       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT KNOXVILLE
                       Assigned on Briefs September 15, 2015

      STATE OF TENNESSEE v. WILLIAM ANTHONY MCDANIEL

            Direct Appeal from the Criminal Court for Hamilton County
                       No. 237830     Rebecca Stern, Judge



             No. E2015-00680-CCA-R3-CD – Filed December 16, 2015



The Appellant, William Anthony McDaniel, filed in the Hamilton County Criminal Court
a motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure
36.1. The motion was summarily denied, and the Appellant timely appealed the ruling.
Upon review, we affirm the judgment of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ALAN E. GLENN
and D. KELLY THOMAS, JR., JJ., joined.

William Anthony McDaniel, Pikeville, Tennessee, Pro se.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; and M. Neal Pinkston, District Attorney General, for the Appellee,
State of Tennessee.

                                      OPINION

                               I. Factual Background

        This court previously summarized the procedural history of the Appellant‟s case
as follows:

                    In April 2001, the [Appellant] engaged in anal, oral,
             and vaginal intercourse with a female under the age of
             thirteen, the daughter of his live-in girlfriend. He was
             subsequently indicted for three counts of rape of a child as a
             Range III offender. In May 2002, the [Appellant] pled guilty
             to the offenses as charged but was sentenced as a Range I
             offender to [con]current sentences of twenty-five years. The
             [judgments] reflect that the term would be served at 100%
             because the [Appellant] was a child rapist.

                    On July 16 and September 12, 2002, the [Appellant]
             filed pro se Motions for Reduction of Sentence. The two
             motions were virtually identical in language, except one
             state[d] it [wa]s pursuant to Rule 35 of the Tennessee Rules
             of Criminal Procedure. On September 27, 2002, the trial
             court entered an order overruling the Motion for Reduction of
             Sentence. No appeal was taken of that denial.

                    Next, on September 12, 2012, the [Appellant] filed [a]
             pro se “Motion to Correct Judgment/Sentence or in the
             Alternative Motion to Withdraw Guilty Plea.” Thereafter, on
             September 17, 2012, the trial court entered an order
             overruling the motion, which the [Appellant] never received a
             copy of. He later filed a pro se motion for delayed appeal in
             the trial court alleging his failure to receive notice of the
             ruling, and the trial court granted the motion for delayed
             appeal on January 28, 2013. In an order noting that the trial
             court was without authority to grant that motion, this court,
             nonetheless, waived the untimely filing of the notice of
             appeal in the interests of justice.

State v. William Anthony McDaniel, No. E2013-00353-CCA-MR3-CD, 2013 WL
5874706, at *1 (Tenn. Crim. App. at Knoxville, Oct. 31, 2013). On appeal, the Appellant
challenged “the denial of his „Motion to Correct Judgment/Sentence or in the Alternative
Motion to Withdraw Guilty Plea,‟” arguing “that his sentence should be reduced to reflect
service of the sentence at 30%, as a standard Range I offender, or in the alternative that
his plea was not knowingly and voluntarily entered because the 100% service
requirement for child rape was never explained to him.” Id. at *1. This court determined
that the Appellant was not entitled to relief because reduction of his sentence was not
warranted and because a post-conviction petition was the proper avenue to pursue relief
from a guilty plea that was not knowingly and voluntarily entered, noting that the statute
of limitations to file such a petition had long expired. Id. at *4.

       Thereafter, on February 17, 2015, the Appellant filed the instant motion to correct
an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. In the
                                           -2-
motion, the Appellant alleged that his sentences were illegal because the trial court
should have imposed consecutive sentencing and because he pled guilty while believing
that he would be subject to release eligibility after serving thirty percent of his sentence,
which rendered his guilty pleas not knowing or voluntary. The trial court denied the
motion, finding that the Appellant failed to state a colorable claim for relief. On appeal,
the Appellant challenges the trial court‟s ruling.

                                        II. Analysis

       Historically, “two distinct procedural avenues [were] available [in Tennessee] to
collaterally attack a final judgment in a criminal case - habeas corpus and post-conviction
petitions.” Hickman v. State, 153 S.W.3d 16, 19 (Tenn. 2004); see also State v. Donald
Terrell, No. W2014-00340-CCA-R3-CO, 2014 WL 6883706, at *2 (Tenn. Crim. App. at
Jackson, Dec. 8, 2014). However, “Rule 36.1 was adopted, effective July 1, 2013, with
its express purpose „to provide a mechanism for the defendant or the State to seek to
correct an illegal sentence.‟” State v. Adrian R. Brown, __ S.W.3d __, No. E2014-
00673-SC-R11-CD, 2015 WL 7748275, at *6 (Tenn. at Knoxville, Dec. 2, 2015) (quoting
Tenn. R. Crim. P. 36.1, Advisory Comm‟n Cmt.). Rule 36.1, provides, in part:

              Either the defendant or the state 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. For purposes of this rule, an illegal
              sentence is one that is not authorized by the applicable
              statutes or that directly contravenes an applicable statute.

Tenn. R. Crim. P. 36(a); see Secdrick L. Booker v. State, No. M2014-00846-CCA-R3-
CD, 2014 WL 7191041, at *2 (Tenn. Crim. App. at Nashville, Dec. 18, 2014).

        If the motion states a “colorable claim that the sentence is illegal,” the trial court
shall appoint counsel and hold a hearing on the motion. See Tenn. R. Crim. P. 36.1(b).
Our supreme court recently recognized that “Rule 36.1 does not define „colorable claim.”
State v. James D. Wooden, __ S.W.3d __, No. E2014-01069-SC-R11-CD, 2015 WL
7748034, at *5 (Tenn. at Knoxville, Dec. 2, 2015). Nevertheless, the court explained that
“for purposes of Rule 36.1, . . . „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.” Id. at *6.

      Further, our supreme court noted that “mistakes in sentencing are inevitable, but
few sentencing errors render sentences illegal.” Id. at *7 (citing Cantrell v. Easterling,
346 S.W.3d 445, 448-49 (Tenn. 2011)). “Sentencing errors fall into three categories—
                                             -3-
clerical errors, appealable errors, and fatal errors. Only fatal errors render sentences
illegal.” Id. (citing Cantrell, 346 S.W.3d at 449-52). Fatal errors

              are “so profound as to render the sentence illegal and void.”
              This category consists of any sentence “that is not authorized
              by the applicable statutes or that directly contravenes an
              applicable statute.” Included in this category are 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 offenses.

Id. (citations omitted).

       First, the Appellant‟s contends that consecutive sentencing was mandatory under
Tennessee Code Annotated section 40-35-115. The Appellant notes that Tennessee Code
Annotated section 40-35-115(a) provides that “[i]f a defendant is convicted of more than
one (1) criminal offense, the court shall order sentences to run consecutively or
concurrently as provided by the criteria in this section[.]” The Appellant maintains that
“the use of the word „shall‟ in a statute is indicative of mandatory intent.” The Appellant
alleges that because of the use of the word “shall” in subsection (a), the trial court was
required to impose consecutive sentencing for the Appellant‟s three convictions of rape
of a child pursuant to Tennessee Code Annotated section 40-35-115(b)(5). He also
alleges that the use of the word “shall” in subsection (a) required the trial court to impose
consecutive sentencing pursuant to Tennessee Code Annotated section 40-35-115(b)(6)
because the Appellant committed the rape of a child offenses while on probation for
sexual battery.

         The trial court found that while consecutive sentencing was permitted under
Tennessee Code Annotated section 40-35-115, it was not required. We agree. Tennessee
Code Annotated section 40-35-115(b) (emphasis added) provides that a “court may order
sentences to run consecutively if the court finds” by a preponderance of the evidence the
existence of any one of the listed criteria, which leaves the imposition of consecutive
sentencing to the trial court‟s discretion. See State v. Bruce Lamont Smith, No. M2014-
02092-CCA-R3-CD, 2015 WL 1868492, at *3 (Tenn. Crim. App. at Nashville, Apr. 9,
2015). Accordingly, the trial court‟s failure to impose consecutive sentencing based upon
Tennessee Code Annotated section 40-35-115 did not render the Appellant‟s sentences
illegal.

                                            -4-
      The Appellant next argues that consecutive sentencing was mandatory under
Tennessee Rule of Criminal Procedure 32(c)(2)(A)(ii), which provides that

             [w]hen prior unserved Tennessee sentences are not called to
             the attention of the trial judge by or on behalf of the
             defendant at the time of sentencing and are not included in the
             judgment setting the new sentence, the new sentence is
             deemed to be consecutive to any such undisclosed prior
             unserved sentence or sentences.

The Appellant complains that his sentences for rape of a child were illegal because the
judgments of conviction were silent as to whether the sentences were to be served
concurrently or consecutively to his prior unserved sentence for sexual battery. The trial
court found that Tennessee Rule of Criminal Procedure 32(c)(2)(A)(ii) “provides that a
new sentence is deemed consecutive to a prior, undisclosed, unserved sentence” even
when the judgment of conviction is silent regarding the prior unserved sentence. We
agree. Because the judgments of conviction are silent regarding the Appellant‟s prior
unserved sentence for sexual battery, the sentences for rape of a child are deemed to be
consecutive to the sentence for sexual battery. The Appellant‟s sentences are not illegal
in this regard.

       Finally, the Appellant complains that his trial counsel advised him that he would
be sentenced as a Range I, standard offender and that he would be eligible for release
after serving thirty percent of his sentence. He contends, therefore, that the trial court
erred by sentencing him to serve 100% of his sentences in confinement. The trial court
found that generally Range I, standard offenders were subject to release eligibility after
serving thirty percent of the sentence in confinement; however, an offender convicted of
rape of a child was required to serve 100% of the sentence in confinement. Tenn. Code
Ann. ' 40-35-501(c), (i)(1) and (2)(I). We agree. Because service of 100% of the
sentences for rape of a child in confinement is statutorily mandated, the Appellant‟s
sentences are not illegal and subject to correction under Rule 36.1.

      Moreover, as this court previously explained:

                     Once judgment has become final, the only avenue of
             relief available to a defendant to have a guilty plea set aside is
             a collateral proceeding under the Post-Conviction Procedure
             Act. To do so entails a claim that the guilty plea was not
             entered voluntarily, intelligently, and knowingly or was
             obtained through the abridgment of some other constitutional
             right, such as the right to the effective assistance of counsel.
                                            -5-
               However, in the [Appellant‟s] case, the one-year post-
               conviction statute of limitations forecloses this avenue for
               seeking relief.

McDaniel, No. E2013-00353-CCA-MR3-CD, 2013 WL 5874706, at *4 (citations
omitted).

                                      III. Conclusion

         Based upon the record and the parties‟ briefs, we affirm the judgment of the trial
court.


                                                  _________________________________
                                                  NORMA MCGEE OGLE, JUDGE




                                            -6-
