                                                                                         04/17/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs April 3, 2018

             STATE OF TENNESSEE v. CAMERON BUCHANAN

               Appeal from the Criminal Court for Shelby County
  Nos. 98-09629, 98-09630, 98-09631, 98-09632, 98-09633, 98-09634, 98-09635, 98-
               09636, 98-09637, 98-09638, 98-09639, 98-09641
                            James M. Lammey, Judge
                     ___________________________________

                           No. W2017-01795-CCA-R3-CD
                       ___________________________________


“The Movant,” Cameron Buchanan, filed a “Motion to Vacate, Correct Clerical Error,
and/or, otherwise Set Aside an Illegal Sentence” (“the motion”). The gist of the
Movant’s claim is that his fifteen-year sentence for especially aggravated kidnapping in
case 98-09641 was ordered to be served concurrently, not consecutively, with his fifteen-
year sentence for especially aggravated kidnapping in case 98-09629, and therefore, his
effective sentence was twenty-five years, not thirty years. The trial court treated the
motion as a Tennessee Rule of Criminal Procedure 36 motion to correct clerical mistakes
in the judgments and summarily dismissed the motion finding “that there [we]re no
clerical errors as alleged by [the Movant].” We determine that there are clerical errors in
the judgments for cases 98-09635 through 98-09639 and case 98-09641. The errors in
the judgments also correspond with the language of the “Negotiated Plea Agreement”
forms for cases 98-09635 through 98-09639 and case 98-09641. Additionally, the trial
court did not address the Movant’s Tennessee Rule of Criminal Procedure 36.1 claim that
his sentence was illegal. The judgment summarily dismissing the motion is reversed, and
the case remanded for correction of the clerical errors, which may require appointment of
counsel and a hearing, and for determination as to whether or not the motion stated a
colorable claim under Rule 36.1.



 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed
                                  and Remanded

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and J. ROSS DYER, JJ., joined.
Cameron Buchanan, Memphis Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Stephanie Johnson,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                              OPINION

       The Shelby County Grand Jury indicted Cameron Buchanan, “the Movant,” in
thirteen separate cases with three charges of especially aggravated kidnapping, six
charges of aggravated robbery, three charges of aggravated burglary, and one charge of
reckless endangerment. The Movant pled guilty on April 28, 2000, in cases 98-09629 to
-38 and on May 1, 2000, in cases 98-09639 and 98-09641. A nolle prosequi was entered
in case 98-09640. The record on appeal contains twelve judgments and eleven
“Negotiated Plea Agreement” forms (“plea forms”).1

        In August 2017, the Movant filed a pro se “Motion to Vacate, Correct Clerical
Error, and/or, otherwise Set Aside an Illegal Sentence” (“the motion”). The motion
stated that it was filed “pursuant to Tn. R. Crim. P. Rule 36.1” and asked the trial court to
enter “an Order vacating and/or setting aside or correcting the illegal sentence(s) and
judgments in this particular cause.” The motion also stated that Movant “would show the
following [grounds] for § 4923 Motion to Correct Clerical Error in the judgment[.]”2 The
gist of the Movant’s claim is that his fifteen-year sentence for especially aggravated
kidnapping in case 98-09641 was ordered to be served concurrently, not consecutively,
with his fifteen-year sentence for especially aggravated kidnapping in case 98-09629, and
therefore, his effective sentence was twenty-five years, not thirty years.

       The trial court treated the motion as a Tennessee Rule of Criminal Procedure 36
motion to correct clerical mistakes in the judgments and summarily dismissed the motion
finding “that there [we]re no clerical errors as alleged by [the Movant].” The trial court
did not address the Movant’s claim that the sentence was illegal under Tennessee Rule of
Criminal Procedure 36.1.

     For the reasons set forth below, we determine that there are clerical errors in the
judgments for cases 98-09635 through 98-09639 and case 98-09641 and the


1
 No plea form in case 98-09630 was included in the record.
2
 It is unclear what the Movant intended by reference to “§ 4923 Motion.” In fact, the entire motion is
difficult to follow and understand. In any event, the motion was treated by the trial court as a Tennessee
Rule of Criminal Procedure 36 motion to correct clerical error.
                                                  -2-
corresponding “Negotiated Plea Agreement” forms for cases 98-09635 through 98-09639
and case 98-09641.

       The following chart, with emphasis added to show the clerical errors in
overlapping case numbers, is taken from the State’s brief and provides information
gleaned from the judgments.


 Case No.            Offense              Concurrent        Consecutive        Years
                                            With               With          Sentenced

 98-09629     Especially Aggravated     98-09630 to -31   98-09632 to -41       15
                   Kidnapping
 98-09630      Aggravated Robbery       98-09629,         98-09632 to -41       10
                                        98-09631
 98-09631      Aggravated Burglary      98-09629 to -30   98-09632 to -41        3

 98-09632      Aggravated Robbery       98-09633 to -41   98-09629 to -31       10

 98-09633      Aggravated Burglary         98-09632,      98-09629 to -31        3
                                        98-09634 to -41
 98-09634      Aggravated Robbery       98-09632 to -33   98-09629 to -31       10
                                        98-09635 to -41
 98-09635     Reckless Endangerment     98-09629 to -41   98-09629 to -31        2

 98-09636      Aggravated Robbery       98-09629 to -41   98-09629 to -31       10

 98-09637      Aggravated Burglary      98-09629 to -41   98-09629 to -31        3

 98-09638      Aggravated Robbery        98-9629 to -41    98-0929 to -31       10

 98-09639      Aggravated Robbery       98-09629 to -41   98-09629 to -31       10

 98-09641     Especially Aggravated     98-09629 to -41   98-09629 to -31       15
                   Kidnapping


       As can be seen from the chart, the sentences in case 98-09635 through 98-09639
and case 98-09641 are ordered to run both concurrently with and consecutively to the
sentences in case 98-09629 through 98-09631. The clerical errors make a difference in
the total effective sentence. If the sentences in case 98-09629 and case 98-09641 are to
be served consecutively the effective sentence is thirty years. If however, case 98-09629
and case 98-09641 are to be served concurrently, then the ten year sentence in 98-09634,
                                            -3-
which was unambiguously ordered to be served consecutively with case 98-09629, would
make the total effective sentence twenty-five years.

       In many instances, a trial court can utilize a plea form to determine if there is a
clerical error in a judgment, and if there is a clerical error, to determine the appropriate
action needed to correct the error. In this case, because the plea forms for case 98-09635
through 98-09639 and case 98-09641 have the same overlap in case numbers as the
judgments, they provide no clarification or guidance. Additionally, no transcript of the
plea submission hearing is included in the record.

        The Movant “is entitled to have the trial court correct the clerical error in the
judgments in the manner prescribed by Rule 36.” State v. Brown, 479 S.W.3d 200, 213
(Tenn. 2015). The judgment summarily dismissing the motion is reversed, and the case
remanded for correction of the clerical errors. In determining how to correct the clerical
errors, the trial court shall determine if it is necessary to have the plea submission hearing
transcribed, to appoint counsel, or to have an evidentiary hearing.

        Additionally, the Movant also claims that his sentence which was entered as a
result of a plea agreement was an illegal sentence based on Tennessee Rule of Criminal
Procedure Rule 36.1. Rule 36.1(b)(2) requires the trial court to “review the motion, any
response, and, if necessary, the underlying record” to determine if the motion states a
colorable claim[.]” If the court determines that the motion fails to state a colorable claim
it “shall enter an order summarily denying the motion.” If the court determines that “the
motion states a colorable claim that the unexpired sentence is illegal, the court shall
determine if a hearing is necessary,” and “if the defendant is indigent and is not already
represented by counsel, the court shall appoint counsel to represent the defendant.” Tenn.
R. Crim. P. 36.1(b)(3).

      Accordingly, we reverse the trial court’s summary dismissal of the motion. We
remand this matter to the trial court for correction of the clerical errors in accordance
with Rule 36 and for determination of whether or not the motion states a colorable claim
under Rule 36.1.


                                                  _________________________________
                                                  ROBERT L. HOLLOWAY, JR., JUDGE




                                            -4-
