        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs September 7, 2016

              STATE OF TENNESSEE v. JULIE FULLER-COLE

                 Appeal from the Criminal Court for Shelby County
                  No. 10-06605      James M. Lammey, Jr., Judge

                       ___________________________________

              No. W2015-01346-CCA-R3-CD - Filed October 27, 2016
                    ___________________________________

In 2012, the Defendant, Julie Fuller-Cole, pleaded guilty in Shelby County to theft over
$10,000. The trial court sentenced her to ten years of incarceration to run consecutively
to a probation sentence from a prior Fayette County conviction. The Fayette County
probation sentence was later revoked. In 2015, the Defendant filed a motion pursuant to
Tennessee Rule of Criminal Procedure 36.1, seeking to correct an illegal sentence. The
Defendant asserted that the Shelby County sentence was illegal because it was aligned
consecutively to the Fayette County sentence and because the Fayette County sentence
was not revoked until after she was sentenced in Shelby County. After a hearing, the trial
court concluded that there was nothing illegal about the alignment of the sentences. On
appeal, the Defendant maintains that her sentence is illegal and that the sentences should
be run concurrently. After a review of the record and applicable law, we affirm the trial
court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and D. KELLY THOMAS, JR., JJ., joined.

Rosalind Elizabeth Brown, Memphis, Tennessee, for the appellant, Julie Fuller-Cole.

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


                                       OPINION
                            I. Facts and Procedural History
       This case arises out of the alignment of two sentences for two separate
convictions: a 2008 Fayette County conviction for theft over $10,000 and a 2012 Shelby
County conviction for theft over $10,000. For the Fayette County conviction the
Defendant was ordered to serve a ten-year sentence on probation, as a Range III
Persistent Offender, with a 45% release eligibility. The judgment form stated that the
Defendant’s sentence for the Shelby County case was ten years of incarceration, as a
Range III Persistent Offender, with a 30% release eligibility. The Shelby County trial
court ordered that the Defendant’s Shelby County sentence run consecutively to the
Fayette County sentence.

       After the trial court entered the Defendant’s judgments, the Defendant filed a
motion seeking to correct an illegal judgment pursuant to Tennessee Rule of Criminal
Procedure 36 based upon her release eligibility of 30% as a Range III Persistent Offender
which is contrary to the sentencing statutes. The trial court denied her motion, and the
Defendant appealed to this Court. On appeal, this Court summarized the history of the
case and the Defendant’s complaint as follows:

              The [D]efendant entered into a negotiated plea agreement with an
      agreed-to sentence to plead guilty to theft of property over $10,000, a Class
      C felony. Although a transcript of the guilty plea hearing was not included
      in the record for review, the plea agreement stated that the [D]efendant
      would be sentenced as a Range I offender to serve ten years with a release
      eligibility of 30%. The judgment of the court shows that she was sentenced
      as a Range III persistent offender to serve ten years with a 30% release
      eligibility date. A conviction for a Class C felony carries a possible
      incarceration sentence of three to fifteen years, with a release eligibility
      date of 30% for a Range I, standard offender, and a release eligibility date
      of 45% for a Range III, persistent offender. A Class C conviction for a
      Range I, standard offender calls for a possible jail sentence of three to six
      years, while a Class C felony conviction for a Range III, persistent offender
      calls for a possible jail sentence of ten to fifteen years. The judgment was
      entered on August 9, 2012, and executed on August 17, 2012. On
      December 15, 2012, the [D]efendant filed a pro se motion for correction of
      an illegal sentence and/or reduction of sentence pursuant to Tennessee
      Rules of Criminal Procedure Rule 35, stating that her sentence was illegal
      because it exceeded the maximum range for a Range I offender.

State v. Julie Fuller, No. W2013-00900-CCA-R3-CD, 2014 WL 1669958, at *2-*3
(Tenn. Crim. App., at Jackson, April 24, 2014), no perm. app. filed. This Court
remanded the case to the trial court for correction of the judgment to reflect the plea
agreement.
                                           2
       On remand, the trial court entered a corrected judgment on June 5, 2014,
indicating a sentence of ten years at 30% as a Range I offender. The corrected judgment
also reflects that the Shelby County sentence was to run consecutively to the Fayette
County sentence. Handwritten into the box indicating consecutive sentencing are the
words “if convicted.”

        In September 2014, the Defendant’s Fayette County probation sentence was
revoked. Thereafter, the Defendant filed a motion to correct an illegal sentence pursuant
to Tennessee Rule of Criminal Procedure 36.1, arguing her Shelby County sentence was
illegal because it was aligned consecutively to the Fayette County sentence, which was
not revoked until after she was sentenced in Shelby County. On May 14, 2015, the trial
court held a hearing and concluded that there was nothing illegal about the alignment of
the sentences because the Defendant had been convicted and sentenced in Fayette County
before she pleaded guilty in Shelby County. The trial court also found the language on
the corrected judgment “if convicted” was “surplusage” because the Defendant had
already pleaded guilty to the Fayette County conviction at the time of the Shelby County
conviction. When the Defendant asserted that she would not have entered the Shelby
County guilty plea had she understood the sentence was consecutive, the trial court
offered the Defendant the option of setting aside the guilty plea and proceeding to trial or
striking the surplus language from the corrected judgment.1 The Defendant conferred
with her attorney and advised the trial court that she did not want to “start over” and
agreed to strike the surplus language from the corrected judgment. The trial court struck
the language from the judgment sheet and this appeal followed.

                                         II. Analysis

       On appeal, the Defendant asserts that the trial court erred when it did not alter her
sentence to provide for concurrent alignment of the Shelby County sentence and the
Fayette County sentence. The State responds that the Defendant’s sentence is not illegal
and, therefore, she is not entitled to relief. We agree with the State.

       Tennessee Rule of Criminal Procedure 36.1 provides in pertinent part that:

       (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


       1
         At the hearing, none of the parties knew how the language “if convicted” came to be on
the corrected judgment form or the identity of the person who added it.
                                              3
       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.

Tenn. R. Crim. P. 36.1(a), (b) (2014). Rule 36.1 does not define the term “colorable
claim.” In interpreting Rule 36.1, this Court has adopted the definition for “colorable
claim” from the post-conviction context: “A colorable claim is a claim . . . that, if taken
as true, in the light most favorable to the [Defendant], would entitle [Defendant] 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) (citing Tennessee Supreme Court Rule 28,
§ 2(H)), no Tenn. R. App. P. 11 filed.

       “Whether a sentence is illegal pursuant to Rule 36.1 is a question of law that we
review de novo with no presumption of correctness.” State v. Dusty Ross Binkley, No.
M2014-00173-CCA-R3-CD, 2015 WL 2148950, at *2 (Tenn. Crim. App., at Nashville,
May 7, 2015) (citing Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007) (stating that
the standard of review for a habeas corpus case is de novo with no presumption of
correctness)).

       The following are examples of illegal sentences:

       (1) a sentence imposed pursuant to an inapplicable statutory scheme; (2) a
       sentence designating a [Release Eligibility Date (RED) ] where a RED is
       specifically prohibited by statute; (3) a sentence ordered to be served
       concurrently where statutorily required to be served consecutively; and (4)
       a sentence not authorized for the offense by any statute.

Davis v. State, 313 S.W.3d 751, 759 (Tenn. 2010) (internal citations omitted). The
Defendant’s assertions in this case, taken as true and in the light most favorable to her, do
not state a colorable claim that her sentence is illegal. As the State correctly notes, the
statute governing the alignment of sentences expressly provides sentencing courts with
the authority to impose consecutive sentences for crimes committed while serving a
probation sentence. See T.C.A. § 40-35-115(b)(6). This Court has previously held that
sentences involving probation must be aligned in the same manner as sentences involving
                                             4
incarceration and also has affirmed sentences where a trial court has ordered a sentence
of confinement to run consecutively to a probation sentence. See State v. Connors, 924
S.W.2d 362, 364 (Tenn. Crim. App. 1996), overruled on other grounds by State v.
Troutman, 979 S.W.2d 271 (Tenn. 1998); State v. Malone, 928 S.W.2d 41, 44 (Tenn.
Crim. App. 1995). Accordingly, the trial court properly denied the Defendant relief
pursuant to Tennessee Rule of Criminal Procedure 36.1.

                                    III. Conclusion

        In accordance with the aforementioned reasoning and authorities, we affirm the
trial court’s denial of the Defendant’s Rule 36.1 motion to correct an illegal sentence.


                                          ____________________________________
                                           ROBERT W. WEDEMEYER, JUDGE




                                           5
