                                                                                       04/21/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs March 21, 2017

         STATE OF TENNESSEE v. MAURICE ALLEN MILLS, JR.

                  Appeal from the Criminal Court for Knox County
                     No. 104374 Steven Wayne Sword, Judge
                     ___________________________________

                           No. E2016-01118-CCA-R3-CD
                       ___________________________________


The pro se defendant, Maurice Allen Mills, Jr., appeals as of right from the Knox County
Criminal Court’s summary denial of his Tennessee Rule of Criminal Procedure 36.1
(“Rule 36.1”) motion to correct an illegal sentence. The defendant contends his motion
stated a colorable claim for relief, so the trial court erred in summarily denying it.
Discerning no error, we affirm the judgment of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS
and TIMOTHY L. EASTER, JJ., joined.

Maurice Allen Mills, Jr., Whiteville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Charme P. Allen, District Attorney General; and Jacob Wilson, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                             Facts and Procedural History

       On June 10, 2015, the defendant pled guilty to one count of possession with intent
to sell a Schedule II controlled substance within 1000 feet of a school, one count of
possession with intent to deliver a Schedule II controlled substance within 1000 feet of a
school, one count of possession with intent to sell a Schedule II controlled substance
within 1000 feet of a child care agency, one count of possession with intent to deliver a
Schedule II controlled substance within 1000 feet of a child care agency, one count of
simple possession of a Schedule IV controlled substance, and one count of failure to
appear at an arraignment. The guilty plea included the prosecutor’s recommended
sentences, but the final judgments are noticeably absent from the record. The defendant
subsequently filed a motion to correct illegal sentence on June 22, 2015, arguing: his
sentence was illegally enhanced; the arresting officers performed an illegal search and
seizure; he did not receive judicial diversion; and he received ineffective assistance of
counsel during his sentencing hearing. On February 1, 2016, the trial court entered an
order denying the defendant’s motion, finding:

       After reviewing the motion, the court finds that the defendant has failed to
       assert a colorable claim pursuant to Rule 36.1 of the Tennessee Rules of
       Criminal Procedure. The defendant’s motion raises issues regarding his
       guilty plea that do not fall within the purview of Rule 36.1. There are no
       issues raised [regarding] the legality of the defendant’s sentence.
       Therefore, the defendant’s motion is hereby dismissed.

It is unclear when the defendant received the trial court’s order because on March 15,
2016 and May 16, 2016, he filed motions asking for the status of the proceedings. The
defendant subsequently filed an untimely notice of appeal on May 31, 2016.

        On appeal, the defendant reasserts the arguments made in his motion to correct
illegal sentence and asserts the trial court abused its discretion when denying the motion.
The defendant further contends the trial court erred when failing to appoint counsel to
investigate his ineffective assistance of counsel claim. The State argues the defendant’s
claims do not entitle him to relief under Rule 36.1. Upon review of the record and the
briefs, we agree with the State and affirm the judgment of the trial court.


                                         Analysis

I.     Untimely Notice of Appeal

       At the outset, we note the defendant filed an untimely notice of appeal. The
Tennessee Rules of Appellate Procedure require an appellant to file a notice of appeal
within thirty days of the judgment being appealed. Tenn. R. App. P. 4(a). A timely filed
notice of appeal is not jurisdictional in this Court, and we may elect to waive the
requirement in the interest of justice. Tenn. R. App. P. 4(a). “‘In determining whether
waiver is appropriate, this [C]ourt will consider the nature of the issues presented for
review, the reasons for and the length of the delay in seeking relief, and any other
relevant factors presented in the particular case.’” State v. Rockwell, 280 S.W.3d 212,

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214 (Tenn. Crim. App. 2007) (quoting State v. Markettus L. Broyld, No. M2005-00299-
CCA-R3-CO, 2005 WL 3543415, at *1 (Tenn. Crim. App. Dec. 27, 2005)).

       Based on statements made in his brief, the defendant appears unaware the trial
court entered an order dismissing his motion to correct illegal sentence, and the State has
not raised the untimely notice in its brief. Regardless, the defendant has failed to state
cognizable grounds for relief under Rule 36.1, so the interests of justice do not require the
waiver of the timely filing of a notice of appeal. Because “‘nothing in Rule 36.1
precludes the filing of subsequent petitions for relief, which would allow [the defendant]
to correct the deficiencies in his pleadings and begin the process anew,’” in the interest of
judicial economy, this Court has previously addressed the merits of similarly waived
Rule 36.1 claims. State v. Kenneth Lebron Wynn, No. E2015-00575-CCA-R3-CD, 2015
WL 5993406, at *2 (Tenn. Crim. App. Oct. 14, 2015) (quoting State v. Marcus Deon
Jarnigan, No. E2015-00061-CCA-R3-CD, 2015 WL 5014514, at *1 (Tenn. Crim. App.
Aug. 25, 2015). For this reason, we will also address the merits of the defendant’s claims
on appeal.

II.    Rule 36.1

        Whether a motion states a colorable claim for correction of an illegal sentence
under Rule 36.1, is a question of law so de novo review applies. Summers v. State, 212
S.W.3d 251, 255 (Tenn. 2007). Rule 36.1 provides that the defendant “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.” Tenn. R. Crim. P.
36.1(a). A sentence is illegal if it is not authorized by the applicable statutes or directly
contravenes an applicable statute. Id. If the motion states a colorable claim, the trial
court shall appoint counsel if the defendant is indigent and not already represented by
counsel and hold a hearing on the motion, unless the parties waive the hearing. Tenn. R.
Crim. P. 36.1(b). A “‘colorable claim’ means a claim that, if taken as true and viewed in
a light most favorable to the moving party, would entitle the moving party to relief under
Rule 36.1.” State v. Wooden, 478 S.W.3d 585, 593 (Tenn. 2015).

       “[F]ew sentencing errors render [a sentence] illegal.” Id. at 595. Rather,
sentencing errors may be clerical, appealable, or fatal, and only fatal errors render a
sentence illegal. Id. Clerical errors “‘arise simply from a clerical mistake in filling out
the uniform judgment document’ and may be corrected at any time under Tennessee Rule
of Criminal Procedure 36.” Id. at 595 (quoting Cantrell v. Easterling, 346 S.W.3d 445,
453 (Tenn. 2011)). Appealable errors are “‘those errors for which the Sentencing Act
specifically provides a right of direct appeal’” and are generally attacks on the
methodology used by the trial court when imposing a sentence. Id. Fatal errors are those
errors “‘so profound as to render the sentence illegal and void” and include “sentences
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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 offense.” Id.

       Even taking the defendant’s claims as true, the defendant’s brief is void of a single
claim that would entitled him to relief under Rule 36.1. His challenges to the
methodology used by the trial court when imposing his sentence, including the use of
enhancement factors and denial of judicial diversion, could have and should have been
raised on direct appeal following the sentencing hearing. Likewise, a Rule 36.1 motion
to correct illegal sentence is not the proper mechanism by which to challenge the
sufficiency of trial counsel nor do the defendant’s illegal search and seizure claims give
rise to relief under Rule 36.1. The defendant raises only appealable errors that do not
render his sentence void or illegal. See State v. Markhayle Jackson, No. W2015-02068-
CCA-R3-CD, 2016 WL 7664771, at * 2 (Tenn. Crim. App. May 31, 2016) (finding the
defendant’s claims he received ineffective assistance of counsel and did not knowingly
and voluntarily enter his guilty plea were appealable errors, not fatal errors). The
defendant is not entitled to relief on this issue.




                                        Conclusion

       Based on the foregoing, we affirm the judgment of the trial court.



                                              ____________________________________
                                              J. ROSS DYER, JUDGE




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