        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs January 22, 2015

            STATE OF TENNESSEE v. ROBERT B. LEDFORD

                 Appeal from the Criminal Court for Hamilton County
                         No. 235395    Don W. Poole, Judge


               No. E2014-01010-CCA-R3-CD - Filed February 23, 2015


The Appellant, Robert B. Ledford, appeals as of right from the Hamilton County Criminal
Court’s summary denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct
an illegal sentence. The Appellant contends that the trial court erred in summarily denying
his motion because the motion stated a colorable claim for relief. Following our review, we
affirm the judgment of the trial court.

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

D. K ELLY T HOMAS, JR., J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and R OBERT H. M ONTGOMERY, J R., JJ., joined.

Robert B. Ledford, Clinton Tennessee, Pro Se.

Herbert H. Slatery, III, Attorney General and Reporter; and Tracy L. Alcock, Assistant
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

        On September 12, 2002, the Appellant entered best interest guilty pleas pursuant to
North Carolina v. Alford, 400 U.S. 25 (1970), to second degree murder, aggravated robbery,
theft of property valued at $10,000 or more, and especially aggravated kidnapping. See
Tenn. Code Ann. §§ 39-13-202, -402, -305, -14-103. For the second degree murder
conviction, the Appellant was sentenced as a Range II, multiple offender to forty years to be
served at 100%. For the remaining convictions, the Appellant pled as a Range I, standard
offender and received an effective sentence of twenty-five years, to be served concurrently
to the second-degree murder sentence.

       The Appellant filed a timely petition for post-conviction relief, alleging that he was
denied the effective assistance of counsel and that his guilty pleas were, therefore, not
voluntarily and knowingly entered. Robert Ledford v. State, No. E2004-01744-CCA-R3-PC,
2005 WL 675204, at *1 (Tenn. Crim. App. Mar. 24, 2005), perm. app. denied (Tenn. Aug.
22, 2005). In particular, and as is pertinent to our current review, the Appellant alleged that
counsel was ineffective for failing to request a mental evaluation. Id. The post-conviction
court denied relief, and this court affirmed that decision on appeal, concluding that the
Appellant had failed to establish a factual basis to support a mental evaluation. Id. at *2.

       On May 28, 2010, the Appellant filed a petition for writ of error coram nobis, and this
court affirmed the coram nobis court’s summary denial after concluding that coram nobis
relief was not available for a guilty-pleaded conviction. Robert B. Ledford v. State, No.
E2010-01773-CCA-R3-PC, 2011 WL 1678069, at *1 (Tenn. Crim. App. May 4, 2011). The
Appellant applied for permission to appeal that decision to the Tennessee Supreme Court,
and on March 8, 2012, the supreme court granted the application “for the purpose of
remanding the case to this court for reconsideration in light of . . . Wlodarz v. State, [361
S.W.3d 490 (2012)].” Robert B. Ledford v. State, No. E2012-00731-CCA-RM-PC, 2012
WL 1696613, at *1 (Tenn. Crim. App. May 15, 2012). On remand, this court again denied
the Appellant relief, concluding that “the alleged ‘newly discovered evidence’ [did] not
qualify as new within the meaning of the coram nobis statute.” Id. at *2.

        On April 22, 2014, the Appellant filed the instant Tennessee Rule of Criminal
Procedure 36.1 motion to correct an illegal sentence. In his motion, the Appellant argued
that (1) he was illegally sentenced to serve forty years at 100% as a Range II offender for the
second degree murder conviction,1 even though he did not have the requisite number of
convictions to be classified as a Range II offender; and (2) because of “learning and
comprehension disabilities” the Appellant did not understand that he was agreeing to an
illegal sentence. On April 24, 2014, the trial court entered an order summarily denying the
Appellant’s motion.

        The Appellant filed a timely notice of appeal. On appeal, the Appellant contends that
the trial court erred in summarily denying his motion because the issues raised in the motion
stated a colorable claim for relief pursuant to Rule 36.1. In particular, the Appellant presents
two, closely-related issues for our review. First, the Appellant contends that his mental
deficiencies rendered him unable to understand that he was agreeing to an “illegal” out-of-
range sentence. Next, the Petitioner concedes that agreeing to an out-of-range sentence does
not ordinarily render a sentence illegal but argues that he should not have been allowed to
agree to an out-of-range sentence without first undergoing a mental evaluation. The State
responds that the Appellant has failed to state a colorable claim for relief under Rule 36.1 and


1
The Appellant challenges only his sentence for second-degree murder. For the remaining convictions, the
Appellant agrees that he was properly sentenced as a Range I, standard offender.

                                                  -2-
that the trial court did not err in summarily denying the motion.

      We must first determine whether the Appellant received an illegal sentence. Rule 36.1
provides as follows:

       (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
       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 Rule 36.1 motion 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). As such, a Rule 36.1 motion should only
be summarily denied where the motion fails to state a colorable claim for relief. This court
has defined a colorable claim as a claim “that, if taken as true, in the light most favorable to
the [appellant], would entitle [appellant] to relief.” State v. David Morrow, No. W2014-
00338-CCA-R3-CO, 2014 WL 3954071, at *2 (Tenn. Crim. App. Aug. 13, 2014) (quoting
Tenn. Sup. Ct. R. 28, § 2(H)) (brackets and alterations in original).

       The following are examples of illegal sentences:

       (1) a sentence imposed pursuant to an inapplicable statutory scheme; (2) a
       sentence designating a [Release Eligibility Date (RED)] where a RED is
       specifically prohibited by statute; (3) a sentence ordered to be served
       concurrently where statutorily required to be served consecutively; and (4) a
       sentence not authorized for the offense by any statute.



                                              -3-
Davis v. State, 313 S.W.3d 751, 759 (Tenn. 2010) (internal citations omitted). The
Appellant’s challenge to the sentence for his second-degree murder does not fall under these
examples.

        Rather, the Appellant argues that his sentence is illegal because the sentencing court
erred in classifying him as a Range II, multiple offender. Generally, a trial court’s error “in
offender classification” will not “render the sentence illegal so long as the classification falls
within the purview of the Sentencing Act.” Cantrell v. Easterling, 346 S.W.3d 445, 458
(Tenn. 2011). This is because an error in the offender classification does not create a
sentence that is not authorized by the applicable statutes or that directly contravenes an
applicable statute.

        The only time an error in the classification of an offender would ever rise to the level
of an illegal sentence would be if a trial court, somehow, classified a defendant in a category
not available under the Sentencing Act. Cantrell, 346 S.W.3d at 458-59. Put another way,
an offender classification would create an illegal sentence only if the trial court classified a
defendant in a category for which it did “not have the authority or the jurisdiction to classify
a defendant.” Id. at 458 (emphasis added). Otherwise, “[c]orrection of an alleged error in
offender classification must be sought on direct appeal.” Id.; see also Tenn. Code Ann. § 40-
35-108(d) (authorizing direct appellate review of a defendant’s classification as a career
offender).

        Furthermore, our courts have long-recognized “the ability of the State and defendants
to use offender classification and release eligibility as subjects of plea bargain negotiations”
which “are properly characterized as non-jurisdictional.” McConnell v. State, 12 S.W.3d
795, 798 (Tenn. 2000) (emphasis added); see also State v. Mahler, 735 S.W.2d 226, 227-28
(Tenn. 1987) (upholding the defendant’s guilty plea as a Range II aggravated offender even
though his prior criminal record did not justify a Range II classification).

        In the present case, the record reflects that the Appellant was initially charged with
first degree felony murder, but he eventually entered a best interest guilty plea to second
degree murder. In exchange, the Appellant agreed to be sentenced out-of-range as a Range
II, multiple offender even though his prior criminal record did not justify such a
classification. The Appellant was sentenced to forty years, which is within the statutory
range for a Class A felony conviction. See Tenn. Code Ann. § 40-35-112(b)(1). Therefore,
the trial court acted within its jurisdiction when sentencing the Appellant, and the Appellant
has not presented a colorable claim that his sentence is illegal.

        The Appellant also argues that his sentence is illegal because, at the time he pled
guilty, he was incompetent, did not receive a mental evaluation, and was therefore unable to
agree to an out-of-range sentence. As we understand it, the Appellant’s argument is,


                                               -4-
essentially, that his mental deficiencies rendered his plea unknowing and involuntary. We
first note that a challenge to the voluntary or knowing entry of a guilty plea is not within the
purview of Tennessee Rule of Criminal Procedure 36.1. Rule 36.1 serves only as a means
to correct a sentence that is not authorized by, or is imposed in contravention of, the
applicable statutes. Furthermore, this court has previously determined that the Appellant’s
guilty pleas were knowing and voluntary and that the Appellant failed to provide a factual
basis for his claim that he should have received a mental evaluation prior to the entry of his
guilty pleas. Ledford, 2005 WL 675204, at *2. Accordingly, this issue is without merit.

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




                                                    _________________________________
                                                    D. KELLY THOMAS, JR., JUDGE




                                              -5-
