        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs August 9, 2016

              STATE OF TENNESSEE v. ROBERT GUERRERO

                  Appeal from the Circuit Court for Maury County
                      No. 17884 Stella L. Hargrove, Judge
                     ___________________________________

                 No. M2016-00481-CCA-R3-CD – Filed June 5, 2017
                      ___________________________________

Defendant, Robert Guerrero, appeals from the trial court’s summary denial of his Motion
for Correction of Illegal Sentence filed pursuant to Tennessee Rule of Criminal Procedure
(Tenn. R. Crim. P.) 36.1. In his motion and on appeal, Defendant asserts that his nine
consecutive fifteen-year sentences for nine convictions of attempted first degree murder
are illegal. He asserts that by imposing consecutive sentencing, the trial court failed to
base its ruling on at least one of seven criteria found in Tennessee Code Annotated
(T.C.A.) section 40-35-115. After a thorough review, we affirm the judgment of the trial
court.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY, JR., and J. ROSS DYER, JJ., joined.

Robert Guerrero, Only, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; and Brent A. Cooper, District Attorney General, for the appellee, State of
Tennessee.

                                       OPINION

       Following a jury trial, Defendant was convicted of two counts of first degree
murder and nine counts of attempted first degree murder. He was sentenced to life
imprisonment for each conviction of first degree murder, and these two sentences were
ordered to be served consecutively to each other and consecutively to the nine fifteen-
year sentences set forth above. His effective sentence was therefore two life sentences
plus 135 years. He appealed, and this Court affirmed the judgments. State v. Robert A.
Guerrero, No. M2008-02839-CCA-R3-CD, 2011 WL 2306078 (Tenn. Crim. App. 2011),
perm. app. denied (Tenn. Sept. 21, 2011). One of the issues raised by Defendant in his
direct appeal was that the trial court erred by imposing consecutive sentencing. Robert A.
Guerrero, 2011 WL 2306078 at *1. Defendant’s challenge to consecutive sentencing in
that appeal was that the trial court failed to make sufficient factual findings to support its
conclusion that Defendant was a “dangerous offender,” one of the seven bases to impose
consecutive sentencing pursuant to T.C.A. § 40-35-115. See id. at *16; see T.C.A. § 40-
35-115(b)(4).

        This Court reviewed detailed portions of the trial court’s ruling and concluded that
even if the trial court erred by finding Defendant was a dangerous offender, the record
showed, and Defendant conceded, that the trial court correctly found that he was on
probation at the time he committed the offenses for which consecutive sentencing was
imposed. Robert A. Guerrero, 2011 WL 2306078 at *17. The trial court concluded that
this was an additional statutory factor pursuant to T.C.A. § 40-35-115(b)(6) which
justified consecutive sentencing, and this Court agreed. Robert A. Guerrero, 2011 WL
2306078 at *17.

       Defendant admits in the case sub judice that consecutive sentencing was
appropriate for the two life sentences. However, he asserts in his Rule 36.1 motion and
on appeal that the trial court “was without statutory authority” to impose consecutive
sentencing for the attempted first degree murder convictions. He argues that the trial
court’s sole basis for ordering the challenged consecutive sentences was a finding that “to
do any less than to run these consecutive with each other and with the two life sentences
would be depreciating the life of either one of the deceased, or the lives of one of these
victims.”

       Defendant’s argument is misplaced as the quoted portion of the trial court’s ruling
is taken out of context. In the direct appeal, as noted above in our discussion of this
Court’s opinion, the trial court found that consecutive sentencing was justified pursuant
to T.C.A. § 40-35-115(b)(6) due to Defendant being on probation when he committed the
offenses. We held that ground justified consecutive sentencing for the attempted first
degree murder convictions. Id.

      At the time Defendant filed his motion, and the trial court denied it, Tenn. R.
Crim. P. 36.1 provided in pertinent 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

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        authorized by the applicable statutes or that directly contravenes an
        applicable statute.

                ....

               (c)(1) If the court determines that the sentence is not an illegal
        sentence, the court shall file an order denying the motion.

      Rule 36.1 has since been amended, effective July 1, 2016, but the amended rule
would still not grant relief to Defendant.

        In State v. Wooden, 478 S.W.3d 585 (Tenn. 2015), filed before Defendant filed his
Rule 36.1 motion, our supreme court concluded that the definition of an “illegal
sentence” in Rule 36.1 is the same as the definition of an “illegal sentence” for purposes
of habeas corpus proceedings as set forth in Cantrell v. Easterling, 346 S.W.3d 445
(Tenn. 2011). Wooden, 478 S.W.3d at 594-95. Relying on Cantrell, the court in Wooden
listed three types of sentencing errors: clerical errors, appealable errors, and fatal errors.
Wooden, 478 S.W.3d at 595. Clerical errors are the result of a simple mistake in filling
out information in the judgment document, id., such as a typographical error. Where the
sentencing statutes provide for a right to a direct appeal to the sentencing decision, that
would be an appealable error, generally where the sentence imposed is authorized by
statute, but the methodology or the underlying stated reason(s) for imposing the sentence
is challenged. Id.

        Finally, for a sentence to be considered an “illegal sentence,” it must be the result
of a fatal error, which renders a sentence illegal and void. Id. “This category consists of
any sentence ‘that is not authorized by the applicable statutes or that directly contravenes
an applicable statute.’” Id. Defendant has made the same misplaced argument that
countless other defendants have made when pursuing relief under Rule 36.1. Defendant
has reasoned that since the trial court did not (in his interpretation) specifically use one of
the seven grounds authorized by T.C.A. § 40-35-115 to justify consecutive sentencing,
then the consecutive sentences were “not authorized by the applicable statutes or [ ]
directly contravene[d] an applicable statute.” See id. It is correct that if his erroneous
assertion of the basis for the trial court’s imposing consecutive sentences was accurate,
the methodology and reason for imposing the consecutive sentences would have been
error. However, on the face of the judgment, consecutive sentences for nine convictions
of attempted first degree murder, in and of itself, are not in contravention of any statute.
Furthermore, consecutive sentencing for Defendant’s convictions is authorized.

       In any event, it is clear from a review of the trial court’s ruling that the statutory
authority to order consecutive sentencing in Defendant’s case was justified because he
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was on probation when he committed the offenses, T.C.A. § 40-35-115(b)(6), and that
this was a valid reason for all sentences being ordered to be served consecutively, and not
just the two life sentences.

       Defendant also argues in his brief that he is entitled to relief because the trial court
included within its order denying his Rule 36.1 motion language that the motion was
frivolous. That language was superfluous. He also correctly notes that the trial court’s
order only mentions that the consecutive sentence for the two life sentences was affirmed
in the direct appeal. However, the trial court specifically stated that the motion was
denied because Defendant failed to state a claim for which relief can be granted. As
evidenced by our discussion, the consecutive sentences were lawfully imposed by
statutory authority pursuant to this Court’s ruling in the direct appeal from the
convictions. Defendant failed to state a claim for which relief could be granted.
Accordingly, the judgment of the trial court is affirmed.


                                    ____________________________________________
                                    THOMAS T. WOODALL, PRESIDING JUDGE




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