        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs August 19, 2015


           STATE OF TENNESSEE v. KENNETH LEBRON WYNN

              Appeal from the Criminal Court for Hamilton County
            No. 189686, 189688, 188918, 189687  Don W. Poole, Judge




               No. E2015-00575-CCA-R3-CD – Filed October 14, 2015
                        _____________________________

The defendant, Kenneth Lebron Wynn, appeals the denial of his Rule 36.1 motion to
correct an illegal sentence. He argues that the dates of his offenses indicate that he
improperly received concurrent sentencing. Following our review, we conclude that the
defendant has not stated a colorable claim for relief. We affirm the judgment of the trial
court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which TIMOTHY L.
EASTER, J., joined. JAMES CURWOOD WITT, JR., J., filed a separate dissenting opinion.

Kenneth Lebron Wynn, Atlanta, Georgia, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Assistant
Attorney General; and Neal Pinkston District Attorney General, for the Appellee, State of
Tennessee.


                                       OPINION
                          FACTS AND PROCEDURAL HISTORY

       On December 3, 1991, the defendant entered pleas of guilty to one count of
aggravated robbery in case number 188918, to one count of aggravated assault in case
number 189686, to one count of aggravated robbery in case number 189687, and to one
count of aggravated robbery in case number 189688. The defendant received ten-year
sentences for the aggravated robbery convictions and a six-year sentence for the
aggravated assault convictions. These sentences were ordered to be served concurrently
to each other but consecutively to two-year sentences imposed in case numbers 187401
and 185316.

        In August 2014, the defendant moved the trial court to correct a sentencing
illegality “in accordance with Tenn. R. Crim. P. 36.1 and 32(c)(3).” In his motion, the
defendant observed that the offense date for the offenses alleged in case numbers 188918,
189687, and 189688 is the same, June 28, 1991, while the offense date for case number
189686 is July 16, 1990. He surmised that because the offenses in case numbers 188918,
189687, and 189688 occurred after the offense in case number 189686, Tennessee Rule
of Criminal Procedure 32(c)(3) required that the six-year sentence imposed for his
aggravated assault conviction in case number 189686 be served consecutively to the
effective ten-year sentence imposed for the aggravated robbery convictions. He claimed
that because the trial court was without the authority to impose concurrent sentences as
required by the plea agreement, the sentence was illegal.

       The trial court summarily denied the defendant‟s motion, concluding, “The motion
alleges and the exhibits establish only that the offenses in cases 188[9]18, 189687, and
189688 predated the offense in case 189686, which is not equivalent to alleging or
establishing that the defendant was on bail at the time of the offense in case 189686.”

      The trial court entered an order denying the defendant‟s motion on October 20,
2014. The defendant filed an untimely notice of appeal on or about March 10, 2015.1

                                             ANALYSIS

      In this appeal, the defendant reiterates that the offense dates indicate that the
imposition of concurrent sentences contravened the terms of Tennessee Rule of Criminal
Procedure 32(c)(3) and argues that the trial court erred by denying his motion without
appointing counsel or holding a hearing to examine the merits of his claim. The State

        1
          The defendant‟s notice of appeal document is dated March 10, 2015, but is not stamped by the
clerk. A notice that no transcript will be filed, which the defendant dated March 29, 2015, is stamp-filed
by the clerk.
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concedes that the trial court erred by summarily denying the motion, noting that the
defendant‟s claim, though imprecise, sufficiently presented a colorable claim that the
defendant‟s sentences were illegal.

       As an initial matter, we must determine whether we have jurisdiction to consider
the petitioner‟s untimely appeal. Tennessee Rule of Appellate Procedure 4(a) states that
the notice of appeal “shall be filed with and received by the clerk of the trial court within
30 days after the date of entry of the judgment appealed from.” Here, the trial court
issued its order on October 20, 2014, and the petitioner‟s notice of appeal was filed
March 10, 2015. Therefore, his notice of appeal was untimely. However, in a criminal
case, “the „notice of appeal‟ document is not jurisdictional and the filing of such
document may be waived in the interest of justice.” Tenn. R. App. P. 4(a). “In
determining whether waiver is appropriate this Court shall consider the nature of the
issues for review, the reasons for the delay in seeking relief, and other relevant factors
presented in each case.” Michelle Pierre Hill v. State, No. 01C01-9506-CC-00175, 1996
WL 63950, at *1 (Tenn. Crim. App. Feb. 13, 1996). “Waiver is not automatic and should
occur only when „the interest of justice‟ mandates waiver.” State v. Rockwell, 280
S.W.3d 212, 214 (Tenn. Crim. App. 2007). It is the burden of the petitioner to establish
that a waiver of the notice of appeal is appropriate. Tenn. R. App. P. 4(a).

        The State contends that the interests of justice mandate a waiver of the notice
requirement because the defendant stated a colorable claim for relief. However, “[w]hile
the State, on appeal, concedes that the [defendant] is entitled to counsel and a hearing, we
are not bound by such a concession.” State v. Adrian R. Brown, No. E2014-00673-CCA-
R3-CD, 2014 WL 5483011, at *5 (Tenn. Crim. App. Oct. 29, 2014) (citing State v.
Mitchell, 137 S.W.3d 630, 639 (Tenn. Crim. App. 2003)), perm. app. granted (Tenn.
May 15, 2015). As we will explain below, we conclude that the defendant has not stated
a colorable claim for relief. Additionally, the defendant does not address the untimely
filing of the notice of appeal in his brief. As a result, it would appear that the interest of
justice does not warrant a waiver of the notice of appeal requirement. But, as this court
has observed, “nothing in Rule 36.1 precludes the filing of subsequent petitions for relief,
which would allow [the defendant] to correct the deficiencies in his pleadings and begin
the process anew.” State v. Marcus Deon Jarnigan, No. E2015-00061-CCA-R3-CD,
2015 WL 5014514, at *1 (Tenn. Crim. App. Aug. 25, 2015), no perm. app. filed.
Therefore, in the interest of judicial economy, we will address the defendant‟s claim on
its merits.

       Tennessee Rule of Criminal Procedure 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
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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). Rule 36.1 does not define “colorable claim,” and this court has
adopted the definition of “colorable claim” from Tennessee Supreme Court Rule 28 §
2(H), which defines the term in the context of post-conviction relief. State v. Mark
Edward Greene, No. M2013-02710-CCA-R3-CD, 2014 WL 3530960, at *3 (Tenn. Crim.
App. July 16, 2014). “A colorable claim is a claim . . . that, if taken as true, in the light
most favorable to the petitioner would entitle petitioner to relief . . . .” Tennessee
Supreme Court Rule 28 § 2(H).

       Here, the defendant alleges that the June 28, 1991 offense date associated with the
convictions in case numbers 188918, 189687, and 189688 indicates that those offenses
were committed after the July 16, 1990 aggravated assault in case number 189686 and
claims that, accordingly, he “fit the criteria” of Tennessee Rule of Criminal Procedure
32(c)(3). Rule 32 provides, in pertinent part, as follows:

              (3) Mandatory Consecutive Sentences. When a defendant is
       convicted of multiple offenses from one trial or when the defendant has
       additional sentences not yet fully served as the result of convictions in the
       same or other courts and the law requires consecutive sentences, the
       sentence shall be consecutive whether the judgment explicitly so orders or
       not. This rule shall apply:

              (A) to a sentence for a felony committed while on parole for a
       felony;

                (B) to a sentence for escape or for a felony committed while on
       escape

              (C) to a sentence for a felony committed while the defendant was
       released on bail and the defendant is convicted of both offenses; and

                (D) for any other ground provided by law.

Tenn. R. Crim. P. 32(c)(3).

        The defendant does not allege which of the “criteria” his case “fits,” but the State
contends that, “[t]aken in the light most favorable to him, the defendant‟s argument sets
forth a colorable claim that he was released on bail on at least one of the earlier offenses.”
As we stated above, the definition of colorable claim is derived from the definition found
                                              4
in the Post-Conviction Act. However, to state a colorable claim for post-conviction
relief, the petition must contain some factual allegation demonstrating an abridgment of a
constitutional right. See Tennessee Supreme Court Rule 28 § 5(F)(3) (stating that a post-
conviction petition may be dismissed without a hearing if it “does not contain specific
factual allegations”); Burnett v. State, 92 S.W.3d 403, 408 (Tenn. 2002) (concluding that
a petition for post-conviction relief was properly dismissed without holding an
evidentiary hearing when the petitioner alleged that he received the ineffective assistance
of counsel but failed to alleged a specific factual basis establishing deficient performance
or prejudice). Similarly, a motion to correct an illegal sentence must include a factual
allegation to support the assertion that the sentence was illegal. State v. Levar O.
Williams, No. E2014-01068-CCA-R3-CD, 2015 WL 1291137, at *2 (Tenn. Crim. App.
Mar. 19, 2015), perm. app. denied (Tenn. June 15, 2015).

        We conclude that the defendant has failed to state a colorable claim for relief. He
alleges that his sentences are illegal, but he includes no specific factual allegations to
support his claim. As the trial court properly found, merely stating that he “fit the
criteria” of Rule 32(c)(3) does not suffice for a factual allegation that he was on bail for
the offense in case number 189686 at the time he committed the offenses in case numbers
188918, 189687, and 189688. See Williams, 2015 WL 1291137, at *2. Further, the
sentences that the defendant seeks to correct expired more than ten years ago. Any
illegality in the sentence is no longer affecting the defendant, and:

              It defies reason to believe that the General Assembly intended Rule
       36.1 to operate as a remedy for an expired illegal sentence. If the expired
       sentence sought to be corrected was illegally excessive, an opportunity to
       vacate the underlying guilty plea and face the charges anew−the remedy
       offered by Rule 36.1−does nothing to ameliorate something that happened
       in the past. Similarly, the General Assembly could not have intended to
       grant a windfall to a defendant who enjoyed the benefits of an illegally
       lenient sentence before then seeking the additional benefit of an opportunity
       to vacate his underlying conviction. In such an instance, the only injury is
       suffered by the People of Tennessee, and it is nothing but absurd to
       construe Rule 36.1 to provide a repeat offender the opportunity to remove a
       conviction from his criminal history when he never received the
       punishment he was due.

State v. Anthony Todd Ghormley, No. E2014-00736-CCA-R3-CD, 2015 WL 5560008, at
*6 (Tenn. Crim. App. Sept. 21, 2015) (Easter, J., concurring) (internal citations and
footnotes omitted), no perm. app. filed.


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      We conclude that the trial court properly denied the defendant‟s motion. The
defendant is not entitled to any relief.

                                   CONCLUSION

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

                                               _________________________________
                                               JOHN EVERETT WILLIAMS, JUDGE




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