       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                         Assigned on Briefs July 12, 2016

           STATE OF TENNESSEE v. LEONARDO D. WILLIAMS

                  Appeal from the Criminal Court for Shelby County
            Nos. 92-06311, 93-05414-15 James M. Lammey, Jr., Judge


            No. W2016-00168-CCA-R3-CD - Filed September 28, 2016



The defendant, Leonardo D. Williams, appeals the dismissal of his Tennessee Rule of
Criminal Procedure 36.1 motion for correction of an illegal sentence, arguing that he
illegally received concurrent sentences when he should have received consecutive ones.
We affirm the summary 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 JOHN EVERETT
WILLIAMS and ROBERT W. WEDEMEYER, JJ., joined.

Leonardo D. Williams, Yazoo City, Mississippi, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Glen Baity, Assistant
District Attorney General, for the appellee, State of Tennessee.



                            MEMORANDUM OPINION

       On February 16, 1993, the defendant pled guilty in indictment number 92-06311
to the attempted sale of cocaine, a Class D felony, and was sentenced as a Range I,
standard offender to two years at thirty percent in the county workhouse. On April 21,
1994, the defendant pled guilty in indictment number 93-05414 to attempted second
degree murder and in indictment number 93-05415 to aggravated robbery, both of which
were based on an offense date of April 17, 1993. The defendant was sentenced to
concurrent sentences of eight years for each offense. The judgment forms for these
offenses make no mention of the defendant’s sentence in case number 92-06311.

        Although the motion itself is not in the record, according to the trial court’s order
of dismissal, the defendant filed a motion to correct an illegal sentence on October 21,
2015. The defendant apparently based his claim of an illegal sentence on the fact that
both Rule 32(c)(3)(C) of the Tennessee Rules of Criminal Procedure and Tennessee Code
Annotated Section 40-20-111(b) mandate consecutive sentences when the defendant is
convicted of a felony that was committed while the defendant was on bail from another
felony offense. On December 8, 2015, the trial court dismissed the motion for failure to
state a claim, noting that all three of the defendant’s sentences had long since expired and
that our supreme court held in State v. Brown, 479 S.W.3d 200 (Tenn. 2015), that Rule
36.1 does not apply to an expired illegal sentence. The defendant then appealed to this
court.

        Based on our review, we affirm the summary dismissal of the motion for failure to
state a claim. As an initial matter, the defendant’s release status at the time he committed
the April 17, 1993 offenses is not clear from the record, as it appears that the defendant
may have possibly been on probation, rather than bail, from the drug offense at the time
he committed the attempted second degree murder and aggravated robbery offenses.
The defendant’s negotiated plea agreement indicates that suspension of the two-year
sentence recommended by the State for the drug offense was “[t]o be determined by the
Court, after a hearing[,]” and the “probation” box on the judgment form for the drug
offense appears to have originally been checked and then possibly marked through.
Consecutive sentencing is not mandatory when a defendant commits a felony offense
while on probation. See Terry Earl Jackson v. State, No. E2014-01511-CCA-R3-PC,
2015 WL 1744173, at *2 (Tenn. Crim. App. Apr. 14, 2015).

        Regardless, as the trial court noted, Rule 36.1 “does not authorize the correction of
expired illegal sentences” and “a Rule 36.1 motion may be summarily dismissed for
failure to state a colorable claim if the alleged illegal sentence has expired.” Brown, 479
S.W.3d at 211. Even if the defendant was out on bail or parole at the time he committed
the attempted second degree murder and aggravated robbery offenses, his sentences
would have expired and, thus, Rule 36.1 relief is no longer available.

      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

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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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