        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs December 2, 2014

                    STATE OF TENNESSEE v. SEAN BLAKE

                Appeal from the Criminal Court for Shelby County
    Nos. 95-07660, -61, -62; 96-04448, -49, -50, -51 John W. Campbell, Judge


                No. W2014-00856-CCA-R3-CO - Filed January 8, 2015


Appellant, Sean Blake, pleaded guilty to two counts of attempted second degree murder, two
counts of aggravated robbery, two counts of attempted aggravated robbery, and robbery.
Appellant subsequently filed a motion to correct an illegal sentence pursuant to Tennessee
Rule of Criminal Procedure 36.1, which the trial court summarily dismissed because
appellant’s sentences had expired. On appeal, appellant argues that the trial court erred by
summarily dismissing his motion because an illegal sentence may be challenged at any time
pursuant to Rule 36.1. The State concedes that this case should be reversed and remanded
to the trial court. Following our review of the parties’ briefs, the record, and the applicable
law, we reverse the trial court’s judgment and remand for proceedings consistent with this
opinion.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed;
                                  Case Remanded

R OGER A. P AGE, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT, J R.,
and D. K ELLY T HOMAS, J R., JJ., joined.

Sean Blake, Memphis, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Michelle L. Consiglio-Young,
Assistant Attorney General; Amy P. Weirich, District Attorney General, for the appellee,
State of Tennessee.

                                         OPINION

       Appellant challenged his sentence alignment in the trial court in a motion to correct
an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1.1 In the motion,
appellant argued that by aligning his sentences concurrently, the trial court imposed an illegal
sentence under Tennessee Code Annotated section 40-20-111(b) and Tennessee Rule of
Criminal Procedure 32(c)(3)(C) because he was released on bail in case numbers 95-07660
(attempted aggravated robbery), 95-07661 (attempted aggravated robbery),2 and 95-07662
(robbery) when he committed the crimes in case numbers 96-04448 (attempted second degree
murder), 96-04449 (attempted second degree murder), 96-04450 (aggravated robbery), and
96-04451 (aggravated robbery). He argued that the trial court should have aligned his
sentences consecutively because Tennessee Code Annotated section 40-20-111(b) mandates
consecutive sentences when a defendant commits a felony while the defendant is released
on bail and the defendant is convicted of both offenses. However, the trial court summarily
dismissed appellant’s Rule 36.1 motion on April 4, 2014. Appellant now argues that the trial
court erred by summarily dismissing his motion.

        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


        1
         We are unable to determine when this motion was filed in the trial court because the motion was
not stamped with a file date.
        2
          We note that appellant stated in his brief that he was convicted of aggravated robbery in case
number 95-07661; however, in its order, the trial court stated that appellant’s conviction was for attempted
aggravated robbery, and appellant’s guilty plea submission petition states that the conviction was for
attempted robbery. Furthermore, the judgment for this conviction is not in the record because Rule 36.1 does
not mandate that appellant attach such supporting documents to prove that he has stated a colorable claim.
We have opted to use the trial court’s recitation of the conviction in case number 95-07661. In the body of
the opinion, we have associated appellant’s case numbers with his guilty-pleaded convictions rather than his
indicted offenses.

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        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.

        The trial court summarily dismissed appellant’s motion, stating that appellant’s
sentence had expired seven years prior to the motion and that the trial court did not have
jurisdiction to address the motion. The trial court opined that Rule 36.1 did not apply to
expired sentences. The trial court reasoned that because appellant’s sentence was expired,
appellant was “no longer a defendant” and that pursuant to Rule 36.1, only “the defendant
or the State” may seek to correct an illegal sentence. The trial court also stated that the
general assembly had removed relief from persons who had received concurrent sentencing
when a statute mandated consecutive sentencing, see Tenn. Code Ann. § 29-21-101(b)(1),
and that the intent of Rule 36.1 “was not to undo that change and open all these cases to
attack.”

        However, we note that Rule 36.1 states that a defendant “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.” Tenn. R. Crim. P. 36.1(a) (emphasis
added). Therefore, even though appellant’s original sentence had expired, appellant may still
seek correction of that sentence if he states a colorable claim.3 But see State v. Adrian R.
Brown, No. E2014-00673-CCA-R3-CD, 2014 WL 5483011 (Tenn. Crim. App. Oct. 29,
2013) (determining that once an appellant’s sentence has expired any challenge to the
sentence would be moot and not justiciable). Therefore, because of the plain language within
the rule, the trial court had jurisdiction to address appellant’s claims, and appellant was a
“defendant” within the meaning of Rule 36.1.

      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


        3
           We recognize that similar relief under habeas corpus is only available when a defendant is
“imprisoned or restrained of liberty.” Tenn. Code Ann. § 29-21-101. Therefore, if a defendant has already
served and been released from any restraints on his liberty, he may not challenge his conviction. Hickman
v. State, 153 S.W.3d 16, 22-24 (Tenn. 2004). However, there is no such limitation within Rule 36.1.

                                                  -3-
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
. . . .”4 State v. Omar Robinson, No. E2014-00393-CCA-R3-CD, 2014 WL 5393240, at *2
(Tenn. Crim. App. Oct. 22, 2014); State v. David Morrow, No. W2014-00338-CCA-R3-CO,
2014 WL 3954071, at *2 (Tenn. Crim. App. Aug. 13, 2014); State v. Mark Edward Greene,
No. M2013-02710-CCA-R3-CD, 2014 WL 3530960, at *3 (Tenn. Crim. App. July 16, 2014).

      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 appellant alleges that he committed the felony offenses of
attempted second degree murder and aggravated robbery in case numbers 96-04448 – 96-
04451 while released on bail in case numbers 95-07660 – 95-07662 but nonetheless received
concurrent sentences. 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, and the defendant is convicted of
both offenses). The State concedes that appellant has stated a colorable claim that his
sentences are illegal, and we agree.

        Furthermore, while Tennessee Code Annotated section 29-21-101(b)(1) removed
habeas corpus relief for individuals who received “concurrent sentencing where there was
a statutory requirement for consecutive sentencing,” there is no such limitation within Rule
36.1. See Marcus Deangelo Lee, 2014 WL 902450, at *6. Absent the promulgation of an
amendment or exception to Rule 36.1, we cannot construe the habeas corpus statute as a
limitation on Rule 36.1 claims.



        4
           “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.” Tenn. R. Crim. P. 36.1; 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 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.”).

                                                     -4-
       Having determined that appellant’s motion presents a colorable claim for relief under
Rule 36.1, we must remand this matter to the trial court. By its very language, Rule 36.1
requires that once appellant has stated a colorable claim, he must be afforded counsel if
indigent, and the trial court must hold a hearing on the motion unless waived by all the
parties. See Tenn. R. Crim. P. 36.1(b). Accordingly, we remand this cause for proceedings
consistent with this opinion.

                                     CONCLUSION

       Based on the parties’ briefs, the record, and the applicable law, we reverse the trial
court’s judgment and remand for proceedings consistent with this opinion.


                                                   _________________________________
                                                   ROGER A. PAGE, JUDGE




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