                                                                                        08/28/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                 June 27, 2017 Session

           STATE OF TENNESSEE v. JAMES MARK THORNTON

                  Appeal from the Circuit Court for Cocke County
             Nos. 6617, 6618, 6820, & 9827   Ben W. Hooper II, Judge


                            No. E2016-01022-CCA-R3-CD


The State appeals as of right from the Cocke County Circuit Court’s grant of the
Defendant’s, James Mark Thornton’s Tennessee Rule of Criminal Procedure 36.1 motion
to correct an illegal sentence. The State contends that the trial court erred because the
challenged sentence was not illegal. We agree with the State and dismiss the Defendant’s
Rule 36.1 motion.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;
                                  Case Dismissed

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and ROBERT L. HOLLOWAY, JR., JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; John H. Bledsoe, Deputy Attorney
General; James B. Dunn, District Attorney General; and William Brownlow Marsh,
Assistant District Attorney General, for the appellant, State of Tennessee.

Nikolas Kear, Gatlinburg, Tennessee, for the appellee, James Mark Thornton.

                                       OPINION

        In June 2000, the Defendant pled guilty to numerous offenses involving the sale of
cocaine in three separate cases: 6617, 6618, and 6820. All of the Defendant’s sentences
were ordered to be served concurrently for a total effective sentence of eight years. In
2006, the Defendant pled guilty to another drug offense in case 9827, and received a
twenty-five-year sentence. As part of that plea agreement, the Defendant waived his
right to a probation revocation hearing for cases 6617, 6618, and 6820. Those sentences
were ordered into execution. However, the sentences from cases 6617, 6618, and 6820
were ordered to be served concurrently to the sentence in case 9827. The sentences for
all of the Defendant’s state convictions were ordered to be served concurrently to a
separate federal sentence.

       In February 2008, the Defendant filed a petition for writ of habeas corpus, alleging
that his sentences in cases 6617, 6618, 6820, and 9827 were void because he had been
released on bond in cases 6617 and 6618 when he committed the offenses at issue in case
6820. The habeas corpus court denied the Defendant’s petition, and this court affirmed
the denial on direct appeal. James Mark Thornton v. State, E2009-00399-CCA-R3-HC,
slip op. at 1 (Tenn. Crim. App. July 15, 2010). A panel of this court concluded that the
Defendant had received an illegal sentence in case 6820, but that he had failed to
establish that he was restrained of his liberty as a result of the judgments in cases 6617,
6618, and 6820. Id. at 7. With respect to case 9827, the panel concluded that “the
concurrent alignment of the . . . sentence imposed in case number 9827 [with the
sentences in cases 6617, 6618, and 6820] [did] not render that judgment void.” Id. at 8-9.

       In 2015, the Defendant filed separate Rule 36.1 motions to correct illegal
sentences in the three June 2000 cases and case 9827. The motions were consolidated,
and the Defendant alleged that he should be allowed to withdraw his guilty plea in case
9827 because he had received an illegal sentence in case 6820 and that the resolution of
his probation violation for cases 6617, 6618, and 6820 was part of a “global” plea
agreement, which also involved case 9827. At the evidentiary hearing on this matter, the
Defendant testified that he would not have pled guilty to case 9827 if “the State had
insisted” that his sentence be served consecutively to cases 6617, 6618, and 6820. At the
conclusion of the hearing, the trial court granted the Defendant’s Rule 36.1 motion,
stating that the Defendant’s sentence in case 9827 was void because it was “intertwined”
with case 6820, in which the Defendant had received an illegal sentence. The State
timely appealed to this court.

        At the time the Defendant’s motion was filed,1 Rule 36.1 allowed for either the
defendant or the State to “seek the correction of an illegal sentence.” Tenn. R. Crim. P.
36.1(a) (2015). “Illegal sentence” was defined in the rule as a sentence “that [was] not
authorized by the applicable statutes or that directly contravene[d] an applicable statute.”
Id. If an illegal sentence “was entered pursuant to a plea agreement” and “the illegal
provision was a material component of the plea agreement,” then Rule 36.1 authorized
the trial court to allow the defendant to withdraw their plea. Tenn R. Crim. P. 36.1(c)(3).

       The term “illegal sentence” “is synonymous with the habeas corpus concept of a
‘void’ sentence.” Cox v. State, 53 S.W.3d 287, 292 (Tenn. Crim. App. 2001), overruled

1
  We note that Rule 36.1 was amended effective July 1, 2016, to explicitly prohibit motions to correct
expired illegal sentences and motions to correct illegal sentences that were part of a plea agreement when
the “illegal aspect was to the defendant’s benefit.” Tenn. R. Crim. P. 36.1 (2017).
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on other grounds, Moody v. State, 160 S.W.3d 512 (Tenn. 2005). “[F]ew sentencing
errors [will] render [a sentence] illegal.” State v. Wooden, 478 S.W.3d 585, 595 (Tenn.
2015). Examples of illegal sentences 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 offense.” Id.

       We agree that the Defendant’s sentence in case 6820 was illegal. However, even
the original version of Rule 36.1 does “not authorize the correction of expired illegal
sentences.” State v. Brown, 479 S.W.3d 200, 211 (Tenn. 2015). The Defendant
concedes that his sentences in cases 6617, 6618, and 6820 are expired. Likewise, the
Defendant concedes that his sentence in case 9827 was not illegal. Rather, the Defendant
argues that concurrent sentencing for case 6820 with his remaining cases was a material
element of his plea agreement in 9827. However, the record belies that assertion.

       The Defendant testified at the evidentiary hearing that he would not have pled
guilty in case 9827 if he had been required to serve his sentence in that case
consecutively to his sentences in 6617, 6618, and 6820. As this court recognized in the
Defendant’s habeas corpus appeal, there was no requirement that case 9827 be served
consecutively to cases 6617, 6618, and 6820. Furthermore, correction of the illegal
sentence in case 6820 would not require that it, or the sentences from cases 6617 and
6618, be served consecutively to case 9827. Therefore, even if the sentence in case 6820
was corrected and ordered to be served consecutively to the sentences in cases 6617 and
6618, it would not affect the Defendant’s sentence in case 9827 because the twenty-five-
year sentence is being served concurrently to the sentences in the June 2000 cases and
would still be longer than those sentences. Accordingly, the trial court erred when it
concluded that case 6820 was “intertwined” with case 9827 and that the illegality in case
6820 was a material component of the plea agreement in case 9827.

        Upon consideration of the foregoing and the record as a whole, the judgment of
the trial court is reversed, and the Defendant’s Rule 36.1 motion is dismissed.



                                                 _________________________________
                                                 D. KELLY THOMAS, JR., JUDGE




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