        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE

                   STATE OF TENNESSEE v. LEO H. ODOM

                Appeal from the Criminal Court for Davidson County
                       No. 96-B-946   Steve R. Dozier, Judge


              No. M2016-00523-CCA-R3-CD – Filed December 9, 2016
                        _____________________________

Defendant, Leo H. Odom, is appealing the trial court’s denial of his motion to correct an
illegal sentence filed pursuant to Rule of Criminal Procedure Rule 36.1 The State has
filed a motion asking this Court to affirm pursuant to Court of Criminal Appeals Rule 20.
Said motion is hereby granted.

   Tenn. R. App. P. 3 Appeal as of Right; Order of the Criminal Court Affirmed
                 Pursuant to Court of Criminal Appeals Rule 20

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J., and ROBERT W. WEDEMEYER, J., joined.

Leo H. Odom, Whiteville, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel,
for the Appellee, State of Tennessee.


                             MEMORANDUM OPINION


       The record on appeal before us reflects that in July 1997 Defendant pled guilty to
second degree murder and was sentenced as a violent offender to thirty years
imprisonment to be served at 100%. On December 21, 2015, Defendant filed a motion to
correct an alleged illegal sentence pursuant to Tennessee Rule of Criminal Procedure
36.1. The trial court summarily denied the motion on February 2, 2016. The Appellant
timely filed notice of appeal. Following the filing of the record on appeal and
Defendant’s brief, the State filed a motion to affirm the ruling of the trial court pursuant
to Rule 20. For the reasons stated below, the motion is hereby granted.
        In the motion he filed in the trial court, Defendant argued that his sentence is
illegal because he was sentenced outside the applicable range. The trial court disagreed
because Defendant specifically waived his right to a range one sentence in his guilty plea.

       Rule 36.1 permits a defendant to seek correction of an unexpired illegal sentence
at any time. See State v. Brown, 479 S.W.3d 200, 211 (Tenn. 2015). “[A]n illegal
sentence is 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
recently interpreted the meaning of “illegal sentence” as defined in Rule 36.1 and
concluded that the definition “is coextensive, and not broader than, the definition of the
term in the habeas corpus context.” State v. Wooden, 478 S.W.3d 585, 594-95 (Tenn.
2015). The court then reviewed the three categories of sentencing errors: clerical errors
(those arising from a clerical mistake in the judgment sheet), appealable errors (those for
which the Sentencing Act specifically provides a right of direct appeal) and fatal errors
(those so profound as to render a sentence illegal and void). Id. Commenting on
appealable errors, the court stated that those “generally involve attacks on the correctness
of the methodology by which a trial court imposed sentence.” Id. In contrast, fatal errors
include “sentences imposed pursuant to an inapplicable statutory scheme, sentences
designating release eligibility dates where early release is statutorily prohibited, sentences
that are ordered to be served concurrently where statutorily required to be served
consecutively, and sentences not authorized by any statute for the offenses.” Id. The
court held that only fatal errors render sentences illegal. Id.

       Defendant previously challenged the length of his sentence in a habeas corpus
petition. He repeats that argument now in his Rule 36.1 challenge. In affirming the
denial of habeas corpus relief, this Court stated as follows:

       In support of his argument, [Defendant] asserts that at the time of his
       indictment for first degree murder, he had no prior felony convictions as an
       adult; thus, he argues his classification as a Range II offender, which
       requires a minimum of two prior felony convictions, was error. See T.C.A.
       § 40-35-106 (2003). [As noted by this Court in a footnote, Defendant was
       sentenced pursuant to the plea agreement as a violent offender, not as a
       Range II offender]. Indeed, [Defendant] contends that because he was a
       juvenile when the murder was committed and he had no prior felony
       convictions, he was entitled to be sentenced as an especially mitigated
       offender. See T.C.A. § 40-35-109 (2003). [Defendant] does not contest the
       requirement that he serve 100% of his sentence as a violent offender.

       In ordering dismissal of the petition, the trial court entered the following
       findings:
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             [It] appears . . . that the thirty (30) year sentence contested by
             [Defendant] was a compromise judgment on a plea to a
             charge of second degree murder reduced from a first degree
             murder indictment. The trial court could have the authority
             and jurisdiction to sentence petitioner to thirty (30) years on
             an agreed plea. At best this sentence would only be voidable,
             but not void. Nor has the sentence expired. For the reasons
             stated this petition is denied.

      At the time [Defendant] was indicted, the law provided that premeditated
      murder “shall be punishable by . . . (2)[i]mprisonment for life without
      possibility of parole; or (3)[i]mprisonment for life.” T.C.A. § 39-13-
      202(c)(2)-(3) (Supp. 1996). It is apparent from the record that [Defendant]
      was successful in negotiating a plea agreement which eliminated his
      possible exposure to a life sentence and allowed him to receive a sentence
      of thirty years for a Class A felony. [Defendant] and the State may
      negotiate offender classifications, and even release eligibility, because they
      “are non-jurisdictional and legitimate bargaining tools in plea negotiations
      under the Criminal Sentencing Reform Act of 1989.” Bland v. Dukes, 97
      S.W.3d 133, 134 (Tenn. Crim. App. 2002) (citing McConnell v. State, 12
      S.W.3d 795, 798 (Tenn. 2002) (habeas corpus relief denied where guilty
      plea provided for “hybrid sentence” in which the length of one of
      petitioner’s sentences was in Range II, but his release eligibility date was in
      Range I); Hicks v. State, 945 S.W.2d 706, 709 (Tenn. 1997) (post-
      conviction relief denied; our supreme court held that sentence was valid
      where Petitioner’s plea bargain provided for “hybrid sentence” involving
      Range II length of incarceration and Range I release eligibility
      percentage)); see also State v. Mahler, 735 S.W.2d 226, 228 (Tenn. 1987).
      As found by the trial court, because “offender classifications” are non-
      jurisdictional and subject to waiver within the context of a guilty plea, there
      is nothing which appears on the face of the judgment or the record of the
      proceedings before us which indicates that [Defendant’s] thirty-year
      sentence is illegal or void. See William L. Smith v. Virginia Lewis, Warden,
      et al., No. E2004-01800-SC-R11-HC (Tenn., Sept. 14, 2006).

Leo H. Odom v. Tony Parker, Warden, No. W2006-00217-CCA-R3-HC, 2006 WL
3327822, at *2 (Tenn. Crim. App. Nov. 13, 2006) (footnotes omitted), no perm. app.
filed.


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       As noted above, the supreme court recently interpreted the meaning of “illegal
sentence” as defined in Rule 36.1 and concluded that the definition “is coextensive, and
not broader than, the definition of the term in the habeas corpus context.” Wooden, 478
S.W.3d at 594-95. Indeed, the court observed that the language of Rule 36.1 “mirrors”
the definition of an illegal sentence for habeas corpus purposes. Id. Accordingly, this
Court’s analysis in [Defendant’s] habeas corpus action controls the outcome herein. The
trial court correctly ruled that [Defendant] did not state a colorable claim for relief
pursuant to Rule 36.1. Clearly, the thirty-year sentence he received for second degree
murder, a Class A felony, is within the applicable range of fifteen to sixty years
authorized by statute. See T.C.A. § 40-35-11(b)(1). Our supreme court has specifically
held that “a plea-bargained sentence may legally exceed the maximum available in the
offender Range so long as the sentence does not exceed the maximum punishment
authorized for the plea offense.” Hoover v. State, 215 S.W.3d 776, 780 (Tenn. 2007).

      Accordingly, the ruling of the trial court is hereby affirmed pursuant to Court of
Criminal Appeals Rule 20.




                                               _________________________________
                                               TIMOTHY L. EASTER, JUDGE




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