                                                                                        06/28/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs June 20, 2017

   STATE OF TENNESSEE v. JESUS BALTAZAR DIAZ RAMOS, AKA
                   ENRIQUE RUANO DIAZ

                Appeal from the Criminal Court for Davidson County
                    No. 2007-A-510    Seth W. Norman, Judge
                     ___________________________________

                           No. M2016-02187-CCA-R3-CD
                       ___________________________________


Defendant appeals from the denial of his motion pursuant to Rule 36.1 of the Tennessee
Rules of Criminal Procedure in which he sought to correct his allegedly illegal sentence.
We affirm the judgment of the trial court.


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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ALAN E. GLENN and
ROBERT H. MONTGOMERY, JR., JJ., joined.

Jesus Baltazar Diaz Ramos, Clifton, Tennessee, Pro Se.

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


                                       OPINION

                                  Factual Background

       Over ten and one-half years ago, Defendant, Jesus Baltazar Diaz Ramos, aka
Enrique Ruano Diaz, raped a three-year-old female child. The alleged offense date was
December 15, 2006, according to the indictment. After a jury trial, Defendant was
convicted of aggravated rape of a child, sentenced to forty years as a persistent offender
and required to serve 100% of his sentence. This Court affirmed the conviction on
appeal. See State v. Ramos, 331 S.W.3d 408, 410 (Tenn. Crim. App. 2010).
       On August 30, 2016, Defendant filed a motion pursuant to Rule 36.1 of the
Tennessee Rules of Criminal Procedure. In the motion, Defendant argued that his
sentence was illegal because he was sentenced as a persistent offender. Defendant also
argued that the jury was not impartial, that he was improperly classified as a persistent
offender, that certain evidence was admitted during trial, and that the indictment was
invalid. Defendant attached the affidavit for the arrest warrant to his motion. The
affidavit indicated that the offense took place on December 16, 2006.

       After reviewing the motion for relief, the trial court denied the motion without a
hearing. The trial court found that the only cognizable claim in the motion related to
Defendant’s offender classification but that Defendant was sentenced according to statute
as a Range III offender and required to serve 100% of the sentence. Defendant filed a
timely notice of appeal.

                                          Analysis

        On appeal, Defendant argues that he stated a colorable claim and that the trial
court should not have dismissed his motion without a hearing. Defendant again argues
that his sentence is illegal because the indictment and arrest warrant were invalid and that
he was improperly classified as a persistent offender. The State disagrees.

        Rule 36.1 permits a defendant to seek correction of an illegal sentence. “[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) (2015).

        While Defendant’s sentences are not expired, Rule 36.1 permits only the
correction of illegal sentences. 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. at 595. Commenting on appealable errors, the court stated
that those “generally involve attacks on the correctness of the methodology by which a
trial court imposed [the] 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.
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       First, several of Defendant’s claims—including that the affidavit of complaint did
not actually evolve into an arrest warrant, that the evidence “did not support the charge of
aggravated rape of a child,” and that the “indictment . . . did not state all . . . the material
facts and circumstances embrace[d] in the charge”—were not raised in the 36.1 motion
for relief in the trial court. Generally, issues raised for the first time on appeal are
waived. See Fayne v. Vincent, 301 S.W.3d 162, 171 (Tenn. 2009). Additionally,
Defendant’s claim that the trial court lacked jurisdiction because of a discrepancy
between the date on the arrest warrant and the date on the indictment is an attack to the
validity of the conviction, not his sentence. Rule 36.1 was designed to “provide an
avenue for correcting allegedly illegal sentences” rather than challenging the underlying
conviction. State v. Jimmy Wayne Wilson, No. E2013-02354-CCA-R3-CD, 2014 WL
1285622, at *2 (Tenn. Crim. App. Mar. 31, 2014), perm. app. denied (Tenn. Nov. 19,
2014).

        Finally, Defendant’s claim that his sentence is excessive or that his offender
classification is incorrect is classified as an appealable error and therefore not proper for a
Rule 36.1 motion. See State v. Brian E. Dodson, No. E2016-00037-CCA-R3-CD, 2016
WL 3131272 (Tenn. Crim. App. Apr. 27, 2016) (holding that claim of an excessive
within-range sentence is not cognizable under Rule 36.1), perm. app. denied (Tenn. Sept.
23, 2016); State v. Lionel R. Lindsey, No. E2014-02096-CCA-R3-CD, 2015 WL
5692072, at *2 (Tenn. Crim. App. Sept. 29, 2015) (determining that errors in offender
classification “are not within the purview of . . . Rule 36.1”), perm. app. denied (Tenn.
Feb. 18, 2016). Therefore, for the purposes of Rule 36.1 review, Defendant has not
presented a claim of a “fatal error” that would render his sentence illegal.

                                         Conclusion
     The trial court properly denied the motion. Defendant is not entitled to relief. The
judgment of the trial court is affirmed.


                                               ____________________________________
                                               TIMOTHY L. EASTER, JUDGE




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