                                                                                        03/22/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                  Assigned on Briefs January 18, 2017 at Knoxville

                STATE OF TENNESSEE v. EARL VANTREASE

                 Appeal from the Criminal Court for Putnam County
                      No. 02-0666 Gary S. McKenzie, Judge


                            No. M2016-01200-CCA-R3-CD


The Defendant, Earl Vantrease, was convicted by a Putnam County jury of aggravated
robbery in 2003 and received a sixteen-year sentence as a Range II offender. Thirteen years
later, the Defendant filed a motion pursuant to Tennessee Criminal Procedure Rule 36.1
requesting that the trial court correct an illegal sentence. The trial court summarily
dismissed the motion. On appeal, the Defendant contends that the trial court erred in
dismissing his motion. We affirm the judgment of the trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and D. KELLY THOMAS, JR., JJ., joined.

Earl Vantrease, Whiteville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant Attorney
General; and Bryant C. Dunaway, District Attorney General, for the appellee, State of
Tennessee.

                                       OPINION

       In 2003, the Defendant was convicted of aggravated robbery and received a sixteen-
year sentence. Although he did not appeal his conviction or sentence, the Defendant
unsuccessfully sought habeas corpus relief. See Earl Vantrease, Jr. v. State, No. M2012-
02023-CCA-R3-HC, 2013 WL 1896929 (Tenn. Crim. App. May 6, 2013), perm. app. denied
(Tenn. Nov. 13, 2013); see also Earl Vantrease, Jr. v. Wayne Brandon, Warden, No. M2006-
02414-CCA-R3-HC, 2007 WL 2917783 (Tenn. Crim. App. Oct. 9, 2007).

      On May 11, 2016, the Defendant filed a motion to correct an illegal and void sentence
pursuant to Tennessee Criminal Procedure Rule 36.1. In the motion, the Defendant alleged
that the trial court enhanced his sentence using an improper enhancement factor, that his
sentence was improperly enhanced based upon a previous arrest in violation of Apprendi v.
New Jersey, 530 U.S. (2000), that his sentence was improperly enhanced “based solely on
[the] prosecutor’s request,” rather than upon statutory provisions, and that he was denied his
statutory right to allocution at the sentencing hearing. On May 12, 2016, the trial court
summarily dismissed the motion for the failure to state a colorable claim. The court
interpreted that the Defendant’s motion was to obtain pretrial jail credits and concluded that
the determination of pretrial jail credits must be addressed pursuant to the Administrative
Procedures Act. This appeal followed.

       The Defendant contends that the trial court erred by dismissing his motion for the
correction of an illegal sentence because he did not allege he was denied pretrial jail credits.
He raises on appeal the same allegations stated in his written motion and requests that this
court review his sentence for plain error. The State responds that although the trial court
erroneously determined that the basis for the Defendant’s motion was related to pretrial jail
credits, the Defendant nonetheless failed to state a colorable for relief. We agree with the
State.

       Tennessee Criminal Procedure Rule 36.1 states, in relevant part, that

       (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.

Tenn. R. Crim. P. 36.1(a). A defendant is entitled to a hearing and the appointment of
counsel if the motion states a colorable claim for relief. Id. at 36.1(b).

       Whether a defendant states a colorable claim is a question of law and is reviewed de
novo. State v. Wooden, 478 S.W.3d 585, 588 (Tenn. 2015). A colorable claim is defined as
“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 593. A motion filed
pursuant to Rule 36.1 “must state with particularity the factual allegations on which the
claim for relief from an illegal sentence is based.” Id. at 594. A trial court “may consult the
record of the proceeding from which the allegedly illegal sentence emanated” when
determining whether a motion states a colorable claim for relief. Id.

       Only fatal errors result in an illegal sentence and “are so profound as to render the
sentence illegal and void.” Id. at 595; see State v. Cantrell, 346 S.W.2d 445, 452 (Tenn.
2011). Fatal errors include sentences imposed pursuant to an inapplicable statutory scheme,
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sentences that designate release eligibility dates when early release is prohibited, sentences
that are ordered to be served concurrently when consecutive service is required, and
sentences that are not authorized by statute. Wooden, 478 S.W.3d at 595. Errors which are
merely appealable, however, do not render a sentence illegal and include “those errors for
which the Sentencing Act specially provides a right of direct appeal.” Id.; see Cantrell, 346
S.W.2d at 449. Appealable errors are “claims akin to . . . challenge[s] to the sufficiency of
the evidence supporting a conviction” and “involve attacks on the correctness of the
methodology by which a trial court imposed sentence.” Wooden, 478 S.W.3d at 595; see
Cantrell, 346 S.W.2d at 450-52.

        As a preliminary matter, we agree with the parties that the trial court inexplicably
determined that the Defendant argued his sentence was illegal because he was denied pretrial
jail credits. In any event, we conclude that the Defendant failed to state a colorable claim for
relief pursuant to Rule 36.1.

       The Defendant was convicted of aggravated robbery, a Class B felony. See T.C.A. §
39-13-402(b) (2010). He was sentenced as a Range II offender to serve sixteen years’
confinement at 35% service. The punishment as a Range II offender for a Class B felony “is
not less than twelve (12) nor more than twenty (20) years.” Id. §40-35-112(b)(2) (2014).
Therefore, the trial court had the statutory authority to sentence the Defendant to sixteen
years’ confinement for aggravated robbery.

       Relative to the Defendant’s allegations that the trial court improperly enhanced his
sentence, the Defendant alleges appealable errors, not fatal errors, involving the
methodology by which the court imposed the sixteen-year sentence. The Defendant’s
sentence was statutorily available, and therefore, any error in enhancing his sentence does
not render it illegal pursuant to Rule 36.1. See Wooden, 478 S.W.3d at 595-96.

        Relative to the Defendant’s allegation that he was denied his right to allocution at the
sentencing hearing, this court has previously concluded that the “[f]ailure to allow a
defendant to speak on his own behalf at sentencing is an issue that should be raised on direct
appeal and would not create a sentence that is not authorized by the applicable statutes or
that directly contravenes an applicable statute.” Jeffery Yates v. State, No. W2014-00325-
CCA-R3-CO, 2015 WL 128097, at *4 (Tenn. Crim. App. Dec. 2, 2014), perm. app. denied
(Tenn. May 15, 2015). Therefore, even if the Defendant’s allegation were true, it would not
present a colorable claim for relief.

        As a result, we conclude that the Defendant’s sentence is not illegal and that the trial
court did not err by summarily dismissing the motion. The Defendant is not entitled to
relief.


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         Based on the foregoing and the record as a whole, we affirm the judgment of the trial
court.



                                             ____________________________________
                                             ROBERT H. MONTGOMERY, JR., JUDGE




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