    IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                      AT JACKSON
                     Assigned on Briefs October 6, 2015


             STATE OF TENNESSEE v. MIQWON LEACH
                 Appeal from the Circuit Court for Obion County
                         No. 9-162   Jeff Parham, Judge




              No. W2015-00786-CCA-R3-CD - Filed October 13, 2015
                     _____________________________

Miqwon Leach, the Defendant, filed pro se a Motion for Correct of an Illegal
Sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. The trial court
found the motion failed to state a colorable claim and summarily dismissed the
motion. We affirm.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which
THOMAS T. WOODALL, P.J. and CAMILLE R. MCMULLEN, JJ., joined.

Miqwon Leach, Henning, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah,
Assistant Attorney General; Thomas A. Thomas, District Attorney General, Jim
Cannon, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                   OPINION

                      Factual and Procedural Background

      The Defendant, and two co-defendants, Clarence Gatson and Mario
Thomas, were charged with conspiracy to commit first degree murder, first degree
felony murder, and first degree premeditated murder for the death of Zachary
Demond Achols. State v. Clarence Carnell Gaston, Miqwon Deon Leach, and
Mario Deangalo Thomas, No. W2001-02046-CCA-R3-CD, 2003 WL 261941, at
*1 (Tenn. Crim. App. Feb. 7, 2003), perm. app. denied (Tenn. Sept. 2, 2003).
They were convicted of first degree felony murder and the lesser-included
offenses of conspiracy to commit second degree murder and second degree
murder. Id. The Defendant was sentenced to concurrent sentences of life without
possibility of parole for first degree felony murder and eight years for the
conspiracy to commit second degree murder. Id. The second degree murder
conviction was merged into the first degree felony degree murder conviction. Id.
This court affirmed the convictions on appeal, and the Tennessee Supreme Court
denied permission to appeal. Id.

        The Defendant subsequently filed his first petition for habeas corpus relief,
alleging that his convictions were void “because (1) the trial court lacked
jurisdiction to read the jury charges submitted during the trial, (2) the trial court
gave erroneous and unclear law in the jury charge prejudicing the [Defendant],
and (3) the trial court lacked jurisdiction to sentence.” Miqwon Leach v. State,
No. W2044-02336-CCA-R3-HC, 2005 WL 1249032, at *1 (Tenn. Crim. App.
May 25, 2005), perm. app. denied (Tenn. Dec. 5, 2005). The habeas corpus court
denied relief, and this court affirmed the trial court‟s judgment pursuant to Rule 20
of the Rules of the Court of Criminal Appeals. Id. at *2.

       The Defendant also filed a petition for post-conviction relief, alleging the
following deficiencies in the trial proceedings: (1) he was denied his constitutional
right to testify; (2) his rights under the Interstate Compact on Detainers were
violated; and (3) his trial counsel rendered ineffective assistance. Miqwon Leach
v. State, No. W2004-01702-CCA-R3-PC, 2005 WL 1651654, at *1 (Tenn. Crim.
App. Jul. 14, 2005), perm. app. denied (Tenn. Dec. 5, 2005). This court affirmed
the post-conviction court‟s denial of relief. Id. at *10.

        In March 2012, the Petitioner filed a second petition for writ of habeas
corpus alleging two grounds for relief: “(1) that conspiracy to commit second
degree murder is a nonexistent offense, thus the trial court lacked jurisdiction to
sentence [the Defendant] thereon; and (2) that [the Defendant] was sentenced in
contravention of our supreme court‟s holding in State v. Buggs, [995 S.W.2d 102
(Tenn. 1999)].” Miqwon Leach v. Dwight Barbee, No. W2012-00652-CCA-R3-
HC, 2012 WL 3966711, at *2 (Tenn. Crim. App. Sept. 11, 2012), perm. app.
denied (Tenn. Feb. 12, 2013). This court affirmed the habeas corpus court‟s
denial of relief. Id. at *4. Specifically, this court held that there was no merit to
the Defendant‟s claim that conspiracy to commit second degree murder was not a
cognizable offense. Id. at *3. As to the Petitioner‟s second claim, this court
stated:

       [The Defendant‟s] assertion that second degree murder is not a
       predicate felony underlying the offense of felony murder would
       render his conviction voidable, not void. [The Defendant] had failed

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       to include copies of the indictments in this case. From the record of
       the habeas corpus proceedings, this court is unable to ascertain the
       predicate felony with which he was charged in the felony murder
       indictment. [The Defendant] is not entitled to relief on this issue.

Id. at *4.

        In his instant Rule 36.1 motion, the Defendant argues that “[c]onspiracy to
commit second degree murder is not an underlying felony to support a felony
murder conviction and thus the sentence for first degree felony murder is in direct
contravention to an applicable statute, specifically T.C.A. § 39-13-202 and [is]
thereby an illegal sentence.” The Defendant claims that the State‟s theory of the
case was that he intended to kill another person, Jeff Young, but Mr. Achols, an
innocent bystander was killed instead. Therefore, he asserts that the underlying
felony for his felony first degree murder conviction was the first degree murder or
attempted first degree murder of Mr. Young. The Defendant asserts that, because
the jury convicted him of second degree murder and conspiracy to commit second
degree murder the jury rejected the State‟s theory that the Defendant attempted to
kill Jeff Young with premeditation. Accordingly, the Defendant contends that he
did not commit one of the enumerated underlying felonies, and as such, his
“sentence for first-degree felony murder is in direct contravention [with Tennessee
Code Annotated section 39-13-202(a)(2)] since there is no underlying predicate
felony that is required by statute” and is thereby illegal.

       The trial court summarily dismissed the Defendant‟s Rule 36.1 motion,
stating:

       The [Defendant] complains that his sentence is illegal because, as he
       states, he was found guilty of second degree murder which is not a
       predicate felony for a First Degree (Felony) Murder conviction.
       However, the [Defendant] was originally charged in Count 2 of the
       Indictment with the unlawful and felonious killing of Zachary
       Demond Achols in the attempted perpetration of and while intending
       to commit first degree murder. The record is clear that the
       [Defendant] and his Co-Defendants intended to kill another
       individual, Jeff Young, and in that attempt did actually kill the
       victim, Mr. Achols.

This timely appeal followed.




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                                       Analysis

       On appeal, the Defendant argues his Rule 36.1 motion presented a
colorable claim and the trial court erred in summarily dismissing his motion
without appointing counsel and holding an evidentiary hearing.

       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 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). Although the term “colorable claim” is not defined
in Rule 36.1, this court has adopted the following definition from the post-
conviction context: “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. David Morrow, No. W2014-00338-CCA-R3-CO, 2014 WL 3954071, at
*2 (Tenn. Crim. App. Aug. 13, 2014) (quoting Tennessee Supreme Court Rule 28,
§ 2(H)) (internal quotation marks and citation omitted).

       In this case, we note that in the direct appeal, the Defendant‟s co-defendant,
Mario Thomas, raised the same issue raised by the Defendant in this proceeding,
arguing “that by finding [Mr. Thomas] guilty of the lesser offenses of conspiracy
to commit second degree murder and second degree murder, the jury necessarily
rejected the State‟s theory that he was attempting to commit first degree
premeditated murder at the time the victim was killed, thereby invalidating his
conviction for first degree murder.” Clarence Carnell Gaston, Miqwon Deon
Leach, and Mario Deangelo, 2003 WL 261941, at *13. This court rejected Mr.
Thomas‟s argument, stating, “[O]ur supreme court has long held that consistency
between verdicts on separate counts of an indictment is not required in
Tennessee. . . „This [c]ourt will not upset a seemingly inconsistent verdict by

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speculating as to the jury‟s reasoning if we are satisfied that the evidence
establishes guilt of the offense upon which the conviction was returned.‟” Id.
(quoting Wiggins v. State, 498 S.W.2d 92, 93-94 (Tenn. 1973)). On direct appeal,
the Defendant challenged the sufficiency of the evidence underlying his
convictions and this court affirmed his convictions on direct appeal.

       Rule 36.1 provides a procedure for correcting an illegal sentence. Although
the Defendant insists that he is actually challenging his sentence, it is clear he is
challenging his conviction. Rule 36.1 provides “an avenue for correcting
allegedly illegal sentences. The Rule does not provide an avenue for seeking the
reversal of convictions.” State v. Jimmy Wayne Wilson, No. E2013-02354-CCA-
R3-CD, 2014 WL 1285622, at *2 (Tenn. Crim. App. Mar. 31, 2014), perm. app.
denied (Nov. 19, 2014). Here, it is clear that the Defendant “has not set forth a
colorable claim that his sentence, rather than his conviction, is illegal, and his
reliance upon Rule 36.1, therefore, is misplaced.” See id.

                                    Conclusion

       The Defendant‟s Rule 36.1 motion fails to state a colorable claim. We
affirm the trial court‟s summary dismissal of the motion.


                                          _________________________________
                                          ROBERT L. HOLLOWAY, JR., JUDGE




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