                                                                                       05/18/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs May 2, 2017

                STATE OF TENNESSEE v. TORIAN DILLARD

                 Appeal from the Criminal Court for Shelby County
                  No. 03-01405       James C. Beasley, Jr., Judge
                     ___________________________________

                           No. W2016-01551-CCA-R3-CD
                       ___________________________________

The defendant, Torian Dillard, appeals from the Shelby County Criminal Court’s denial
of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence.
The defendant contends his sentences are illegal because the State failed to provide
proper notice of its intent to seek enhanced punishment pursuant to Tennessee Code
Annotated § 40-35-202(a). The defendant also argues the trial court improperly relied on
two prior theft convictions in classifying him as a career offender. 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 ALAN E. GLENN and
ROBERT L. HOLLOWAY, JR., JJ., joined.

Torian Dillard, Mountain City, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Karen Cook, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                        FACTS

        On February 10, 2003, the defendant shot his ex-girlfriend in the head, but failed
to kill her, while she and her one-year-old daughter waited to pick up her other children
from school. After a jury trial, the defendant was convicted of attempted first degree
murder, a Class A felony, and reckless endangerment with a deadly weapon and being a
convicted felon in possession of a handgun, Class E felonies.
        Prior to trial, on October 21, 2003, the State filed a notice of intent to seek
enhanced punishment. The notice listed six prior felonies upon which the State intended
to rely, including: failure to appear and escape, Class E felonies, theft over $500 and
robbery, Class D felonies, and attempted rape and aggravated assault, Class C felonies.
The trial court held a sentencing hearing on November 12, 2004. At the sentencing
hearing, the State orally amended its notice to reflect the defendant’s prior robbery
conviction was actually a prior conviction for theft over $1,000. The State noted that
defense counsel stipulated to the defendant’s prior convictions as listed in the pre-
sentence report, and reminded the trial court that the convictions “were also admitted to
by [the defendant] on the stand.” See State v. Torian Dillard, No. W2005-00152-CCA-
R3-CD, 2006 WL 1044087, at *6 (Tenn. Crim. App. Apr. 19, 2006), perm. app. denied
(Tenn. Sept. 5, 2006).

        Under this posture, the State read the defendant’s prior convictions into the record,
as follows:

             The defendant’s been convicted of failure to appear, a Class E felony
       under Indictment No. 98-13998. He’s been convicted of criminal-attempt
       rape, a Class C felony under Indictment No. 98-01386. He’s been
       convicted of aggravated assault, a Class C felony and that indictment
       number is reflected in the pre-sentence report.

                                                ...

               He’s been convicted of aggravated assault under Indictment No. 98-
       00751, and that’s a Class C felony. He’s been convicted of escape which is
       a Class E felony under Indictment No. 93-08306. He’s been convicted of
       theft over $1,000 which is a Class D felony under Indictment No. 93-
       01342, and he’s also been indicted for it’s listed in my enhancement as
       robbery. It’s listed in the pre-sentence report as aggravated robbery. In
       fact, it is theft over $1,000 as a Class D felony under Indictment No. 93-
       05095, and we know that for certain because we have that jacket up before
       the Court today.
                                                ...

              I believe there [are] some that reflect as robbery, Judge, and that was
       that last one which is actually a theft over a 1,000. So in summary [the
       defendant’s] been convicted of two Class C felonies, two Class D felonies
       and two Class E felonies.



                                            -2-
       Relying on the six prior convictions demonstrated by the State, the trial court
imposed an effective fifty-two year sentence. On direct appeal, this Court summarized
the sentence imposed by the trial court as follows:

              At the November 12, 2004, sentencing hearing, the defendant’s
       presentence report, which reflected his extensive prior criminal record, was
       admitted by stipulation of the parties. The sole witness at the hearing was
       the defendant, who accused the prosecutor of having knowingly used
       perjured testimony at his trial and testified that he had only wanted to scare
       the victim. At the conclusion of the hearing, the trial court sentenced the
       defendant to forty years as a multiple offender for the attempted first degree
       murder conviction, six years as a career offender for the reckless
       endangerment conviction, and six years as a career offender for the
       convicted felon in possession of a handgun conviction. Finding the
       defendant to be both an offender whose record of criminal activity is
       extensive and a dangerous offender whose behavior indicates little or no
       regard for human life and no hesitation about committing a crime when the
       risk to human life is high, the trial court ordered that the sentences be
       served consecutively, for an effective sentence of fifty-two years.

Id., at *7.

       On June 27, 2016, the defendant filed a pro se motion to correct an illegal
sentence pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure. In the
motion, the defendant alleged the State failed to provide adequate notice of its intent to
seek enhanced punishment for his convictions, thus rendering his sentences for the
convicted offenses in this case illegal. In support of his claims, the defendant challenged
the timeliness of the State’s notice of enhancement alleging the oral amendment to the
notice made at the sentencing hearing rendered it untimely pursuant to Tennessee Code
Annotated section 40-35-202(a). The trial court summarily dismissed the motion finding
the defendant failed to state a colorable claim, and this appeal followed.

                                       ANALYSIS

        On appeal, the defendant contends that the trial court erred in denying his Rule
36.1 motion to correct an illegal sentence. The defendant argues his sentences are illegal
because the State violated Tennessee Code Annotated § 40-35-202(a) by not filing its
amended notice to seek enhanced punishment ten days prior to trial, and instead orally
amending its notice at the sentencing hearing. Additionally, the defendant argues the trial
court misclassified him as a career offender as applied to his Class E felony convictions
by failing to merge his two prior convictions for theft over $1,000. In contrast, the State
                                           -3-
contends the defendant has not demonstrated a colorable claim for Rule 36.1 relief as he
has failed to allege fatal errors in sentencing. Upon our review, we agree with the State.

        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. Summers v. State, 212
S.W.3d 251, 255 (Tenn. 2007). Rule 36.1 provides that the defendant “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.” Tenn. R. Crim. P.
36.1(a). A sentence is illegal if it is not authorized by the applicable statutes or directly
contravenes an applicable statute. Id. If the motion states a colorable claim, the trial
court shall appoint counsel if the defendant 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). 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.” State v. Wooden, 478 S.W.3d 585, 593 (Tenn. 2015).

        “[F]ew sentencing errors render [a sentence] illegal.” Id. at 595. Rather,
sentencing errors may be clerical, appealable, or fatal, and only fatal errors render a
sentence illegal. Id. Clerical errors “‘arise simply from a clerical mistake in filling out
the uniform judgment document’ and may be corrected at any time under Tennessee Rule
of Criminal Procedure 36.” Id. at 595 (quoting Cantrell v. Easterling, 346 S.W.3d 445,
453 (Tenn. 2011)). Appealable errors are “‘those errors for which the Sentencing Act
specifically provides a right of direct appeal’” and are generally attacks on the
methodology used by the trial court when imposing a sentence. Id. Fatal errors are those
errors “so profound as to render the sentence illegal and void” and 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.

       Here, even when taking the defendant’s claims as true, they fail in the context of
Rule 36.1 as both of his appellate challenges go to the methodology used by the trial
court in imposing his sentences. See State v. Jonathan T. Deal, No. E2013-02623-CCA-
R3-CD, 2014 WL 2802910, at *2 (Tenn. Crim. App. June 17, 2014). Accordingly, the
defendant’s arguments, that he did not have proper notice of his prior convictions based
upon the State’s oral amendment to its notice of enhancement and that the trial court
improperly classified him as a career offender, should have been raised on direct appeal.
See Cantrell, 346 S.W.3d at 449-53 (noting that sentencing issues based upon a trial
court’s findings of fact are appropriate on direct appeal).



                                            -4-
        More specifically, regarding the defendant’s allegation that the State’s oral
amendment to the notice of enhancement rendered it untimely, the record plainly shows
otherwise. The trial court succinctly summarized the procedural facts upon which it
relied in sentencing the defendant in its dismissal order:

             On November 12, 2004, the [defendant] having previously been
      convicted by a jury was sentenced by the trial court. The State had
      previously filed a Notice to Seek Enhanced Punishment on October 21,
      2003. The [defendant] testified at trial as to his prior convictions, the pre-
      sentence report set forth his prior convictions and his attorney stipulated at
      the hearing to his prior convictions. There was an oral amendment made
      after reviewing the Clerk’s file and one of the charges relied upon was
      actually reduced from a “C” felony prior conviction to a “D” felony prior
      conviction. The [defendant] had 2 prior Class C convictions, 2 prior Class
      D convictions and 2 prior Class E convictions. As a result he was found to
      be a Range 2 offender for his Class A conviction [attempted first degree
      murder] and was sentenced to 40 years as a Range 2 offender. For his 2
      Class E convictions [reckless endangerment with a deadly weapon and
      convicted felon in possession of a handgun] he was found to be a Career
      offender and was sentenced to 6 years as a Career offender. All of the
      sentences imposed were within the proper range. His only allegation in this
      [Rule 36.1] [m]otion is that the State failed to file a mandatory “Notice to
      Seek Enhanced Punishment.[”] This Court has reviewed the record and as
      stated above the record contains the appropriate notice filed in October
      2003. The [defendant] even alludes to the Notice to Seek Enhanced
      Punishment filed with the Court in his pleadings. Although he does not
      clarify in his motion it is possible that the [defendant] is confused in that
      the “Notice” was originally filed with his first counsel and not with his
      subsequent actual trial counsel. However, the “Notice” was filed with the
      Court and the subsequent trial counsel is held to have been notified of the
      contents of the official record. Further, trial counsel acknowledged the
      “Notice” at the time of trial and stipulated to the [defendant’s] record
      during the trial and the [defendant] testified to his record while on the stand
      during the trial. No objection was ever raised as to his record or the lack of
      any notice before, during or after the trial. Trial counsel and the
      [defendant] were well aware and had been legally put on notice of
      [defendant’s] prior record and the “Notice to Seek Enhanced
      Punishment.[”]

      As detailed by the trial court, the record clearly establishes the defendant was
aware of the prior convictions on which the State intended to rely before sentencing.
                                           -5-
However, even when taking the defendant’s claims as true, they fail in the context of
Rule 36.1. The State’s oral amendment of its notice of enhancement to reflect that the
prior robbery conviction listed in its notice should actually have been listed as a prior
conviction for theft of over $1,000, does not render the defendant’s sentences illegal.
The State filed its notice of enhancement in advance of trial, orally amended the notice at
the sentencing hearing, and reminded the trial court that the defendant admitted to the
relied-upon prior convictions at trial. Further, the defendant stipulated to the prior
convictions at the sentencing hearing. The defendant cannot show he did not have proper
notice of the prior convictions used to enhance his sentences. Additionally, the defendant
should have addressed the alleged untimeliness of the State’s notice on direct appeal.
The defendant has failed to show his sentences are illegal, and he is not entitled to relief.
See Dunlap v. Tony Parker, Warden, No. W2004-01042-CCA-R3-HC, 2004 WL
1944141, at *1 (Tenn. Crim. App. Sept. 1, 2004), perm. app. denied (Tenn. Dec. 20,
2004) (noting in the context of habeas corpus relief, “[a] defect in the notice of intent to
seek sentence enhancement does not render an enhanced sentence illegal”).

        The defendant also claims the six-year sentences for his Class E felonies of
reckless endangerment with a deadly weapon and being a convicted felon in possession
of a handgun are illegal. The defendant argues the trial court misclassified him as a
career offender when it relied on the six prior convictions noted by the State at the
sentencing hearing. Specifically, the defendant argues the trial court should have merged
his two prior theft convictions into one pursuant to the so-called “24-hour rule.” Tenn.
Code Ann. § 40-35-108(b)(4). However, other than asserting the underlying offenses for
the theft convictions occurred on the same date, the defendant has not provided any
evidence in support of this argument. Our review of the record indicates the trial court
properly classified the defendant as a career offender for his Class E felony convictions
based upon the six prior convictions presented by the State in its notice of enhancement
and oral amendment of the same. Tenn. Code Ann. § 40-35-108(a)(3). Moreover, the
defendant’s claim is inappropriate for Rule 36.1 relief as it relates to the trial court’s
sentencing methodology, rather than the legality of his sentences. See State v. Robert B.
Ledford, No. E2014-01010-CCA-R3-CD, 2015 WL 757807, at *2 (Tenn. Crim. App.
Feb. 23, 2015), perm. app. denied (Tenn. Feb. 23, 2015) (“The only time an error in the
classification of an offender would ever rise to the level of an illegal sentence would be if
a trial court, somehow, classified a defendant in a category not available under the
Sentencing Act.”). As such, this claim should have been addressed on direct appeal and
the defendant is not entitled to Rule 36.1 relief. See Jonathan T. Deal, at *2.

                                     CONCLUSION

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

                                            -6-
 ____________________________________
 J. ROSS DYER, JUDGE




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