        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs July 21, 2015

           STATE OF TENNESSEE v. MARCUS DEON JARNIGAN

                  Appeal from the Criminal Court for Knox County
                  No. 70133, 70134, 75991   G. Scott Green, Judge


                No. E2015-00061-CCA-R3-CD – Filed August 25, 2015
                         ____________________________

Appellant, Marcus Deon Jarnigan, challenged his guilty-pleaded convictions for robbery,
simple possession of a controlled substance, and being a felon in possession of a handgun
by filing a motion in the trial court seeking to correct his allegedly illegal sentences. The
trial court summarily denied the motion, concluding that the judgments were facially
valid. On appeal, he raises for the first time the applicability of Tennessee Rule of
Criminal Procedure 36.1 as a basis for relief. Following our review, we discern that
appellant has failed to state a colorable claim for relief and affirm the judgment of the
trial court.

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

ROGER A. PAGE, J., delivered the opinion of the Court, in which CAMILLE R. MCMULLEN
and ROBERT L. HOLLOWAY, JR., JJ., joined.

Marcus Deon Jarnigan, Atlanta, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General, for the Appellee, State of Tennessee.


                                        OPINION

                                   I. Procedural History

       The record reflects that indictments were returned against appellant in November
1999. On July 1, 2002, he pleaded guilty in the Knox County Criminal Court to two
criminal offenses and received the following sentences: (1) case number 70133, robbery,
six years; and (2) case number 70134, simple possession, eleven months, twenty-nine
days. The trial court accepted his guilty pleas and set the matter for a sentencing hearing
at a later date to consider his request for a suspended sentence. In the interim, appellant
remained free on bond.

       While on bond, appellant was charged by information with being a felon in
possession of a handgun in case number 75991. The trial court resolved all of appellant‟s
cases on November 12, 2002. The court denied appellant‟s request for probation, ordered
concurrent alignment of his 1999 offenses, and ordered consecutive alignment of his
2002 handgun offense with the 1999 offenses.

      Appellant filed a “Motion to Reopen State Judgment Order” in the trial court on
December 3, 2014, challenging the imposition of a partially concurrent sentence as void,
arguing that it is in direct contravention of Tennessee Code Annotated section 40-20-
111(b) and Tennessee Rule of Criminal Procedure 32. The trial court summarily denied
the motion on December 5, 2014, concluding that “each judgment [was] facially valid.”

                                          II. Analysis

       Appellant now argues that he is entitled to relief from his “illegal sentence” via
Rule 36.1 of the Tennessee Rules of Criminal Procedure. Notably, he did not rely on
Rule 36.1 in the trial court. The State asserts that appellant is not entitled to relief
because he did not rely on this basis for relief below, because he untimely filed his notice
of appeal, and because his petition did not state a colorable claim for relief.

        First, we agree with the State that despite this court‟s policy of viewing pro se
litigants‟ pleadings more liberally than those filed by licensed attorneys, see, e.g.,
Swanson v. State, 749 S.W.2d 731, 734 (Tenn. 1988), it remains a well-established
principle of law that “„questions not raised in the trial court will not be entertained on
appeal,‟” Williams v. State, 139 S.W.3d 308, 313 (Tenn. 2004) (quoting Lawrence v.
Stanford, 655 S.W.2d 927, 929 (Tenn. 1983)). We further agree, as discussed below, that
because appellant failed to state a colorable claim, this court‟s conclusion in State v.
Levar O. Williams, No. E2014-01068-CCA-R3-CD, 2015 WL 1291137, at *2 (Tenn.
Crim. App. Mar. 15, 2015), perm. app. denied (Tenn. June 15, 2015),1 operates to deprive
appellant of the benefit of waiver of the thirty-day time period within which to file the
notice of appeal. Notwithstanding these points, however, nothing in Rule 36.1 precludes
the filing of subsequent petitions for relief, which would allow appellant to correct the


       1
           Levar O. Williams makes clear that pursuant to Tennessee Rule of Appellate Procedure
4, a notice of appeal is not jurisdictional in a criminal case and can be waived in the interest of
justice. However, in the posture of a Rule 36.1 case in which no colorable claim has been stated,
waiver of the time limitation is not warranted.
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deficiencies in his pleadings and begin the process anew. Therefore, for the purpose of
judicial economy, we will address appellant‟s case on the merits.

        In 2013, the Tennessee General Assembly promulgated Rule 36.1, which provides,
in 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 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.

       ....
The legislature also amended Tennessee Rule of Appellate Procedure 3(b) to provide
both the State and appellant with an appeal as of right from “an order or judgment entered
pursuant to Rule 36 or Rule 36.1, Tennessee Rules of Criminal Procedure.” Therefore,
Rule 36.1 provided a new appeal as of right for individuals who had received an illegal
sentence.

       Pursuant to Rule 36.1, appellant would be entitled to a hearing and appointment of
counsel if he stated a colorable claim for relief. Tenn. R. Crim. P. 36.1(b); see Marcus
Deangelo Lee v. State, No. W2013-01088-CCA-R3-CO, 2014 WL 902450, at *6 (Tenn.
Crim. App. Mar. 7, 2014). Because Rule 36.1 does not define “colorable claim,” we have
adopted the definition of a colorable claim used in the context of post-conviction
proceedings from Tennessee Supreme Court Rule 28 § 2(H): “A colorable claim is a
claim . . . that, if taken as true, in the light most favorable to the [appellant], would entitle
[appellant] to relief . . . .”1 State v. Mark Edward Greene, No. M2013-02710-CCA-R3-
CD, slip op. at 4 (Tenn. Crim. App. July 16, 2014).


1
  “We note that in contrast to the requirements to survive summary dismissal of a habeas corpus claim,
Rule 36.1 requires a defendant to state a colorable claim in his motion but does not require that he attach
supporting documents.” State v. Brandon Rollen, No. W2012-01513-CCA-R3-CD, slip op. at 6 (Tenn.
Crim. App. Sept. 11, 2013); see George William Brady v. State, No. E2013-00792-CCA-R3-PC, 2013
WL 6729908, at *6 (Tenn. Crim. App. Dec. 19, 2013) (“Under the liberal terms of Rule 36.1, the
                                                   -3-
       Taking all of appellant‟s assertions as true and viewing them in the light most
favorable to him, we have determined that appellant has failed to present a colorable
claim for relief from an illegal sentence because appellant‟s allegations do not establish
that he received a concurrent sentence for a felony he committed while released on bail
for another felony. Tennessee Code Annotated section 40-20-111(b) states:


        In any case in which a defendant commits a felony while the defendant was
        released on bail in accordance with chapter 11, part 1 of this title, and the
        defendant is convicted of both offenses, the trial judge shall not have
        discretion as to whether the sentences shall run concurrently or
        cumulatively, but shall order that the sentences be served cumulatively.

See also Tenn. R. Crim. P. 32(c)(3)(C) (mandating consecutive sentences when a
defendant commits a felony while the defendant is released on bail). The record reflects
that the effective sentence of appellant‟s first two cases was six years as a result of
concurrent alignment of a six-year sentence in case number 70133, robbery, and eleven
months, twenty-nine days in case number 70134, simple possession. Concurrent
alignment of those two cases does not implicate the aforementioned legal authorities.
While on bond pending disposition of case numbers 70133 and 70134, appellant garnered
an arrest for being a felon in possession of a handgun in case number 75991. At the
November 12, 2002 hearing resolving all of appellant‟s cases, the trial court aligned
appellant‟s sentence in case number 75991 consecutively to those for which he was on
bond, as required by statute and rule. Therefore, appellant has failed to state a colorable
claim for relief. The trial court properly denied his petition in a summary fashion.



                                           CONCLUSION


       Based on the parties‟ briefs, the record, and the applicable law, we affirm the trial
court‟s judgment.



                                                         _________________________________
                                                         ROGER A. PAGE, JUDGE


petitioner‟s raising a colorable claim would entitle him to the appointment of counsel and a hearing on his
claim, even without any documentation from the underlying record to support his claim.”).

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