        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs February 03, 2015


              PHILANDER BUTLER v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Shelby County
            No. 8808249, 9004544, 9006943  James M. Lammey, Judge




                No. W2014-01366-CCA-R3-CO - Filed July 14, 2015
                        _____________________________

The defendant, Philander Butler, appeals the summary dismissal of his Rule 36.1 Motion
to Correct an Illegal Sentence. The trial court summarily dismissed the motion, finding
that the challenged 1989 and 1990 sentences had expired and that “the intent of Rule 36.1
was not to revive old cases.” On appeal, the defendant argues that the rule states that he
may challenge an illegal sentence “at any time.” He also argues that because he
erroneously filed his motion in the wrong division of the Criminal Court for Shelby
County that the trial court did not have jurisdiction to deny his motion. Following our
review, we affirm the judgment of the trial court.

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

JOHN EVERETT WILLIAMS, delivered the opinion of the Court, in which ALAN E. GLENN,
J., joined. CAMILLE R. MCMULLEN, J., filed a dissenting opinion.

Philander Butler, Memphis, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Bryce Phillips,
Assistant District Attorney General, for the Appellee, State of Tennessee.


                                       OPINION

                             Facts and Procedural History
        The defendant pled guilty in 1989 in Case Number 88-08249 to sale of a
controlled substance and was sentenced to one hundred twenty days confinement
followed by five years of probation. Philander Butler v. State, No. W2009-00451-CCA-
R3-HC, 2009 Tenn. Crim. App. LEXIS 968 (Tenn. Cirm. App. Dec. 1, 2009). In 1990,
he pled guilty in Case Numbers 90-04544 and 90-06943 to possession of a controlled
substance with intent to sell and attempted possession of a controlled substance with
intent to sell for which he received concurrent sentences of eight and four years
respectively. Id. They were also imposed concurrently with the 1989 conviction. No
direct appeal was taken, and the sentences were completed by the petitioner. In 1999, the
petitioner was convicted in federal court of aiding and abetting the possession of crack
cocaine with intent to distribute and was sentenced to life imprisonment and ten years of
supervised release. Id. The enhancement to a life sentence was predicated upon the
defendant’s earlier 1989 and 1990 Tennessee convictions. The defendant remains
incarcerated in a federal prison in Memphis.

       Following his federal conviction, the defendant began challenging the legality of
his Tennessee convictions and has continued to do so, resulting in a long and arduous
history before this court. He has challenged the sentences in post-conviction, habeas
corpus, and writ of error coram nobis settings. He has been denied relief in all instances.
Philander Butler v. State, No. W2012-01512-CCA-R3-CO, 2013 Tenn. Crim. App.
LEXIS 293, *3-5 (Tenn. Crim. App. Mar. 28, 2013).

       After gaining no relief, the petitioner filed the instant motion to correct an illegal
sentence pursuant to Tenn. R. Crim. P. 36.1. The thrust of the defendant’s argument in
the motion is that his sentences are illegal because they were ordered to be served
concurrently rather than consecutively, as statutorily mandated, because he committed the
1990 offense in Case Number 90-06943 while released on bail for the 1989 offense in
Case Number 88-08249 and the 1990 offense in Case Number 90-04554 . See T.C.A. §
40-20-111(b) (2010); Tenn. R. Crim. P. 32(c)(3)(C). The trial court summarily dismissed
the petition. In its written order, the trial court stated the following reasons for the
dismissal:

              It appears to the court that the [defendant] was on bond in indictment
       90-04544, when arrested for the offense in indictment 90-06943. The court
       finds that pursuant to [Tennessee Code Annotated section] 40-20-111 and
       Tennessee Rule of Criminal Procedure 32, the sentences should have run
       consecutively, rather than concurrently. Notwithstanding, the court finds
       that the [defendant] is not entitled to relief under Rule 36.1. The sentence
       for which the [defendant] seeks relief expired in 1994. Therefore, the
       [defendant] is no longer a defendant to seek relief. A defendant is a person
       defending or denying the party against whom relief or recovery is sought in
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       an action of suit or the accused in a criminal case. See Black’s Law
       Dictionary; Fifth Edition. Pursuant to [Tennessee Code Annotated section]
       39-11-106(7), “Defendant” means a person accused of an offense under this
       title and includes any person who aids or abets the commission of such
       offense.

       The court is also aware that the State Legislature amended the [h]abeas
       [c]orpus [s]tatute, [Tennessee Code Annotated section] 29-21-101(b)(1) to
       deny relief to defendants who received concurrent sentencing when
       consecutive sentencing was required by law. The court finds that the intent
       of Rule 36.1 was not to revive old cases where the sentences have expired.
       The sentences at issue are twenty years old and the [defendant] has served
       those sentences. The court cannot maintain indefinite jurisdiction over
       such sentences. The [defendant’s] motion is hereby denied.

The defendant has timely appealed the trial court’s decision.

                                         Analysis

       On appeal, the defendant contends that the trial court erred in summarily
dismissing his motion to correct an illegal sentence without appointment of counsel and a
hearing. He contends that pursuant to Tenn. R. Crim. P. 36.1, he is entitled to seek relief
“at any time,” even after expiration of his sentence, if he stated a colorable claim in his
motion. He challenges the trial court’s finding that it lacked jurisdiction because the
defendant was no longer “a defendant,” and he also argues that because he was convicted
in Division IV of the Criminal Court for Shelby County, the trial court in Division V did
not have jurisdiction to rule on the motion.

       Tennessee Rule of Criminal Procedure 36.1 provides an avenue to seek
correction of an illegal sentence:

       (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
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      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
      uniform judgment document, see Tenn. S. Ct. Rule 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.

Rule 36.1 is intended “to provide an avenue for correcting allegedly illegal
sentences. The Rule does not provide an avenue for seeking the reversal of
convictions.” State v. Jimmy Wayne Wilson, No. E2013-02354-CCA-R3-CD,
2014 WL 1285622, at *2 (Tenn. Crim. App. Mar. 31, 2014), perm. app. denied
(Tenn. Nov. 19, 2014) (citing Cantrell v. Easterling, 346 S.W.3d 445, 455-56
(Tenn. 2011)). Further, “[w]hile the State, on appeal, concedes that the petitioner
is entitled to counsel and a hearing, we are not bound by such a concession.” State
v. Adrian R. Brown, No. E2014-00673-CCA-R3-CD, 2014 WL 5483011, at *5
(Tenn. Crim. App. Oct. 29, 2014) (citing State v. Mitchell, 137 S.W.3d 630, 639
(Tenn. Crim. App. 2003)), perm. app. granted (Tenn. May 15, 2015).


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         The defendant argues that his sentences are illegal and that he is entitled to
withdraw his guilty pleas. The record reflects that the defendant’s sentences
expired well before he filed his 36.1 motion. Because the defendant has
completely served his sentence, there is no longer a remedy that this court may
provide to correct any illegality in the sentence. Accordingly, we conclude that
the petition was properly dismissed without appointing counsel or holding a
hearing. Regarding the petitioner’s jurisdiction claim, he was convicted in the
Criminal Court for Shelby County. The judgment of conviction was entered by a
trial judge in Division IV, and the defendant filed his 36.1 motion in the trial court
for Division V. Both Division IV and Division V are part of the Shelby County
Criminal Court. The fact that the defendant erroneously filed his motion in
Division V did not divest the trial court of jurisdiction to consider the claim.
The petitioner is not entitled to any relief.

                                  CONCLUSION

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

                                                  _________________________________
                                                  JOHN EVERETT WILLIAMS, JUDGE




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