        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs December 2, 2014

         FREDERICK O. EDWARDS v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Weakley County
                      No. 2000-CR4      William B. Acree, Judge


              No. W2014-01463-CCA-R3-CO - Filed December 30, 2014


The Petitioner, Frederick O. Edwards, appeals the Weakley County Circuit Court’s summary
dismissal of his motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal
Procedure 36.1. The Petitioner contends that the trial court erred by treating his Rule 36.1
motion as a petition for post-conviction relief and further asserts that he has presented a
colorable claim for relief. We agree that the trial court’s treatment of the Petitioner’s motion
to correct an illegal sentence as a petition for post-conviction relief was error, but because
we conclude that the Petitioner has not presented a colorable claim, the trial court’s order
denying relief is affirmed.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and R OGER A. P AGE, JJ., joined.

Frederick O. Edwards, Memphis, Tennessee, pro se.

Herbert H. Slatery, III, Attorney General and Reporter; and Rachel E. Willis, Senior Counsel,
for the appellee, State of Tennessee.

                                    OPINION
                             PROCEDURAL BACKGROUND

       In November 1996, a jury found the Petitioner guilty of four counts of sale of less than
.5 grams of cocaine. On November 4, 1996, the trial court sentenced the Petitioner to six
years on each count, to be served concurrently, for a total effective sentence of six years. On
appeal, this court reversed one conviction and affirmed the remaining three convictions, as
well as the sentences. State v. Frederick Ottitus Edwards, No 02C01-9704-CC-00157, 1998
WL 208056, at *6 (Tenn. Crim. App. Apr. 29, 1998).
        On February 29, 2000, while on probation for the sale of cocaine convictions, the
Petitioner pled guilty to one count of aggravated robbery. The trial court imposed a sentence
of twelve years, to be served concurrently to the Petitioner’s existing six-year sentence. The
trial court entered an order revoking the Petitioner’s probation on April 20, 2000.

       On July 8, 2014, the Petitioner filed a motion to correct an illegal sentence and vacate
his guilty plea pursuant to Tennessee Rule of Criminal Procedure 36.1. The Petitioner
argued that the trial court was required to order that his twelve-year sentence for aggravated
robbery be served consecutively to his six-year sentence for sale of cocaine because he was
on probation when he committed the robbery. He further argued that the illegal sentence was
a material element of his plea agreement and concluded that he should be allowed to
withdraw his guilty plea.

       On July 10, 2014, the trial court entered an order summarily dismissing the motion.
The trial court treated the motion as a petition for post-conviction relief and denied it as
being untimely filed. This appeal followed.

                                         ANALYSIS

        On appeal, the Petitioner contends that the trial court erred by treating his Rule 36.1
motion as a petition for post-conviction relief. He further asserts that he has made a
colorable claim that his sentence is illegal. In particular, the Petitioner alleges that his
sentences were required to run consecutively and that the order of concurrent service was in
direct contravention of applicable statutes. The State concedes that the trial court erred in
construing the Petitioner’s motion as a petition for post-conviction relief. However, the State
argues that the Petitioner has failed to present a colorable claim and, therefore, asserts that
he is not entitled to relief. We agree with the State.

       Tennessee Rule of Criminal Procedure 36.1 states in relevant 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

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       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.

       ....

(Emphasis added). A motion to correct an illegal sentence is a remedy separate and distinct
from habeas corpus or post-conviction relief. See State v. Jonathan T. Deal, No. E2013-
02623-CCA-R3-CD, 2014 WL 2802910, at *2 (Tenn. Crim. App. June 17, 2014). Relief
pursuant to Tennessee Rule of Criminal Procedure 36.1 is available at any time upon motion
of either the defendant or the State. Therefore, we agree with both the Petitioner and the
State that the trial court erred by treating the Rule 36.1 motion as a petition for post-
conviction relief and by finding that it was not timely filed. However, this does not conclude
our inquiry.

       The Petitioner further contends that he has presented a colorable claim for relief and
that we should, therefore, remand his case to the trial court for the appointment of counsel
and a hearing to determine whether he received an illegal sentence. See Tenn. R. Crim. P.
36.1(b). As we have previously held,

       [b]ecause 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
       petitioner, would entitle petitioner to relief . . . .”

State v. David Morrow, No. W2014-00338-CCA-R3-CO, 2014 WL 3954071, at *2 (Tenn.
Crim. App. Aug. 13, 2014) (citing State v. Mark Edward Greene, No. M2013-02710-CCA-
R3-CD, 2014 WL 3530960, at *3 (Tenn. Crim. App. July 16, 2014)).

       In support of his contention that he has presented a colorable claim for relief, the
Petitioner first directs us to Tennessee Rule of Criminal Procedure 32(c). The Petitioner
contends that Rule 32(c) requires that a trial court impose a consecutive sentence when a
defendant commits a felony offense while on probation. Rule 32(c)(3) states that

       [w]hen the defendant has additional sentences not yet fully served as the result
       of convictions in the same or other courts and the law requires consecutive

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        sentences, the sentence shall be consecutive whether the judgment explicitly
        so orders or not. This rule shall apply:

                 (A) to a sentence for a felony committed while on parole for a felony;

                 (B) to a sentence for escape or for a felony committed while on escape;

                 (C) to a sentence for a felony committed while the defendant was
                 released on bail and the defendant is convicted of both offenses; and

                 (D) for any other ground provided by law.

We find nothing in the language of Rule 32(c) that would require the imposition of
consecutive sentencing when a defendant commits a felony offense while on probation. In
fact, Tennessee Code Annotated section 40-35-115, discussed more fully below, makes it
clear that a trial court has discretion to impose a consecutive sentence when a defendant is
sentenced for an offense committed while on probation. The Petitioner’s argument is without
merit.

        The Petitioner also contends that his concurrent sentence was imposed in direct
contravention of Tennessee Code Annotated section 40-35-210. The Petitioner contends that
subsection 40-35-210(b) contains mandatory language requiring the court to consider certain
criteria when determining an appropriate sentence.1 We agree, however, this section does
not mandate a certain outcome—it merely sets forth guidelines for the trial court to follow
during the sentencing phase and is, therefore, not dispositive of the issue in the instant case.

       Next, the Petitioner points us to Tennessee Code Annotated section 40-35-115(d),
which states that “[s]entences shall be ordered to run concurrently if the criteria noted in
subsection (b) are not met, unless consecutive sentences are specifically required by statute
or the Tennessee Rules of Criminal Procedure.” Subsection (b)(6) states that “[t]he court
may order sentences to run consecutively if the court finds by a preponderance of the
evidence that . . . [t]he defendant is sentenced for an offense committed while on probation.”
Tenn. Code Ann. § 40-35-115(b) (emphasis added). The Petitioner argues that, because he
meets the criterion in subsection (b)(6), the trial court was required to order a consecutive
sentence in his aggravated robbery case.



1
 Subsection (b) states that “[t]o determine the specific sentence and the appropriate combination of
sentencing alternatives that shall be imposed on the defendant, the court shall consider the following . . . .”
(Emphasis added). The statute then lists seven criteria for the court to consider.

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        The Petitioner misconstrues the impact of the permissive and mandatory language
contained in subsections (b) and (d). Subsection (b) sets forth circumstances under which
the trial court may order a sentence to run consecutively. Subsection (d) states that a court
must order a sentence to run concurrently “if the criteria in subsection (b) are not met.” In
other words, subsection (b) vests the trial court with discretion to impose a consecutive
sentence where certain criteria are present, while subsection (d) takes that power away in
cases where none of the criteria are satisfied. Nothing in these subsections would mandate,
as the Petitioner contends, that a consecutive sentence be ordered every time any one of the
criterion in subsection (b) is met. See Jason Settles v. State, No. W2008-00370-CCA-R3-PC,
2009 WL 1026006, at *4 (Tenn. Crim. App. Apr. 15, 2009) (construing section 40-35-
115(b)(6) as providing for discretionary consecutive sentencing when a defendant is
sentenced for an offense committed while on probation). Accordingly, we conclude that the
Petitioner has failed to show that he was sentenced in contravention of any applicable statute
and, thus, has not presented a colorable claim for relief pursuant to Tennessee Rule of
Criminal Procedure 36.1.

                                      CONCLUSION

        Upon consideration of the foregoing and the record as a whole, the judgment of the
trial court is affirmed.




                                                   _________________________________
                                                   D. KELLY THOMAS, JR., JUDGE




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