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

            STATE OF TENNESSEE v. TRACY EUGENE HARRIS

                Appeal from the Criminal Court for Hamilton County
                         No. 284716   Don W. Poole, Judge


              No. E2014-01857-CCA-R3-CD – Filed November 13, 2015


The Petitioner, Tracy Eugene Harris, appeals from the Hamilton County Criminal Court‟s
order denying his motion for pretrial jail credit pursuant to Rule 36.1 of the Tennessee
Rules of Criminal Procedure. On appeal, the Petitioner argues that the trial court erred by
overruling his motion for pretrial jail credit. The State responds that the Petitioner‟s
argument is waived for failure to file a timely notice of appeal and that the trial court
properly denied the Petitioner‟s motion. Following our review, we affirm the judgment
of the trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which ROGER A. PAGE
and ROBERT L. HOLLOWAY, JR., JJ., joined.

Andrew W. Childress, Chattanooga, Tennessee, for the Defendant-Appellant, Tracy
Eugene Harris.

Robert E. Cooper, Jr., Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
Attorney General; William H. Cox, District Attorney General; and Bryan Bates, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

       Based on the limited record before this court, we glean the following facts
pertaining to this appeal. On September 25, 2013, the Petitioner entered a guilty plea to
violating the Motor Vehicle Habitual Offender Act (MVHOA). On December 5, 2013,
he was sentenced to six years‟ confinement, which was to be served consecutively to the
remainder of an unrelated eight-year sentence for a 2008 vandalism conviction. At the
time of his arrest for violating the MVHOA, the Petitioner had been released on parole
for the vandalism. The Petitioner remained on parole despite the MVHOA charge until
he was arrested again, on February 5, 2013, for domestic violence assault. He was
incarcerated that same day and his parole was revoked on February 26, 2013. While the
Petitioner asserts in his brief that his parole “was not revoked until July 10, 2013[,] and
[that] he was not notified of the revocation until February 7, 2014[,]” the presentence
report shows the Petitioner‟s parole was revoked on February 26, 2013.

       The Petitioner filed a motion for pretrial jail credit on July 31, 2014, arguing that
he should have been awarded pretrial jail credit on his MVHOA conviction for the time
he was incarcerated from February 5, 2013, through his sentencing hearing on December
5, 2013. At the hearing on the Petitioner‟s motion, the trial court explained to the
Petitioner that he was not entitled to receive credit for time served on both the sentences
imposed for vandalism and the MVHOA violation because the sentences were ordered to
be served consecutively. The trial court explained, “[i]f one sentence is [run
consecutively to] the other one, you don‟t start getting credits for that until the other
[sentence] is over with.” The trial court issued an order denying the Petitioner‟s motion
on August 18, 2014. On September 24, 2014, the Petitioner filed a notice of appeal.

                                       ANALYSIS

       On appeal, the Petitioner claims he was denied pretrial jail credits in violation of
Tennessee Code Annotated Section 40-23-101(c). Specifically, he claims the period he
spent incarcerated from February 5, 2013, to December 5, 2013, should be credited to his
MVHOA sentence as reflected on the amended judgment. The Petitioner asserts that the
denial of these credits results in an illegal sentence. We disagree.

        This court has held that the failure to award pretrial jail credits contravenes the
requirements of Tennessee Code Annotated Section 40-23-101(c) and renders a sentence
illegal. Tucker v. Morrow, 335 S.W.3d 116, 123 (Tenn. Crim. App. Dec. 1, 2009).
Claims of illegal sentences can only be challenged through a habeas corpus proceeding or
Rule 36.1 of the Tennessee Rules of Criminal Procedure. Id.; State v. Mark Edward
Greene, No. M2013-02710-CCA-R3-CD, 2014 WL 3530960, at *3 (Tenn. Crim. App.
July 16, 2014), perm. app. denied (Tenn. Dec. 18, 2014). “The defendant has the burden
to show by a preponderance of the evidence that the sentence is void or that the
confinement is illegal.” Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000). Upon the trial
court‟s denial of a Rule 36.1 challenge, the Petitioner may appeal the decision as
provided in Rule 3(b) of the Tennessee Rules of Appellate Procedure. James William
Taylor v. State, No. M2012-01549-CCA-R3-PC, 2013 WL 2145776, at *6 (Tenn. Crim.
App. May 15, 2013), reh‟g denied (Sept. 23, 2013). The 2013 Advisory Commission
Comments to Rule 3(b) specifically mention the defendant‟s appeal as of right from a
trial court‟s ruling on a Rule 36.1 motion to correct an illegal sentence:

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       Tenn. R. Crim. P. 36.1 was adopted in 2013 to provide a mechanism for the
       defendant or the State to seek to correct an illegal sentence. With the
       adoption of that rule, this rule (Tenn. R. App. P. 3) was amended to provide
       for an appeal as of right, by either the defendant (see paragraph 3(b)) or the
       State (see paragraph 3(c)), from the trial court‟s ruling on a motion filed
       under Tenn. R. Crim. P. 36.1 to correct an illegal sentence.

Tenn. R. App. P. 3, Advisory Comm‟n Cmts.

        The thirty-day time period within which a petitioner may file a notice of appeal
begins on the date of the order denying the petitioner‟s motion. See State v. Cordell, 645
S.W.2d 763, 765 (Tenn. Crim. App. 1982); see also State v. Michael Parks, No. 01C01-
9506-CC-00177, 1996 WL 374106, at *4 (Tenn. Crim. App. July 5, 1996); Michael S.
Hurt v. State, No. 01C01-9207-CC-00213, 1993 WL 39751, at *3 (Tenn. Crim. App. Feb.
18, 1993). Rule 4(a) of the Tennessee Rules of Appellate Procedure states that “in all
criminal cases the „notice of appeal‟ document is not jurisdictional and the filing of such
document may be waived in the interest of justice.” Here, the Petitioner‟s notice of
appeal was received by the trial court clerk on September 24, 2014, thirty-seven days
after entry of the order denying his motion in this case. As the State notes, the Petitioner
has failed to provide an explanation for his untimely filing. For the reasons that follow,
we agree, and conclude that the “interests of justice” do not support a waiver of the
untimely notice of appeal in this case. See Tenn. R. App. P. 4(a); see also Crittenden v.
State, 978 S.W.2d 929, 932 (Tenn. 1998).

        Our review of this issue is foreclosed by the absence of the amended judgment in
the record on appeal. The transcript from the hearing on the Petitioner‟s motion reflects
that the Petitioner was relying on the amended judgment in claiming that he was owed
pretrial jail credit on his MVHOA sentence. Without the benefit of the amended
judgment, we are unable to determine whether the Petitioner is entitled to pretrial credit
on his MVHOA sentence. The Petitioner has a duty to prepare a record that conveys “a
fair, accurate and complete account of what transpired with respect to those issues that
are the bases of appeal.” Tenn. R. App. P. 24(b). The scope of appellate review is limited
to the facts established in the record. Id. 13(c). “In the absence of an adequate record on
appeal, we must presume that the trial court‟s ruling was supported by the evidence.”
State v. Bibbs, 806 S.W.2d 786, 790 (Tenn. Crim. App. 1991) (citing Smith v. State, 584
S.W.2d 811, 812 (Tenn. Crim. App. 1979); Vermilye v. State, 584 S.W.2d 226, 230 (Tenn.
Crim. App. 1979)).

       Other than the presentence report, there was no proof offered at the hearing on
Petitioner‟s motion for pretrial jail credit. Upon hearing argument of counsel, the trial
court stated, “I feel confident, based on what I‟m hearing, that [the time served] was
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applied to the [vandalism] sentence and you served that and got credit for that, but you
can‟t get double credit for it now on a consecutive sentence.” Accordingly, the trial court
denied the Petitioner‟s motion. Given the state of the appellate record, we must presume
the trial court‟s ruling was supported by the evidence.

                                         CONCLUSION

       As the interests of justice do not merit a waiver of the untimely filing of the notice
of appeal in this matter, this appeal is dismissed.




                                                   _________________________________
                                                   CAMILLE R. McMULLEN, JUDGE




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