        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                   Assigned on Briefs June 10, 2015

      STATE OF TENNESSEE v. MICHAEL CHRISTOPHER BIGBEE

                Appeal from the Circuit Court for Robertson County
            Nos. 07-0362, 74CC3-2010-CR-235     Michael R. Jones, Judge




               No. M2014-01999-CCA-R3-CD – Filed October 14, 2015
                         _____________________________

Defendant, Michael C. Bigbee, appeals from the trial court’s summary dismissal of his
motion filed pursuant to Tennessee Rule of Criminal Procedure 36.1. Following our
review of the parties’ briefs, the record, and the applicable law, we affirm the trial court’s
dismissal of the motion.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the Court, in which JOHN EVERETT
WILLIAMS and CAMILLE R. MCMULLEN, JJ., joined.

Michael Christopher Bigbee, Atlanta, Georgia, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
John Wesley Carney, Jr., District Attorney General; and Jason White, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                         OPINION

Procedural history

       The record reflects that on September 26, 2008, Defendant pleaded guilty in case
number 07-0362 as a Range I standard offender to the sale of a Schedule II substance less
than .5 grams and delivery of a Schedule II substance less than .5 grams. Defendant was
sentenced to three years for each count to be served concurrently with each other and
consecutively to case number 07-0009. The sentence was ordered to be served on
probation. On August 31, 2001, a violation of probation order was entered indicating that
Defendant had violated the terms and conditions of his probation by “committing a new
felony drug offense in docket #2010-cr-235 [sic].” Defendant was then ordered to serve
his original three-year sentence in confinement.

       On February 3, 2012, Defendant pleaded guilty in case number 74CC3-2010-CR-
235 as a Range II multiple offender to the sale of a Schedule II substance less than .5
grams and received a sentenced of six years to be served in confinement, concurrently
with the sentence in case number 07-0362.

       On August 22, 2014, Defendant filed a motion to correct an illegal sentence in
case numbers 07-0362 and 74CC3-2010-CR-235. The trial court denied the motion by a
hand-written note on the bottom of the motion which indicated that the motion was time-
barred. This hand-written entry by the trial court was dated and file-stamped by the court
clerk on August 29, 2014.

Analysis

       Defendant filed the motion that is the subject of this appeal pursuant to Tennessee
Rule of Criminal Procedure 36.1. First, we point out that the trial court erroneously
concluded that the motion could be dismissed on the basis that it was time-barred. The
rule provides that a motion filed pursuant to Tenn. R. Crim. P. 36.1 may be filed “at any
time.” Tenn. R. Crim. P. 36.1(a).

      In 2012, the Tennessee Supreme Court promulgated and adopted Rule 36.1, which
was ratified and approved by the Tennessee General Assembly by House Resolution 33
and Senate Resolution 11 and became effective on July 1, 2013. Complier’s Notes, Tenn.
R. Crim. P. 36.1. The rule 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.

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        (c)(1) If the court determines that the sentence is not an 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.

Tenn. R. Crim. P. 36.1.

        The legislature also approved a proposed amendment to Tennessee Rule of
Appellate Procedure 3(b) to provide both the State and a defendant with an appeal as of
right from “an order or judgment entered pursuant to Rule 36 or Rule 36.1, Tennessee
Rules of Criminal Procedure.” Therefore, a new appeal as of right was created for
individuals who had received an illegal sentence. Pursuant to Rule 36.1, an appellant
would be entitled to a hearing and appointment of counsel if he stated a colorable claim
for relief. Tenn. R. Crim. P. 36.1(b); see Marcus Deangelo Lee v. State, No. W2013-
01088-CCA-R3-CO, 2014 WL 902450, at *6 (Tenn. Crim. App., Mar. 7, 2014). Because
Rule 36.1 does not define “colorable claim,” this court has adopted the definition of a
colorable claim used in the context of post-conviction proceedings from Tennessee
Supreme Court Rule 28 § 2(H): “A colorable claim is a claim . . . that, if taken as true, in
the light most favorable to the [appellant], would entitle [appellant] to relief. . . .” State v.
Mark Edward Greene, No. M2013-02710-CCA-R3-CD, 2014 WL 3530960, at *3 (Tenn.
Crim. App., July 16, 2014) (quoting Tenn. Sup. Ct. R. 28 § 2(H)).
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        On appeal, Defendant first argues that his sentence in 74CC3-2010-CR-235 is
illegal because the State failed to file a notice to seek enhanced punishment as a multiple
offender pursuant to T.C.A. § 40-35-202. He further asserts that the trial court failed to
conduct a hearing to make a finding beyond a reasonable doubt that his prior convictions
were sufficient to establish that he was a multiple offender. As quoted above, Tenn. R.
Crim. P. 36.1 defines an illegal sentence as “one that is not authorized by the applicable
statutes or that directly convenes an applicable statute.” Tenn. R. Crim. P. 36.1(a). In
this case, a Range II sentence is not illegal by Rule 36.1’s definition because: (1) a Range
II sentence is authorized by statute, and (2) a Range II sentence does not directly
contravene any statute. Since there was a negotiated plea agreement, we do not conclude
that the Range II sentence was even erroneous. A defendant can legally plead guilty and
receive a longer sentence in Range II or Range III when he is only a Range I offender by
statutory definition, when the sentence is part of a negotiated plea agreement and the
defendant receives consideration, such as dismissed charges, in return. See Hoover v.
State, 215 S.W.3d 776, 779 (Tenn. 2007)(“[A] knowing and voluntary guilty plea waives
any irregularity as to offender classification or release eligibility.”).

        Even if the Range II sentence in Defendant’s present case was to be found
“erroneous” (i.e., he did not have any prior felony convictions) he would not be entitled
to relief under Tenn. R. Crim. P. 36.1. The enactment of Tenn. R. Crim. P. 36.1 did not
repeal statutes, rules, and case law that have long established the provisions for finality of
judgments in criminal cases. “[I]t is clear that the State has a legitimate interest in
preventing the litigations of stale or fraudulent claims.” Burford v. State, 845 S.W.2d
204, 208 (Tenn. 1992). Tenn. R. Crim. P. 36.1 was enacted to provide a remedy for what
it defines as an illegal sentence, such as a situation where concurrent sentences are
imposed when consecutive sentencing is mandated in all sentences which fall within a
defined class – i.e., a sentence for any felony committed while on parole for a felony.
Tenn. R. Crim. P. 32(c)(3)(A). Accordingly, 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.

      As for the lack of a hearing, the fact that the procedure for arriving at the
imposition of a Range II sentence might not have followed statutory provisions does not
make the sentence itself “illegal” as that term is defined in T. R. Crim. P. 36.1(a).
Therefore, Defendant’s sentence is not illegal under these theories asserted by Defendant.

        Defendant also argues that his sentence in case number 74CC3-2010-CR-235 is
illegal because he was on probation in case number 07-0362 when he committed the
offense in 74CC3-2010-CR-235. He asserts that his sentences should have been ordered
                                              4
to run consecutively rather than concurrently, and the sentence is in contravention of
T.C.A. § 40-20-111 which states:

        (a) When any person has been convicted of two (2) or more offenses,
            judgment shall be rendered on each conviction after the first
            conviction; provided, that the terms of imprisonment to which the
            convicted person is sentence shall run concurrently or cumulatively
            in the direction of the trial judge. The exercise of discretion of the
            trial judge shall be reviewable by the supreme court on appeal.

        (b) In any case in which a defendant commits a felony while the
            defendant was released on bail in accordance with chapter 11, part 1
            of this title, and the defendant is convicted of both offenses, the trial
            judge shall not have discretion as to whether the sentences shall run
            concurrently or cumulatively, but shall order that the sentences be
            served cumulatively.

       Tenn. R. Crim. P. 32(c) (2) (B) provides:

        If, as a result of conviction in another state or in federal court, the
        defendant has any additional sentence or portion thereof to serve, the
        court shall impose a sentence that is consecutive to any such unserved
        sentence unless the court determines in the exercise of its discretion that
        good cause exists to run the sentences concurrently and explicitly so
        orders.

Tenn. R. Crim. P. 32(c) (3) further provides:

        When a defendant is convicted of multiple offenses from one trial or
        when the defendant has additional sentences not yet fully served as the
        result of convictions in the same or other courts and the law requires
        consecutive sentences, the sentence shall be consecutive whether the
        judgment explicitly so orders or not. This rule shall apply:

             (A)     to a sentence for a felony committed while on parole for a
                 felony;
             (B)     to a sentence for escape or for a felony committed while on
                 escape;
             (C) to a sentence for a felony committed while the defendant
                 was released on bail and the defendant is convicted of both
                 offenses; and
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             (D)    for any other ground provided by law.

(emphasis added).

       Defendant in this case was on probation, and not parole, for the offenses in case
number 07-0362 when he committed the offense in case number 74CC3-2010-CR-235.
T.C.A. § 40-35-115(b) states, “The 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.” (emphasis added). Therefore consecutive
sentences were not mandatory, and Defendant’s sentence is not illegal for this reason.

      The judgment of the trial court is affirmed.


                                  ____________________________________________
                                  THOMAS T. WOODALL, PRESIDING JUDGE




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