        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs December 9, 2014

                   STATE OF TENNESSEE v. JOHN TALLEY

              Appeal from the Criminal Court for Hamilton County
     Nos. 159257, 159258, 164952, 164953, 164955  Barry A. Steelman, Judge




             No. E2014-01313-CCA-R3-CD          - Filed December 26, 2014



Appellant, John Talley, appeals the trial court’s summary denial of his motion to correct
illegal sentences, imposed over twenty-eight years ago, filed pursuant to Tennessee Rule of
Criminal Procedure 36.1. The trial court found it lacked jurisdiction because the sentences
have already expired and because the trial court could not determine that the “sentence[s] are
illegal.” We determine, because of the broadness of Rule 36.1, the trial court had jurisdiction
to consider the motion and that Appellant stated a colorable claim, as currently defined.
Accordingly, the judgment of the Criminal Court is remanded for further proceedings
consistent with this opinion.

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

T IMOTHY L. E ASTER, J., delivered the opinion of the court. T HOMAS T. W OODALL, P.J., with
whom A LAN E. G LENN, J., joins, filed a separate opinion concurring in results only.

John Talley, pro se, Memphis, Tennessee, appellant.

Herbert H. Slatery, III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
Attorney General; and, Neal Pinkston, District Attorney General, for the appellee, State of
Tennessee.



                                         OPINION

                            Factual and Procedural Background
       In December of 1984, Appellant was indicted by a Hamilton County grand jury in case
numbers 159257 and 159258 for two counts of felony selling and/or delivering cocaine. On
January 29, 1985, Appellant pled guilty to two counts of the sale of cocaine. He was
sentenced to a four-year term of imprisonment for each conviction. Appellant was paroled
on April 30, 1985.

      In June of 1986, Appellant was indicted by the Hamilton County grand jury in case
numbers 164952, 164593, and 164595 to three counts of the sale or delivery of cocaine. On
October 13, 1986, Appellant pled guilty to three counts of feloniously selling cocaine in
exchange for a six-year sentence on each count, to be served concurrently with each other
and with prior sentences in case numbers 159257 and 159258.

       On April 14, 2014, Appellant filed a motion pursuant to Tennessee Rule of Criminal
Procedure 36.1 (the Rule) to correct the illegal sentences in cases 159257, 159258, 164952,
164953, and 164595. Appellant alleged that because the offenses in case numbers 164952,
164953, and 164955 occurred while he was on parole for the offenses in case numbers
159257 and 159258, the trial court did not have the authority to order the sentences to run
concurrently. Appellant alleged that the sentences were in direct contravention of Tennessee
Code Annotated section 40-28-123 and Tennessee Rule of Criminal Procedure 32(c)(3)(A).1
 Appellant also alleged that the illegality of the sentences was a material component of the
plea agreement, thereby rendering the guilty pleas involuntary or unintelligently entered.
Appellant asked the trial court to appoint counsel, hold a hearing, and give him the
opportunity to withdraw the guilty pleas. He attached no documentation to support his
claims, which notably is not required by the Rule.

        The trial court summarily dismissed the motion without a hearing and without
appointment of counsel. Specifically, the trial court determined that Appellant did not allege
any illegality in the sentences in case numbers 159257 and 159258. Therefore, the trial court
determined that Appellant did not state a colorable claim for relief pursuant to the Rule in
cases 159257 and 159258 and, consequently, Appellant is not entitled to relief from those


       1
           Tennessee Rule of Criminal Procedure 32(c)(3)(A) provides as follows:

       Mandatory Consecutive Sentences. When a defendant is convicted of multiple offenses
       from one trial or when the defendant has additional sentences not yet fully served as the
       result of convictions in the same or other courts and the law requires consecutive sentences,
       the sentence shall be consecutive whether the judgment explicitly so orders or not. This rule
       shall apply:

       (A) to a sentence for a felony committed while on parole for a felony; . . . .

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sentences.

       Additionally, the trial court acknowledged the alleged illegality in case numbers
164952, 164953, and 164955—that concurrent sentences were agreed to and imposed when
consecutive sentences were mandatory. However, the trial court noted that the record did not
corroborate Appellant’s claims because there was no proof in the record that the sentences
were to be served concurrently rather than consecutively and that, in any event, the sentences
in cases 164952, 164953, and 164955 have expired. The trial court found:

       [W]hile the [c]ourt could find that, without a provision for consecutive
       sentences, the sentences were illegal under Tenn. R. Crim. P. 32(c)(3)(A), it
       could not find that the sentence[s] are illegal, as Rule 36.1 requires.

(Emphasis in original).

       Appellant filed a timely notice of appeal, challenging the summary dismissal of the
petition.

                                           Analysis

        Tennessee Rule of Criminal Procedure 36.1 provides an avenue to seek correction of
an illegal sentence. In pertinent part, it 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. . . .

Tenn. R. Crim. P. 36.1. This Rule became effective on July 1, 2013. 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.”
Cantrell v. Easterling, 346 S.W.3d 445, 454 (Tenn. 2011). The Rule also reflects
longstanding caselaw that a conviction and sentence are ordinarily distinct and severable
components of the judgment under attack. See id. However, under the Rule, if an illegal
sentence was entered into pursuant to a plea bargain, the defendant may be entitled to
withdraw his plea if the illegal portion of the sentence was a material condition of the
agreement. Tenn. R. Crim. P. 36.1(c)(3).

       Unlike the habeas corpus statute, the Rule has no mechanism for dismissing claims

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to correct an illegal sentence after the sentence has expired. Compare T.C.A. § 29-21-109,
with Tenn. R. Crim. P. 36.1(a). Instead, the Rule provides that a petition may seek relief
from an illegal sentence “at any time.” Tenn. R. Crim. P. 36.1(a). Thus, the Rule is far more
lenient than a habeas corpus petition in that it only requires a claimant to state a colorable
claim and does not require proof on the face of the record from supporting documents. 2
George William Brady v. State, No. E2013-00792-CCA-R3-PC, 2013 WL 6729908, at *6
(Tenn. Crim. App. Dec. 19, 2013) (noting that the Rule contains no provision for summary
dismissal, even if the record establishes that the claim cannot be supported); see State v.
Mark Edward Greene, No. M2013-02710-CCA-R3-CD, 2014 WL 3530960, at *3 (Tenn.
Crim. App. July 16, 2014) (concluding that appellant’s pretrial incarceration did not arise out
of the offenses and that he therefore presented no colorable claim). Since the Rule does not
provide a definition of “colorable claim”, this Court has applied the definition of “colorable
claim” from the Tennessee Post Conviction Procedures to the Rule.3 State v. David Morrow,
No. W2014-00338-CCA-R3-CO, 2014 WL 3954071, at *2 (Tenn. Crim. App. Aug.13,
2014). “A colorable claim is a claim . . . that, if taken as true, in the light most favorable to
the [appellant], would entitle [appellant] to relief . . . .” Tenn. Sup. Ct. R. 28 § 2(H); see
also Mark Edward Greene, 2014 WL 3530960, at * 4. Once the appellant states a colorable
claim, the trial court must appoint counsel and hold a hearing unless the parties waive these
requirements. Id.

       Appellant asserts on appeal that his guilty pleas were coerced, involuntary, or
otherwise invalid and he also insists that his sentences were contrary to statute and void
because he was sentenced to concurrent rather than consecutive sentences. This Court has
determined in other cases that a motion alleging similar facts stated a “colorable claim” and
remanded those cases to the trial court for hearing, usually with a concession from the State.4
See State v. Donald Terrell, No. W2014-00340-CCA-R3-CD, 2014 WL 6883706 (Tenn.
Crim. App. Dec. 8, 2014); State v. Omar Robinson, No. E2014-00393-CCA-R3-CD, 2014
WL 5393240 (Tenn. Crim. App. Oct. 22, 2014); Cumecus R. Cates v. State, No.
E2014-00011-CCA-R3-CD, 2014 WL 4104556 (Tenn. Crim. App. Aug. 20, 2014); David
Morrow, 2014 WL 3954071; State v. Jonathan T. Deal, No. E2013-02623-CCA- R3-CD,


        2
         Writs of habeas corpus petitions are subject to mandatory procedural requirements which are
scrupulously applied. However such requirements are not mandatory for filings made pursuant to the Rule
which may be sought “at any time.”
        3
            See Tenn. Sup. Ct. R. 28, §2(H).
        4
         In the trial court, the technical record does not indicate that the State opposed the motion. Even
though the State concedes on appeal that Appellant is entitled to counsel and to a hearing, we are not bound
by such a concession. See State v. Mitchell, 137 S.W.3d 630, 639 (Tenn. Crim. App. 2003).


                                                    -4-
2014 WL 2802910 (Tenn. Crim. App. June 17, 2014); David Frazier v. State, No.
E2013-02563-CCA-R3-CD, 2014 WL 2743243 (Tenn. Crim. App. June 16, 2014); and
Marcus Deangelo Lee v. State, No. W2013-01088-CCA-R3-CO, 2014 WL 902450 (Tenn.
Crim. App. Mar. 7, 2014).

        In the case herein, 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 he asserts that his sentences were contrary
to statute in that he was sentenced to concurrent rather than consecutive sentences as
statutorily required. See T.C.A. § 40-28-123; Tenn. R. Crim. P. 32(c)(3)(A). Even though
almost thirty years have passed since Appellant was sentenced, there is no proof in the record
that his sentences have expired and Appellant is not required to provide such proof in his
filing. See Donald Terrell, 2014 WL 6883706, at *4. Appellant was merely required to
present a colorable claim. We believe he has done so in this case. Accordingly, the plain
language of the Rule only requires the trial court to determine indigency and, if necessary
(emphasis added), appoint counsel for the Appellant. Tenn. R. Crim. P. 36.1(b). Further, the
trial court must conduct a hearing on the motion unless all parties waive the hearing. Id. On
remand, if the trial court conducts a hearing on the motion and the proof establishes that
Appellant’s allegedly illegal sentences have been fully served, whether it be a six-year or ten-
year term, the controversy is moot. See, e.g., State v. Adrian R. Brown, No. E2014-00673-
CCA-R3-CD, 2014 WL 5483011, at *6 (Tenn. Crim. App. Oct. 29, 2014) (“Because the
appellant’s allegedly illegally lengthy sentences have been fully served, we conclude that
there is no longer any remedy he can seek from the court to correct any illegality in his
sentences, and his controversy is moot.”).5

                                               Conclusion

      For the foregoing reasons, the judgment of the trial court is remanded for further
proceedings consistent with this opinion.


                                                          _________________________________
                                                          TIMOTHY L. EASTER, JUDGE




        5
          The query of a “colorable claim” maybe satisfied by simply entering copies of the judgements under
attack into the record, which may make appointment of counsel unnecessary.

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