     IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                       AT JACKSON
                           Assigned on Briefs June 2, 2015


       GEORGE PRINCE WATKINS v. STATE OF TENNESSEE

              Appeal from the Circuit Court for Madison County
            No. 86-521, 90-227, 90-161, 90-935 Don H. Allen, Judge




            No. W2014-02393-CCA-R3-CD - Filed October 15, 2015
                       _____________________________

ROBERT L. HOLLOWAY, JR., J., concurring in part and dissenting in part.


       I concur with the majority‟s conclusion that the Appellant has presented a
colorable claim as to case numbers 90-227, 90-161, and 90-935 and that those
cases must be remanded for appointment of counsel and a hearing unless waived
by the parties. I respectfully disagree with the majority‟s conclusion that the
Appellant presented a colorable claim as to case number 86-521, and I would
affirm the summary dismissal of the motion as to that case. I write separately to
explain my opinion concerning each of the four cases and to express my opinion
that a felony committed while a defendant is released on bail for a probation
violation does not trigger mandatory consecutive sentencing, and that if following
the hearing on remand, the trial court determines that the six-year, illegal
concurrent sentence entered in 19901 has been fully served and has expired, then
the promise of concurrence has been fulfilled, and the claim raised by the Rule
36.1 motion is moot.

                                          Analysis

       Case number 86-521. The Appellant‟s Rule 36.1 motion does not claim
that he was on bail, parole, or escape status in 1986 when he committed the
offense of first degree burglary. He pleaded guilty to first degree burglary and

       1
          The six-year sentence in case number 90-161 and a four-year sentence in case number
90-935 were ordered to be served concurrently with each other and concurrently with the six-year
sentence in case number 90-227. Accordingly, if the six-year sentence in case number 90-227
has been fully served and is expired and the concurrency was honored, all of the sentences in
these three cases have been fully served and have expired.
received a five-year probated sentence. The Appellant failed to present a
colorable claim that this five-year sentence was illegal. Therefore, I would affirm
the summary dismissal of the motion as to case number 86-521.

       Case numbers 90-227, 90-161, and 90-935 allegedly committed while on
bail for a probation revocation in case number 86-521. The Appellant claims
that his sentences in case numbers 90-227, 90-161, and 90-935 were illegally
ordered to be served concurrently because he committed the felony offenses in
these cases while he was released on bail for a probation violation in case number
86-521.2 I disagree. Consecutive sentences are not required for offenses
committed while a defendant is on probation. Terry Earl Jackson v. State, No.
E2014-01511-CCA-R3-PC, 2015 WL 1744173, at *2 (Tenn. Crim. App. April 14,
2015). Additionally, Tennessee Code Annotated section 40-20-111(b) and
Tennessee Rule of Criminal Procedure 32(c)(3) mandate consecutive sentencing
for a felony committed while a defendant is on bail only if the defendant “is
convicted of both offenses.” Black‟s Law Dictionary defines “offense” as: “A
felony or misdemeanor; a breach of the criminal laws; violation of the law for
which penalty is prescribed.” Black‟s Law Dictionary 1081 (6th ed. 1990); see
also 22 C.J.S. Criminal Law § 3, at 4 (1989) (stating that “[t]he terms „crime,‟
„offense,‟ and „criminal offense‟ are all said to be synonymous, and ordinarily
used interchangeably”). Probation is a form of alternative sentencing, and no part
of the criminal code classifies a probation violation as a criminal offense. See
State v. Jackson, 60 S.W.3d 738, 743 (Tenn. 2001). Additional support for this
reasoning is found in Tennessee Rule of Criminal Procedure 32(c)(2)(A)(i), which
gives the trial court discretion to order a sentence for an offense committed before
a sentence for a prior offense has been fully served to be served concurrently with
or consecutively to the prior sentence. Accordingly, I would hold that the
Appellant failed to state a colorable claim that the sentences in case numbers 90-
227, 90-161, and 90-935 were required to be served consecutively to the sentence
in case number 86-521.

      Case number 90-161 committed allegedly while on bail for 90-227; and
case number 90-935 allegedly committed while on bail for 90-227 and 90-161.
However, the Appellant also claims that he was released on bail in case number
90-227 when he was arrested for a felony drug offense in case number 90-161 and

        2
           It is difficult to determine from the motion if the Appellant is claiming that he was on
bail for the probation violation warrant or on bail during the appeal of the revocation of his
probation. The documents attached his motion show that his probation was revoked on April 7,
1989. Since the offense dates in case numbers 90-227, 90-161, and 90-935 are after the date his
probation was revoked, it appears the Appellant was on bail pending the appeal of the revocation
of his probation. However, for the purposes of this opinion, it makes no difference if he was on
bail for the revocation warrant or during the appeal of the revocation of his probation.


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that, after being released on bail in case number 90-161, he was arrested for
another felony drug offense in case number 90-935. Because the Appellant
presented a colorable claim that he committed the felony offense in case number
90-161 while released on bail in case number 90-227 and the sentences were
illegally ordered to be served concurrently, I concur in the lead opinion‟s remand
of case number 90-161 to the trial court for a hearing. Likewise, because the
Appellant presented a colorable claim that he committed the felony offense in case
number 90-935 while he was on bail in case numbers 90-227 and 90-161 and the
sentences were ordered to be served concurrently, I concur in the remand of case
number 90-935 to the trial court for a hearing. Because the record is not clear
whether the concurrent sentence in case number 90-227 was part of a global plea
agreement with case numbers 90-161 or 90-935, I also concur in the lead opinion‟s
remand in case number 90-227.

       Mootness and judiciability. If the evidence at the hearing proves that the
Appellant‟s entire effective six-year sentence has been fully served and has
expired or that the concurrency of the sentences in case numbers 90-227, 90-161,
and 90-935 has been honored, it is my opinion that the controversy is moot, the
motion is not judiciable, and the trial court should deny the motion. See State v.
Albert H. Taylor, No. W2014-02446-CCA-R3-CD, _____ WL _____, at *__
(Tenn. Crim. App. ____, 2015) (Holloway, J., concurring in results only) (citing
Summers v. State, 212 S.W.3d 251, 258 (Tenn. 2007); McIntyre v. Traughber, 884
S.W.2d 134, 137 (Tenn. Ct. App. 1994); State v. Adrian R. Brown, No. E2014-
00673-CCA-R3-CD, 2014 WL 5483011, at *6 (Tenn. Crim. App. Oct. 29, 2014),
perm. app. granted (Tenn. May 15, 2015); Derrick Sawyers v. State, No. M2007-
01598-CCA-R3-HC, 2008 WL 2901628, at *5 (Tenn. Crim. App. Jul. 24, 2008),
perm. app. denied (Tenn. Jan. 20, 2009); Derrick Sawyers v. State, No. M2006-
00607-CCA-R3-HC, 2007 WL 152230 at *1 (Tenn. Crim. App. Jan. 16, 2007)).

        If the trial court determines that any of the Appellant‟s sentences in these
cases have not expired, the trial court should first determine for each unexpired
sentence if the underlying felony was committed while the Appellant was released
on bail for an offense and received an illegal concurrent sentence. Next, the trial
court should determine if the illegal sentence was the result of a plea agreement
and, if so, determine if the illegal provision was a material component of that plea
agreement. See Tenn. R. Crim. P. 36.1. If the trial court determines that the
illegal provision was a material component of the plea agreement, then the
Appellant should be given the opportunity to withdraw his plea.



                                          _________________________________
                                          ROBERT L. HOLLOWAY, JR., JUDGE

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