        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs September 1, 2015

                   STATE OF TENNESSEE v. DERRON GUY

                Appeal from the Criminal Court for Shelby County
               No. 0906692, 1000740, 1000741  Lee V. Coffee, Judge


             No. W2015-00536-CCA-R3-CD - Filed November 20, 2015
                        _____________________________

Appellant, Derron Guy, pleaded guilty to two counts of carjacking, one count of
aggravated robbery, two counts of employing a firearm during the commission of a
dangerous felony, one count of attempted carjacking, and one count of possession of a
firearm with the intent to go armed during the attempt to commit a felony. Pursuant to
the terms of his guilty plea, he received an effective sentence of 22.2 years in
confinement. In this motion to correct an illegal sentence, filed pursuant to Rule 36.1 of
the Tennessee Rules of Criminal Procedure, he argues that: (1) his effective sentence
extends beyond that permitted by statute; (2) his plea improperly “coupled” different
offender ranges within the same proceeding; and (3) the trial court‟s failure to sever the
offenses rendered his sentence illegal. The trial court summarily dismissed the motion
for appellant‟s failure to state a colorable claim. We affirm the judgment of the trial
court.

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

ROGER A. PAGE, J., delivered the opinion of the Court, in which JAMES CURWOOD WITT,
JR., and TIMOTHY L. EASTER, JJ., joined.

Derron Guy, Only, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General, for the Appellee, State of
Tennessee.
                                      OPINION

       Appellant was indicted for several criminal offenses as set forth below. The
disposition of each case is also noted:

Case No. Count      Offense/Date Felony         Disposition Sentence         Alignment1
                                 Grade                      Length
09-         I       Carjacking   Class B        Guilty plea 7.2 years at     CS to
06692               7/15/09                                 20%              Count II
                                                            (mitigated)
            II      Employing a Class C         Guilty plea 6 years          CS to
                    firearm                                 (mandatory) at   Count I
                    7/15/09                                 100%             and all
                                                                             other
                                                                             counts
10-         I       Carjacking     Class B      Guilty plea   7.2 years at   CS to
00740               7/3/09                                    20%            Count II of
                                                              mitigated)     -06692 and
                                                                             Count III
                                                                             of -00740
            II      Aggravated     Class B      Guilty plea   7.2 years at   CS to
                    robbery                                   20%            Count II of
                    7/3/09                                    (mitigated)    -06692,
                                                                             Count III
                                                                             of -00740,
                                                                             and Count
                                                                             II of -0741
            III     Employing a Class C         Guilty plea   6 years        CS to all
                    firearm                                   (mandatory) at other
                    7/3/09                                    100%           counts
10-         I       Attempted   Class C         Guilty plea   3 years at 30% CS to
00741               carjacking                                               Count II of
                    7/18/09                                                  -06692,
                                                                             Count II of
                                                                             -00741,
                                                                             and Count
                                                                             III of
                                                                             00740
        1
           “CS” refers to consecutive sentence alignment, and “CC” refers to concurrent
alignment. Unless otherwise indicated, all sentences are deemed concurrent.

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               II     Possession     Class C     Guilty plea    3 years        CS to all
                      with intent to                            (mandatory) at other
                      go     armed,                             100%           counts
                      7/18/09

       Appellant filed a “Motion for Order Correcting Error in Judgment” pursuant to
Rule 36.1 of the Tennessee Rules of Criminal Procedure claiming that his effective
sentence extends beyond the applicable range of his punishment. He filed a
memorandum of law in support of his motion, wherein he argued that due to “his
counsel‟s incompetence,” he pleaded guilty to the 22.2-year sentence, which was
“beyond the range of his punishment as prohibited by legislation,” and that he had no
notice of prior convictions for enhancement purposes.

       The trial court summarily dismissed appellant‟s motion, explaining that the basis
of appellant‟s motion was that appellant, in essence, sought to have all of his sentences
“reduced to the minimum term of punishment for the class of offense (Class B) totaling
7.2 years‟ punishment, to be served at 20%.” The trial court construed appellant‟s
motion as requesting that the court order all of the sentences to be served concurrently
with a set release eligibility, which would result in an invalid sentence vis-à-vis the
firearms convictions.

        In 2013, the Tennessee General Assembly approved Rule 36.1, which provides, in
part:

        (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.

        ....

      The legislature also approved an amendment to Tennessee Rule of Appellate
Procedure 3(b) to provide both the State and appellant with an appeal as of right from “an
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order or judgment entered pursuant to Rule 36 or Rule 36.1, Tennessee Rules of Criminal
Procedure.” Therefore, Rule 36.1 provided a new appeal as of right for individuals who
had received an illegal sentence.

       Pursuant to 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. Mar. 7, 2014). Because Rule 36.1 does not define “colorable claim,” we have
adopted the definition of a colorable claim used in the context of post-conviction
proceedings from Tennessee Supreme Court Rule 28 § 2(H): “A colorable claim is a
claim . . . that, if taken as true, in the light most favorable to the [appellant], would entitle
[appellant] to relief . . . .” State v. Mark Edward Greene, No. M2013-02710-CCA-R3-
CD, slip op. at 4 (Tenn. Crim. App. July 16, 2014).

        Taking all of appellant‟s assertions as true and viewing them in the light most
favorable to him, we have determined that appellant has failed to present a colorable
claim for relief from an illegal sentence because appellant‟s allegations do not establish
that he received a sentence that was in excess of his sentencing range. The judgment
forms reflect that for each of appellant‟s Class B felony convictions, the trial court
sentenced him as an especially mitigated offender pursuant to Tennessee Code Annotated
section 40-35-109. Accordingly, the trial court reduced the statutory minimum sentence
of eight years for a Range I, standard offender convicted of a Class B felony by 10%, for
a sentence of 7.2 years. See Tenn. Code Ann. § 40-35-112(a)(2). It also reduced his
release eligibility from 30% to 20% as permitted by statute. Id. § 40-35-109. These
sentences were all within-range and legally imposed; thus, they do not meet the threshold
definition of an illegal sentence, i.e., “one that is not authorized by the applicable statutes
or that directly contravenes an applicable statute.” Tenn. R. Crim. P. 36.1. Although
appellant did not enjoy the benefit of especially mitigated offender status with regard to
his guilty plea to attempted carjacking, for which he received three years as a standard
offender, that sentence was nonetheless within-range and authorized by statute. Id. § 40-
35-112(a)(3).

        Appellant also pleaded guilty to three weapons-related charges. For the first two
convictions, appellant agreed to six-year sentences to be served at 100% release
eligibility, which was the statutorily-defined mandatory minimum sentence. Id. § 39-17-
1324(b), (h)(1). The third firearms charge was possession with intent to go armed during
the attempted commission of a felony, for which the mandatory minimum sentence was
three years at 100% release eligibility. Id. § 39-17-1324(a), (g)(1). The language of
Section 39-17-1324(e)(1) makes clear that any sentence imposed under that section shall
be served consecutively to any other sentence that is imposed or that a defendant is
already serving. Thus, these sentences were not only legal, but mandatory.

                                              -4-
       To the extent that appellant mentions “coupling,” he seems to imply that the trial
court was without jurisdiction to sentence him within separate release eligibility
categories during the same proceeding. Our supreme court has upheld guilty-pleaded
sentences wherein a criminal defendant agreed to a “hybrid” sentence that “mixe[d] and
matche[d]” range assignment and release eligibility. Davis v. State, 313 S.W.3d 751, 760
(Tenn. 2010). Furthermore, “offender range classification and release eligibility are
„non-jurisdictional,‟” and any irregularity can be waived by a knowing and voluntary
guilty plea. Id. at 759-60. Each of the resulting sentences was within-range and legally
imposed.

        Appellant further alludes to error by the trial court in failing to sever his offenses,
which led to his pleading guilty to an “impermissible sentence.” We note first that
appellant concedes that no motion to sever the offenses was filed by trial counsel.
Appellant, therefore, has waived the issue of severance. See State v. John Wesley
Johnson, Jr., No. 02C01-9212-CC-00282, 1994 WL 29839, at *1 (Tenn. Crim. App. Feb.
2, 1994) (citing State v. Smith, 701 S.W.2d 216 (Tenn. 1985); Tenn. R. Crim. P. 14(a)).
Moreover, failure of the trial court to sever the offenses sua sponte is not cognizable in
36.1 proceedings because the alleged error does not result in an illegal sentence or one
not authorized by statute. Second, to the extent that appellant claims ineffective
assistance of counsel due to the failure to file said motion, that issue is properly addressed
via a petition for post-conviction relief, not a motion to correct an illegal sentence. The
trial court indulged appellant‟s argument that his motion should be treated, in the
alternative, as a petition for post-conviction relief and concluded that the motion was
filed outside of the statute of limitations. We agree, noting that appellant‟s judgments of
conviction became final on October 23, 2010, and he filed his Rule 36.1 motion on
December 9, 2014. In sum, appellant has failed to state a colorable claim for relief. The
trial court properly denied his petition in a summary fashion.

                                      CONCLUSION

       Based on the parties‟ briefs, the record, and the applicable law, we affirm the trial
court‟s judgment.


                                                   _________________________________
                                                   ROGER A. PAGE, JUDGE




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