        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs December 16, 2014

           SECDRICK L. BOOKER v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                        No. 97-B-1274   Steve Dozier, Judge




               No. M2014-00846-CCA-R3-CD-Filed December 18, 2014


The Petitioner, Secdrick L. Booker, appeals the Davidson County Criminal Court’s dismissal
of his motion to correct an illegal sentence. The Petitioner contends that his convictions are
void because he was sentenced in direct violation of Tennessee statutory law. Upon a review
of the record in this case, we are persuaded that the trial court properly denied the motion.
Accordingly, the judgment of the trial court is affirmed.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which T HOMAS T.
W OODALL, P.J., and J OHN E VERETT W ILLIAMS, J., joined.

Secdrick L. Booker, Wartburg, Tennessee, Pro Se.

Herbert H. Slatery, III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel;
Glenn Funk, District Attorney General; Pamela Anderson, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                             I. Facts and Procedural History




      In 1997, a Davidson County grand jury indicted the Petitioner for criminal attempt to
commit especially aggravated robbery, first degree felony murder, and first degree
premeditated murder. On February 5, 1999, the Petitioner pleaded guilty to second degree
murder. The trial court imposed the agreed out-of-range sentence of thirty years.
       On January 10, 2014, the Petitioner filed, pro se, a motion to correct an illegal
sentence pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure. The Petitioner
asserted that his sentence was illegal because a presentence report was not prepared and sent
to the Department of Correction as required by Tennessee Code Annotated section 40-35-
203(b) and section 40-35-209(d)(1). On April 31, 2014, the trial court entered an order
summarily dismissing the Petitioner’s motion. The order stated as follows:

                The Petitioner, Secdrick Booker, filed a pro se “Motion to Correct an
        Illegal Sentence.” The [P]etitioner was indicted on June 20, 1997, on one
        count of Attempted Especially Aggravated Robbery, one [count] of Felony
        Murder and one count of First Degree Murder. On February 5, 1999, the
        [P]etitioner entered a guilty plea to one count of Second Degree Murder. The
        plea agreement and the judgment indicate the Petitioner agreed to enter a guilty
        plea to the amended charge of Second Degree Murder and waived the range
        of punishment, agreeing to a sentence of thirty years at 100%. He now
        petitions alleging the sentence is illegal because a sentencing report was never
        submitted to the Department of Correction, in violation of T.C.A. § 40-35-
        209(d)(1).

                The [Petitioner] agreed to the plea and the sentence received. The
        Court accepted the plea agreement and did not participate otherwise in the
        determination of the Petitioner’s sentence. “Where the sentence is agreed
        upon by the district attorney general and the defendant and accepted by the
        court, the court may immediately impose sentence as provided in § 40-35-
        205(d) and no specific sentencing hearing or presentence reports shall be
        required.” T.C.A. § 40-35-203(b).

              The Court finds no basis to support the Petitioner’s allegations that the
        sentence is illegal or that the sentence should be modified. The petition is
        dismissed.

       It is from this judgment that the Petitioner now appeals.

                                          II. Analysis

       On appeal, the Petitioner maintains that his sentence is illegal and asserts that the trial
court improperly treated his motion to correct an illegal sentence as a petition for writ of
habeas corpus. The Petitioner also contends that, because this “defect” arose after the entry
of his guilty plea, the trial court was without jurisdiction to dismiss his motion. The State

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responds that the trial court appropriately addressed the purported illegality of the sentence
and properly dismissed the motion. We agree with the State.

       The Tennessee Rules of Criminal Procedure were amended effective July 1, 2013,
with the addition of Rule 36.1 which provides as follows:

       (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.

               ....

       (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 (emphasis added). Prior to the adoption of this Rule, petitioners
generally sought relief from illegal sentences through habeas corpus or post-conviction
proceedings. See, e.g., Cantrell v. Easterling, 346 S.W.3d 445, 453, 453 n.7 (Tenn. 2011).

       Because Rule 36.1 does not define “colorable claim,” we have adopted the definition
of a colorable claim used in the context of post-conviction proceedings from Tennessee
Supreme Court Rule 28 § 2(H): “A colorable claim is a claim . . . that, if taken as true, in the
light most favorable to the [appellant], would entitle [appellant] to relief. . . .” State v. David
Morrow, No. W2014-00338-CCA-R3-CO, 2014 WL 3954071, at *2 (Tenn. Crim. App., at
Jackson, Aug. 13, 2014), no Tenn. R. App. P. 11 filed; State v. Mark Edward Greene, No.

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M2013-02710-CCA-R3-CD, 2014 WL 3530960, at *3 (Tenn. Crim. App., at Nashville, July
16, 2014), no Tenn. R. App. P. 11 filed.

       It is clear from the judgment document that the Petitioner’s sentence was imposed
within the appropriate statutory range and was authorized by the applicable statutory scheme.
The section of the Sentencing Act upon which the Petitioner relies in his assertion that his
sentence is illegal states:

               If the district attorney general and defendant agree on a specific sentence
       as to the offense classification, length or manner of service of sentence and the
       court accepts the sentence agreement as the appropriate disposition in the case,
       no presentence report or hearing shall be required unless so ordered by the
       court. No defendant sentenced to the custody of the department of correction
       shall be committed or conveyed to the department unaccompanied by the
       completed presentence report or investigation and report required by § 40-35-
       209(d)(1).

T.C.A. § 40-35-205(d). The Petitioner asserts that the failure to transmit a report to the
Department of Correction was in direct contravention of this statute, thereby creating an
illegal sentence. The Petitioner’s claim, however, even if taken as true, does not show that
he would be entitled to sentencing relief.

       The Petitioner entered a negotiated guilty plea for a specific sentence. According to
section 40-35-205(d), a presentence report is not required under such circumstances. As this
Court has noted before, the purpose of a presentence report is to assist the trial court in
making sentencing decisions. State v. Danny Ray Hensley, No. E2011-02325-CCA-R3-CD,
2012 WL 5351217, at *3 (Tenn. Crim. App., at Knoxville, Oct. 31, 2012), no Tenn. R. App.
P. 11 application filed.; State v. Nathanael Little, W2011-02199-CCA-R3-CD, 2013 WL
2327094 at *11 (Tenn. Crim. App., at Jackson, May 28, 2013), no Tenn. R. App. P. 11
application filed. In cases where there is a negotiated plea agreement involving an agreed
upon sentence, a presentence report sent to the Department Correction after sentencing would
in no way assist the trial court in sentencing, thus the legislature excepted this category from
the requirement of a presentence report.

       Further, the omission of the completed presentence report to the Department of
Correction would be classified as a clerical error rather than an error “so profound as to render
the sentence illegal and void.” Cantrell v. Easterling, 346 S.W.3d 445, 452 (Tenn. 2011).
Therefore, the trial court’s summary dismissal of the motion was proper.

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       Next, the Petitioner argues that the trial court erred because it treated his motion as a
petition for habeas corpus. In support of this contention, he points to the style of the trial
court’s order wherein the words “Habeas Corpus” are found in parenthesis above the body of
the order. The body of the order, however, addresses the motion pursuant to the requirements
of Rule 36.1. There are some differences between the requirements of Rule 36.1 and habeas
corpus law, however, none were implicated in this case. The only indication of the former
habeas law is the “(Habeas Corpus)” found on the order. The trial court’s analysis and
determination are consistent with the requirements of Rule 36.1. Therefore, there is no error.

       As to the Petitioner’s attack on the trial court’s jurisdiction and the validity of his plea,
we agree with the State that this issue was not previously raised, thereby risking waiver.
Furthermore, Rule 36.1 contemplates correction of illegal sentences. In this issue, the
Petitioner is attacking the validity of the plea. See State v. Jimmy Wayne Wilson, No. E2013-
02354-CCA-R3-CD, 2014 WL 1285622, at *2 (Tenn. Crim. App., at Knoxville, March 31,
2014), no Tenn. R. App. P. 11 application filed (“The Rule does not provide an avenue for
seeking reversal of convictions.”). Thus, this issue is not properly before this Court.

       Accordingly, we conclude that the trial court properly found that the Petitioner’s
motion did not state a colorable claim pursuant to Tennessee Rule of Criminal Procedure 36.1,
and, therefore, summary dismissal was appropriate. The Petitioner is not entitled to relief.

                                         III. Conclusion

       In accordance with the aforementioned reasoning and authorities, we conclude that the
Petitioner failed to state a colorable claim that his sentence is illegal. As such, we affirm the
judgment of the trial court.




                                                      _________________________________
                                                        ROBERT W. WEDEMEYER, JUDGE




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