        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                       Assigned on Briefs September 20, 2016

                  STATE OF TENNESSEE v. JOHN TALLEY

               Appeal from the Criminal Court for Hamilton County
      No. 159257, 159258, 164952, 164953, 164955 Barry A. Steelman, Judge
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                 No. E2016-00213-CCA-R3-CD – Filed April 7, 2017
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Defendant, John Talley, appeals as of right from the Hamilton County Criminal Court’s
denial of his motion under Tennessee Rule of Criminal Procedure 36.1 to correct an
illegal sentence. Defendant contends that the trial court erred by concluding that relief
was not available because his illegal sentence had expired. After a thorough review of
the record and applicable law, we affirm the judgment of the trial court.

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

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

Lorrie Miller, Chattanooga, Tennessee, for the appellant, John Talley.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
and M. Neal Pinkston, District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

      Background

      This is the second appeal to this court in this case.

       Defendant, who is currently incarcerated at the Federal Correctional Institution in
Memphis, filed a “MOTION TO CORRECT ILLEGAL SENTENCE PURSUANT TO
TENNESSEE RULES OF CRIMINAL PROCEDURE, RULE 36.1” which was
summarily dismissed by the trial court. In the first appeal, this court set forth the
following history of Defendant’s cases:
In December of 1984, Appellant was indicted by a Hamilton County
grand jury in case numbers 159257 and 159258 for two counts of felony
selling and/or delivering cocaine. On January 29, 1985, Appellant pled
guilty to two counts of the sale of cocaine. He was sentenced to a four-
year term of imprisonment for each conviction. Appellant was paroled
on April 30, 1985.

In June of 1986, Appellant was indicted by the Hamilton County grand
jury in case numbers 164952, 164593, and 164595 to three counts of the
sale or delivery of cocaine. On October 13, 1986, Appellant pled guilty
to three counts of feloniously selling cocaine in exchange for a six-year
sentence on each count, to be served concurrently with each other and
with prior sentences in case numbers 159257 and 159258.

On April 14, 2014, Appellant filed a motion pursuant to Tennessee Rule
of Criminal Procedure 36.1 (the Rule) to correct the illegal sentences in
cases 159257, 159258, 164952, 164953, and 164595. Appellant alleged
that because the offenses in case numbers 164952, 164953, and 164955
occurred while he was on parole for the offenses in case numbers
159257 and 159258, the trial court did not have the authority to order the
sentences to run concurrently. Appellant alleged that the sentences were
in direct contravention of Tennessee Code Annotated section 40-28-123
and Tennessee Rule of Criminal Procedure 32(c)(3)(A). Appellant also
alleged that the illegality of the sentences was a material component of
the plea agreement, thereby rendering the guilty pleas involuntary or
unintelligently entered. Appellant asked the trial court to appoint
counsel, hold a hearing, and give him the opportunity to withdraw the
guilty pleas. He attached no documentation to support his claims, which
notably is not required by the Rule.

The trial court summarily dismissed the motion without a hearing and
without appointment of counsel. Specifically, the trial court determined
that Appellant did not allege any illegality in the sentences in case
numbers 159257 and 159258. Therefore, the trial court determined that
Appellant did not state a colorable claim for relief pursuant to the Rule in
cases 159257 and 159258 and, consequently, Appellant is not entitled to
relief from those sentences.

Additionally, the trial court acknowledged the alleged illegality in case
numbers 164952, 164953, and 164955—that concurrent sentences were
agreed to and imposed when consecutive sentences were mandatory.
However, the trial court noted that the record did not corroborate

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       Appellant’s claims because there was no proof in the record that the
       sentences were to be served concurrently rather than consecutively and
       that, in any event, the sentences in cases 164952, 164953, and 164955
       have expired. The trial court found:

             [W]hile the [c]ourt could find that, without a provision for
             consecutive sentences, the sentences were illegal under Tenn.
             R. Crim. P. 32(c)(3)(A), it could not find that the sentence[s]
             are illegal, as Rule 36.1 requires.
       (Emphasis in original).

       Appellant filed a timely notice of appeal, challenging the summary
       dismissal of the petition.

State v. John Talley, No. E2014-01313-CCA-R3CD, 2014 WL 7366257, at *1-2 (Tenn.
Crim. App. Dec. 26, 2014). We will refer to this opinion as Talley I.

      This court held:

       In the case herein, taking all of Appellant’s assertions as true and
       viewing them in the light most favorable to him, we have determined
       that Appellant has presented a colorable claim for relief from an illegal
       sentence because he asserts that his sentences were contrary to statute in
       that he was sentenced to concurrent rather than consecutive sentences as
       statutorily required. See T.C.A. § 40-28-123; Tenn. R. Crim. P.
       32(c)(3)(A). Even though almost thirty years have passed since
       Appellant was sentenced, there is no proof in the record that his
       sentences have expired and Appellant is not required to provide such
       proof in his filing. See Donald Terrell, 2014 WL 6883706, at *4.
       Appellant was merely required to present a colorable claim. We believe
       he has done so in this case. Accordingly, the plain language of the Rule
       only requires the trial court to determine indigency and, if necessary
       (emphasis added), appoint counsel for the Appellant. Tenn. R. Crim. P.
       36.1(b). Further, the trial court must conduct a hearing on the motion
       unless all parties waive the hearing. Id. On remand, if the trial court
       conducts a hearing on the motion and the proof establishes that
       Appellant's allegedly illegal sentences have been fully served, whether it
       be a six-year or ten-year term, the controversy is moot. See, e.g., State v.
       Adrian R. Brown, No. E2014-00673-CCA-R3-CD, 2014 WL 5483011,
       at *6 (Tenn. Crim. App. Oct. 29, 2014) (“Because the appellant’s
       allegedly illegally lengthy sentences have been fully served, we conclude


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         that there is no longer any remedy he can seek from the court to correct
         any illegality in his sentences, and his controversy is moot.”).

Id. at *3.

        On remand to the trial court, the State filed a response to Defendant’s Rule 36.1
motion requesting that the trial court “deny Defendant’s Motion to Correct Illegal
Sentence without [a] hearing because Defendant has failed to state a colorable claim for
relief.” The State addressed this Court’s observation that “there is no proof in the record
that [Defendant’s] sentences have expired.” The State referenced documents attached to
Defendant’s motion. The State’s response sets forth the following:

         The judgments in docket numbers 164952, 164953, and 164955 are
         silent as to whether the sentences were to be served concurrent with or
         consecutive to docket numbers 159257 and 159258. (See Exhibits 6-8).
         Tenn. R. Crim. P. 32(c)(3)(A) requires that a sentence committed while
         on parole for another offense run consecutively. Tenn. R. Crim. P. 32(c)
         (3) states that “the sentences shall be consecutive whether the judgment
         explicitly so orders or not.” Therefore, by Rule, the sentences in docket
         numbers 164952, 164953, and 164955 ran consecutive to the sentences
         in docket numbers 159257 and 159258. Thus, defendant has not
         presented a colorable claim for relief. The Court of Criminal Appeals
         has reached similar conclusions in several recent cases. See [State v.
         [Elashanti] Dean, [No. E2014-02169-CCA-R3-CD,] 2015 WL 5031775,
         at *5-6 [(Tenn. Crim. App. Aug. 6, 2015)] (holding defendant failed to
         state a colorable claim where judgments for offenses committed while on
         bond were silent)[, perm. app. denied (Tenn. Dec. 10, 2015)]; [State v.
         James E.] Kenner, [No. M2014-00613-CCA-R3-CD,] 2015 WL
         3533265, at *4 [(Tenn. Crim. App. June 5, 2015)](stating that a sentence
         is not illegal or in need of corrections where judgments for offenses
         committed while on parole were silent)[, perm. app. denied (Tenn. Oct.
         15, 2015)]; [Kevin] Daws v. State, No. W2014-01002-CCA-R3-CO,
         2015 WL 112787, at *3-4 (Tenn. Crim. App. Jan. 8, 2015)(holding that
         defendant’s Motion failed to state a colorable claim where judgments for
         offenses committed while released on bond were silent)[, no perm. app.
         filed].

       Thereafter, the trial court entered an order summarily denying Defendant’s
motion. The trial court relied in part on State v. Brown, 479 S.W.3d 200, 211 (Tenn.
2015)(“a Rule 36.1 motion may be summarily dismissed for failure to state a colorable
claim if the alleged illegal sentence has expired”); and State v. Wooden, 478 S.W.3d 585
(Tenn. 2015)(“when determining whether a Rule 36.1 motion sufficiently states a
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colorable claim, a trial court may consult the record of the proceeding from which the
allegedly illegal sentence emanated.”).

       Analysis

        Initially, we must mention, even though apparently not mentioned by Defendant,
that “the law of the case” required the trial court to conduct a hearing. “[U]nder the law
of the case doctrine, an appellate court's decision on an issue of law is binding in later
trials and appeals of the same case if the facts on the second trial or appeal are
substantially the same as the facts in the first trial or appeal.” Memphis Publ’g Co. v.
Tenn. Petroleum Underground Storage Tank Bd., 975 S.W.2d 303, 306 (Tenn. 1998).
This doctrine “applies to issues that were actually before the appellate court in the first
appeal and to issues that were necessarily decided by implication,” but the doctrine does
not apply to dicta. Id. (citation omitted). The doctrine “is not a constitutional mandate
nor a limitation on the power of a court” but “is a longstanding discretionary rule of
judicial practice which is based on the common sense recognition that issues previously
litigated and decided by a court of competent jurisdiction ordinarily need not be
revisited.” Id. (citations omitted). Application of the doctrine promotes finality,
efficiency, consistent results, and obedience to appellate decisions. Id.

       There are three “limited circumstances” that may justify a departure from the law
of the case doctrine and subsequent reconsideration of an issue decided in a previous
appeal:

        (1) the evidence offered at a trial or hearing after remand was
        substantially different from the evidence in the initial proceeding; (2) the
        prior ruling was clearly erroneous and would result in a manifest
        injustice if allowed to stand; or (3) the prior decision is contrary to a
        change in the controlling law which has occurred between the first and
        second appeal.
Id.

       Since the trial court in this case declined to follow the “law of the case” to conduct
a hearing, we must see if one of the exceptions to the “law of the case” doctrine is
applicable. We find that exception number three applies in this case because the prior
decision is contrary to a change in the controlling law, which occurred between the first
and second appeal. In State v. Brown, 479 S.W.3d 200, 211 (Tenn. 2015), filed after
Defendant’s case was remanded, the Supreme Court explicitly held that an expired
sentence does not state a colorable claim. We have also re-examined the assertion in
Talley I that a Defendant need not show proof that his or her sentence is not expired.
However, the Supreme Court in State v. Wooden, 478 S.W.3d 585 (Tenn. 2015) held:


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        Considering the text of Rule 47, along with that of Rule 36.1, we
        conclude that, at a minimum, any motion filed under Rule 36.1 must
        state with particularity the factual allegations on which the claim for
        relief from an illegal sentence is based. Additionally, the moving party
        may support the motion with affidavits. Finally, when determining
        whether a Rule 36.1 motion sufficiently states a colorable claim, a trial
        court may consult the record of the proceeding from which the allegedly
        illegal sentence emanated. Indeed, by requiring Rule 36.1 motions to be
        filed “in the trial court in which the judgment of conviction was
        entered,” Rule 36.1 ensured that a trial court considering a Rule 36.1
        motion would have ready access to the record of the proceedings from
        which the allegedly illegal sentence(s) arose.

Id. at 594. Finally, Elashanti Dean, James E. Kenner, and Kevin Daws were all filed
after Talley I and made a change in the law since Defendant’s case was remanded.
Therefore, under these circumstances, dismissal of Defendant’s Rule 36.1 motion by the
trial court was appropriate.

       Tennessee Rule of Criminal Procedure 36.1 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.

       Therefore, pursuant to Rule 36.1, a defendant would be entitled to a hearing and
the appointment of counsel if he or she stated a colorable claim for relief. Tenn. R. Crim.
P. 36.1(b). Prior to the adoption of Rule 36.1, a defendant generally had to seek relief
from an illegal sentence through post-conviction or habeas corpus proceedings. See
Cantrell v. Easterling, 346 S.W.3d 445, 453 (Tenn. 2011).

       The Tennessee Supreme Court has stated that a colorable claim pursuant to Rule
36.1 is a “claim that, if taken as true and viewed in a light most favorable to the moving
party, would entitle the moving party to relief under Rule 36.1.” State v. Wooden, 478
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S.W.3d 585, 593 (Tenn. 2015). Rule 36.1 also defines an illegal sentence as “one that is
not authorized by the applicable statutes or that directly contravenes an applicable
statute.” Tenn. R. Crim. P. 36.1(a). Our supreme court has also analyzed Rule 36.1 and
concluded that Rule 36.1 “does not authorize the correction of expired illegal sentences,”
and a motion may be dismissed “for failure to state a colorable claim if the alleged illegal
sentence has expired.” State v. Brown, 479 S.W.3d 200, 211 (Tenn. 2015).

         It appears that Defendant’s sentences of four years for each of his two counts of
feloniously selling cocaine imposed in 1985 and his effective six-year sentence for three
counts of feloniously selling cocaine that was imposed in 1986 have expired.
Accordingly, under Brown, Defendant has not made a colorable claim. Even if
Defendant’s sentences have not expired, we agree with the State and the trial court that
Defendant has still failed to state a colorable claim for relief. The judgment forms in
cases 164952, 164953, and 164955 each state that Defendant would be confined for a
period of six years, with no order that the sentences be served concurrently or
consecutively to any other sentence. Both Tenn. Code Ann. 40-20-111(b) and Tenn. R.
Crim. R. Crim. P. 32(c)(3)(C) require that a sentence for an offense committed while on
bond run consecutively to the sentence for the offense on which Defendant was on bond.
However, when the judgments of conviction are silent as to whether the sentences are to
be served consecutively to each other, they do not violate the mandate of Rule 32(c)(3)(c)
which expressly provides that “the sentences shall be consecutive whether the judgment
explicitly so orders or not.” Therefore, by rule of law, the sentences in cases 164952,
164953, and 164955 would run consecutively to the sentences in cases 159257 and
159258. On their faces, the judgments in Defendant’s case are not contrary to law or
illegal. See State v. Elashanti Dean, No. E2014-02169-CCA-R3-CD, 2015 WL 5031775,
at *5-6 (Tenn. Crim. App. Aug. 6, 2015) (holding defendant failed to state a colorable
claim where judgments for offenses committed while on bond were silent)(Tenn. Dec.
10, 2015)]; State v. James E. Kenner, No. M2014-00613-CCA-R3-CD, 2015 WL
3533265, at *4 (Tenn. Crim. App. June 5, 2015)(a sentence is not illegal or in need of
corrections where judgments for offenses committed while on parole were silent)(Tenn.
Oct. 15, 2015)]; Kevin Daws v. State, No. W2014-01002-CCA-R3-CO, 2015 WL
112787, at *3-4 (Tenn. Crim. App. Jan. 8, 2015)(defendant’s Motion failed to state a
colorable claim where judgments for offenses committed while released on bond were
silent).

       Defendant also argues that since the sentence is void ab initio that it has not
expired because it never began. This argument is not the law. This court has held:

        Resolution of the Defendant’s appeal is controlled by the recent opinion
        of our supreme court in State v. Brown, 479 S.W.3d 200, 209-11 (2015).
        The Brown court said that Rule 36.1 did not extend to the correction of
        illegal sentences which have expired. Id. The record reflects that the
        Defendant conceded at the evidentiary hearing that his sentences had
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        long since expired and that he had completed the service of his sentences
        in 2000, approximately fifteen years before he filed his motion for the
        correction of an illegal sentence. Although the Defendant relies upon the
        principle that a sentence that is void ab initio cannot expire because it
        never existed, our supreme court’s treatment of expired sentences in
        Brown forecloses the Defendant’s reasoning. See Brown, 479 S.W.3d at
        210-11. Brown overruled all previous opinions extending Rule 36.1 to
        expired sentences. Therefore, the trial court properly denied relief on the
        basis that the Defendant failed to state a colorable claim for relief.

State v. Byron J. Walker, No. W2016-00076-CCA-R3-CD, 2017 WL 192742, at *2
(Tenn. Crim. App. Jan. 17, 2017).

        As discussed above, there is authority that by being silent as to whether prior
imposed sentences would be served consecutively or concurrently, the challenged
sentences would, by operation of law, have to be served consecutively. Thus, if we
accepted Defendant’s assertion that he has never served the challenged sentences, we
would likely be required to remand for Defendant to be ordered to serve the unexpired
sentences. We decline to agree with Defendant’s argument. Defendant is not entitled to
relief on this issue.

      Accordingly, we conclude that the trial court did not err by denying Petitioner’s
Tenn. R. Crim. P. 36.1 motion to correct an illegal sentence.


                                  ____________________________________________
                                  THOMAS T. WOODALL, PRESIDING JUDGE




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