        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs March 11, 2015

            STATE OF TENNESSEE v. BRUCE LAMONT SMITH

                Appeal from the Criminal Court for Davidson County
                  No. 2000-B-783, 2001-A-8   Steve Dozier, Judge


                  No. M2014-02092-CCA-R3-CD - Filed April 9, 2015


The defendant, Bruce Lamont Smith, appeals the summary denial of his motion, filed
pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure, to correct what he
believes to be an illegal sentence. Discerning no error, we affirm.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which C AMILLE R.
M CM ULLEN and R OGER A. P AGE, JJ., joined.

Bruce Lamont Smith, Memphis, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; and John H. Bledsoe, Assistant
Attorney General (Senior Counsel), for the appellee, State of Tennessee.

                                        OPINION

              On July 6, 2000, the defendant pleaded guilty to one count of robbery in
exchange for a three-year sentence to be served as six months’ incarceration followed by
probation. A probation violation warrant issued on November 17, 2000, alleging that the
defendant violated the terms of his probation by garnering new charges, including a charge
of aggravated robbery. The defendant pleaded guilty to one count of robbery in the new case
on July 5, 2001, in exchange for a four-year incarcerative sentence to be served concurrently
with the previously imposed three-year sentence.

             On July 28, 2014, the defendant filed a motion pursuant to Rule 36.1 of the
Tennessee Rules of Criminal Procedure claiming that the sentence imposed for his 2001
robbery conviction was illegal because the trial court ordered concurrent sentencing when
consecutive sentencing was required. The trial court summarily dismissed the motion on
September 30, 2014, finding that the defendant failed to state a colorable claim for relief as
required by the terms of Rule 36.1 because consecutive sentencing was not mandatory in his
case.

               The defendant appeals and challenges the summary denial of his motion, again
claiming that the sentence imposed for his 2001 robbery conviction is illegal because the trial
court ordered that the four-year sentence imposed for that offense be served concurrently to
his previously imposed three-year sentence in direct contravention of applicable statutory
provisions. The State contends that the trial court did not err by dismissing the motion
because, contrary to the defendant’s assertion, the imposition of concurrent sentences in his
case did not contravene any statute.

               Prior to July 1, 2013, a properly filed petition for writ of habeas corpus was the
sole mechanism for pursuing an illegal sentence claim. See Moody v. State, 160 S.W.3d 512,
516 (Tenn. 2005) (“[T]he proper procedure for challenging an illegal sentence at the trial
level is through a petition for writ of habeas corpus, the grant or denial of which can then be
appealed under the Rules of Appellate Procedure.”); see also Summers v. State, 212 S.W.3d
251, 256 (Tenn. 2007) (“A habeas corpus petition, rather than a motion to correct an illegal
sentence, is the proper procedure for challenging an illegal sentence.”); Stephenson v.
Carlton, 28 S.W.3d 910, 912 (Tenn. 2000) (stating that a void sentence was properly
challenged in a petition for writ of habeas corpus). Our supreme court then created new Rule
36.1, which became effective on July 1, 2013, and which provides:

                      (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

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              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. 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. Rule 36.1, unlike the habeas corpus statute, contains no requirement
that the defendant be imprisoned or restrained of his liberty by virtue of the challenged
conviction and instead allows an illegal sentence claim “at any time,” even after, as is the
case here, the sentence has been served and has expired. Id. (emphasis added). Compare
Tenn. R. Crim. P. 36.1(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.”) with T.C.A. § 29-21-101(a) (“Any

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person imprisoned or restrained of liberty, under any pretense whatsoever, except in cases
specified in subsection (b) and in cases specified in § 29-21-102, may prosecute a writ of
habeas corpus, to inquire into the cause of such imprisonment and restraint.”).

                 To avoid summary denial of an illegal sentence claim brought under Rule 36.1,
  a defendant need only “state[] a colorable claim that the sentence is illegal.” Tenn. R. Crim.
  P. 36.1(b). Here, the defendant claimed that his sentence was illegal because the trial court
  ordered that the four-year sentence for his 2001 conviction of robbery be served concurrently
  with the three-year sentence previously imposed for a 2000 conviction of robbery. He claims
  that because he was on probation for the 2000 offense when he committed the 2001 offense,
  consecutive sentences were required.1 Tennessee Rule of Criminal Procedure 32 provides:

                If the defendant has additional sentences not yet fully served as
                the result of convictions in the same court or in other courts of
                Tennessee and if this fact is made known to the court prior to
                sentencing, the court shall recite this fact in the judgment setting
                sentence, and the sentence imposed is deemed to be concurrent
                with the prior sentence or sentences, unless it affirmatively
                appears that the new sentence being imposed is to be served
                consecutively to the prior sentence or sentences. The judgment
                to make the sentences consecutive or concurrent shall explicitly
                relate the judge’s reasons and is reviewable on appeal.

Tenn. R. Crim. P. 32(c)(2)(A)(i); see Tenn. R. Crim. P. 32(c)(3) (providing list of situations
mandating consecutive sentencing, none of which are applicable here). Code section 40-35-
115 provides, in pertinent part, that “[t]he court may order sentences to run consecutively if
the court finds by a preponderance of the evidence that . . . [t]he defendant is sentenced for
an offense committed while on probation.” T.C.A. § 40-35-115(b)(6). Neither section,
however, provides that consecutive sentencing is mandatory when an offense is committed
while on probation. Instead, the decision regarding sentence alignment lies within the
discretion of the trial court. Because the decision whether to order consecutive or concurrent
sentences lay within the discretion of the trial judge, his decision to exercise that discretion

        1
         In contrast to the requirements for avoiding summary dismissal of a petition for writ of habeas
corpus or a petition for post-conviction relief, the defendant was not required to support his claim by
providing any documentation from the record. See, e.g., George William Brady v. State, No.
E2013-00792-CCA-R3-PC, slip op. at 8 (Tenn. Crim. App., Knoxville, Dec. 19, 2013) (“Under the liberal
terms of Rule 36.1, the petitioner’s raising a colorable claim would entitle him to the appointment of counsel
and a hearing on his claim, even without any documentation from the underlying record to support his
claim.”); State v. Brandon Rollen, No. W2012-01513-CCA-R3-CD, slip op. at 13 (Tenn. Crim. App.,
Nashville, Sept. 11, 2013).

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to impose concurrent sentences in the defendant’s case did not result in an illegal sentence.

              Accordingly, the judgment of the trial court is affirmed.


                                                   _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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