        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                March 25, 2015 Session

           STATE OF TENNESSEE v. DAVID WAYNE HEARING

             Direct Appeal from the Criminal Court for Greene County
                     No. 05CR193    John F. Dugger, Jr., Judge



                  No. E2014-01908-CCA-R3-CD – Filed May 6, 2015



The appellant, David Wayne Hearing, filed in the Greene County Criminal Court a
motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure
36.1. The motion was summarily denied, and the appellant appeals the ruling. Based
upon the oral arguments, the record, and the parties‟ briefs, we affirm the judgment of the
trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ROBERT L. HOLLOWAY, JR., JJ., joined.

Joseph O. McAfee, Greeneville, Tennessee, for the appellant, David Wayne Hearing.

Herbert H. Slatery III, Attorney General and Reporter; John H. Bledsoe, Senior Counsel;
C. Berkeley Bell, District Attorney General; and Connie G. Trobaugh, Assistant District
Attorney General, for the Appellee, State of Tennessee.


                                       OPINION

                                I. Factual Background

       In 2005, the appellant pled guilty in the Greene County Criminal Court to two
counts of first degree felony murder. According to the appellant‟s Negotiate Plea
Agreement form, he received sentences of “life with possibility of parole.” The
judgments of conviction show that the appellant received concurrent “Life” sentences
with “51” written on the blank line beside “Years.”
        The appellant filed a motion to withdraw his guilty pleas, alleging, in pertinent
part, that they were unknowing and involuntary because trial counsel told him that he
would be eligible for parole in twelve to fifteen years. David Wayne Hearing v. State,
E2007-00778-CCA-R3-PC, 2008 WL 481781, at *8 (Tenn. Crim. App. at Knoxville,
Feb. 22, 2008), perm. to appeal denied, (Tenn. 2008). At a hearing on the motion,
counsel testified that he told the appellant that the appellant would have to serve fifty-one
years before becoming eligible for parole and that he never told the appellant that the
appellant could be eligible for parole in twelve to fifteen years. Id. at *2. The trial court
accredited counsel‟s testimony, and this court affirmed the trial court‟s denial of the
appellant‟s motion to withdraw his guilty pleas. Id. at *9. The appellant then filed a
petition for post-conviction relief. Relevant to this appeal, he claimed that counsel was
ineffective at the evidentiary hearing on the motion to withdraw his guilty pleas for
failing to introduce into evidence the Negotiated Plea Agreement form to support his
claim that he thought he would be eligible for parole after serving thirty percent of his
sentence. David Hearing v. State, No. E2009-02430-CCA-R3-PC, 2010 WL 3837535, at
*9 (Tenn. Crim. App. at Knoxville, Oct. 4, 2010), perm. to appeal denied, (Tenn. 2011).
He also claimed that his guilty pleas were unknowing and involuntary because counsel
erroneously told him that he would serve fifty-one years at thirty percent. Id. at *10.
However, this court again affirmed the lower court‟s denial of relief. Id.

        On March 3, 2014, the appellant filed a pro se motion to correct an illegal sentence
pursuant to Tennessee Rule of Criminal Procedure 36.1, alleging that he “pled guilty on
September 2, 2005, with the bargained for element of release/eligibility (parole)” but that
“[t]he bargained for element is not authorized by statute and thus is an illegal sentence.”
The appellant attached his Negotiated Plea Agreement form and one page from the
transcript of his guilty plea hearing to his motion. The trial court appointed counsel and
ordered that the State respond to the appellant‟s motion. In its response, the State argued
that the trial court should dismiss the motion without a hearing because the issue had
been previously raised and determined and because the appellant‟s judgments of
conviction showed that he pled guilty to two counts of first degree murder and received
life sentences. The State attached the entire plea hearing transcript and the judgments to
its response. Subsequently, the trial court entered an order denying the motion, finding
that the issue had been litigated previously and that, in any event, the appellant‟s
sentences were not illegal because, although the phrase “life with parole” was inaccurate,
the trial court explained to the appellant at the plea hearing that he was receiving a life
sentence.

                                       II. Analysis

       The appellant maintains that he received illegal sentences for his first degree
murder convictions because his Negotiated Plea Agreement form states that his sentences
were for “life with the possibility of parole” and because the box for “Life,” as opposed
to the box for “Life w/out Parole,” was checked on his judgment forms, which “[b]y

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implication . . . amount[s] to a Sentence of Life with the possibility of parole.” He also
contends that when the State filed a response to his motion to correct an illegal sentence,
a hearing on the motion became mandatory. The State argues that the trial court properly
denied the motion without a hearing. We agree with the State.

       Historically, “two distinct procedural avenues [were] available to collaterally
attack a final judgment in a criminal case B habeas corpus and post-conviction petitions.”
Hickman v. State, 153 S.W.3d 16, 19 (Tenn. 2004); see also State v. Donald Terrell, No.
W2014-00340-CCA-R3-CO, 2014 WL 6883706, at *2 (Tenn. Crim. App. at Jackson,
Dec. 8, 2014). However, effective July 1, 2013, the Tennessee Rules of Criminal
Procedure were amended by the addition of Rule 36.1, which provides:

                     (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.

        “A sentence is not illegal when it is „statutorily available but ordinarily
inapplicable to a given defendant‟; rather, an illegal sentence is one that is „simply
unavailable under the Sentencing Act.‟” State v. Adrian R. Brown, No. E2014-00673-
CCA-R3-CD, 2014 WL 5483011, at *3 (Tenn. Crim. App. at Knoxville, Oct. 29, 2014)
(quoting Cantrell v. Easterling, 346 S.W.3d 445, 454 (Tenn. 2011)), application for perm.
to appeal filed, (Mar. 16, 2015). Although Rule 36.1 does not define what constitutes a
“colorable claim,” this court has adopted the following definition: “[a] colorable claim is
a claim . . . that, if taken as true, in the light most favorable to the [appellant], would
entitle [the appellant] to relief.” State v. David Morrow, No. W2014-00338-CCA-R3-
CO, 2014 WL 3954071, at *2 (Tenn. Crim. App. at Jackson, Aug. 13, 2014) (internal
quotation marks and citation omitted). The requirements for a Rule 36.1 motion are more
lenient than for a habeas corpus petition; notably, in a Rule 36.1 motion, a defendant is
required only to state a colorable claim in his motion but is not required to attach

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supporting documents in order to survive summary dismissal, and the motion may be
filed “at any time,” even after the sentence has expired. See State v. Sean Blake, No.
W2014-00856-CCA-R3-CO, 2015 WL 112801, at *2 (Tenn. Crim. App. at Jackson, Jan.
8, 2015); State v. John Talley, No. E2014-01313-CCA-R3-CD, 2014 WL 7366257, at *2
(Tenn. Crim. App. at Knoxville, Dec. 26, 2014).

       Initially, we note that throughout the appellant‟s motion to correct an illegal
sentence, he refers to release eligibility as a “bargained for” component of his negotiated
plea agreement. However, Rule 36.1 provides “an avenue for correcting allegedly illegal
sentences. The Rule does not provide an avenue for seeking the reversal of convictions.”
State v. Jimmy Wayne Wilson, No. E2013-02354-CCA-R3-CD, 2014 WL 1285622, at *2
(Tenn. Crim. App. At Knoxville, Mar. 31, 2014) (citing Cantrell v. Easterling, 346
S.W.3d 445, 455-56 (Tenn. 2011)), perm. to appeal denied, (Tenn. 2014). Therefore, to
the extent that the appellant is once again arguing that his guilty pleas were unknowing
and involuntary, he is not entitled to relief on this basis.

       The State contends that the trial court properly denied the appellant‟s motion
because it failed to state a colorable claim. We agree. Tennessee Code Annotated
section 40-35-501(i) provides that there is no release eligibility for a person convicted of
various crimes, including first degree murder, except for a possible reduction of no more
than fifteen percent of the sentence for earned and retained sentence credits. See Tenn.
Code Ann. § 40-35-501(i)(1), (2). The appellant‟s Negotiated Plea Agreement form,
which he attached to his motion, states that he was to receive “life with the possibility of
parole.” As noted by the State,

              [a]lthough this court has observed that the phrase “life with
              parole” is inaccurate because a defendant sentenced to life is
              entitled “to be released, as opposed to being paroled, after
              serving 100 percent of sixty years less any eligible credits so
              long as they do not operate to reduce the sentence by more
              than 15 percent, or nine years,” see [Kermit Penley v. State],
              No. E2003-00129-CCA-R3-PC, [2004 WL 2439287, at *3]
              (Tenn. Crim. App., Knoxville, Nov. 1, 2004), use of the term
              would not render the petitioner‟s judgment void.

Christopher A. Williams v. State, No. W2013-00555-CCA-R3-HC, 2013 WL 5493568, at
*2 (Tenn. Crim. App. at Jackson, Sept. 30, 2013), perm. to appeal denied, (Tenn. 2013).
Moreover, under the heading “Release Classification Status” on the form, there is the
following list of release percentages and a box beside each one: “20%,” “30%,” “35%,”
“45%,” “60%.” A blank line and a box are last on the list. The only box checked in the
list is the one beside the blank line on which someone wrote “life with possibility of
parole.” Finally, the appellant‟s judgments of conviction, which he conveniently failed to
attach to his motion but the State attached to its response, specifically provide that he was

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sentenced to “Life.”1 Therefore, we conclude that the trial court did not err by denying
his motion to correct an illegal sentence.

       The appellant also contends that when the State filed its response, a hearing on the
motion became mandatory. However, the trigger for a hearing is the motion‟s stating a
colorable claim for relief, not the State‟s filing a response to the motion. See State v.
Damien Clark, No. W2014-01729-CCA-R3-CD, 2015 WL 1828281, at *1 (Tenn. Crim.
App. at Jackson, Apr. 20, 2015); State v. Antonio J. Beaseley, Sr., No. E2014-01845-
CCA-R3-CD, 2015 WL 1777457, at *2 (Tenn. Crim. App. at Knoxville, Apr. 16, 2015),
application for perm. to appeal filed, (May 1, 2015); State v. Bruce Lamont Smith, No.
M2014-02092-CCA-R3-CD, 2015 WL 1868492, at *2 (Tenn. Crim. App. at Nashville,
Apr. 9, 2015). Therefore, we conclude that the trial court did not err by summarily
denying the motion.

                                             III. Conclusion

      Based upon the oral arguments, the record, and the parties‟ briefs, we affirm the
judgment of the trial court.

                                                          _________________________________
                                                          NORMA MCGEE OGLE, JUDGE




1
    Original and amended judgments were filed in this case. The box for “Life” is checked on all of them.
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