        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs June 17, 2014

            STATE OF TENNESSEE v. MARK EDWARD GREENE

                 Appeal from the Circuit Court for Williamson County
                  No. II-CR061910      James G. Martin, III, Judge


                  No. M2013-02710-CCA-R3-CD - Filed July 16, 2014


Appellant, Mark Edward Greene, appeals the denial of his Tennessee Rule of Criminal
Procedure 36 motion to correct a clerical error. He alleges that the trial court should have
granted pretrial jail credits from the time that Williamson County lodged a detainer against
him until the date he was sentenced. Following our review, we affirm the circuit court’s
decision.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which JERRY L. S MITH and N ORMA
M CG EE O GLE, JJ., joined.

Mark Edward Greene, Henning, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michelle L. Consiglio-Young,
Assistant Attorney General; Kim R. Helper, District Attorney General; and Terry E. Wood,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                            I. Facts

       On June 12, 2006, a Williamson County grand jury indicted appellant for aggravated
robbery. At the time, he was serving two sentences for aggravated robbery in Davidson
County. Williamson County, according to appellant, issued a detainer against him on June
30, 2006. On February 12, 2008, appellant pleaded guilty to the charged offense of
aggravated robbery in Williamson County. After the subsequent sentencing hearing on April
8, 2008, the trial court awarded him one hour of pretrial jail credit and sentenced him to serve
eleven years in the Tennessee Department of Correction. In July 2008, the trial court issued
an order awarding appellant pretrial jail credit from June 11, 2007, until April 8, 2008. The
order indicates that appellant’s counsel and the State agreed to the award; however, the basis
for the award is not clear from the record because, presumably, appellant was incarcerated
for the Davidson County offenses rather than the Williamson County offense during this
time.

        On July 30, 2013, appellant filed a pro se motion to correct a clerical error in his
Williamson County judgment, alleging that he should have received 314 additional days of
pretrial jail credits. In addition, he contended that he would have been granted parole in
Davidson County had it not been for the detainer issued in Williamson County. The State,
under the erroneous impression that appellant was seeking the application of sentence
reduction credits, responded that the trial court did not have jurisdiction to consider the
motion. The trial court denied appellant’s motion, citing lack of jurisdiction. Appellant filed
a response to the State’s answer to his motion, after the trial court had already ruled on the
matter, stating that he should have received 355 additional days of pretrial jail credits.

                                         II. Analysis

       On appeal, appellant argues that the trial court had jurisdiction to consider his motion
and that he should have received 355 additional days of pretrial jail credits. He also mentions
that he would have received parole in Davidson County but for the Williamson County
detainer. The State responds that the trial court’s order from July 2008 determined the issue.
Following our review of the record and the applicable law, we have determined that
appellant’s motion should be construed as a Rule 36.1 motion to correct an illegal sentence,
but because he did not state a colorable claim for relief, remand to the trial court for
reconsideration under Rule 36.1 is not necessary.

       Because the trial court dismissed appellant’s motion based on lack of jurisdiction, we
must first address whether the failure to award pretrial jail credits is a matter properly
addressed to the criminal courts of this state and ultimately this court. “[C]laims ‘relative to
the calculation of sentencing credits and parole dates’ must be reviewed pursuant to the
Uniform Administrative Procedures Act.” Tucker v. Morrow, 335 S.W.3d 116, 122 (Tenn.
Crim. App. 2009) (quoting Mark Grimes v. Tony Parker, Warden, No. W2007-00169-CCA-
R3-HC, 2008 WL 141129, at *3 (Tenn. Crim. App. Jan. 14, 2008)). However, this statement
is inapplicable to a review of the award of or failure to award pretrial jail credits. Id. In
discussing this issue, we have held:

       Unfortunately, this Court has far too often conflated sentence reduction credits,
       which are governed solely by the Department of Correction, with pretrial and
       post-judgment jail credits, which can be awarded only by the trial court. As

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       a result, some of the opinions of this court erroneously hold that a petitioner
       may only challenge the trial court’s failure to award pretrial jail credits via the
       Uniform Administrative Procedures Act.

Id. Because the award of pretrial jail credits lies strictly within the jurisdiction of the trial
court rather than the Department of Correction, “any resort to administrative avenues of relief
to address the trial court’s failure to award pretrial jail credits would be futile.” Id.
Moreover, “‘the trial court is required at the time of sentencing to allow a defendant pretrial
jail credit. The [Department of Correction] is powerless to change what the trial court
awarded or failed to award.’” Id. (quoting State v. Greg Smith, No. E2003-01092-CCA-R3-
CD, 2004 WL 305805, at *2 (Tenn. Crim. App. Feb. 18, 2004) (Tipton, J., concurring)).
Therefore, appellant’s claim that he is entitled to relief because the trial court failed to award
pretrial jail credit that he allegedly earned pursuant to Tennessee Code Annotated section 40-
23-101(c) was within the jurisdiction of the trial court.

      However, the failure to award pretrial jail credits is not merely a clerical error within
the ambit of Tennessee Rule of Criminal Procedure 36, but rather an illegal sentence. See
George William Brady v. State, No. E2013-00792-CCA-R3-PC, 2013 WL 6729908, at *5
(Tenn. Crim. App. Dec. 19, 2013). Tennessee Code Annotated section 40-23-101(c)
provides:

       The trial court shall, at the time the sentence is imposed and the defendant is
       committed to jail, the workhouse or the state penitentiary for imprisonment,
       render the judgment of the court so as to allow the defendant credit on the
       sentence for any period of time for which the defendant was committed and
       held in the city jail or juvenile court detention prior to waiver of juvenile court
       jurisdiction, or county jail or workhouse, pending arraignment and trial. The
       defendant shall also receive credit on the sentence for the time served in the
       jail, workhouse or penitentiary subsequent to any conviction arising out of the
       original offense for which the defendant was tried.

“‘The language [of Code section 40-23-101(c)] leaves no room for discretion, and when the
word ‘shall’ is used in constitutions or statutes it is ordinarily construed as being mandatory
and not discretionary.’” Tucker, 335 S.W.3d at 123 (quoting Stubbs v. State, 393 S.W.2d
150, 154 (Tenn. 1965)). Thus, pursuant to the statute, a pretrial detainee has “‘an absolute
right to credit for time in jail’” spent in pretrial incarceration arising out of the original
offense for which he was convicted. Id. (quoting Trigg v. State, 523 S.W.2d 375, 375 (Tenn.
Crim. App. 1975)). However, “‘[i]t is only when the time spent in jail or prison is due to or,
as the statute says, ‘arises out of’ the offense for which the sentence against which the credit
is claimed that such allowance becomes a matter of right.’” Id. (quoting Trigg, 523 S.W.2d

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at 376). “Thus, the trial court is statutorily required to credit the defendant with all time
spent in confinement pending arraignment and trial on the offense or offenses that led to the
challenged convictions.” Id. Because of this statutory requirement, the failure to award
earned pretrial jail credits results in an illegal sentence.

        Claims of illegal sentences cannot be challenged through Rule 36 motions to correct
clerical errors but must be challenged through either Rule 36.1 of the Tennessee Rules of
Criminal Procedure or habeas corpus proceedings. See George William Brady, 2013 WL
6729908, at *5 (citations omitted). Rule 36.1 became effective approximately one month
before appellant filed his motion to correct clerical error in this case, and he does not mention
the rule in his appellate briefs. However, due to the nature of his claim, we have chosen to
construe his original motion as a Rule 36.1 motion to correct an illegal sentence. See State
v. Shelton Hall, No. M2012-01622-CCA-R3CD, 2013 WL 1200266, *4 (Tenn. Crim. App.
Mar. 26, 2013) (“This court has long recognized that pro se appellants are not held to the
same strict drafting standards as attorneys and that pro se pleadings should be more liberally
construed.”).

         Under Rule 36.1, appellant would be entitled to a hearing and appointment of counsel
if he stated a colorable claim for relief. Tenn. R. Crim. P. 36.1(b); see Marcus Deangelo Lee
v. State, No. W2013-01088-CCA-R3-CO, 2014 WL 902450, at *6 (Tenn. Crim. App. March
7, 2014). Because Rule 36.1 does not define “colorable claim,” we have adopted the
definition of a colorable claim from Tennessee Supreme Court Rule 28 § 2(H), which was
written in the context of post-conviction proceedings: “A colorable claim is a claim . . . that,
if taken as true, in the light most favorable to the [appellant], would entitle [appellant] to
relief . . . .”

        Taking all of appellant’s assertions as true and viewing them in the light most
favorable to him, we have determined that appellant has not presented a colorable claim for
relief from an illegal sentence because appellant’s pretrial incarceration did not “arise[] out
of” the Williamson County offense for which he was eventually convicted. See Tenn. Code
Ann. § 40-23-101(c). “[T]his Court has repeatedly held that Tennessee Code Annotated
section 40-23-101(c) only provides for credit against a sentence if the reason for the
incarceration arises from the offense for which the sentence was imposed.” State v. William
Shane Bright, No. E2006-01906-CCA-R3-CD, 2007 WL 1259176, at *4 (Tenn. Crim. App.
Apr. 30, 2007) (citing State v. Abernathy, 649 S.W.2d 285, 286 (Tenn. Crim. App. 1983);
Majeed v. State, 621 S.W.2d 153, 155 (Tenn. Crim. App. 1981); Trigg, 523 S.W.2d at 376).
In addition, the “primary purpose” of pretrial jail credits is fairness to indigent defendants
unable to post bond, so if a defendant is incarcerated on other charges, the purpose for
granting pretrial jail credits is not served. Id. (citing State v. Watkins, 972 S.W.2d 703, 705



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(Tenn. Crim. App. 1998); State v. Silva, 680 S.W.2d 485, 486 (Tenn. Crim. App. 1984);
Abernathy, 649 S.W.2d 285, 286)).

        Here, appellant was incarcerated for the Davidson County sentences, not pending
arraignment and trial for his Williamson County offense. Furthermore, the primary purpose
for granting pretrial jail credits does not apply to appellant because even if he had been able
to post bond for the Williamson County offense, he would not have been released because
he was incarcerated for the Davidson County sentences. See id. Moreover, with regard to
appellant’s assertion that he would have received parole in Davidson County but for the
Williamson County detainer, “we are not in a position to speculate what the Board’s
determination at [appellant’s parole] hearing would have been.” Id. “Therefore, we
conclude that [appellant’s] continued confinement due to his subsequent charges was not the
direct result of these additional charges so as to bring the [appellant] within the ambit of
T[ennessee] C[ode] A[nnotated] [section] 40-23-101(c).” Id. Thus, because appellant’s
argument, even viewed in the light most favorable to him, is without merit, we conclude that
he has not presented a colorable claim under Rule 36.1. Therefore, it is not necessary for this
court to remand this matter to the trial court for reconsideration of appellant’s motion under
Rule 36.1.

                                      CONCLUSION

        Based on the record, the briefs of the parties, and the applicable law, we affirm the
trial court’s denial of appellant’s motion.


                                                    _________________________________
                                                    ROGER A. PAGE, JUDGE




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