        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                March 11, 2015 Session

             STATE OF TENNESSEE v. DUSTY ROSS BINKLEY

                Appeal from the Criminal Court for Davidson County
                     No. 2009-I-833    Steve R. Dozier, Judge


                 No. M2014-01173-CCA-R3-CD – Filed May 7, 2015


Appellant, Dusty Ross Binkley, pleaded guilty to manufacture of methamphetamine and
possession of a firearm during the commission of a dangerous felony and received an
effective eight-year sentence to be served in community corrections. His sentence was
revoked after he received new charges, and the trial court aligned the original sentence
consecutively to the sentences for the new offenses. Appellant later filed a Motion to
Correct Illegal Sentences pursuant to Tennessee Rule of Criminal Procedure 36.1, which
the trial court denied after a hearing. On appeal, he argues that trial court incorrectly
aligned his original sentences consecutively to his sentences for his new offenses.
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

ROGER A. PAGE, J., delivered the opinion of the court, in which JAMES CURWOOD WITT,
JR., and CAMILLE R. MCMULLEN, JJ., joined.

Karen McDonald, Nashville, Tennessee, for the appellant, Dusty Ross Binkley.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Victor S. Johnson III, District Attorney General; and Pamela Sue Anderson,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

     In a prior opinion denying appellant‟s petition for writ of habeas corpus, this court
summarized the procedural history of appellant‟s case as follows:

            On July 2, 2009, the Petitioner entered guilty pleas to two offenses
      in Davidson County Criminal Court: manufacture of methamphetamine and
      possession of a firearm in the commission of a dangerous felony. Per the
       plea agreement, the Petitioner agreed to be sentenced as a standard offender
       with a thirty percent release eligibility, and the trial court imposed an eight-
       year sentence on the methamphetamine charge[] and a one-year sentence on
       the weapon charge, to be served concurrently. The trial court ordered the
       Petitioner to serve the eight-year sentence on community corrections.

              The Petitioner was subsequently arrested for assault in Williamson
       County in November of 2009, upon which the Davidson County Criminal
       Court issued an arrest warrant alleging a violation of the terms of the
       Petitioner‟s community corrections sentence. An amended judgment was
       entered on December 18, 2009[,] in the Davidson County Criminal Court,
       reinstating the Petitioner to community corrections.

              The Petitioner was again arrested in Williamson County in January
       of 2010, and he pled guilty in Williamson County Criminal Court on June
       1, 2010[,] to one count of false imprisonment, one count of aggravated
       assault, and one count of vandalism. Pursuant to a plea agreement, the trial
       court imposed an eight-year sentence to run concurrently with the
       Petitioner‟s sentence in the Davidson County Criminal Court.

              On July 9, 2010, the Davidson County Criminal Court revoked the
       Petitioner‟s community corrections sentence and ordered the Petitioner to
       serve his remaining sentence in prison, granting the Petitioner jail credit for
       his time served. The trial court ordered the sentence to run consecutively to
       the Williamson County Criminal Court sentence.

State v. Dusty Ross Binkley, No. M2013-00164-CCA-R3-HC, slip op. at 2 (Tenn. Crim.
App. Sept. 12, 2013). On March 5, 2014, appellant filed a Rule 36.1 motion alleging that
the Davidson County trial court incorrectly aligned his Davidson County sentences
consecutively to his Williamson County sentences. Specifically, appellant argued that
the trial court failed to make findings that justified consecutive sentencing; that appellant
did not satisfy any of the seven statutory criteria supporting consecutive sentencing, see
Tenn. Code Ann. § 40-35-115(b); that the Davidson County court violated the
Community Corrections Act; and that the imposition of consecutive sentences in
Davidson County violated appellant‟s constitutional rights by invalidating his plea to
concurrent sentencing in Williamson County. The trial court held a hearing on the
motion on March 28, 2014, and denied appellant relief by written order on May 16, 2014.

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


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              (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.

       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.

       Here, the trial court decided that appellant had not received an illegal sentence and
denied appellant‟s motion pursuant to Rule 36.1(c)(1). Whether a sentence is illegal
pursuant to Rule 36.1 is a question of law that we review de novo with no presumption of
correctness. See Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007) (stating that the
standard of review for a habeas corpus case is de novo with no presumption of
correctness).

       We will first address appellant‟s argument that the trial court did not have the
authority under the Community Corrections Act to align appellant‟s Williamson and
Davidson County sentences consecutively. While appellant‟s argument that Tennessee
Code Annotated sections 40-35-115(b)(6) (allowing consecutive sentencing when a new
offense is committed while defendant is on probation) and -310 (supporting consecutive
sentencing upon revocation of a suspended sentence) do not apply to appellant‟s
community corrections sentence is correct, Tennessee Code Annotated section 40-36-106
specifically applies to community corrections sentences. Within section 40-36-106,
subsection (e)(2) states:

       In sentencing an eligible defendant to any community-based alternative to
       incarceration, the court shall possess the power to set the duration of the
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       sentence for the offense committed at any period of time up to the
       maximum sentence within the appropriate sentence range and shall retain
       the authority to alter or amend at any time the length, terms or conditions of
       the sentence imposed.

Subsection (e)(4) states:

       The court shall also possess the power to revoke the sentence imposed at
       any time due to the conduct of the defendant or the termination or
       modification of the program to which the defendant has been sentenced,
       and the court may resentence the defendant to any appropriate sentencing
       alternative, including incarceration, for any period of time up to the
       maximum sentence provided for the offense committed, less any time
       actually served in any community-based alternative to incarceration.

Section 106 has been construed to allow resentencing courts to impose consecutive
sentencing upon revocation of a community corrections sentence. State v. Samuels, 44
S.W.3d 489, 493 (Tenn. 2001). Our supreme court has stated that this resentencing based
on a violation of community corrections does not violate appellant‟s double jeopardy
rights. State v. Griffith, 787 S.W.2d 340, 341-42 (Tenn. 1990).

       Appellant argues that the resentencing court can only impose consecutive
sentencing to convictions that occurred prior to the original sentencing hearing. However,
this court addressed a strikingly similar case in State v. Randy Anderson, No. W2003-
01472-CCA-R3-CD, 2004 WL 1418041 (Tenn. Crim. App. June 24, 2004). While
relying on a different legal theory, in Anderson, the appellant argued that the resentencing
court could not align his sentence consecutively to convictions to which he had pleaded
guilty after his original sentencing hearing but prior to resentencing based on his
community corrections revocation. Id. at *3. This court stated that the resentencing
court properly aligned the original conviction with subsequently obtained convictions
because the subsequent convictions were incurred prior to resentencing. Id. (citing State
v. Charity H. Keith, No. M2002-02386-CCA-R3-CD, 2003 WL 22888920 (Tenn. Crim.
App. Dec. 5, 2003)). Therefore, the trial court was within its authority given by the
Community Corrections Act to align appellant‟s Davidson and Williamson County
convictions consecutively.

       Regarding appellant‟s allegations that the resentencing court failed to make
adequate findings that justified consecutive sentencing and that appellant did not satisfy
any of the seven statutory criteria supporting consecutive sentencing, even if these were
appropriate claims under Rule 36.1, appellant has failed to provide a sufficient record for
review. Appellant failed to include the resentencing hearing transcript in the record
without which we are unable to determine what findings that trial court did or did not
                                            -4-
make at the resentencing hearing. We are also unable to examine whether appellant
satisfies any of the seven citeria supporting consecutive sentencing because we do not
have a record of the trial court‟s considerations or appellant‟s full criminal history, as
evidenced by the fact that the habeas corpus mentions a 2009 assault offense that is not in
the record before this court. See Dusty Ross Binkley, slip op. at 2. “Where the record is
incomplete and does not contain a transcript of the proceedings relevant to an issue
presented for review, or portions of the record upon which the party relies, an appellate
court is precluded from considering the issue.” State v. Ballard, 855 S.W.2d 557, 560-61
(Tenn. 1993) (citing State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988)).
Therefore, we are unable to review appellant‟s claims in that regard.

        Finally, appellant argues that the imposition of consecutive sentences in Davidson
County violated his constitutional rights by invalidating his plea to concurrent sentencing
in Williamson County. However, this is not a viable claim pursuant to Rule 36.1. “Rule
36.1 was adopted to provide a mechanism for the defendant or the State to seek to correct
an illegal sentence.” Tenn. R. Crim. P. 36.1, Adv. Comm‟n Cmt. Rule 36.1(a) states that
an illegal sentence “is one that is not authorized by the applicable statutes or that directly
contravenes an applicable statute.” Appellant argues that the United States Constitution
is an “applicable statute” pursuant to Rule 36.1. To determine the validity of appellant‟s
assertion, we turn to principles of statutory construction. Our supreme court has stated:

       The most basic principle of statutory construction is to ascertain and give
       effect to legislative intent without broadening the statute beyond its
       intended scope. State v. Sherman, 266 S.W.3d 395, 401 (Tenn. 2008).
       When statutory language is clear and unambiguous, we must apply its plain
       meaning in its normal and accepted use, without a forced interpretation that
       would extend the meaning of the language and, in that instance, we enforce
       the language without reference to the broader statutory intent, legislative
       history, or other sources. Overstreet v. TRW Commercial Steering Div.,
       256 S.W.3d 626, 630 (Tenn. 2008).

Carter v. Bell, 279 S.W.3d 560, 564 (Tenn. 2009); see State v. Pope, 427 S.W.3d 363,
367-68 (Tenn. 2013). By its plain language, Rule 36.1 applies to applicable statutes.
Rather than defining an illegal sentence as a sentence not authorized by the law or not
authorized by applicable statutory or constitutional provisions, the legislature singularly
referred to statutes. In contrast, in Tennessee Code Annoated section 40-30-103, the
legislature specifically stated that post-conviction relief would be “granted when the
conviction or sentence is void or voidable because of the abridgment of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United States.”
We must “„assume that the legislature used each word in the statute purposely[] and that
the use of these words conveys some intent and has a meaning and purpose.‟” State ex.
rel. Estes v. Hicks, No. E1999-01603-COA-R3-CV, 2000 WL 336530, at *2 (Tenn. Ct.
                                             -5-
App. Mar. 31, 2000) (quoting Locust v. State, 912 S.W.2d 716, 718 (Tenn. Ct. App.
1995)). To construe Rule 36.1 as providing a remedy for both statutory and
constitutional challenges would broaden the rule beyond its intended scope. Therefore,
appellant has not stated a viable 36.1 claim regarding the alleged breach of his plea
agreement.

       Appellant has failed to prove that he received an illegal sentence pursuant to Rule
36.1; therefore, appellant is not entitled to relief.

                                     CONCLUSION

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



                                                  _________________________________
                                                  ROGER A. PAGE, JUDGE




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