                                                                                        05/14/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                April 28, 2020 Session

            STATE OF TENNESSEE v. WAYNE KEITH WALLEN

                  Appeal from the Circuit Court for Blount County
                    No. C-26270 Tammy M. Harrington, Judge
                     ___________________________________

                           No. E2019-01218-CCA-R3-CD
                       ___________________________________


The defendant, Wayne Keith Wallen, appeals the denial of his Rule 36.1 motion. Though
conceding the challenged sentence has expired, the defendant, relying on Summers v.
State, 212 S.W.3d 251 (Tenn. 2007), argues the trial court erred in dismissing his
petition. The trial court, relying on State v. Brown, 479 S.W.3d 200 (Tenn. 2015), found
that the defendant’s sentence had expired and that the defendant’s claim required
relitigating the case in order to determine whether the sentence was illegal which is not
proper under Rule 36.1. Thus, the trial court denied the defendant’s motion. Upon our
review of the record, the briefs of the parties, and the applicable law, we affirm the
judgment of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
TIMOTHY L. EASTER, JJ., joined.

Rick A. Owens, Alcoa, Tennessee, for the appellant, Wayne Keith Wallen.

Herbert H. Slatery III, Attorney General and Reporter; Katherine K. Decker, Assistant
Attorney General; Mike Flynn, District Attorney General; and Ashley Salem, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                           Facts and Procedural Background

       On June 15, 2012, the defendant pled guilty in Case No. C-20785 to violating the
sex offender registry, a Class E felony. As a result of his plea, the defendant received a
two-year sentence suspended to probation after service of 100 days’ incarceration. On
February 2, 2013, the defendant’s probation in Case No. C-20785 was revoked based on
a new arrest for aggravated sexual battery. As a result of his revocation, the trial court
ordered the defendant to serve the remainder of his two-year sentence in the Tennessee
Department of Correction.

       On April 22, 2013, the defendant pled guilty in Case No. C-21106 to three counts
of aggravated sexual battery for which the defendant received an effective sentence of
eight years’ incarceration. The trial court also ordered the defendant’s sentence in Case
No. C-21106 to be served consecutive to the two-year sentence the defendant was
currently serving in Case No. C-20785.

        On June 21, 2018, the defendant filed a pro se Rule 36.1 Motion to Correct Illegal
Sentence. After the appointment of counsel, the defendant filed an amended motion. In
both his original and amended motions, the defendant challenged his two-year sentence
in Case No. C-20785, arguing he should have only been assessed a fine for his violation
rather than sentenced to incarceration.

       At the hearing on the defendant’s Rule 36.1 motion, the defendant conceded his
two-year sentence in Case No. C-20785 had expired, and therefore, he was no longer
serving that sentence. However, the defendant argued that pursuant to Summers, the trial
court should consider his sentences in Case Nos. C-20785 and C-21106 as one effective
sentence of ten years since the trial court had ordered them to be served consecutively.
Thus, under Summers, he was still being restrained by a single ten-year sentence and
allowed to challenge the legality of Case No. C-20785. The State argued that the two
cases were separate and individual sentences and that the two-year sentence in Case No.
C-20785 had expired. Thus, pursuant to Brown, the defendant was not entitled to review
under Rule 36.1. State v. Brown, 479 S.W.3d 200 (Tenn. 2015). The State also insisted
the defendant’s claim that he should have received a fine as opposed to jail time required
looking beyond the judgment and relitigating the defendant’s guilty plea, and therefore,
was not a proper basis for Rule 36.1 review.

        At the conclusion of the hearing, the trial court found the defendant’s two-year
sentence had expired. The trial court also held the defendant’s claim would require
relitigating the defendant’s guilty plea and sentencing hearing. Accordingly, the trial
court denied the defendant’s Rule 36.1 motion. This timely appeal followed.

                                        Analysis

       Initially, we must address the State’s claim that the defendant’s appeal is not
properly before us. Specifically, the State submits this Court is precluded from reviewing
the defendant’s claim because he failed to include a copy of his judgment in Case No. C-
                                          -2-
21106. While the defendant argues his sentences in Case Nos. C-20785 and C-21106
create an effective sentence of ten years and allow him to challenge his two-year sentence
in C-20785, the defendant is not asking this Court to specifically review his sentence in
C-21106, and the sentence in that case is not necessary to an adjudication of the
defendant’s claim in the instant appeal. Accordingly, the defendant’s failure to include a
copy of the judgment in C-21106 does not preclude this Court from reviewing the
defendant’s appeal.

       Concerning the merits of the defendant’s appeal, the defendant contends the trial
court erred in denying his Rule 36.1 motion. He argues that his motion was timely
pursuant to Summers and that, since the motion was timely, a review of Case No. 20785
reveals his sentence was illegal. The State insists the defendant’s sentence has expired
and reviewing the defendant’s claim requires relitigating his guilty plea. Regardless,
according to the State, the defendant’s claim is not proper for review under Rule 36.1.
Upon our review of the record and the applicable authorities, we agree with the State and
affirm the decision of the trial court.

       Tennessee Rule of Criminal Procedure 36.1 provides that the appellant “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.” Tenn. R.
Crim. P. 36.1(a)(1). “A motion to correct an illegal sentence must be filed before the
sentence set forth in the judgment order expires.” Tenn. R. Crim. P. 36.1(a)(1). A
sentence is illegal if it “is not authorized by the applicable statutes or [it] directly
contravenes an applicable statute.” Tenn. R. Crim. P. 36.1(a)(2).

        If the court determines that the motion fails to state a colorable claim for relief, the
court must enter an order summarily denying the motion. Tenn. R. Crim. P. 36.1(b)(2).
“A ‘colorable claim’ means a claim that, if taken in a light most favorable to the moving
party, would entitle the moving party to relief under Rule 36.1.” State v. Wooden, 478
S.W.3d 585, 593 (Tenn. 2015). Whether the defendant has presented a colorable claim
for relief under Rule 36.1 is a question of law, which this Court reviews de novo without
a presumption of correctness. Id. at 589.

       In Brown, our supreme court addressed the issue of whether Rule 36.1 may be
used to correct illegal sentences that have expired. The Court in Brown stated:

       Rather than adopt an interpretation of Rule 36.1 that is not supported by the
       expressed purpose or language of Rule 36.1, that is not consistent with the
       jurisprudential context from which Rule 36.1 developed, and that has the
       potential to result in unconstitutional applications of Rule 36.1, we hold
       that Rule 36.1 does not expand the scope of relief and does not authorize
                                             -3-
       the correction of expired illegal sentences. Therefore, a Rule 36.1 motion
       may be summarily dismissed for failure to state a colorable claim if the
       alleged illegal sentence has expired.

Brown, at 211.

       The defendant has conceded his two-year sentence in Case No. C-20785 has
expired. The record also supports a finding that the defendant’s sentence has expired and
that he is no longer being restrained by that sentence. More specifically, the defendant’s
two-year sentence was originally imposed on June 15, 2012. He served 100 days in jail
and was then released on probation to serve the remainder. On February 2, 2013, the
defendant’s probation was revoked, and he was ordered to serve the remainder of his
sentence with the Tennessee Department of Correction. Even if we assume the defendant
received no credits towards the remaining one year and 265 days of his sentence and
served it day for day, the defendant’s sentence in Case No. C-20785 would have expired
on October 25, 2014. The defendant did not file the instant motion until June 2018. Rule
36.1 does not authorize relief from expired illegal sentences.

       However, the defendant, relying on Summers¸ argues that his combined sentences,
an effective 10-year sentence, allow him to challenge the two-year sentence. However,
unlike in Summers where the defendant was sentenced to multiple offenses at one time,
the defendant in the instant matter was sentenced at separate times for separate offenses.
Furthermore, the concern as addressed in Summers that no one would not know which
sentence is being served at what time, is not an issue in the instant matter. Again, the
defendant was sentenced to two years in June 2012. He was in the midst of serving the
remainder of that sentence when he pled guilty to new charges. As a result of his new
convictions, the trial court ordered the defendant to serve an effective eight-year sentence
consecutive to the two-year sentence he was already serving. This, unlike Summers, is
not a case of multiple convictions being sentenced at one time. Rather, here, service of
the defendant’s sentence in Case No. 21106 was delayed until after the sentence in Case
No. 20785, which he was already serving, was completed. Based on the procedural
history of this case, we decline to interpret Summers in the manner suggested by the
defendant. Instead, relying on our Supreme Court’s opinion in Brown, we find the
defendant’s two-year sentence had long expired at the time the defendant filed his Rule
36.1 motion, and thus, does not provide the defendant with a colorable claim. We,
therefore, affirm the judgment of the trial court.

       Since we have determined the defendant’s sentence has expired and he has failed
to present a colorable claim, it is not necessary to address the merits of the defendant’s
claim concerning the legality of his two-year sentence. However, we note that based on
our review of the record and the arguments of the parties, one would be required to
                                           -4-
relitigate the defendant’s guilty plea and sentencing hearing in Case No. 20785 in order
to determine if the appropriate punishment was imposed. Therefore, pursuant to Rule
36.1, the defendant’s claim would not be proper for review.


                                      Conclusion

        Based on the foregoing authorities and reasoning, we affirm the judgment of the
trial court.



                                            ____________________________________
                                            J. ROSS DYER, JUDGE




                                         -5-
