           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                     Assigned on Briefs December 9, 2014 at Knoxville

           STATE OF TENNESSEE v. SANCHEZ LEWAN BRADFORD

                    Appeal from the Criminal Court for Davidson County
                Nos. 97-C-1437, 2001-A-257   J. Randall Wyatt, Jr., Judge


                     No. M2014-01311-CCA-R3-CD – Filed April 8, 2015


The petitioner, Sanchez Lewan Bradford, appeals the trial court’s summary dismissal of
his motion to correct an illegal sentence, asserting that his sentences were illegal in that
he was not sentenced to consecutive terms. After review, we affirm the summary
dismissal.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which THOMAS T. WOODALL,
P.J., and TIMOTHY L. EASTER, J., joined.

Sanchez Lewan Bradford, Memphis, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Sophia Lee, Senior Counsel;
Victor S. Johnson, III, District Attorney General; and Amy Hunter, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                               OPINION

                                                FACTS

      On October 2, 1997, in case number 97-C-1437, the petitioner pled guilty to
possession of 0.5 grams or more of cocaine with intent to sell or deliver, a Class B felony,
and was sentenced to eight years, suspended to probation upon serving one year.
Thereafter, on April 26, 2001, in case number 2001-A-257, the petitioner pled guilty to
possession of 0.5 grams or more of cocaine with intent to sell, a Class B felony, and was
sentenced to ten years.1 The court ordered that the ten-year sentence in case number
2001-A-257 run concurrently with the sentence in 97-C-1437.

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           Other charges in the indictments were dismissed.
       On April 21, 2014, the petitioner filed a pro se motion to correct an illegal
sentence pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure, arguing
that his sentences were illegal because they were ordered to be served concurrently,
rather than consecutively. On June 23, 2014, the trial court entered an order summarily
dismissing the motion, determining that “the imposition of consecutive sentencing is left
to the discretion of the sentencing court; it is not mandatory. The [petitioner] benefit[]ed
greatly from the agreement when he received a concurrent sentence.” The petitioner
appealed.


                                       ANALYSIS


       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.
             (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



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       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. Prior to the adoption of this Rule, defendants generally had to
seek 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).


       On appeal, the petitioner argues that the trial court illegally sentenced him to serve
his sentence in case 2001-A-257 concurrently with his sentence in case 97-C-1437. He
asserts that the sentence was imposed in direct contravention of Tennessee Code
Annotated section 40-35-115(b)(6) and Tennessee Rule of Criminal Procedure
32(c)(3)(C) because he committed the offense in case 2001-A-257 while he was on
probation in case 97-C-1437. However, neither the statute nor the rule requires
consecutive sentencing in cases where a defendant commits a new crime while on
probation. Tennessee Code Annotated section 40-35-115(b)(6) provides that the trial


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court “may order sentences to run consecutively if [it] finds by a preponderance of the
evidence that . . . [t]he defendant is sentenced for an offense committed while on
probation[.]” Id. (emphasis added). Thus, although the petitioner committed the offense
in case 2001-A-257 while he was on probation in case 97-C-1437, the trial court was not
required to impose consecutive sentencing under Tennessee Code Annotated section 40-
35-115(b)(6). In addition, the petitioner’s reliance on Tennessee Rule of Criminal
Procedure 32(c)(3)(C) is misplaced because he was not released on bail in case 97-C-
1437 when he committed the offense in case 2001-A-257.


        We, therefore, conclude that the petitioner failed to present a colorable claim of an
illegal sentence, and the trial court acted properly in dismissing the petitioner’s motion
without a hearing or appointing counsel.


                                     CONCLUSION


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


                                                  _________________________________
                                                  ALAN E. GLENN, JUDGE




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