                                                                                          07/03/2019
           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs April 23, 2019

    STATE OF TENNESSEE v. KEVIN M. THOMPSON a/k/a KEVIN M.
                           ALBERT

                 Appeal from the Criminal Court for Hamilton County
               Nos. 222105, 231805 & 222353   Barry A. Steelman, Judge



                              No. E2018-01596-CCA-R3-CD
                        _____________________________

The Defendant, Kevin M. Thompson, appeals the trial court’s denial of his motion to
correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. The
Defendant contends that the trial court erred when it ordered him to serve his sentences
concurrently rather than consecutively. See State v. Kevin Montrell Thompson, No.
E2016-01565-CCA-R3-CD, 2017 WL 262701, at *1 (Tenn. Crim. App., at Knoxville,
Jan. 20, 2017), no Tenn. R. App. P. 11 application filed. He further contends that his
charge for possession of cocaine should be dismissed because the term “crack” cocaine is
not included in the relevant statute. He finally asserts that, even if his sentences have
expired, he is entitled to contest his illegal sentence at any time. After review, we affirm
the trial court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which THOMAS T.
WOODALL and ROBERT H. MONTGOMERY, JR., JJ., joined.

Kevin M. Thompson, Ashland, Kentucky, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant
Attorney General; and M. Neal Pinkston, District Attorney General, for the appellee,
State of Tennessee.

                                        OPINION
                                         I. Facts

       This case arises from the Defendant’s convictions for several drug offenses. The
relevant history of the Defendant’s case was summarized by this court as follows:
        In March, 1995, Defendant was indicted by the Hamilton County
Grand Jury in case number 205488 and 205489 for the sale and delivery of
cocaine on December 29, 1994, and in case number 205561 for the sale and
delivery of marijuana on December 30, 1994. We note that, for some
unknown reason, there are two cases numbers (205488 and 205489) on a
single two-count indictment. We will refer to the charges in that indictment
as case number 205489, as reflected in the judgment. On January 17, 1996,
Defendant signed a petition to enter guilty pleas to: selling cocaine in an
amount less than 0.5 grams in case number 205489, in exchange for an
agreed upon sentence of four years to be served consecutive to a prior
sentence (in case number 196078); and selling marijuana in case number
205561, in exchange for an agreed upon sentence of “1 year Range I
concurrent.” Judgments reflect that Defendant pleaded guilty: in case
number 205489 to the Class C felony offense of sale of cocaine in an
amount less than 0.5 grams and received a sentence of four years to be
served consecutive to a prior sentence (in case number 196078); and in case
number 205561, Defendant pleaded guilty to the Class E felony offense of
selling marijuana and received a sentence of one year. In case number
205561, the judgment is silent as to whether Defendant’s sentence should
run concurrent with or consecutive to his sentence in case number 205489.
Likewise, the judgment in case number 205489 is silent as to whether the
sentence is to be served consecutive to, or concurrent with the sentence in
case number 205561.

       In July, 1998, Defendant was indicted by the Hamilton County
Grand Jury in case number 222104, for possession of marijuana on March
18, 1998, with intent to sell; in case number 222105, for possession of 0.5
grams or more of cocaine on March 18, 1998, with intent to sell; and in
case number 222353, for possession of 0.5 grams or more of cocaine on
January 19, 1998, with intent to sell. In February, 2000, Defendant was
indicted in case number 231805 for possession of 0.5 grams or more of
cocaine on October 26, 1999, with intent to sell. On June 13, 2000,
Defendant signed a petition to enter guilty pleas to: possession of marijuana
with intent to sell in case number 231805, in exchange for an agreed upon
sentence of two years; possession of cocaine with intent to sell in case
number 222105, in exchange for an agreed upon sentence of eight years;
possession of cocaine with intent to sell in case number 222353, in
exchange for an agreed upon sentence of eight years; and possession of
cocaine with intent to sell in case number 231805, in exchange of an agreed
upon sentence of eight years. The plea agreement states that “[a]ll
sentences are concurrent” and were to be served on intensive probation.
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              Judgments reflect that Defendant pleaded guilty in case number
      222104 to the Class E felony offense of possession of marijuana with intent
      to sell, and he received a sentence of two years to be served on probation;
      in case number 222105, Defendant pleaded guilty to the Class B felony
      offense of possession of cocaine with intent to sell, and he received a
      sentence of eight years to be served on probation; in case number 222353,
      Defendant pleaded guilty to the Class B felony offense of possession of
      cocaine with intent to sell, and he received a sentence of eight years to be
      served on probation; and in case number 231805, Defendant pleaded guilty
      to the Class B felony offense of possession of cocaine with intent to sell,
      and he received a sentence of eight years to be served on probation. All
      four judgments are silent as to whether Defendant’s sentences would run
      concurrent with or consecutive to each other. An amended judgment was
      subsequently entered in case number 222104. The only difference between
      the amended judgment and original judgment that we perceive is that the
      amended judgment requires Defendant to submit a DNA sample, and there
      is a slight difference in the amount of fines and the dates of Defendant’s
      pretrial jail credits.

              On May 22, 2014, Defendant filed a motion pursuant to Tennessee
      Rule of Criminal Procedure 36.1, arguing that his sentences were illegal
      because the trial court ordered them to be served concurrently rather than
      consecutively in direct contravention of Tennessee Rule of Criminal
      Procedure 32(c)(3) and Tennessee Code Annotated section 40-30-111(b).
      On June 5, 2014, the trial court summarily denied Defendant's motion
      because Defendant’s “sentences have expired . . ., even if one or more of
      the sentences were illegal under T.C.A. § 40[-]30[-]11[1](b) or Tenn. R.
      Crim. P. 32(c)(3)(C), the Court could not find that one or more of them are
      illegal, as Rule 36.1 requires.”

State v. Kevin M. Thompson a.k.a. Kevin M. Albert, No. E2014-01358-CCA-R3-CD,
2015 WL 1548852, at *1 (Tenn. Crim. App. Apr. 1, 2015). On appeal, this court
reversed the trial court’s summary dismissal and remanded the case for further
proceedings, holding that Rule 36.1 did “not exempt its applicability to ‘expired’
sentences and that the Defendant’s sentences would not be expired if they ran
consecutively. Id. at *4. We note that at the time of this decision, the Tennessee
Supreme Court had not yet decided State v. Brown, 479 S.W.3d 200 (Tenn. 2015) and
State v. Wooden, 478 S.W.3d 585 (Tenn. 2015).

      On December 29, 2015, the trial court entered an order denying the Defendant’s
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Rule 36.1 motion to correct an illegal sentence without a hearing. The trial court
reasoned that in light of the then recent decisions of the Tennessee Supreme Court,
Brown, 479 S.W.3d at 210, and Wooden, 478 S.W.3d at 588, the Defendant’s Rule 36.1
motion should be dismissed because his sentences had expired. On January 25, 2016, the
Defendant filed a motion for reconsideration of the trial court’s denial, which the trial
court denied on February 1, 2016. On April 21, 2016, the Defendant filed a motion to the
trial court to reenter its December 29, 2015 order, claiming that he “had no notice that
[the] court had entered a[n] order of judgment.” The trial court denied the Defendant’s
motion on May 9, 2016, reasoning that the Defendant’s motion to reconsider filed on
January 25, 2016, “belies his present allegation that he did not learn of the disposition of
his motion to correct illegally concurrent sentences until February 2016 . . . .” On June 8,
2016, the Defendant filed a notice of appeal of the trial court’s denial of his Rule 36.1
motion.

        This court affirmed the trial court’s judgment on appeal. Thompson, 2017 WL
262701, at *1. We held that the Defendant had not timely filed his notice of appeal and
that the issues raised on appeal, in consideration with the record as a whole, failed to
persuade the court that the interest of justice required this court to excuse the untimely
filing of the notice of appeal. Id. at *3.

       On July 9, 2018, the Defendant then filed another Rule 36.1 motion. In it, he
alleged that his charge for possession of cocaine for resale should be dismissed because
the term “crack” cocaine is not in the relevant statute. He further made an obscure
contention regarding the applicable sentencing ranges.

       The trial court held that on November 10, 2009, the Petitioner had been transferred
from supervised to unsupervised probation for the balance of his sentences, which would
have expired January 14, 2012. The trial court held that the Defendant’s sentences had,
therefore expired. It further held that, even had they not expired, the Defendant’s
sentences were not illegal.

       It is from this judgment that the Defendant now appeals.

                                       II. Analysis

       On appeal, the Defendant contends that the trial court erred when it denied his
motion to correct an illegal sentence. He asserts that, despite the holding in Brown, he
should be able to appeal an illegal sentence “at any time.” He further asserted that he is
factually innocent of the offenses for which he was convicted and that he is actually
innocent of the charges to which he pleaded guilty, making his conviction illegal. The
State counters first that the Petitioner’s notice of appeal is, again, untimely. It further
                                             4
contends that his sentences have expired.

       Tennessee Rule of Criminal Procedure 36.1 (“Rule 36.1”) provides an avenue to
seek correction of an illegal sentence:

             (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.

             (2) If the court determines that the sentence is an illegal sentence, the
      court shall then determine whether the illegal sentence was entered
      pursuant to a plea agreement. If not, the court shall enter an amended
      uniform judgment document, see Tenn. Sup. Ct. R. 17, setting forth the
      correct sentence.

             (3) If the illegal sentence was entered pursuant to a plea agreement,
      the court shall determine whether the illegal provision was a material
      component of the plea agreement. If so, the court shall give the defendant
      an opportunity to withdraw his or her plea. If the defendant chooses to
      withdraw his or her plea, the court shall file an order stating its finding that
      the illegal provision was a material component of the plea agreement,
      stating that the defendant withdraws his or her plea, and reinstating the
      original charge against the defendant. If the defendant does not withdraw
      his or her plea, the court shall enter an amended uniform judgment
      document setting forth the correct sentence.

            (4) If the illegal sentence was entered pursuant to a plea agreement,
      and if the court finds that the illegal provision was not a material
                                             5
       component of the plea agreement, then the court shall enter an amended
       uniform judgment document setting forth the correct sentence.

Tenn. R. Crim. P. 36.1.

       Importantly, Rule 36.1 was recently amended effective on July 1, 2016. “The
former version of subdivision (a) provided that a motion to correct an illegal sentence
could be filed ‘at any time.’ Subdivision (a) is amended to clarify that such motions must
be filed before the defendant’s sentence expires . . . .” Tenn. R. Crim. P. 36.1 cmt.
(2016).

        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. A trial court may summarily dismiss a Rule 36.1 motion if it does not state a
colorable claim for relief. Tenn. R. Crim. P. 36.1(b)(2).

        In the case under submission, we conclude that, whether or not the appeal was
timely filed, the record clearly evinces that the Defendant’s sentences have expired. The
petitioner cannot obtain relief from the sentence that expired in 2012. See Tenn. R. Crim.
P. 36.1 (“Except for a motion filed by the state pursuant to subdivision (d) of this rule, a
motion to correct an illegal sentence must be filed before the sentence set forth in the
judgment order expires.”); see also Brown, 479 S.W.3d at 211 (holding that “Rule 36.1
does not authorize relief from expired illegal sentences”). Even without this bar,
however, the Defendant would not be entitled to relief under the rule because, as the trial
court held, his indictments were valid. He has, therefore, not presented a colorable claim
for relief under Rule 36.1.




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                                  III. Conclusion

       In accordance with the foregoing reasoning and authorities, we affirm the trial
court’s judgment.

                                              _________________________________
                                              ROBERT W. WEDEMEYER, JUDGE




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