        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs July 21, 2015


              STATE OF TENNESSEE v. CUMECUS R. CATES

                 Appeal from the Criminal Court for Knox County
                   No. 68311, 68827   Bobby R. McGee, Judge




              No. E2015-00035-CCA-R3-CD – Filed December 30, 2015
                       _____________________________

Cumecus R. Cates (“the Defendant”) entered a global plea agreement to two Class B
felony drug offenses and two Class C felony drug offenses and was sentenced to eight
years for each Class B felony drug offense and three years for each Class C felony drug
offense. Pursuant to the agreement, the three-year sentence in case number 68311 was
aligned concurrently with the eight-year sentence in case number 68366, the three-year
sentence in case number 68367 was aligned concurrently with the eight-year sentence in
case number 68827, and the two eight-year sentences were aligned consecutively for an
effective sentence of sixteen years. Thereafter, the Defendant filed a Rule 36.1 motion
claiming that the concurrent alignment of one of his three-year sentences with one of his
eight-year sentences was illegal because he was released on bail for the other felonies
when he committed the second Class B felony. At the motion hearing, the State
conceded a mandatory consecutive sentence was illegally aligned concurrently and that
the Defendant was sentenced pursuant to a plea agreement. On motion of the State, the
trial court vacated the judgments for the two Class C felonies. The trial court then
determined that the illegal provisions of the now-vacated judgments were not material
components of the plea because the Defendant‟s effective sentence of sixteen years
remained after the convictions for the illegal sentences were vacated. Upon review, we
reverse the trial court‟s order vacating the Defendant‟s judgments of conviction and
remand the case for reinstatement of the judgments of conviction and for further
proceedings consistent with this opinion.

 Tenn. R. App. P.3 Appeal as of Right; Judgments of the Criminal Court Reversed,
                                  and Remanded

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which CAMILLE R.
MCMULLEN and ROGER A. PAGE, JJ., joined.
J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Cumecus R. Cates.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel;
Charme Allen, District Attorney General; and Leslie Nassios, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                             OPINION

                                           Background1

       On September 28, 2000, the Defendant entered a global plea to four felonies. The
following chart summarizes the dates upon which the Defendant committed each offense
and was released on bail,2 as well as the sentences imposed for the offenses pursuant to
the Defendant‟s global plea agreement:

Case       Felony    Offense date       Bail release date      Sentence
number     class
68311      B         7/27/1998          8/3/1998               8 yrs.
68366      C         7/21/1998          10/21/1998             3 yrs. concurrent with 68311
68367      C         8/11/1998          10/21/1998             3 yrs. concurrent with 68827
68827      B         6/25/1999                                 8 yrs. consecutive to 68311


       On October 20, 2013, the Defendant filed a motion to correct an illegal sentence
pursuant to Rule 36.1, claiming that “[t]he trial court sentenced him to [c]oncurrent
sentencing for the offenses that occurred while he was on [b]ond, when this was not
allowed by statute.” The trial court summarily dismissed the motion. On appeal, this
court determined that the motion presented a colorable claim, reversed the trial court‟s
summary dismissal, and remanded the case to the trial court for further proceedings.
Cumecus R. Cates v. State, No. E2014-00011-CCA-R3-CD, 2014 WL 4104556, at *2
(Tenn. Crim. App. Aug. 20, 2014).

       1
         To assist in the resolution of this proceeding, we take judicial notice of the record from the
Defendant‟s appeal of the summary dismissal of his Rule 36.1 motion. See Tenn. R. App. P. 13(c); State
v. Lawson, 291 S.W.3d 864, 869 (Tenn. 2009); State ex rel Wilkerson v. Bomar, 376 S.W.2d 451, 453
(Tenn. 1964).
       2
          All information in the chart comes from the Defendant‟s judgments of conviction, except the
bail release dates, which were obtained from the Defendant‟s Amended Motion to Correct an Illegal
Sentence and Withdraw the Guilty Pleas.
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       On remand, the Defendant was appointed counsel, who filed an Amended Motion
to Correct an Illegal Sentence and Withdraw the Guilty Pleas (“Amended Rule 36.1
Motion”). As explained by the Defendant in his Amended Rule 36.1 Motion, the
sentence in case number 68827 was required to run consecutively to the sentences in all
of the other case numbers—resulting in an effective nineteen-year sentence—because the
Defendant was released on bail for the other offenses when he committed the offense in
case number 68827. Consequently, the concurrent alignment of the sentences in case
numbers 68367 and 68827 was illegal.3 Additionally, the Defendant asserted that he
bargained for an effective sixteen-year sentence, and as such, the concurrent alignment of
his sentences in case numbers 68667 and 68827 was a material component of the plea.

        Following remand, the trial court held a hearing on the motion. No proof was
presented. Instead, the State announced that it had reviewed the files and that it agreed
with the Defendant‟s assertion that the concurrent alignment of the sentences in case
numbers 68366 and 68367 was illegal. The State orally moved to vacate the judgments
of conviction for the two Class C felonies in case numbers 68366 and 68367 and leave
intact the two Class B felony convictions in case number 68311 and 68827. The
Defendant objected, arguing that once the trial court determines that the sentence is
illegal, then the court should determine if the illegal concurrent sentence was a material
component of the plea and, if so, provide the Defendant an opportunity to withdraw his
plea for all four cases. The State responded that the Defendant suffered no prejudice
from the State‟s proposed remedy because the Defendant was getting what he bargained
for, an effective sixteen-year sentence.

        The trial court granted the State‟s motion, stating:

        The Court also concurs that the judgments as entered, at least partly, were
        illegal. And so the Court does grant the [D]efendant‟s motion to set aside
        his plea and vacate the judgments in cases 68366 and 68367. The Court
        does deny the [D]efendant‟s motion with respect to cases 68311 and 68827.

The trial court also noted that it was the Defendant‟s intention to plead guilty and receive
a sentence of sixteen years and that after the judgments of conviction in the two Class C
felonies were vacated, the Defendant received exactly what he bargained for, a total
effective sentence of sixteen years. Consequently, the trial court found that the illegal

        3
          The Defendant relies on Tennessee Code Annotated section 40-20-111(b), which provides that
if a defendant commits a felony while released on bail and is convicted of both offenses, the trial judge
has no discretion as to whether the sentences shall run concurrently or cumulatively but must order that
the sentences run cumulatively. Tenn. Code Ann. § 40-20-111(b) (1990) (employing the term
“cumulatively” rather than the term “consecutively”).

                                                  -3-
concurrent alignment of the sentences in case numbers 68667 and 68827 was not material
“to his decision to plead guilty and receive a [sixteen]-year sentence.” This timely
appeal followed.

                                          Analysis

       On appeal, the Defendant asserts that the trial court erred because it did not strictly
follow the procedure set out in Tennessee Rule of Criminal Procedure 36.1 after it
determined that the Defendant‟s sentence contained an illegality. The Defendant argues
that the trial court was required to determine first whether the illegal provision was a
material component of the plea agreement, and then, if it was material, offer the
Defendant the option of either withdrawing the entire plea agreement or accepting the
entire plea agreement with the necessary corrections to the judgments. In short, the
Defendant avers that the remedy applied by the trial court in this case “is not the method
contemplated by Rule 36.1.” The State argues that the Defendant bargained for an
effective sixteen-year sentence and that, because “the illegal provision had nothing to do
with the alignment of the two cases that created the sixteen-year sentence, the illegal
provision was not a material component of the plea agreement.”

       Rule 36.1 of the Tennessee Rules of Criminal Procedure states:

       (a) 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.

       (b) Notice of any motion filed pursuant to this rule shall be promptly
       provided to the adverse party. If the motion states a colorable claim that
       the sentence is illegal, and if the defendant is indigent and is not already
       represented by counsel, the trial court shall appoint counsel to represent the
       defendant. The adverse party shall have thirty days within which to file a
       written response to the motion, after which the court shall hold a hearing on
       the motion, unless all parties waive the hearing.

       (c)(1) If the court determines that the sentence is not an illegal sentence, the
       court shall file an order denying the motion.

       (2) If the court determines that the sentence is an illegal sentence, the court
       shall then determine whether the illegal sentence was entered pursuant to a
       plea agreement. If not, the court shall enter an amended uniform judgment
       document, see Tenn. Sup. Ct. R. 17, setting forth the correct sentence.
                                            -4-
       (3) If the illegal sentence was entered pursuant to a plea agreement, the
       court shall determine whether the illegal provision was a material
       component of the plea agreement. If so, the court shall give the defendant
       an opportunity to withdraw his or her plea. If the defendant chooses to
       withdraw his or her plea, the court shall file an order stating its finding
       that the illegal provision was a material component of the plea agreement,
       stating that the defendant withdraws his or her plea, and reinstating the
       original charge against the defendant. If the defendant does not withdraw
       his or her plea, the court shall enter an amended uniform judgment
       document setting forth the correct sentence.

       (4) If the illegal sentence was entered pursuant to a plea agreement, and if
       the court finds that the illegal provision was not a material component of
       the plea agreement, then the court shall enter an amended uniform
       judgment document setting forth the correct sentence.

       (d) Upon the filing of an amended uniform judgment document or order
       otherwise disposing of a motion filed pursuant to this rule, the defendant or
       the state may initiate an appeal as of right pursuant to Rule 3, Tennessee
       Rules of Appellate Procedure.

Tenn. R. Crim. P. 36.1 (emphasis added).

        On December 2, 2015, our supreme court issued two opinions concerning Rule
36.1. In State v. Brown, ___ S.W.3d. ___, No. E2014-00673-SC-R11-CD (Tenn. 2015),
the court held “that Rule 36.1 does not expand the scope of relief available for illegal
sentence claims and therefore does not authorize the correction of expired illegal
sentences.” Brown, slip op. at 12. The court then stated that “a Rule 36.1 motion may be
summarily dismissed for failure to state a colorable claim if the alleged illegal sentence
has expired.” Id. In State v. Wooden, ___ S.W.3d. ___, No. E2014-01069-SC-R11-CD
(Tenn. 2015), the court provided definitions for the Rule 36.1 terms “colorable claim”
and “illegal sentence.” Wooden, slip op. at 9, 11. For the 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 9. An illegal sentence is a sentence “that is not authorized by the applicable statutes
or that directly contravenes an applicable statute” and includes “sentences that are
ordered to be served concurrently where statutorily required to be served consecutively.”
Id. at 12.

       Based on the definitions in Wooden, the Defendant‟s motion presented a colorable
claim that the Defendant received an illegal sentence. However, there is nothing in the
record to indicate whether any of the Defendant‟s sentences are expired. Further, the
                                          -5-
remedy crafted by the trial court was not consistent with the procedure dictated by Rule
36.1. Once the trial court determined there was a colorable claim, the trial court needed
to hold a hearing to determine if the illegality was a material component of the
Defendant‟s plea agreement before crafting a remedy. Therefore, we conclude it is
necessary to reverse the judgment of the trial court and remand for further proceedings.

        On remand, the trial court should first determine if the Defendant‟s sixteen-year
sentence has expired. If the sixteen-year sentence has expired, the trial court should
summarily dismiss the Rule 36.1 motion. If the sentence has not expired, the trial court
should then determine if the illegal concurrent three-year sentence in case number 68367
has expired. In Brown, our supreme court held “that Rule 36.1 does not expand the scope
of relief and does not authorize the correction of expired illegal sentences.” Brown, slip
op. at 12. Rule 36.1 differs from habeas corpus by providing a “mechanism” that allows
the State as well as a defendant to seek correction of an illegal sentence and allows filing
of the motion in the county where the judgment of conviction was entered. Brown, slip
op. at 10. However, as our supreme court stated, “Despite these differences, Rule 36.1 is
identical to habeas corpus in other respects.” Id. (emphasis added). If identical, then
Rule 36.1 also requires a restraint on a person‟s liberty before relief can be granted. If
the sentence in case number 68367 has expired, then the Defendant is not restrained of
his liberty as a result of an illegal sentence and is not entitled to relief even if one of the
two eight-year consecutive sentences comprising the sixteen-year sentence has not
expired. Id. at 12; see also Derrick Sawyers v. State, No. M2007-01598-CCA-R3-HC,
2008 WL 2901628, at *5 (Tenn. Crim. App. Jul. 24, 2008), perm. app. denied (Tenn. Jan.
20, 2009) (holding that the defendant was not entitled to habeas corpus relief from an
illegal sentence when the promise of concurrence was honored by the Department of
Correction, the illegal concurrent sentence had expired, and the Defendant was no longer
restrained of his liberty as a result of the illegal concurrent sentence even though the
effective sentence had not expired). If the illegal concurrent sentence in case number
68367 has expired, the trial court should summarily dismiss the Rule 36.1 motion.

       If the trial court determines that the illegal concurrent sentence in case number
68367 has not expired, the trial court should determine if the illegal concurrent sentence
was a material component of the plea agreement. If the illegal concurrent sentence was
material, the trial court “shall give the defendant an opportunity to withdraw his or her
plea.” However, based on Brown, we determine that even if an illegal concurrent
sentence was a material component of a plea, the only convictions that can be affected by
the withdrawal of the guilty plea are convictions for which the sentence has not expired.
See Brown, slip op. at 12.




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                                   Conclusion

       For the aforementioned reasons, the order of the trial court vacating the
Defendant‟s two convictions is reversed, and the case is remanded for proceedings
consistent with this opinion.


                                            _________________________________
                                            ROBERT L. HOLLOWAY, JR., JUDGE




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