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

            STATE OF TENNESSEE v. WILLIAM EARL STARKS

                  Appeal from the Circuit Court for Tipton County
                       No. 5403    Joseph H. Walker, Judge


             No. W2015-00743-CCA-R3-CD - Filed November 23, 2015


The defendant, William Earl Starks, appeals the summary dismissal of his motion, filed
pursuant to Tennessee Rule of Criminal Procedure 36.1, to correct what he believes to be
an illegal sentence. Discerning no error, we affirm.

            Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ALAN E.
GLENN and TIMOTHY L. EASTER, JJ., joined.

William Earl Starks, Clifton, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; and Jonathan H. Wardle, Assistant
Attorney General, for the appellee, State of Tennessee.

                                       OPINION

               A Tipton County Circuit Court jury convicted the defendant of the rape of
11-year-old J.D., and the trial court imposed a sentence of 22 years‟ incarceration. See
State v. William Earl Starks, No. W2007-01608-CCA-R3-CD, slip op. at 1-2 (Tenn.
Crim. App., Jackson, July 24, 2008), perm. app. denied (Tenn. Sept. 12, 2012). On direct
appeal, this court affirmed the defendant‟s conviction. See id. On March 18, 2015, the
defendant moved the trial court, pursuant to Tennessee Rule of Criminal Procedure 36.1,
to correct his sentence, arguing that the sentence was illegal because it was excessive.
The trial court summarily dismissed the motion on grounds that the defendant failed to
state a colorable claim for relief under Rule 36.1.

             In this appeal, the defendant challenges the summary dismissal of his
motion, claiming again that his 22-year sentence is illegal because it is excessive.
               Tennessee Rule of Criminal Procedure 36.1, which became effective on
July 1, 2013, provides the defendant and the State an avenue to “seek the correction of an
illegal sentence” by filing a motion in the trial court “at any time” following the
conviction. Tenn. R. Crim. P. 36.1(a). “For purposes of this rule, an illegal sentence is
one that is not authorized by the applicable statutes or that directly contravenes an
applicable statute.” Id. To avoid summary denial of an illegal sentence claim brought
under Rule 36.1, a defendant need only “state[] a colorable claim that the sentence is
illegal.” Tenn. R. Crim. P. 36.1(b). “Because Rule 36.1 does not define „colorable
claim,‟” this court has “adopted the definition of a colorable claim used in the context of
post-conviction proceedings.” State v. David Morrow, No. W2014-00338-CCA-R3-CO,
slip op. at 3-4 (Tenn. Crim. App., Jackson, Aug. 13, 2014) (citing State v. Mark Edward
Greene, No. M2013-02710-CCA-R3-CD, slip op. at 4 (Tenn. Crim. App., Nashville, July
16, 2014)). Supreme Court Rule 28 provides that “[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.” Tenn. Sup. Ct. R. 28 § 2(H). Moreover, in contrast to the
requirements for avoiding summary dismissal of a petition for writ of habeas corpus, the
defendant was not required to support his claim by providing any documentation from the
record. See, e.g., George William Brady, slip op. at 8 (“Under the liberal terms of Rule
36.1, the defendant‟s raising a colorable claim would entitle him to the appointment of
counsel and a hearing on his claim, even without any documentation from the underlying
record to support his claim.”); State v. Brandon Rollen, No. W2012-01513-CCA-R3-CD,
slip op. at 13 (Tenn. Crim. App., Nashville, Sept. 11, 2013).

               Here, the defendant asserts that his 22-year sentence is illegal because it
“was excessive based upon the sentencing principles enumerated in T.C.A. § 40-35-103
and § 40-35-102” and because it “was inconsistent with the purposes of sentencing as set
out in § 40-35-102 and § 40-35-103.” In support of his claim, the defendant notes that
the sentence imposed in other “similarly situated cases” was less than 22 years. “For
purposes of” Rule 36.1, “an 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).
The defendant, a Range I offender, was convicted of a Class A felony, the range of
punishment for which was 15 to 25 years. The defendant received a sentence within that
range. His claim that the sentence exceeded that imposed in other cases is not a colorable
claim for relief under Rule 36.1.

              Accordingly, we affirm the summary dismissal of the defendant‟s motion.

                                                   _________________________________
                                                  JAMES CURWOOD WITT, JR., JUDGE



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