        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                    Assigned on Briefs August 16, 2016 at Knoxville

                  STATE OF TENNESSEE v. OSCAR C. WELLS

                 Appeal from the Criminal Court for Shelby County
                Nos. 01-03299, 01-13119 James C. Beasley, Jr., Judge


              No. W2016-00170-CCA-R3-CD - Filed September 26, 2016


The defendant, Oscar C. Wells, appeals the summary dismissal of his motion, filed
pursuant to Tennessee Rule of Criminal Procedure 36.1, to correct what he believes to be
an illegal sentence imposed for his 2002 Shelby County Criminal Court jury conviction
of first degree murder. Discerning no error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and D. KELLY THOMAS, JR., JJ., joined.

Oscar C. Wells, Tiptonville, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; and Amy P. Weirich, District Attorney General, for the appellee, State
of Tennessee.

                                           OPINION

               A Shelby County Criminal Court jury convicted the defendant of one count
of first degree murder and one count of especially aggravated robbery, and the trial court
imposed a total effective sentence of life plus 10 years‟ incarceration. See State v. Oscar
C. Wells, No. W2002-01486-CCA-R3-CD, slip op. at 1 (Tenn. Crim. App., Jackson,
September 16, 2003).1 The defendant‟s subsequent bid for post-conviction relief was
unsuccessful, see Oscar C. Wells v. State, No. W2009-02231-CCA-R3-PC (Tenn. Crim.
App., Jackson, September 15, 2010), perm. app. denied (Tenn. Feb. 16, 2011), and, on
December 1, 2015, the defendant moved the trial court pursuant to Tennessee Rule of

1
        The defendant does not challenge the 10-year sentence imposed for his especially aggravated
robbery conviction.
Criminal Procedure 36.1 to correct his allegedly illegal sentence. The defendant claimed
entitlement to Rule 36.1 relief based upon “several constitutional and statutory” flaws in
Code section 40-35-501 with regard to parole eligibility. He argued that the trial court
and the Tennessee Department of Correction had incorrectly interpreted Code section 40-
35-501(h) to require that he serve a minimum of 51 years of his life sentence before being
paroled.

              The trial court summarily dismissed the defendant‟s motion, concluding
that the defendant had failed to state a colorable claim for Rule 36.1 relief.

             In this timely appeal, the defendant contends that the trial court erred by
summarily dismissing his motion. He reiterates his claim that Code section 40-35-501(h)
has been misinterpreted and misapplied in his case. The State asserts that summary
dismissal was appropriate.

               Rule 36.1 provides the defendant and the State an avenue to “seek the
correction of an illegal sentence,” defined as a sentence “that is not authorized by the
applicable statutes or that directly contravenes an applicable statute.” Tenn. R. Crim. P.
36.1; see also State v. Wooden, 478 S.W.3d 585, 594-95 (Tenn. 2015) (holding that “the
definition of „illegal sentence‟ in Rule 36.1 is coextensive with, and not broader than, the
definition of the term in the habeas corpus context”). To avoid summary denial of an
illegal sentence claim brought under Rule 36.1, a defendant must “state with particularity
the factual allegations,” Wooden, 478 S.W.3d at 594, establishing “a colorable claim that
the sentence is illegal,” Tenn. R. Crim. P. 36.1(b). “[F]or 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.” Wooden,
478 S.W.3d at 593. The determination whether a Rule 36.1 “motion states a colorable
claim for correction of an illegal sentence under Rule 36.1 is a question of law, to which
de novo review applies.” Id. at 589 (citing Summers v. State, 212 S.W.3d 251, 255
(Tenn. 2007)).

              Although Rule 36.1 purports to allow for the correction of an illegal
sentence “at any time,” see Tenn. R. Crim. P. 36.1, our supreme court has concluded that
“the phrase „at any time‟ has no bearing on whether Rule 36.1 authorizes relief from
expired illegal sentences” but instead “conveys two other important, but unrelated,
principles: (1) an illegal sentence may be corrected „at any time, even if [the sentence]
has become final,‟ and (2) Rule 36.1 motions, like habeas corpus petitions, are not subject
to any statute of limitations.” State v. Brown, 479 S.W.3d 200, 210 (Tenn. 2015). The
high court ultimately held “that Rule 36.1 does not expand the scope of relief and does
not authorize the correction of expired illegal sentences. Therefore, a Rule 36.1 motion

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may be summarily dismissed for failure to state a colorable claim if the alleged illegal
sentence has expired.” Id. at 211.

               The life sentence for the defendant‟s conviction of first degree murder was
authorized at the time of the offense and does not contravene any applicable statute. See
T.C.A. § 39-13-204; -207. In addition to being inaccurate, see Christopher A. Williams v.
State, No. W2013-00555-CCA-R3-HC, slip op. at 2 (Tenn. Crim. App., Jackson, Sept.
30, 2013), perm. app. denied (Tenn. Dec. 10, 2013), (“[T]his court has observed that the
phrase „life with parole‟ is inaccurate because a defendant sentenced to life is entitled „to
be released, as opposed to being paroled, after serving 100 percent of sixty years less any
eligible credits so long as they do not operate to reduce the sentence by more than 15
percent, or nine years‟ . . . .” (quoting State v. Kermit Penley, No. E2004-00129-CCA-
R3-PC, slip op. at 4 (Tenn. Crim. App., Knoxville, Nov. 1, 2004)), the defendant‟s claim
that the current interpretation of Code section 40-35-501 regarding the number of years
that must be served before release from a life sentence does not match the legislative
intent behind the statute would not affect the legality of his sentence and would not,
therefore, be cognizable in a Rule 36.1 proceeding.

              Accordingly, we affirm the judgment of the trial court.

                                                    _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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