                                                                                         02/28/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs February 7, 2017

                   STATE OF TENNESSEE v. RICKIE REED

                 Appeal from the Criminal Court for Shelby County
                No. 00-04751, 00-04753 James C. Beasley, Jr., Judge
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                           No. W2016-02119-CCA-R3-CD
                       ___________________________________


The pro se appellant, Rickie Reed, appeals as of right from the Shelby County Criminal
Court’s summary denial of his Tennessee Rule of Criminal Procedure 36.1 motion to
correct an illegal sentence. The defendant contends his motion stated a colorable claim
for relief, so the trial court erred in summarily denying it. Discerning no error, we affirm
the judgment of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which THOMAS T. WOODALL, P.J.,
and CAMILLE R. MCMULLEN, J., joined.

Rickie Reed, Hartsville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Karen Cok, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                        OPINION


                              Facts and Procedural History


      In 2001, a Shelby County Criminal Court jury convicted the defendant of one
count of second degree murder, one count of attempted second degree murder, and one
count of reckless aggravated assault. The reckless aggravated assault and attempted
second degree murder convictions were merged. Following a sentencing hearing, the
trial court ordered consecutive, Range I sentences of twenty-three years for the second
degree murder conviction and twelve years for the attempted second degree murder
conviction.

       On July 15, 2016, the defendant filed a motion to correct an illegal sentence
alleging: (1) his sentences violated the Fourteenth Amendment to the United States
Constitution because he was sentenced as a standard offender rather than a mitigated
offender; (2) he had no prior convictions, so he should have been sentenced as an
especially mitigated offender; (3) alternatively, he should have received the maximum
Range I sentence of eight years for attempted second degree murder; (4) alternatively, he
should have received a sentence of fifteen years for second degree murder; (5) the trial
court enhanced his sentences in violation of Tennessee Code Annotated section 40-35-
202(b)(1); and (6) his sentences should have run concurrently instead of consecutively.
The trial court denied the motion, finding the defendant failed to state a colorable claim.
This timely appeal followed.

       On appeal, the defendant raises the same arguments asserted before the trial court.
The State argues the defendant’s claims do not entitle him to relief under Tennessee Rule
of Criminal Procedure 36.1. Upon review of the record and the briefs, we agree with the
State.

                                         Analysis

        Whether a motion states a colorable claim for correction of an illegal sentence
under Tennessee Rule of Criminal Procedure 36.1 is a question of law so de novo review
applies. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007). Rule 36.1 provides that
the defendant “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.” Tenn. R. Crim. P. 36.1(a). A sentence is illegal if it is not authorized by
the applicable statutes or directly contravenes an applicable statute. Id. If the motion
states a colorable claim, the trial court shall appoint counsel if the defendant is indigent
and not already represented by counsel and hold a hearing on the motion, unless the
parties waive the hearing. Tenn. R. Crim. P. 36.1(b). A “‘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.” State v. Wooden, 478 S.W.3d
585, 593 (Tenn. 2015).

       “[F]ew sentencing errors render [a sentence] illegal.” Id. at 595. Examples of
illegal sentences include “sentences imposed pursuant to an inapplicable statutory
scheme, sentences designating release eligibility dates where early release is statutorily
prohibited, sentences that are ordered to be served concurrently where statutorily required
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to be served consecutively, and sentences not authorized by any statute for the offense.”
Id. However, “attacks on the correctness of the methodology by which a trial court
imposed [a] sentence” do not rise to the level of an illegal sentence. Id.

I.    Blakely violation

       When challenging the constitutionality of his sentences and the propriety of the
sentences imposed in the absence of prior convictions, the defendant relies on Blakely v.
Washington, 542 U.S. 296 (2004). The State correctly contends Blakely violations do not
rise to the level of an illegal sentence for Rule 36.1 purposes. See State v. Joseph B.
Thompson, No. E2015-01963-CCA-R3-CD, 2016 WL 2770178, at *1 (Tenn. Crim. App.
May 10, 2016). Moreover, errors implicating constitutional rights render judgments
voidable, not void, and are not colorable claims pursuant to Rule 36.1. State v. Sammie
Lee Taylor, No. W2015-01831-CCA-R3-CD, 2016 WL 3883566, at *4 (Tenn. Crim.
App. June 6, 2016). To the extent the defendant argues his sentences are unconstitutional
or otherwise illegal because the trial court enhanced them in excess of the statutory
minimum in the absence of prior convictions, the defendant has not raised a colorable
claim under Rule 36.1 and is not entitled to relief.

II.   Sentencing Range

       The defendant further argues the trial court erred when summarily dismissing his
motion to correct an illegal sentence because he was sentenced as a Range I, standard
offender instead of a mitigated or especially mitigated offender. In the alternative, the
defendant argues the trial court imposed a sentence outside the applicable sentencing
ranges for a Range I, standard offender. We disagree.

        A defendant without a prior criminal history is sentenced as a Range I, standard
offender. Tenn. Code Ann. § 40-35-105. The trial court may find a defendant is an
especially mitigated offender if it finds the defendant does not have any prior felony
convictions and there are mitigating, but no enhancement, factors. Tenn. Code Ann. §
40-35-109(a). Here, the record is void of information regarding the defendant’s criminal
history, the presence of mitigating factors, or the presence of enhancement factors. Even
if the defendant qualified for especially mitigated offender status, proof of this status
requires extrinsic evidence, rendering his judgments of conviction potentially voidable
but not void. See Eric L. Anderson v. Howard Carlton, Warden, No. E2008-00096-CCA-
R3-HC, 2008 WL 4367532, at *4 (Tenn. Crim. App. Sept. 24, 2008) (affirming the trial
court’s dismissal of a habeas corpus petition where “even if [the defendant’s] allegation
that he was qualified for especially mitigated offender status were true, proof of such
status would require extrinsic evidence rendering his judgments of conviction potentially
voidable rather than void”).
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       Moreover, the defendant’s sentences were within-range and legally imposed.
Second degree murder is a Class A felony. Tenn. Code Ann. § 39-13-210(b). The
applicable sentencing range for a Range I, standard offender convicted of a Class A
felony is “not less than fifteen nor more than twenty-five years.” Tenn. Code Ann. § 40-
35-112(a)(1). Attempted second degree murder is a Class B felony. Tenn. Code Ann. §
39-12-107(a). The applicable sentencing range for a Range I, standard offender
convicted of a Class B felony is “not less than eight nor more than twelve years.” Tenn.
Code Ann. § 40-35-112(a)(2). The defendant received an appropriate within-range
sentence of twenty-three years for his second degree murder conviction and an
appropriate within-range sentence of twelve years for his attempted second degree
murder conviction. The defendant’s sentences were authorized by the applicable statutes,
so they do not meet the threshold definition of an illegal sentence. See State v. Derron
Guy, No. W2015-00536-CCA-R3-CD, 2015 WL 7354308, at *2 (Tenn. Crim. App. Nov.
20, 2015) (holding that “[a]lthough appellant did not enjoy the benefit of especially
mitigated offender status with regard to his guilty plea to attempted carjacking, for which
he received three years as a standard offender, that sentence was nonetheless within-
range and authorized by statute”). The defendant is not entitled to relief on this issue.


III.   Consecutive Sentences

       Lastly, the defendant argues the trial court erred in summarily dismissing his Rule
36.1 motion because the trial court improperly imposed consecutive sentences based only
on its finding that he was a dangerous offender. The record before this Court does not
include the reason for the imposition of consecutive sentences. However, even
considering the defendant’s assertion as true and viewing it in the light most favorable to
him, he does not present a colorable claim for relief. This Court previously stated, “we
interpret the definition of ‘illegal sentence’ found in Tenn. R. Crim. P. 36.1(a) to mean a
sentence that by mandatory statutory provision(s) always contravenes a statute, or a
sentence that by mandatory statutory provisions is never authorized.” State v. Michael
Christopher Bigbee, No. M2014-01999-CCA-R3-CD, 2015 WL 5969524, at * 3 (Tenn.
Crim. App. Oct. 14, 2015). Tennessee Code Annotated section 40-35-115 allows the
imposition of consecutive sentences when “[t]he defendant is a dangerous offender
whose behavior indicates little or no regard for human life and no hesitation about
committing a crime in which the risk to human life is high.” Tenn. Code Ann. § 40-35-
115(b)(4). The imposition of consecutive sentences based on the trial court’s finding the
defendant was a dangerous offender was authorized by law. Accordingly, the defendant
has not asserted a colorable claim with respect to the imposition of consecutive sentences
and is not entitled to relief on this issue.

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                                Conclusion

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


                                      ____________________________________
                                      J. ROSS DYER, JUDGE




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