        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs December 16, 2014

       MICHAEL BRANDON ADAMS v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Sumner County
                        No. 304-2014 Dee David Gay, Judge




               No. M2014-01025-CCA-R3-CD - Filed December 17, 2014


The Petitioner, Michael Brandon Adams, appeals the Sumner County Criminal Court’s
dismissal of his motion to correct an illegal sentence. The Petitioner contends that the trial
court erred when it dismissed his motion without appointing counsel and without conducting
an evidentiary hearing. In his motion, the Petitioner asserts that his sentence is illegal on the
grounds that his guilty plea was not entered knowingly and voluntarily because he received
the ineffective assistance of counsel. Upon a review of the record in this case, we are
persuaded that the trial court properly denied the motion. Accordingly, the judgment of the
trial court is affirmed.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which T HOMAS T.
W OODALL, P.J., and J OHN E VERETT W ILLIAMS, J., joined.

Michael Brandon Adams, Nashville, Tennessee, Pro Se.

Herbert H. Slatery, III, Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney
General; Lawrence Ray Whitley, District Attorney General, for the appellee, State of
Tennessee.

                                          OPINION

                              I. Facts and Procedural History

       In 2004, the Petitioner pleaded guilty to aggravated child abuse. Michael Brandon
Adams v. State, No. M2007-00396-CCA-R3-PC, 2008 WL 544605, at *1 (Tenn. Crim. App.,
at Nashville, Feb. 21, 2008), perm. app. denied (Tenn. June 23, 2008). The following facts
were recited at the guilty plea hearing:

             [O]n August 3rd, 2003, the Gallatin Police Department was contacted
       concerning a nine-month-old male infant that had been brought to Sumner
       Regional Medical Center with severe burns to the lower extremities. The baby
       was brought to the ER by a maternal aunt and her boyfriend, the [Petitioner].

               The infant had been left at the aunt’s residence by the infant’s mother.
       Mrs. Burnley left the morning of August 3rd - this was the aunt - for work,
       leaving [the Petitioner] as the babysitter and caregiver of the child. A short
       time later [the Petitioner] called the aunt at work inquiring about bathing the
       baby. She evidently gave him instructions on preparing the bath. When she
       returned home, she said the baby’s skin was peeling off and saw the infant in
       the kitchen sink still in the water.

              The doctor at the emergency room examined the infant [and]
       determined the burns were not from accidental means. The baby was
       transferred to Vanderbilt Burn Center, where it was determined the baby had
       been held in very hot water. After being in Vanderbilt for several months, the
       baby was then transferred to . . . Georgia, where the baby went through
       rehabilitation for another several months. The mother stayed at the baby’s
       side.

Adams, 2008 WL 544605, at *1. The trial court imposed the agreed sentence of eighteen
years incarceration. Id.

        In 2005, the Petitioner filed a petition for post-conviction relief in which he alleged
that his guilty plea was not entered knowingly and voluntarily as a result of his counsel’s
ineffective assistance. Id. at *1. He also alleged that he received ineffective assistance of
counsel because his counsel failed to adequately investigate and interview witnesses, failed
to petition the court for funds for an independent medical evaluation of the victim’s injuries,
failed to have the Petitioner evaluated for competency, and failed to ask for a change of
venue. Id. A subsequent hearing was held, following which the post-conviction court denied
his petition, concluding that “lead counsel was effective, and that the petitioner entered his
plea knowingly and voluntarily.” Id. This Court affirmed the post-conviction court’s
judgment on appeal, stating:

               [T]he [P]etitioner testified that he made the choice to plead guilty based
       upon his belief that he could not be successful at trial. He conceded that his
       trial counsel had fully explained the consequences of a guilty plea to him.

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        Lead counsel testified that he discussed the entirety of the State’s evidence
        with the [P]etitioner and that it was the [P]etitioner’s choice to plead guilty.
        The [P]etitioner testified that he was advised of his rights before entering his
        plea. Moreover, nothing in the transcript suggests that the [P]etitioner’s plea
        was the product of “‘ignorance, incomprehension, coercion, terror,
        inducements, [or] subtle or blatant threats.’” See Blankenship, 858 S.W.2d at
        904 (quoting Boykin, 395 U.S. at 242-43). Under these circumstances, the
        [P]etitioner has failed to establish by clear and convincing evidence that his
        guilty plea was not knowingly, voluntarily, and intelligently entered.

               Having reviewed the [P]etitioner’s claims for post-conviction relief and
        holding that the record supports the post-conviction court’s denial of his
        claims, we affirm the judgment of the post-conviction court.

Id. at *5-6. The Petitioner subsequently filed two motions to reopen his post-conviction
proceeding, both of which were denied. This Court affirmed the post-conviction court’s
denial. Michael Brandon Adams v. State, No. M2013-01090-CCA-R28-CD (Tenn. Crim.
App., at Nashville, July 1, 2013).

        In 2013, the Petitioner filed a petition for a writ of habeas corpus, again raising the
claim that he was denied the effective assistance of counsel because he entered his guilty plea
involuntarily. Michael Brandon Adams v. Eric Qualls, Warden, No. M2014-00174-CCA-
R3-HC, 2014 WL 3895993, at *1 (Tenn. Crim. App., at Nashville, Aug. 11, 2014), no Tenn.
R. App. P. 11 filed. The petition was denied, and this Court affirmed the denial on appeal,
stating that the Petitioner’s claim was not an appropriate one for habeas corpus relief. Id.

       In 2014, the Petitioner filed a motion to correct an illegal sentence pursuant to Rule
36.1 of the Tennessee Rules of Criminal Procedure. The Petitioner, for the third time,
asserted that his sentence was illegal because he had received the ineffective assistance of
counsel, which caused him to enter a guilty plea involuntarily. On May 19, 2014, the trial
court entered an order summarily dismissing the Petitioner’s motion finding “absolutely
nothing in the record that would void the judgment in this matter.”

       It is from this judgment that the Petitioner now appeals.

                                         II. Analysis

      On appeal, the Petitioner maintains that the trial court erred when it denied his motion
without a hearing. He contends that he presented a “colorable claim of an involuntary,
unknowing and unintelligent guilty plea. . . .” The State responds that the Petitioner has

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already raised this issue in a prior appeal of a denial of habeas corpus relief, which this Court
affirmed. As such, the State contends that the trial court appropriately addressed the
purported illegality of the sentence and properly dismissed the motion. We agree with the
State.

       The Tennessee Rules of Criminal Procedure were amended effective July 1, 2013,
with the addition of Rule 36.1, which provides as follows:

       (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.

              ....

       (d) Upon the filing of an amended uniform judgment document or order
       otherwise disposing of a motion filed pursuant to this rule, the defendant or the
       state may initiate an appeal as of right pursuant to Rule 3, Tennessee Rules of
       Appellate Procedure.

Tenn. R. Crim. P. 36.1 (emphasis added). Prior to the adoption of this Rule, petitioners
generally sought relief from illegal sentences through habeas corpus or post-conviction
proceedings. See, e.g., Cantrell v. Easterling, 346 S.W.3d 445, 453, 453 n. 7 (Tenn. 2011).

       Because Rule 36.1 does not define “colorable claim,” we have adopted the definition
of a colorable claim used in the context of post-conviction proceedings from Tennessee

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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. . . .” State v. David
Morrow, No. W2014-00338-CCA-R3-CO, 2014 WL 3954071, at *2 (Tenn. Crim. App., at
Jackson, Aug. 13, 2014), no Tenn. R. App. P. 11 filed; State v. Mark Edward Greene, No.
M2013-02710-CCA-R3-CD, 2014 WL 3530960, at *3 (Tenn. Crim. App., at Nashville, July
16, 2014), no Tenn. R. App. P. 11 filed.

        The State correctly notes that the Petitioner’s claim has already been addressed by this
Court in a prior appeal of a habeas corpus petition. There, we held that the Petitioner’s claim
was not a cognizable one under the habeas corpus statute. Adams, 2014 WL 3895993, at *1.
The Petitioner now asks us to address the same claim under Rule 36.1. We conclude that the
Petitioner’s claim is not properly before this Court. Rule 36.1 contemplates correction of
illegal sentences. In this issue, the Defendant is attacking the validity of the plea. See State
v. Jimmy Wayne Wilson, No. E2013-02354-CCA-R3-CD, 2014 WL 1285622, at *2 (Tenn.
Crim. App., at Knoxville, March 31, 2014) (stating, “The Rule does not provide an avenue
for seeking reversal of convictions.”), no perm. app. filed.

       Accordingly, we conclude that the trial court properly found that the Petitioner’s
motion did not state a colorable claim pursuant to Tennessee Rule of Criminal Procedure 36.1,
and, therefore, summary dismissal was appropriate. The Petitioner is not entitled to relief.

                                        III. Conclusion

       In accordance with the aforementioned reasoning and authorities, we conclude that the
Petitioner failed to state a colorable claim that his sentence is illegal. As such, we affirm the
judgment of the trial court.

                                                      _________________________________
                                                        ROBERT W. WEDEMEYER, JUDGE




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