        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs June 21, 2016

                 STATE OF TENNESSEE v. JEFFREY ODOM

               Appeal from the Circuit Court for Rutherford County
                 No. F-55878A, 56586B     David M. Bragg, Judge
                     ___________________________________

              No. M2015-02040-CCA-R3-CD – Filed December 9, 2016
                     ___________________________________

The Defendant, Jeffrey Odom, appeals the trial court’s dismissal of his motion to correct
an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1 due to the
Defendant’s failure to appear at the scheduled hearing. Upon reviewing the record and
the applicable law, we affirm the judgment of the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and TIMOTHY L. EASTER, JJ., joined.

Gerald L. Melton, District Public Defender (on appeal); and Russell N. Perkins, Assistant
District Public Defender (at hearing), for the appellant, Jeffrey Odom.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; and Jennings H. Jones, District Attorney General, for the appellee,
State of Tennessee.


                                       OPINION

        On February 14, 2005, the Defendant pled guilty to robbery and received a seven-
year sentence as a multiple offender to be served on probation. On March 16, 2006, the
Defendant pled guilty to conspiracy to sell 0.5 grams or more of cocaine. He was
sentenced to ten years as a multiple offender to be served on probation and to run
concurrently with his sentence for the robbery conviction. On November 21, 2008, the
trial court entered an order revoking the Defendant’s probation for the cocaine conviction
and requiring him to serve his sentence.

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       On December 29, 2014, the Defendant filed a pro se motion to correct an illegal
sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. He asserted that he
was released on bond for the robbery offense when he committed the cocaine offense.
He maintained that as a result, consecutive sentencing was mandatory and that his
concurrent sentences were illegal. The trial court subsequently entered an order
appointing counsel to represent the Defendant and scheduling the matter for a hearing.

        The Defendant was not present at the hearing on February 13, 2015. His counsel
informed the trial court that the Defendant was not incarcerated at the local jail. Counsel
later informed the trial court that according to the website for the “Tennessee Felony
Offender Lookup Program,” the Defendant had been released on parole. Counsel, who
had been unable to locate or confer with the Defendant, did not present any evidence
regarding the allegations in the motion. After calling out the Defendant’s name and
receiving no response, the trial court announced that it was dismissing the Defendant’s
motion. The trial court, however, did not enter a written order dismissing the motion. On
March 25, 2015, the Defendant filed a pro se notice of appeal in which he listed his
address as a federal penitentiary in Atlanta, Georgia.            Counsel continued his
representation of the Defendant on appeal.

      After the case was submitted to a panel of this court, we entered an order
remanding the case to the trial court for entry of a written order disposing of the
Defendant’s Rule 36.1 motion. The trial court subsequently entered an order dismissing
the Defendant’s motion due to the Defendant’s failure to appear at the hearing.

                                       ANALYSIS

      On appeal, the Defendant contends that he alleged a colorable claim in his motion
and that as a result, he was entitled to a hearing on the motion. At the time that the
Defendant filed his motion and at the time of his hearing, Rule 36.1 of the Tennessee
Rules of Criminal Procedure stated:

      (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
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       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 component of
       the plea agreement, then the court shall enter an amended uniform
       judgment document setting forth the correct sentence.

       (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 (2014).1 A colorable claim is defined as “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). A
motion filed pursuant to Rule 36.1 “must state with particularity the factual allegations on
which the claim for relief from an illegal sentence is based.” Id. at 594. A trial court
“may consult the record of the proceeding from which the allegedly illegal sentence
emanated” when examining whether a motion states a colorable claim for relief. Id.

       1
           Tennessee Rule of Criminal Procedure 36.1 was amended effective July 1, 2016.
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        In the present case, the Defendant filed a three-page, pro se motion alleging that he
was released on bond for the robbery charge when he was arrested for the cocaine charge
and that as a result, consecutive, rather than concurrent, sentencing was mandated. See
Tenn. R. Crim. P. 32(c)(3)(C) (2014); T.C.A. § 40-20-111(b). The Defendant signed his
name as proceeding pro se but did not include his address or any other contact
information in his motion. While the trial court did not enter an order specifically finding
that the Defendant alleged a colorable claim for relief, the trial court entered an order
appointing counsel and scheduling the motion for a hearing. Due to the Defendant’s
failure to include any contact information in his motion, his counsel was unable to locate
him. The only information that counsel was able to obtain regarding the Defendant’s
location was that he had been released on parole for the offenses. Moreover, the
appellate record includes no information regarding the Defendant’s address at the time
that he filed his motion or at the time of the hearing.

       Contrary to the Defendant’s claim on appeal, the trial court afforded him a hearing
on the motion. However, due to the Defendant’s failure to include his address or any
other contact information in his motion, counsel was unable to confer with the Defendant
or otherwise ensure his appearance at the hearing. No evidence was presented during the
hearing establishing that the Defendant received an illegal sentence that was a material
component of his guilty plea to the cocaine charge. See Tenn. R. Crim. P. 36.1(c) (2014).
Therefore, we conclude that the trial court properly dismissed the Defendant’s motion.

        The State contends that the Defendant is not entitled to relief because his
sentences expired while his appeal was pending in this court. Because we have held that
the trial court properly dismissed the Defendant’s motion, we need not address this issue.

                                     CONCLUSION

      Based upon our review of the record and the applicable law, we affirm the
judgment of the trial court.




                                              ____________________________________
                                             JOHN EVERETT WILLIAMS, JUDGE




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