                                                                                           04/13/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs March 13, 2018

           STATE OF TENNESSEE v. WALTER ANDREW WARE

                   Appeal from the Circuit Court for Obion County
                       No. CC-09-CR-133 Jeff Parham, Judge
                      ___________________________________

                           No. W2017-01350-CCA-R3-CD
                       ___________________________________


Nearly nine years ago, Defendant, Walter Andrew Ware, committed aggravated child
abuse, aggravated child neglect and aggravated child endangerment on his two-month-old
infant daughter. He was sentenced to a sixteen year sentence, to be served at 100%.
Defendant now appeals from the trial court’s denial of his motion to correct an illegal
sentence filed pursuant to Tennessee Rule of Criminal Procedure 36.1. We affirm the
judgment of the trial court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and ALAN E. GLENN, JJ., joined.

Jason A. Jackson, Martin, Tennessee, for the appellant, Walter Andrew Ware.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Robert W. Wilson, District Attorney General; and Jim Cannon,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                        OPINION

        Defendant and a co-defendant were indicted on charges of aggravated child abuse,
aggravated child neglect, and aggravated child endangerment for injuries sustained by
their infant daughter, including bruises on her arms, torso, back, right thigh, right cheek,
right eyelid, and right ear; fractures of her right ninth, tenth, and eleventh ribs, and left
seventh, eighth, ninth, and eleventh ribs; two fractured tibias, one each in her lower legs,
and a third fracture to her right femur; extensive retinal hemorrhages in both eyes;
extensive hemorrhaging on both hemispheres of her brain; and a significant area of a
hematoma in the “falx” area of her brain. State v. Walter Andrew Ware, No. W2010-
01992-CCA-R3-CD, 2011 WL 4716238, at *1-4 (Tenn. Crim. App. Oct. 7, 2011), perm.
app. denied (Tenn. Feb. 15, 2012). The co-defendant testified at trial that she pled guilty
to child abuse and child neglect and received a two-year sentence on judicial diversion.
Id. She testified against Defendant at trial. Id. Defendant was convicted of all three
offenses and the trial court merged the convictions, imposing a sentence of sixteen years
as a violent offender. Id. On appeal, Defendant claimed that the evidence was
insufficient and that the trial court made errors during jury selection. Id. This Court
affirmed the convictions. Id. at *11.

       Defendant sought post-conviction relief on the basis of ineffective assistance of
counsel. Walter Ware v. State, W2013-01079-CCA-R3-PC, 2014 WL 12651024, at *1
(Tenn. Crim. App. Apr. 28, 2014), perm. app. denied (Tenn. Sept. 3, 2014). Defendant
argued that trial counsel failed to call an expert witness to testify on his behalf and failed
to challenge the evidence introduced by the State. The post-conviction court denied relief
on the basis that Defendant failed to present the expert’s testimony at the post-conviction
hearing, and this Court affirmed. Id. at *3.

        Defendant, still challenging his convictions, filed a motion to correct an illegal
sentence on March 27, 2017. In the motion, Defendant argued that his sentence was
illegal because it was disparate with his co-defendant’s sentence and because the State
improperly issued indictments on alternative theories. The trial court held a hearing but
ultimately denied the motion, finding that Defendant’s sentence was proper. Defendant
appeals the denial of the motion.

                                          Analysis

        On appeal, Defendant’s argument at its most basic level is that his sentence is
illegal because it is not fair. Specifically, Defendant complains that he was sentenced to
sixteen years and his co-defendant, who entered a guilty plea, was placed on judicial
diversion for a period of two years. Defendant also argues that it was illegal for the State
to “join distinct and separate offences in the same indictment or presentment” and that the
charges were duplicitous.

       Rule 36.1 permits a defendant to seek correction of an unexpired illegal sentence
at any time. See State v. Brown, 479 S.W.3d 200, 211 (Tenn. 2015). “[A]n illegal
sentence is one that is not authorized by the applicable statutes or that directly
contravenes an applicable statute.” Tenn. R. Crim. P. 36.1(a)(2). Our supreme court
interpreted the meaning of “illegal sentence” as defined in Rule 36.1 and concluded that
the definition “is coextensive, and not broader than, the definition of the term in the
habeas corpus context.” State v. Wooden, 478 S.W.3d 585, 594–95 (Tenn. 2015). The
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court then reviewed the three categories of sentencing errors: clerical errors (those arising
from a clerical mistake in the judgment form), appealable errors (those for which the
Sentencing Act specifically provides a right of direct appeal), and fatal errors (those so
profound as to render a sentence illegal and void). Id. Commenting on appealable errors,
the court stated that those “generally involve attacks on the correctness of the
methodology by which a trial court imposed sentence.” Id. In contrast, fatal errors
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 offenses.” Id. The
court held that only fatal errors render sentences illegal. Id. A trial court may summarily
dismiss a Rule 36.1 motion if it does not state a colorable claim for relief. Tenn. R. Crim.
P. 36.1(b)(2).

       Defendant has failed to establish a fatal error that would entitle him to the relief he
seeks. Any issue Defendant had with sentencing disparity should have been raised on
direct appeal. See State v. Gosnell, 62 S.W.3d 740, 750 (Tenn. Crim. App. 2001)
(explaining that although “[o]ur sentencing act is designed to eliminate unjustified
disparity in sentencing and provide for consistent treatment of defendants,” “each
defendant must be viewed individually with regard to the enhancing and mitigating
factors applicable to that defendant.”). In other words, Defendant has presented an
appealable error, rather than a fatal error. Additionally, to the extent Defendant is
challenging the constitutionality of his conviction or sentence, these issues are not
cognizable in a rule 36.1 motion. See State v. Dusty Ross Binkley, No. M2014-01173-
CCA-R3-CD, 2015 WL 2148950, at *4 (Tenn. Crim. App. May 7, 2015) (explaining that
Rule 36.1 does not apply to constitutional challenges). Defendant’s remaining complaint,
about the manner in which he was indicted and tried on alternate theories, is a challenge
to his underlying conviction rather than any illegal sentence he may have received. As
such, it is not cognizable in a Rule 36.1 proceeding. See State v. Jimmy Wayne Wilson,
No. E2013-02354-CCA-R3-CD, 2014 WL 1285622, at *2 (Tenn. Crim. App. Mar. 31,
2014) (noting that Rule 36.1 “does not provide an avenue for seeking reversal of
convictions”), perm. app. denied (Tenn. Nov. 19, 2014).

       Based on the foregoing, we affirm the denial of relief under Rule 36.1.


                                              ____________________________________
                                              TIMOTHY L. EASTER, JUDGE




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