                                                                                        02/20/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs June 25, 2019

               STATE OF TENNESSEE v. GARRICK GRAHAM

                Appeal from the Criminal Court for Sullivan County
                    No. S61-426 James F. Goodwin, Jr., Judge
                     ___________________________________

                           No. E2018-02162-CCA-R3-CD
                       ___________________________________

The Petitioner, Garrick Graham, filed a pro se motion to correct an illegal sentence
pursuant to Tennessee Rule of Criminal Procedure 36.1. The Sullivan County Criminal
Court granted the motion in part and denied the motion in part, and the Petitioner appeals
the trial court’s denial. Based upon our view of the record and the parties’ briefs, we
affirm the judgment of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which James Curwood
Witt, Jr., and J. ROSS DYER, JJ., joined.

Garrick Graham, Pro Se, Hartsville, Tennessee.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Assistant Attorney General; Barry Staubus, District Attorney General; and Jack Lewis
Combs, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                I. Factual Background

       In January 2012, the Petitioner was charged by presentment with several offenses
stemming from his involvement in a series of drug transactions. In April 2013, a Sullivan
County Criminal Court Jury found him guilty of numerous drug-related offenses,
including charges involving the sale and delivery of a substance containing cocaine near
a recreation center, a school, and a daycare. Specifically, the jury convicted the
Petitioner of the delivery of one-half gram or more of cocaine in counts one, three, and
five; the sale of one-half gram or more of cocaine in counts two, four, and six; the
delivery of one-half gram or more of cocaine within 1,000 feet of a recreation center in
count seven; the sale of one-half gram or more of cocaine within 1,000 feet of a
recreation center in count eight; facilitation of the delivery of one-half gram or more of
cocaine within 1,000 of a school in count nine; facilitation of the sale of one-half gram or
more of cocaine within 1,000 feet of a school in count ten; facilitation of the of delivery
of one-half gram or more of cocaine within 1,000 feet of a daycare in count eleven;
facilitation of the sale of one-half gram or more of cocaine within 1,000 feet of a daycare
in count twelve; the delivery of one-half gram or more of cocaine in count thirteen;
facilitation of the sale of one-half gram or more of cocaine in count fourteen; conspiracy
to sell more than twenty-six grams of cocaine within 1,000 feet of a school in count
twenty-one; and conspiracy to deliver more than twenty-six grams of cocaine within
1,000 feet of a school in count twenty-two.

        The trial court merged some of the counts and sentenced the Petitioner as a Range
I, standard offender to twelve years for each offense in counts one, three, and five; twelve
years for each offense in counts seven and nine; six years for each offense in counts
eleven and thirteen; and twenty-five years for count twenty-one. The trial court imposed
partial consecutive sentencing for a total effective sentence of thirty-seven years.

      On direct appeal, the Petitioner challenged, in pertinent part, the length of his
sentences and the imposition of consecutive sentencing. State v. Garrick Graham,
E2014-01267-CCA-R3-CD, 2016 WL 892013, at *17 (Tenn. Crim. App. at Knoxville,
Mar. 8, 2016). This court affirmed the length of the sentences and the trial court’s
imposition of consecutive sentencing. Id. at *22.

       In October 2018, the Petitioner filed a motion pursuant to Tennessee Rule of
Criminal Procedure 36.1 to correct an illegal sentence. In his motion, he claimed that the
trial court erred by applying the maximum sentences within the appropriate ranges
without a jury’s determining the appropriate enhancement factors and that the mandatory
minimum sentence required by the Drug-Free School Zone Act did not apply to
convictions involving a recreation center.

        In November 2018, the trial court issued an order directing that the State enter a
corrected judgment of conviction for count eleven because the Drug-Free School Zone
Act did not apply to facilitation convictions; therefore, the trial court had erred by
ordering that the Petitioner serve three years of his six-year sentence at one hundred
percent. As to the other arguments in the motion, the trial court found that the Petitioner
failed to state a colorable claim and dismissed the motion without a hearing and without
the appointment of counsel.

                                      II. Analysis

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       On appeal, the Petitioner contends that the trial court improperly denied his Rule
36.1 motion to correct an illegal sentence. He claims that he is entitled to relief because
his sentences were unconstitutional under Blakely v. Washington, 542 U.S. 296 (2004),
and because the trial court improperly applied the mandatory sentencing provisions of the
Drug-Free School Zone Act. The State argues that the trial court properly denied the
Petitioner’s motion to correct an illegal sentence. We agree with the State.

       Rule 36.1, Tennessee Rules of Criminal Procedure, permits a defendant to seek
correction of an 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). As
our supreme court has explained, only “fatal” sentencing errors render sentences illegal.
State v. Wooden, 478 S.W.3d 585, 595 (Tenn. 2015). “Included in this category are
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. “Claims of appealable
error generally involve attacks on the correctness of the methodology by which a trial
court imposed sentence.” Id. Few appealable errors rise to the level of an illegal
sentence. Id.

        If a Rule 36.1 motion states a “colorable claim that the sentence is illegal,” the
trial court shall appoint counsel and hold a hearing on the motion. See Tenn. R. Crim. P.
36.1(b). Our supreme court has recognized that “Rule 36.1 does not define ‘colorable
claim.’” Wooden, 478 S.W.3d at 592. Nevertheless, the court explained that “for
purposes of Rule 36.1, . . . a ‘colorable claim’ means 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.” Id. at 593.

       A motion filed pursuant to Rule 36.1 “must state with particularity the factual
allegations on which the claim for relief from an illegal sentence is based.” Id. at 594. In
determining whether a motion states a colorable claim, the trial court “may consult the
record of the proceeding from which the allegedly illegal sentence emanated.” Id.
Whether a Rule 36.1 motion states a colorable claim is a question of law, which we
review de novo. Id. at 588.

        Turning to the instant case, the Petitioner argues that his motion to correct an
illegal sentence was improperly denied because pursuant to Blakely, a jury must find
enhancing factors under Tennessee Code Annotated Section 40-35-114 before they can
be applied to a trial court’s sentencing decisions. We disagree with the Petitioner. “In
2005, the general assembly amended the Sentencing Act to bring our sentencing law into
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compliance with federal constitutional requirements as enunciated in Blakely v.
Washington, 542 U.S. 296 (2004), and its progeny.” State v. Larry R. Porterfield, No.
M2012-01484-CCA-R3-CD, 2013 WL 451894, at *2 (Tenn. Crim. App. at Nashville,
Feb. 6, 2013). As this court has explained,

              Our revised sentencing statutes, which provide that a trial
              court, in imposing a specific sentence within a range, “shall
              consider, but is not bound by” certain advisory sentencing
              guidelines, including that “[t]he sentence length within the
              range should be adjusted, as appropriate, by the presence or
              absence of mitigating and enhancement factors,” Tenn. Code
              Ann. § 40-35-210(c)(2), does not run afoul of Blakely.

State v. Brian Hervery, No. W2010-00675-CCA-R3-CD, 2011 WL 1225725, at *8
(Tenn. Crim. App. Mar. 31, 2011) (quoting State v. Carter, 254 S.W.3d 335, 345 (Tenn.
2008)). The Appellant was sentenced in 2013 under the 2005 amended Sentencing Act.
Therefore, we find no merit to his Blakely claim. In any event, this court has held that “a
Blakely violation does not meet the Rule 36.1 definition of an illegal sentence and does
not establish a void or otherwise illegal judgment.” See State v. Rafael Antonio Bush,
No. M2014-01193-CCA-R3-CD, 2014 WL 7204637, at *4 (Tenn. Crim. App. at
Nashville Dec. 18, 2014); see also State v. Atlanta Pearl Hardy, No.M2017-00537-CCA-
R3-CD, 2017 WL 3492060, at *3 (Tenn. Crim. App. at Nashville, Aug. 15, 2017).

       The Petitioner also alleges that the trial court committed errors in its application of
the Drug-Free School Zone Act. He asserts that in count seven, the statute did not
authorize one hundred percent service of the minimum punishment in the applicable
range and that in count twenty-one, he should not have been sentenced to a Class A
felony. The trial court found that the Petitioner misconstrued the statute in both cases.
We agree with the trial court.

        Regarding count seven, delivering one-half gram or more of cocaine within 1,000
feet of a recreation center, Tennessee Code Annotated Section 39-17-432(b)(3) provides
that a defendant convicted of the sale or delivery of drugs under Section 39-17-417 near a
recreation center is subject to additional fines, but not “additional incarceration.” As
noted by the trial court, this section provides that a defendant’s felony class cannot be
elevated to a higher class, but it does not apply to the application of a mandatory
minimum sentence. The governing statute clarifies that “[n]othing in this section shall be
construed as prohibiting the judge from sentencing a defendant who violated subsection
(b) to any authorized term of incarceration in excess of the minimum sentence for the
defendant’s appropriate range of sentence.” Tenn. Code Ann. § 39-17-432(f). Here, the

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Petitioner was sentenced within the appropriate range, and one hundred percent service of
the minimum range was authorized by statute.

        Regarding count twenty-one, the Petitioner asserts that the trial court violated the
statute when it sentenced him for a Class A felony for conspiracy to sell twenty-six grams
or more of cocaine within 1,000 feet of a school. However, the trial court correctly
determined that while the offense was a Class B felony under Section 39-17-417(i)(5),
the Drug-Free School Zone Act enhanced the crime to a Class A felony under Section 39-
17-432(b)(1). Thus, the twenty-five-year sentence imposed by the trial court was not
prohibited by statute.

                                     III. Conclusion

       Based upon the record and the parties’ briefs, we affirm the trial court’s denial of
the Petitioner’s Rule 36.1 motion to correct an illegal sentence.

                                                 _________________________________
                                                 NORMA MCGEE OGLE, JUDGE




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