        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs March 1, 2016

               STATE OF TENNESSEE v. MILTA BLANCHARD

                 Appeal from the Criminal Court for Shelby County
     Nos. 98-01261, 98-07607, W98-01228-29   Carolyn Wade Blackett, Judge


                No. W2015-00286-CCA-R3-CD - Filed June 29, 2016


Defendant, Milta Blanchard, filed a motion under Tennessee Rule of Criminal Procedure
36.1 alleging that the judgments against him were illegal because he was out on bond in
one of his cases when he was arrested on the three other cases. The trial court granted
Defendant’s motion and vacated three of the judgments against him. The trial court
determined that the judgment for the offense for which Defendant was on bond was not
illegal as it occurred first in time. On appeal, Defendant argues that the trial court erred
in correcting his illegal sentences on the concession of the State without first appointing
counsel, holding a hearing, or providing him the opportunity to withdraw his plea. After
review of the record and the briefs, we conclude that the trial court lacked authority to
grant Defendant’s motion and that the judgments against Defendant should be reinstated.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed
                      and Remanded; Judgments Reinstated

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Milta Blanchard, Memphis, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Nicole Germain,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

Background

      On February 3, 1998, in Case Number 98-01261, Defendant was indicted for one
count of possession of a controlled substance with intent to sell and one count of
possession of a controlled substance with intent to deliver. The offenses were alleged to
have occurred on August 1, 1997. On June 23, 1998, in Case Number 98-07607,
Defendant was indicted for one count of being a convicted felon in possession of a
handgun. The offense was alleged to have occurred on January 24, 1998.

       On September 9, 1998, Defendant entered into plea agreements in each of these
cases. In Case Number 98-01261, Defendant pled guilty to one count of possession of a
controlled substance with intent to sell, for which he received a six-year sentence to be
served concurrently with his sentence in Case Number 98-07607. In Case Number 98-
07607, Defendant pled guilty to being a felon in possession of a handgun, for which he
received a sentence of eighteen months to be served concurrently with his sentence in
Case Number 98-01261. The plea agreement documents indicate Defendant also pled
guilty to an unidentified crime in Case Number 98-07606 and received a six-month
sentence aligned concurrently with the other sentences. However, the record does not
contain a charging document or judgment in that case. Pursuant to the plea petition, the
sentences were deferred until October 13, 1998, and the judgments were not entered until
October 26, 1998.

       Defendant was subsequently charged in Case Numbers W98-01228 and W98-
01229 with driving after having been declared a habitual motor vehicle offender. The
information filed in Case Number W98-01229 alleged that Defendant committed the
offense on October 26, 1998. The record does not contain a charging document in Case
Number W98-01228.

       Defendant entered into separate plea agreements in each of his habitual motor
vehicle offender cases. Defendant pled guilty as charged, for which he received
concurrent sentences of two years, also aligned concurrently with the sentences in Case
Numbers 98-01261, 98-07606, and 98-07607. The trial court entered an order accepting
these plea petitions on January 22, 1999.

        On or about April 3, 2014, Defendant filed a motion to correct an illegal sentence.
Both parties have requested the trial court to supplement the record with the motion, but
the trial court clerk has not been able to provide the appropriate document. We glean
information concerning the motion from the other filings in the record. The State
responded on May 23, 2014, admitting that Defendant’s sentences in Case Numbers 98-
07607, W98-01228, and W98-01229 were illegal because Defendant was out on bond
when he was arrested on the charges underlying those convictions and, thus, the
sentences should have been ordered to run consecutively. However, the State maintained
that Defendant’s six-year sentence in Case Number 98-01261 was not illegal because “it
happened first in time” and Defendant was not on bond when he committed the offense
underlying that conviction. The State requested that the trial court vacate the judgments
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in Case Numbers 98-07607, W98-01228 and W98-01229 but allow the judgment in Case
Number 98-01261 to stand. After reviewing Defendant’s motion and the State’s
response, the trial court granted Defendant’s motion to correct an illegal sentence and
filed corrected judgments that same day, noting that the judgments in Case Numbers 98-
07607, W98-01228, and W98-01229 were vacated.

       On July 9, 2014, Defendant filed a motion to correct clerical mistakes noting that
the judgment in Case Number 98-01261 still indicated concurrent sentencing although
the other judgments had been vacated. The trial court entered an amended judgment
removing any indication of concurrent sentences in Case Number 98-01261.

       Defendant did not file a notice of appeal until March 30, 2015. On February 20,
2015, Defendant filed a motion to late-file his notice of appeal, claiming he did not learn
about the disposition of his motion to correct an illegal sentence until June 2014 and that
he had attempted to file numerous notices of appeal in the trial court since July 2014, but
that they were never processed by the Shelby County Criminal Court Clerk’s Office. On
February 27, 2015, this court requested additional information regarding Defendant’s
motion to late-file his notice of appeal. Defendant filed a supplemental motion with
additional documentation on March 11, 2015. On March 20, 2015, this court granted
Defendant’s motion to accept a late-filed notice of appeal.

Analysis

       On appeal, Defendant argues that the trial court erred in correcting his illegal
sentences on the concession of the State without first appointing counsel, holding a
hearing, or providing him the opportunity to withdraw his plea.

       Tennessee Rule of Criminal Procedure 36.1 provides, in part:

              (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
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       the motion, unless all parties waive the hearing.

       Therefore, pursuant to Rule 36.1, a defendant would be entitled to a hearing and
the appointment of counsel if he or she stated a colorable claim for relief. Tenn. R. Crim.
P. 36.1(b). Prior to the adoption of Rule 36.1, a defendant generally had to seek relief
from an illegal sentence through post-conviction or habeas corpus proceedings. See
Cantrell v. Easterling, 346 S.W.3d 445, 453 (Tenn. 2011).

       The Tennessee Supreme Court recently stated that a colorable claim pursuant to
Rule 36.1 is 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). Rule 36.1 also defines an illegal sentence
as “one that is not authorized by the applicable statutes or that directly contravenes an
applicable statute.” Tenn. R. Crim. P. 36.1(a).

       Our supreme court recently analyzed Rule 36.1 and concluded that Rule 36.1
“does not authorize the correction of expired illegal sentences.” State v. Brown, 479
S.W.3d 200, 211 (Tenn. 2015). In this case, Defendant was sentenced to one six-year
sentence and one eighteen-month sentence, with the sentences aligned concurrently and
set to begin on October 26, 1998. On January 22, 1999, Defendant received two
additional sentences of two years each, with the sentences aligned concurrently with each
other and the sentence imposed in the earlier cases. Accordingly, Defendant’s sentences
would have expired, at the very latest, on October 26, 2004. Defendant did not file his
motion to correct an illegal sentence until April 2014, almost ten years after his sentences
would have expired. Thus, the trial court lacked the authority to grant Defendant’s
motion, and this matter is remanded to the trial court with instructions to reinstate the
judgments in Case Numbers 98-07607, W98-01228, W98-01229, and 98-01261.

                                   ____________________________________________
                                   THOMAS T. WOODALL, PRESIDING JUDGE




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