                                                                                       04/09/2019
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                        Assigned on Briefs February 5, 2019

              STATE OF TENNESSEE v. DERRICK K. GARRIN

                Appeal from the Criminal Court for Shelby County
        No. 92-05131, 92-05132, 92-05133, 92-05134 W. Mark Ward, Judge
                     ___________________________________

                          No. W2018-01186-CCA-R3-CD
                      ___________________________________


The defendant, Derrick K. Garrin, appeals from the Shelby County Criminal Court’s
denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal
sentence. Discerning no error, we affirm the judgment of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS,
P.J. and CAMILLE R. MCMULLEN, J., joined.

Derrick K. Garrin, Whiteville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Amy Weirich, District Attorney General; and Trayce Jones, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                             Facts and Procedural History

        In 1992, the defendant was convicted of two counts of felony murder and two
counts of attempted second-degree murder and is currently serving an effective sentence
of life imprisonment plus twenty-one years in the Tennessee Department of Correction.
This Court affirmed the defendant’s convictions on direct appeal. State v. Derrick K.
Garrin, No. 02C01-9501-CR-00028, 1996 WL 275034, at *1 (Tenn. Crim. App. May 24,
1996), no perm. app. filed. The defendant subsequently filed a petition for post-
conviction relief, but he was unsuccessful in both the trial court and on appeal. Derrick
K. Garrin v. State, No. 02C01-9707-CR-00272, 1998 WL 518133, at *1 (Tenn. Crim.
App. Aug. 21, 1998), no perm. app. filed. The defendant next filed a petition for writ of
error coram nobis, alleging his sentence was imposed in contravention of his right to trial
by jury, but was again unsuccessful. Derrick Garrin v. State, No. W2014-00052-CCA-
R3-ECN, 2014 WL 6491045, at *1 (Tenn. Crim. App. Nov. 20, 2014), no perm. app.
filed.

        On May 8, 2018, the defendant filed a motion to correct an illegal sentence,
pursuant to Tennessee Rule of Criminal Procedure 36.1. He alleged his sentence is
illegal because he was convicted of attempted second-degree murder as a lesser-included
offense of attempted felony murder, and, because our Supreme Court held attempted
felony murder does not exist as an offense in Tennessee, his effective twenty-one year
sentence for those convictions should be vacated. The trial court denied the Rule 36.1
motion for failure to state a colorable claim, noting the defendant was not sentenced for
attempted felony murder. The defendant timely appealed.

                                          Analysis

        Whether a motion states a colorable claim for correction of an illegal sentence
under Rule 36.1 is a question of law calling for de novo review. State v. Wooden, 478
S.W.3d 585, 589 (Tenn. 2015) (citing Summers v. State, 212 S.W.3d 251, 255 (Tenn.
2007). Rule 36.1 provides that the petitioner “may, at any time, seek the correction of an
illegal sentence by filing a motion to correct an illegal sentence in the trial court in which
the judgment of conviction was entered.” A sentence is illegal if it is not authorized by
the applicable statutes or directly contravenes an applicable statute. Tenn. R. Crim. P.
36.1 (a)(2). If the motion states a colorable claim, the trial court shall appoint counsel if
the petitioner is indigent and not already represented by counsel and hold a hearing on the
motion, unless the parties waive the hearing. Tenn. R. Crim. P. 36.1 (b)(3). 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.”
Wooden, 478 S.W.3d at 593. “The movant must attach to the motion a copy of each
judgment order at issue and may attach other relevant documents.” Tenn. R. Crim. P.
36.1 (a)(1).

       “[F]ew sentencing errors render [a sentence] illegal.” Id. at 595. 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. However, “attacks on the correctness of the methodology by which a trial court
imposed [a] sentence” do not rise to the level of an illegal sentence. Id.



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        Here, the defendant attacks the legality of his sentences by challenging his
underlying convictions. Specifically, he argues his attempted second-degree murder
convictions are invalid because they were lesser-included offenses of attempted felony
murder, which our Supreme Court subsequently held was not an offense in Tennessee.
Our review of the record, however, indicates the defendant’s convictions are valid and
the trial court properly sentenced the defendant as a standard offender. The defendant is
not entitled to relief.

        The defendant was convicted of two counts of attempted second-degree murder, a
Class B felony, and the trial court sentenced him as a Range I, standard offender. The
trial court imposed within-range sentences of nine and twelve years and ordered these
sentences to be served concurrently with each other and with the life imprisonment
sentence imposed by the jury for the defendant’s felony murder convictions. Tenn. Code
Ann. § 40-35-112(a)(2). The defendant has failed to show how his sentence violates any
statute or renders him eligible for relief under Rule 36.1.

        The defendant’s argument that his convictions are not valid because attempted
felony murder is not an offense is inappropriate for relief under Rule 36.1 as it does not
raise a fatal issue in sentencing. This allegation fails to demonstrate how his sentence is
illegal as it is clear the defendant is challenging his underlying convictions, rather than
the legality of his sentence. Tenn. R. Crim. P. 36.1. The defendant is not entitled to
relief.

                                       Conclusion

        Based on the foregoing authorities and reasoning, we affirm the judgment of the
trial court.



                                             ____________________________________
                                            J. ROSS DYER, JUDGE




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