                                                                                           08/13/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs July 24, 2019

                STATE OF TENNESSEE v. JAMES R. WILSON

                Appeal from the Criminal Court for Davidson County
                     No. 97-D-2596     Steve R. Dozier, Judge
                     ___________________________________

                           No. M2019-00369-CCA-R3-CD
                       ___________________________________


James R. Wilson, Defendant, pled guilty to two counts of sale of more than five grams of
a Schedule II controlled substance in case number 97-D-2596. Defendant received
concurrent sentences of ten years with release eligibility after service of thirty percent of
the sentence; Defendant was to serve one year in confinement and the remainder on
community corrections. Defendant filed a Rule 36.1 motion and alleged that his
sentences were illegal because he did not receive a Momon colloquy or sentencing
hearing. The trial court found that the sentences had expired and summarily dismissed
the motion for failure to state a colorable claim. We affirm.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and TIMOTHY L. EASTER, JJ., joined.

James R. Wilson, Only, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant
Attorney General; Glenn Funk, District Attorney General; and J. Wesley King, Assistant
District Attorney General, for the appellee, State of Tennessee.



                                        OPINION

                         I. Factual and Procedural Background

       In October 1997, the Davidson County Grand Jury indicted Defendant for sale of
less than five grams of a Schedule II controlled substance, five counts of sale of more
than five grams of a Schedule II controlled substance, and conspiracy to sell more than
five grams of a Schedule II controlled substance in case number 97-D-2596. On June 24,
1999, Defendant pled guilty to counts four and six, sale of more than five grams of a
Schedule II controlled substance.1 For both counts, Defendant received concurrent
sentences of ten years in the Tennessee Department of Correction with release eligibility
after service of thirty percent of the sentence. The trial court ordered Defendant to serve
one year in confinement and to serve the remainder of his sentences on community
corrections. The plea agreement and plea submission hearing transcript were not
included in the record on appeal.

       On January 7, 2019,2 Defendant filed a pro se Rule 36.1 Motion to Correct Illegal
Sentence. In his motion, Defendant asserted that his sentences were illegal because of the
following:

               Defendant was indicted December 4th, 1997 in case no. 97-D-2596.
       On September 17, 1998, . . . [Defendant] and the [S]tate[] made a tentative
       agreement presented to him by, defense attorney, Mr. Glenn Funk, to plead
       guilty to ten (10) years. [Defendant] initially agreed to accept the plea and
       signed the written agreement. A few days afterwards, . . . [Defendant]
       became unsettled with the plea offer, due to the lack of understanding and
       decided to proceed to trial. Later, [Defendant] found out that he had been
       illegally sentenced to the ten year sentence without actually accepting the
       plea.

Defendant asserted that the trial court did not comply with Tennessee Rule of Criminal
Procedure 11(d) during his guilty plea submission hearing.

       On February 7, 2019, the trial court entered an order that summarily dismissed
Defendant’s Rule 36.1 motion. The trial court noted that the Tennessee Supreme Court
has previously held that “Rule 36.1 does not authorize the correction of expired illegal
sentences[,]” citing State v. Brown, 479 S.W.3d 200, 211 (Tenn. 2015). The trial court
found that Defendant’s sentences “appear[ed] to have expired approximately one decade
ago.” Therefore, the trial court concluded that Defendant’s motion failed to state a
colorable claim.

       Defendant now timely appeals the dismissal of his Rule 36.1 motion.


       1
           The record is unclear regarding how the remaining counts of the indictment were resolved.
       2
          The motion is stamped filed by the Davidson County Criminal Court Clerk. The date of the
stamp is illegible. Defendant certified the motion on January 7, 2019.
                                                   -2-
                                        II. Analysis

       On appeal, Defendant essentially argues that the sentences that he received in case
number 97-D-2596 are illegal because the trial court did not conduct a Momon colloquy
at the guilty plea submission hearing, as required by Tennessee Rule of Criminal
Procedure 11. He also asserts that he did not receive a sentencing hearing. Additionally,
he cites to Garlotte v. Fordice, 515 U.S. 39, 47 (1995), where the United States Supreme
Court held that, pertaining to federal habeas petitions, a state prisoner serving consecutive
sentences is in “custody” until all the sentences have been served and claims that his
sentences have not expired because he “has never been released from custody and is
serving a consecutive life sentence.”

        The State responds that Defendant incorrectly relies on Garlotte for the
proposition that his ten-year sentence has not expired. The State notes that the Tennessee
Supreme Court previously “acknowledged the Garlotte opinion but declined to adopt it.”
See May v. Carlton, 245 S.W.3d 340, 343 (Tenn. 2008). Thus, the State contends that the
trial court properly dismissed Defendant’s motion without a hearing because the motion
failed to state a colorable claim. Additionally, the State asserts that the motion “does not
allege a fatal error for which a Rule 36.1 motion can form the basis for relief.”

       Rule 36.1 provides in part that “[e]ither the defendant or the state may seek to
correct an illegal sentence by filing a motion to correct an illegal sentence in the trial
court in which the judgment of conviction was entered.” Tenn. R. Crim. P. 36.1(a)(1).
The rule defines “illegal sentence” as “one that is not authorized by the applicable
statutes or that directly contravenes an applicable statute.” Id at (a)(2). Under this rule, a
defendant must state a colorable claim for relief before he is entitled to a hearing and
appointment of counsel. Tenn. R. Crim. P. 36.1(b). The term “colorable claim” is not
defined in Rule 36.1. In State v. Wooden, the Tennessee Supreme Court adopted the
following definition of “colorable claim”: “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.” 478 S.W.3d 585, 593 (Tenn. 2015). Whether a Rule 36.1 motion states a
colorable claim is a question of law, which this court will review de novo. Id. at 589.
Additionally, the Tennessee Supreme Court held in State v. Brown that a claim regarding
an expired sentence is not cognizable under Rule 36.1. 479 S.W.3d 200, 211 (Tenn.
2015).

       Based on the face of Defendant’s judgments, Defendant’s sentences in case
number 97-D-2596 expired approximately ten years ago. There is no evidence in the
record regarding the life sentence that Defendant is allegedly serving consecutively to the
expired sentences in the current case. In any event, we decline to adopt the rule set out in
Garlotte, a case involving a federal habeas corpus petition, to Rule 36.1. The trial court
                                            -3-
properly dismissed Defendant’s motion because the petition failed to state a claim and
Defendant’s sentence in case number 97-D-2596 has expired. Defendant is not entitled to
relief.

                                    III. Conclusion

      For the aforementioned reasons, the judgment of the trial court is affirmed.



                                            ____________________________________
                                            ROBERT L. HOLLOWAY, JR., JUDGE




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