        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs December 9, 2014

  STATE OF TENNESSEE v. KEVIN M. THOMPSON A.K.A. KEVIN M.
                          ALBERT

               Appeal from the Criminal Court for Hamilton County
 Nos. 222104, 222105, 222353, 231805, 205561, 205489  Barry A. Steelman, Judge




                 No. E2014-01358-CCA-R3-CD – Filed April 1, 2015



TIMOTHY L. EASTER, J., dissenting.


        I respectfully dissent with the conclusions of the majority that Defendant’s late
filing of his notice of appeal should be waived and that Defendant has stated a colorable
claim for relief, entitling him to the appointment of counsel and a hearing.

        The majority states that Defendant’s filing “is only three days late.” I agree that
Defendant is a pro se litigant and thus entitled to lenity. The Rules of Appellate
Procedure provide for such. However, the rules place on an incarcerated pro se litigant
the burden of establishing compliance with the filing requirements of the notice of appeal
if the timeliness of filing becomes an issue. See Tenn. R. App. P. 20(g). The State has
made timeliness an issue and Defendant has failed to meet his burden, even if “only three
days late.” I fail to see how waiver of timeliness of the notice of appeal can serve the
interests of justice, particularly when the offenses at issue occurred over fifteen years
ago.

        Further, Defendant alleges that the sentences in two of his cases—case numbers
205561 and 231805—are illegal because he committed the underlying offenses while on
bail and the trial court contravened applicable law by ordering his sentences to be served
concurrent to, rather than consecutive to, the sentences for which he was on bail. Notably
in this case, the record contains the plea petitions and, more significantly, the judgment
forms in each case. While Defendant was not required to attach such documentation to
support his claim under the requirements of Rule 36.1, see George William Brady v.
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State, No. E2013-00792-CCA-R3-PC, 2013 WL 6729908, at *6 (Tenn. Crim. App. Dec.
19, 2013), there is nothing in the Rule that prohibits the trial court—or this Court—from
taking those documents into account when determining whether Defendant has presented
a colorable claim.

        Defendant is correct that Tennessee Rule of Criminal Procedure 32(c)(3)(C) and
Tennessee Code Annotated section 40-30-111(b) mandate that sentences be served
consecutively when the defendant is on bail for one offense at the time he commits the
second offense. If we take Defendant’s allegations as true—that he was released on bail
at the time he committed the offenses in case numbers 205561 and 231805—then it
would appear from the plea petitions in the record that he negotiated concurrent sentences
in these two cases in direct contravention of the statute and rule. However, when we
examine the judgment forms for case numbers 205561 and 231805, we observe that they
are silent as to whether those sentences should run concurrently or consecutively to any
other sentence. Tennessee Rule of Criminal Procedure 32(c)(3) explicitly states that
“[w]hen a defendant is convicted of multiple offenses . . . and the law requires
consecutive sentences, the sentence shall be consecutive whether the judgment explicitly
so orders or not” (emphasis added). Because the respective judgments are silent, then by
rule the sentence in case number 205561 would run consecutively to the sentence in case
number 205489 and the sentence in case number 231805 would run consecutively to case
numbers 222104, 222105, and 222353. See Kevin Daws v. State, No. W2014-01002-
CCA-R3-CO, 2015 WL 112787, at *2 (Tenn. Crim. App. Jan. 8, 2015) (quoting Hogan v.
Mills, 168 S.W.3d 753, 756 (Tenn. 2005)). Therefore, Defendant has not made out a
colorable claim that his sentences are illegal. I would affirm the trial court’s summary
dismissal of the petition.



                                                 ___________________________
                                                 TIMOTHY L. EASTER, JUDGE




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