                                                                                        01/10/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs August 28, 2018

            STATE OF TENNESSEE v. TERRELL L. LAWRENCE

                Appeal from the Criminal Court for Davidson County
                No. 2001-A-272    Angelita Blackshear Dalton, Judge
                      ___________________________________

                           No. M2018-00576-CCA-R3-CD
                       ___________________________________


Defendant, Terrell L. Lawrence, appeals the trial court’s summary dismissal of his pro se
motion to correct an illegal sentence filed pursuant to Tennessee Rule of Criminal
Procedure 36.1. Having reviewed the record and the briefs of the parties, we conclude
that Defendant has failed to state a cognizable claim for relief, and therefore, the trial
court did not err in summarily dismissing Defendant’s motion. Accordingly, the
judgment of the trial court is affirmed.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and TIMOTHY L. EASTER, JJ., joined.

Terrell L. Lawrence, Only, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Amy Hunter, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

       Defendant pled guilty to aggravated assault, second degree murder, and
carjacking. He received an agreed sentence of four years for aggravated assault, twenty-
five years for second degree murder, and ten years for carjacking. The assault and
carjacking sentences were ordered to be served concurrently to each other, but
consecutively to the second degree murder sentence, for an effective sentence of thirty-
five years. Defendant filed a petition for post-conviction relief alleging that he was
denied the effective assistance of counsel during the guilty plea process. The post-
conviction court denied the petition, and this court affirmed the denial. Terrell Lawrence
v. State, No. M2002-01851-CCA-R3-PC, 2003 WL 21877668, at *1 (Tenn. Crim. App.
Aug. 7, 2003).

       On November 14, 2017, more than sixteen years after his guilty plea, Defendant
filed a “Rule 36.01 Motion to Correct an Illegal Sentence.” The trial court summarily
dismissed the motion. In a written order, the trial court concluded:

        The Petitioner contends that the sentencing court erred in approving his
        sentence because [ ] T.C.A. § 40-20-111(a) provides that

           When any person has been convicted of two (2) or more offenses,
           judgment shall be rendered on each conviction after the first
           conviction; provided that the terms of imprisonment to which the
           convicted person is sentenced shall run concurrently or
           cumulatively in the discretion of the trial judge. The exercise of
           the discretion of the trial judge shall be reviewable by the supreme
           court on appeal.

        This Court finds that the sentence and jail credit were properly imposed
        pursuant to T.C.A. § 40-20-111(a), and that the sentence is not illegal.

       Rule 36.1 permits a defendant to seek correction of an unexpired illegal sentence
at any time. See State v. Brown, 479 S.W.3d 200, 211 (Tenn. 2015). “[A]n illegal
sentence is one that is not authorized by the applicable statutes or that directly
contravenes an applicable statute.” Tenn. R. Crim. P. 36.1(a). Our supreme court has
interpreted the meaning of “illegal sentence” as defined in Rule 36.1 and concluded that
the definition “is coextensive, and not broader than, the definition of the term in the
habeas corpus context.” State v. Wooden, 478 S.W.3d 585, 594-95 (Tenn. 2015). The
court then reviewed the three categories of sentencing errors: clerical errors (those arising
from a clerical mistake in the judgment sheet), appealable errors (those for which the
Sentencing Act specifically provides a right of direct appeal) and fatal errors (those so
profound as to render a sentence illegal and void). Id. Commenting on appealable errors,
the court stated that those “generally involve attacks on the correctness of the
methodology by which a trial court imposed sentence.” Id. In contrast, fatal errors
include “sentences imposed pursuant to an inapplicable statutory scheme, sentences
designating release eligibility dates where early release is statutorily prohibited, sentences
that are ordered to be served concurrently where statutorily required to be served
consecutively, and sentences not authorized by any statute for the offenses.” Id. The
court held that only fatal errors render sentences illegal. Id.

       A trial court may summarily dismiss a Rule 36.1 motion if it does not state a
colorable claim for relief. Tenn. R. Crim. P. 36.1(b)(2). A “colorable claim” is not
defined in Rule 36.1; however, our supreme court has held “that the definition of
‘colorable claim’ in Rule 28, Section 2(H) of the Rules of the Tennessee Supreme Court

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applies to the term as used in Rule 36.1. Rule 28, section 2(H) provides: “A colorable
claim is a claim . . . that if taken as true, in the light most favorable to [the defendant],
would entitle [the defendant] to relief[.]” “A trial court may consult the record of the
proceeding from which the allegedly illegal sentence emanated to determine whether a
Rule 36.1 motion sufficiently states a colorable claim.” Wooden, 478 S.W.3d at 594.
“Whether [a] motion states a colorable claim for correction of an illegal sentence under
Rule 36.1 is a question of law, to which de novo review applies.” Id. at 589.

        On appeal, Defendant presents the following claims: 1) that the “[t]rial [c]ourt was
in error when it ordered the appellant to serve count two consecutive to count three;” 2)
that the “[t]rial [c]ourt was in error when it allowed the appellant to except [sic] a plea to
serve concurrent and consecutive sentences;” and 3) that the trial court improperly
granted pretrial jail credit as part of the plea agreement for count two. Taking all of
Defendant’s assertions as true and viewing them in the light most favorable to him, we
have determined that Defendant has not presented a colorable claim for relief from an
illegal sentence.

        First, Defendant complains that the trial court erred by ordering count two to be
served consecutively to count three because “when judgment was pronounced and/or
accepted on conviction two there was no conviction three.” (emphasis in original). He
also asserts that he is required to “serve count [three] before he served count [two].”
Defendant’s argument as to this claim does not challenge the effective sentence imposed
by the trial court but rather the process by which the trial court announced the sentences.
State v. Carvin L. Thomas, No. M2016-01813-CCA-R3-CD, 2017 WL 1830104, at *2
(Tenn. Crim. App. May 5, 2017). Rule 36.1 “is directed at the sentence finally imposed,
not the methodology by which it is imposed.” State v. Jonathan T. Deal, No. E2013-
02623-CCA-R3-CD, 2014 WL 2802910, at *2 (Tenn. Crim. App. at Knoxville, June 17,
2014). Therefore, this claim is not cognizable under Rule 36.1, and Defendant is not
entitled to relief.

        Next, Defendant argues that the trial court erred by allowing him to accept a guilty
plea with a mixture of consecutive and concurrent sentences. T.C.A § 40-20-111(a)
states:

        When any person has been convicted of two (2) or more offenses,
        judgment shall be rendered on each conviction after the first conviction;
        provided, that the terms of imprisonment to which the convicted person
        is sentenced shall run concurrently or cumulatively in the discretion of
        the trial judge. The exercise of the discretion of the trial judge shall be
        reviewable by the supreme court on appeal.

According to the plain language of the statute, it is within the trial court’s discretion to
impose partial consecutive sentences. See id.; State v. Ronald Lynn Cook, No. E2013-

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01441-CCA-R3-CD, 2014 WL 644700, at *2 (Tenn. Crim. App. Feb. 19, 2014)
(concluding that the trial court did not abuse its discretion in imposing partial consecutive
sentences); State v. Branham, 501 S.W.3d 577, 596-97 (Tenn. Crim. App. 2016) (same).

       In this case, the trial court within its discretion ordered Defendant’s four-year
sentence for aggravated assault in count two and his ten-year sentence for carjacking in
count six to run concurrently with each other and consecutively to the twenty-five year
sentence imposed for second degree murder in count three. This claim does not render
Defendant’s sentence illegal and is insufficient to establish a colorable claim for relief
under Rule 36.1.

        Finally, Defendant argues that trial court erred by awarding him pretrial jail credit
as part of his plea agreement in count two. However, this is not a colorable claim for
relief. In State v. Brown, 479 S.W.3d 200, 212-13 (Tenn. 2015) the Supreme Court held:

        While we certainly agree with the Court of Criminal Appeals that a
        statute requires trial courts to award pretrial jail credits, we conclude that
        the intermediate appellate court erred by holding that a trial court’s
        erroneous failure to comply with this statute renders the sentence illegal.
        Although pretrial jail credits allow a defendant to receive credit against
        his sentence for time already served, awarding or not awarding pretrial
        jail credits does not alter the sentence in any way, although it may affect
        the length of time a defendant is incarcerated. A trial court’s failure to
        award pretrial jail credits may certainly be raised as error on appeal, as
        the defendant in Stubbs chose to do. But a trial court’s failure to award
        pretrial jail credits does not render the sentence illegal and is insufficient,
        therefore, to establish a colorable claim for relief under Rule 36.1. See
        Wooden, 478 S.W.3d at 595-96 (defining colorable claim as “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”).

Defendant is not entitled to relief on this claim.

                                      CONCLUSION

              Accordingly, the judgment of the trial court is affirmed.

                                    ____________________________________________
                                    THOMAS T. WOODALL, JUDGE




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