trial court issued an order denying the Defendant’s motion.
The trial court reviewed the history and timeline of the numerous offenses to which the
Defendant pled guilty on August 27, 1999. The court acknowledged that it appeared that
the Defendant was on bond when he committed some of his crimes and, therefore, the
Defendant received an illegal sentence with regard to the offenses committed while on
bond. However, the court noted that the Tennessee Supreme Court had recently, in State
v. Wooden, 478 S.W.3d 585 (Tenn. 2015), applied habeas corpus analysis to Rule 36.1
claims. The court held that under habeas corpus rules, a claim that a defendant had
received a concurrent sentence when consecutive sentencing was required was not an
actionable claim. The court denied the Defendant’s Rule 36.1 motion because his alleged
illegal sentences had either expired or because habeas corpus law “does not allow for the
attack of an illegal sentence when it is received as a result of a negotiated plea agreement
and [the Defendant] received concurrent sentencing when consecutive sentencing was
required by law.”

      It appears that the State filed a motion to consider post-judgment facts
contemporaneously with its brief in this appeal. With that motion, the State included an
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affidavit from the Sentence Information Services Manager of the Tennessee Department
of Correction, which indicated that all of the Defendant’s underlying sentences had
expired by September 29, 2016.

                                       ANALYSIS

        Tennessee Rule of Criminal Procedure 36.1 provides, in part, that a defendant may
“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.” Tenn. R. Crim. P.
36.1(a). An illegal sentence is defined by Rule 36.1 as “one that is not authorized by the
applicable statutes or that directly contravenes an applicable statute.” Id. A defendant is
entitled to a hearing and the appointment of counsel if he or she states a colorable claim
for relief. Tenn. R. Crim. P. 36.1(b). The Tennessee Supreme Court has stated that a
colorable claim pursuant to Rule 36.1 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.” Wooden, 478 S.W.3d at 593.

       In this case, the Defendant committed a number of offenses while out on bond;
therefore, the sentences he received for those offenses were statutorily required to be
served consecutively. As such, the concurrent sentences he received for such offenses
were illegal sentences. See id. at 595 (giving examples of sentences that are “illegal and
void” to include “sentences that are ordered to be served concurrently where statutorily
required to be served consecutively”). However, our supreme court has concluded that
Rule 36.1 “does not authorize the correction of expired illegal sentences.” State v.
Brown, 479 S.W.3d 200, 211 (Tenn. 2015). According to the State’s motion to consider
post-judgment facts and the affidavit from the Tennessee Department of Correction
Sentence Information Services Manager, all of the sentences that were run concurrently
with the Defendant’s life sentence had expired by September 29, 2016, during the
pendency of this appeal. This court has no authority to correct an expired sentence,
whether illegal or not.

      Moreover, Rule 36.1(c)(3) was recently amended to provide for the following
procedure:

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

Tenn. R. Crim. P. 36.1(c)(3) (2016).

       The Defendant testified that concurrent sentencing was a material part of why he
entered the plea agreement. Concurrent sentencing, i.e., “the illegal aspect,” was clearly
to the Defendant’s benefit given the vast sentence he would have received had he been
sentenced consecutively. Under the revised Rule 36.1, the Defendant’s motion would be
denied even if his sentences were not expired.

       We deem it pertinent to note that to the extent the trial court relied upon the habeas
corpus statute, Tennessee Code Annotated section 29-21-101(b), in denying the
Defendant’s motion to correct an illegal sentence, such reliance was not proper as this
statute applies to defendants seeking a writ of habeas corpus and does not apply to
motions to correct illegal sentences pursuant to Rule 36.1. See Tenn. Code Ann. § 29-21-
101(b)(1) (“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 . . . [t]he petitioner
received concurrent sentencing where there was a statutory requirement for consecutive
sentencing.”); see also State v. Byron J. Walker, No. W2016-00076-CCA-R3-CD, 2017
WL 192742, at *3 (Tenn. Crim. App. Jan. 17, 2017); State v. Sean Blake, No. W2014-
00856-CCA-R3-CO, 2015 WL 112801, at *3 (Tenn. Crim. App. Jan. 8, 2015). Although
the supreme court in Wooden determined that “the definition of ‘illegal sentence’ in Rule
36.1 is coextensive with, and not broader than, the definition of the term in the habeas
corpus context,” the court thereafter gave examples of an illegal sentence which included
                                              -4-
“sentences that are ordered to be served concurrently where statutorily required to be
served consecutively.” Wooden, 478 S.W.3d at 595. The supreme court did not dictate
that the habeas corpus statute was to be applied in 36.1 cases, as done by the trial court in
this case. However, the revision of subdivision (c)(3) of Rule 36.1 “essentially
incorporates the limitations on habeas corpus relief available for plea-bargained illegal
sentences set forth in Tennessee Code Annotated section 29-21-101(b) (2012).” Tenn. R.
Crim. P. 36.1, Advisory Comm’n Cmts.

      Regardless of the trial court’s reasons for denying the Defendant’s Rule 36.1
motion to correct an illegal sentence, the Defendant’s illegal concurrent sentences have
now expired and, additionally, the Defendant benefitted from the bargained-for illegal
sentence and the motion would be denied.

                                     CONCLUSION

      Based on the foregoing authorities and reasoning, we affirm the denial of the
Defendant’s Rule 36.1 motion to correct an illegal sentence.


                                                   _________________________________
                                                   ALAN E. GLENN, JUDGE




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