        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs February 9, 2016

                STATE OF TENNESSEE v. CHARLES OWENS

                 Appeal from the Criminal Court for Davidson County
                  No. 2003-D-2592   J. Randall Wyatt, Jr., Judge


               No. M2015-01361-CCA-R3-CD – Filed March 14, 2016



The defendant, Charles Owens, filed an unsuccessful Tennessee Rule of Criminal
Procedure 36.1 motion to correct an illegal sentence, the alleged illegality being that he
was not present, either in person or by video, at his sentencing. He asks that his
conviction and sentence be declared illegal and void. The trial court concluded, without a
hearing, that the motion failed to state a colorable claim for relief, and this appeal
followed. Following our review, we affirm the dismissal of the motion, pursuant to Rule
20, Rules of the Court of Criminal Appeals.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
           Pursuant to Rule 20, Rules of the Court of Criminal Appeals

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

Charles Owens, Only, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Glenn R. Funk, District Attorney General; and Amy Hunter, Assistant District Attorney
General, for the appellee, State of Tennessee.


                             MEMORANDUM OPINION

       The defendant was convicted by a jury of six counts of aggravated sexual battery
and received an effective sentence of twenty-four years. The only claim raised in his
direct appeal was that prosecutorial misconduct prevented his receiving a fair trial. This
court concluded otherwise and affirmed the judgments. State v. Charles Owens, No.
M2005-02571-CCA-R3-CD, 2007 WL 1094136, at *1 (Tenn. Crim. App. Apr. 12, 2007),
perm. app. denied (Tenn. Aug. 20, 2007). He then filed a petition for post-conviction
relief, claiming that his trial counsel had been ineffective. Both the post-conviction court
and this court concluded that he had failed to show that he had been prejudiced by the
action of trial counsel. Charles Owens v. State, No. M2009-00558-CCA-R3-PC, 2010
WL 1462529, at *1 (Tenn. Crim. App. Apr. 13, 2010), perm. app. denied (Tenn. Sept. 22,
2010). Subsequently, he filed a Rule 36.1 motion, arguing, for the first time, that his
2004 sentencing had been illegal and void because, contrary to the requirements of Rule
43(a)(3) of the Tennessee Rules of Criminal Procedure, his rights had been violated
because he was not present at his sentencing, either in person or by video conference.

        In his Rule 36.1 motion, the defendant relies upon Tennessee Rule of Criminal
Procedure 43(a), which provides, in part, that a defendant’s presence is required at the
imposition of sentence, unless excused by the court upon the defendant’s motion. The
defendant asserts that he did not waive his right to be present at the sentencing, as
allowed by subsection (b). He does not explain why he did not present this claim in his
earlier unsuccessful petition for post-conviction relief. As we will explain, Rule 36.1
cannot provide relief to the defendant, even if his claims were true.

      As we have set out, Tennessee Rule of Criminal Procedure 43(a) provides that a
criminal defendant shall be present at court for important proceedings, including the
imposition of the sentence. However, subsection (b) permits a defendant to waive his
presence at the imposition of sentence.

       In Cantrell v. Easterling, 346 S.W.3d 445, 449-52 (Tenn. 2011), our supreme court
explained that there are three general categories of sentencing errors, consisting of
clerical, appealable, and fatal errors. In State v. Adrian R. Brown, --- S.W.3d ---, 2015
WL 7748275, at *5 (Tenn. Dec. 2, 2015), our supreme court noted that “[c]laims of
appealable error generally involve attacks on the correctness of the methodology the trial
court used to impose sentence.” Cited in Adrian R. Brown to further explain this point
was the opinion of this court in State v. Jonathan T. Deal, No. E2013-02623-CCA-R3-
CD, 2014 WL 2802910, at *2 (Tenn. Crim. App. June 17, 2014), where we concluded
that:

       [T]he Defendant’s initial assertions concerning the methodology used by
       the trial court in imposing sentence did not set forth a colorable claim
       cognizable under Rule 36.1. Rule 36.1 provides an avenue for pursuing the
       correction of illegal sentences, defined by the Rule as a sentence “not
       authorized by the applicable statutes” or a sentence “that directly
       contravenes an applicable statute.” Tenn. R. Crim. P. 36.1(a). See also
       Cantrell, 346 S.W.3d at 452-53 (setting forth the definition, and examples,
       of illegal sentences). Thus, the Rule is directed at the sentence finally
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       imposed, not the methodology by which it is imposed.

        The defendant could have pursued by direct appeal or petition for post-conviction
relief his complaint that he was not present at his sentencing. Since his claim, even if
true, goes to the methodology of his sentencing but would not result in his sentence being
illegal, his motion failed to present a colorable claim for relief and was properly
dismissed without a hearing.

       When an opinion would have no precedential value, the Court of Criminal
Appeals may affirm the judgment or action of the trial court by memorandum opinion
when the judgment is rendered or the action taken in a proceeding without a jury and
such judgment or action is not a determination of guilt, and the evidence does not
preponderate against the finding of the trial judge. See Tenn. Ct. Crim. App. R. 20. We
conclude that this case satisfies the criteria of Rule 20. The judgment of the trial court is
affirmed in accordance with Rule 20, Rules of the Court of Criminal Appeals.


                                                  _________________________________
                                                  ALAN E. GLENN, JUDGE




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