                                                                                                    02/26/2020
         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                  Assigned on Briefs December 17, 2019 at Knoxville

                 STATE OF TENNESSEE v. RONNIE WHARTON

                    Appeal from the Circuit Court for Sumner County
                     Nos. 49-2008, 700-2013 Dee David Gay, Judge


                                No. M2019-01260-CCA-R3-CD


The petitioner, Ronnie Wharton, appeals the Sumner County Circuit Court’s summary
dismissal of his motion, filed pursuant to Tennessee Rule of Criminal Procedure 36.1, to
correct what he has deemed an illegal sentence. Discerning no error, we affirm.

              Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE, and ALAN E. GLENN, JJ., joined.

Ronnie Wharton, Whiteville, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Ray Whitley, District Attorney General; and Lytle A. James, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                            OPINION

             In September 2008, the petitioner pleaded guilty to aggravated assault in
case number 49-2008, and the trial court imposed a sentence of 10 years’ probation to be
served concurrently with the four-year effective sentence imposed in case number 48-
2008 and the 11-month and 29-day effective sentence imposed in case number 50-2008
but consecutively to the sentence of probation imposed in case number 31-2008.1

             On August 10, 2011, the trial court revoked the petitioner’s probation and
ordered him to serve 365 days of his 10-year effective sentence in confinement followed
1
        The record on appeal is meager and does not include a transcript from any plea submission or
revocation hearings and does not include judgments of conviction for case numbers 48-2008, 50-2008, or
31-2008. We glean the relevant facts from the trial court’s revocation orders.
by a return to probation. In January 2014, the petitioner, originally charged with
attempted first degree murder in case number 700-2013, pleaded nolo contendere to the
lesser charge of aggravated assault, and the trial court imposed a six-year sentence of
probation to be served concurrently with the 10-year sentence imposed in case number
49-2008. Then, on February 3, 2014, the trial court revoked the petitioner’s probation in
case 49-2008, ordered the petitioner to serve a period of incarceration equal to the time he
had already served, and returned him to supervised probation. On November 19, 2014,
the trial court revoked the petitioner’s probation in cases 49-2008 and 700-2013 but
returned him to probation without the imposition of a further term of confinement.

              Finally, on March 27, 2017, the trial court revoked the petitioner’s
probation in cases 49-2008 and 700-2013 and ordered him to serve the balance of his 10-
year effective sentence in confinement. The court’s order does not specify the reason for
the revocation other than stating that the court found that the petitioner had “violated the
terms and conditions of probation as evidenced by the testimony heard on the record in
open [c]ourt” during a March 13, 2017 hearing. An amended revocation order issued on
May 11, 2017, amending the amount of pretrial jail credits to be applied; however, the
amended order is unsigned by the trial judge.

               On May 30, 2019, the petitioner filed a Tennessee Rule of Criminal
Procedure 36.1 motion, asserting that his sentence was illegal because the trial court
illegally revoked his probation in cases 49-2008 and 700-2013. He exhibited to the
motion two probation violation warrants. The first, issued on November 10, 2015,
alleged that the petitioner violated the terms of his probation by garnering new charges
and by failing a drug screen. The second warrant, issued on May 31, 2016, alleged that
the petitioner violated the terms of his probation by garnering new charges; this warrant
has the word “Amended” handwritten at the top and does not include the allegation that
the petitioner failed a drug screen. The petitioner also exhibited to the motion a printout
from the Sumner County Online Court Records System purporting to show that the
charges giving rise to the probation violation had been dismissed on August 2, 2016.

               The trial court summarily dismissed the petitioner’s Rule 36.1 motion for
failure to state a colorable claim. The court noted that the petitioner’s sentences fell
within the permissible statutory range and that his probation “was ultimately revoked on
March 13, 2017[,] after the introduction of certified copies of convictions from General
Sessions Court for crimes committed since his last probation violation hearing in
Criminal Court from November 13, 2014.”

             In this timely appeal, the petitioner reasserts his argument that the trial
court erred by finding that he had been convicted of the charges giving rise to the
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probation violation warrant. The petitioner further contends that because the amended
May 31, 2016 warrant did not allege that the petitioner had failed a drug screen, the trial
court erred by finding that the petitioner had violated the terms of his probation by failing
a drug test. Based on these alleged errors, the petitioner argues that the trial court
illegally revoked his probation and ordered him to serve his sentences. The State argues
that the petitioner has failed to state a colorable claim under Rule 36.1. We agree with
the State.

               Rule 36.1 provides the defendant and the State an avenue to “seek the
correction of an illegal sentence,” defined as a sentence “that is not authorized by the
applicable statutes or that directly contravenes an applicable statute.” Tenn. R. Crim. P.
36.1; see also State v. Wooden, 478 S.W.3d 585, 594-95 (Tenn. 2015) (holding that “the
definition of ‘illegal sentence’ in Rule 36.1 is coextensive with, and not broader than, the
definition of the term in the habeas corpus context”). To avoid summary denial of an
illegal sentence claim brought under Rule 36.1, a defendant must “state with particularity
the factual allegations,” Wooden, 478 S.W.3d at 594, establishing “a colorable claim that
the sentence is illegal,” Tenn. R. Crim. P. 36.1(b). “[F]or purposes of Rule 36.1 . . .
‘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.” Wooden,
478 S.W.3d at 593. The determination whether a Rule 36.1 “motion states a colorable
claim for correction of an illegal sentence under Rule 36.1 is a question of law, to which
de novo review applies.” Id. at 589 (citing Summers v. State, 212 S.W.3d 251, 255
(Tenn. 2007)).

               Here, even considering all of the petitioner’s allegations to be true, Rule
36.1 does not afford him relief. A trial court’s revoking a petitioner’s probation and
ordering him to execute his original sentence, even when based on erroneous factual
findings or a violation not alleged in the warrant, would not render the sentence illegal.
See Wooden, 478 S.W.3d at 595 (citing Cantrell v. Easterling, 346 S.W.3d 445, 449-52
(Tenn. 2011)) (identifying three categories of errors—“clerical errors, appealable errors,
and fatal errors”—and stating that “[o]nly fatal errors render sentences illegal”); see also
State v. Tony Arthur Swann, No. E2015-01516-CCA-R3-CD, slip op. at 6 (Tenn. Crim.
App., Knoxville, June 8, 2017) (holding that even though the revocation order “may have
been erroneously entered, . . . the sentences were not ‘illegal’”). In Wooden, our supreme
court specifically identified as appealable, as opposed to fatal, errors those “claims ‘akin
to . . . challenge[s] to the sufficiency of the evidence supporting a conviction,’ such as
claims that the record does not support the trial court’s factual findings regarding
sentencing.” Wooden, 478 S.W.3d at 595 (alterations in original) (quoting Cantrell, 346
S.W.3d at 450). A trial court’s decision to revoke a sentence of probation falls squarely
within this category of error. The sentences imposed in case numbers 49-2008 and 700-
                                             -3-
2013 were not illegal,2 and the petitioner does not claim otherwise. He alleges only error
in the revocation of his probation, a claim that, even if true, is not cognizable in a Rule
36.1 proceeding.

               Accordingly, we discern no error in the trial court’s summary dismissal of
the petitioner’s motion, and we affirm the judgment of the trial court.

                                                           _________________________________
                                                          JAMES CURWOOD WITT, JR., JUDGE




2
        We note that the petitioner was sentenced as a Range I offender in case number 700-2013, but the
six-year sentence is within the range of punishment for that classification and is not illegal. See T.C.A. §
40-35-112(a)(3).

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