                                                                                           06/27/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs May 10, 2017

            STATE OF TENNESSEE v. ELGAIN RICKY WILSON

                Appeal from the Criminal Court for Davidson County
                        No. 84-W-201 Seth Norman, Judge


                             No. M2016-02247-CCA-R3-CD


The Defendant, Elgain Ricky Wilson, pleaded guilty to first degree felony murder, armed
robbery, and two counts of assault with the intent to commit armed robbery in 1984 and
received an effective sentence of life imprisonment plus fifty years. Almost thirty-two years
later, the Defendant filed a motion pursuant to Tennessee Criminal Procedure Rule 36.1
requesting that the trial court correct an illegal sentence because although the indictment
alleged the murder victim was killed when the victim was being robbed, the evidence
showed the murder victim was killed during the robbery of another person. As a result, the
Defendant argued that his guilty plea was unknowing and involuntary and that he received
the ineffective assistance of counsel. The trial court summarily dismissed the motion after
determining that the Defendant’s motion failed to state a colorable claim for relief because
the motion was not based upon the imposition of an illegal sentence but rather upon
insufficient evidence and the ineffective assistance of counsel. We affirm the judgment of
the trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and ALAN E. GLENN, JJ., joined.

Elgain Ricky Wilson, Tiptonville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant Attorney
General; and Glenn Funk, District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

       In January 1984, the Defendant was indicted, in relevant part, for the first degree
felony murder of Edward Meirs, which was alleged to have occurred when Mr. Meirs was
robbed, the armed robbery of Margaret Meirs, the assault of Joseph White with the intent to
commit armed robbery, and the assault of Anne White with the intent to commit armed
robbery. In July 1984, the Defendant pleaded guilty to the charged offenses, and the trial
court ordered partial consecutive sentences, resulting in a sentence of life imprisonment plus
fifty years. He appealed the trial court’s imposition of consecutive sentences, and this court
affirmed the judgments of the trial court. See State v. Elgain Ricky Wilson, 710 S.W.2d 539
(Tenn. Crim. App. 1986).

        On July 1, 2016, the Defendant filed a motion to correct an illegal sentence and/or
illegal conviction pursuant to Tennessee Criminal Procedure Rule 36.1. In the motion, the
Defendant contended his sentences and convictions were a “nullity and illegal” because his
guilty plea to felony murder was based upon “insufficient evidence [because] Mr. Edward
Meirs was never killed in the perpetration of a robbery as charged in the indictment.” The
Defendant argued the evidence showed that Margaret Meirs was the robbery victim and that
Joseph and Anne White were victims of assaults with the intent to commit robberies. The
Defendant noted that the indictment count alleging first degree felony murder stated that Mr.
Meirs was killed during the commission of the robbery of Mr. Meirs. The Defendant
asserted that because Mr. Meirs was killed during the robbery of Mrs. Meirs, insufficient
evidence supported his guilty plea and conviction for felony murder, that his guilty plea was
unknowing and involuntary, and that his sentences were illegal. The Defendant also asserted
that trial counsel coerced and threatened the Defendant that he could receive the death
penalty if the case went to trial and that therefore, his guilty plea was involuntary and that he
received the ineffective assistance of counsel.

        On October 10, 2016, the trial court summarily dismissed the Defendant’s motion. In
its written order, the court found that the Defendant’s allegations were related to sufficiency
of the evidence and ineffective assistance of counsel and that the allegations, even if true, did
not merit relief pursuant to Rule 36.1. This appeal followed.

       The Defendant contends that the trial court erred by summarily dismissing his motion.
 He argues that his motion states a colorable claim for relief on the same grounds stated in
his motion. The State responds that the trial court properly dismissed the motion. We agree
with the State.

       Tennessee Criminal Procedure Rule 36.1 states, in relevant 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.

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Tenn. R. Crim. P. 36.1(a). A defendant is entitled to a hearing and the appointment of
counsel if the motion states a colorable claim for relief. Id. at 36.1(b). Further, the trial
court is required to file an order denying the motion if it determines that the sentence is not
illegal. Id. at 36.1(c)(1).

       Whether a defendant states a colorable claim is a question of law and is reviewed de
novo. State v. Wooden, 478 S.W.3d 585, 588 (Tenn. 2015). A colorable claim is defined as
“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.” Id. at 593. A motion filed
pursuant to Rule 36.1 “must state with particularity the factual allegations on which the
claim for relief from an illegal sentence is based.” Id. at 594. A trial court “may consult the
record of the proceeding from which the allegedly illegal sentence emanated” when
determining whether a motion states a colorable claim for relief. Id.

       Only fatal errors result in an illegal sentence and “are so profound as to render the
sentence illegal and void.” Id. at 595; see State v. Cantrell, 346 S.W.2d 445, 452 (Tenn.
2011). Fatal errors include sentences imposed pursuant to an inapplicable statutory scheme,
sentences that designate release eligibility dates when early release is prohibited, sentences
that are ordered to be served concurrently when consecutive service is required, and
sentences that are not authorized by statute. Wooden, 478 S.W.3d at 595. Errors which are
merely appealable, however, do not render a sentence illegal and include “those errors for
which the Sentencing Act specially provides a right of direct appeal.” Id.; see Cantrell, 346
S.W.2d at 449. Appealable errors are “claims akin to . . . challenge[s] to the sufficiency of
the evidence supporting a conviction” and “involve attacks on the correctness of the
methodology by which a trial court imposed sentence.” Wooden, 478 S.W.3d at 595; see
Cantrell, 346 S.W.2d at 450-52.

        The record reflects that the Defendant’s allegation relative to whether the evidence
showed Mr. Meirs was killed when he was being robbed is an attack on the sufficiency of the
evidence supporting his felony murder conviction. In essence, his allegation is an attack
upon his conviction, not his sentence. “[T]he purpose of this . . . Rule is to provide an
avenue for correcting allegedly illegal sentences” and “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). The Defendant’s
allegation is not a fatal error as contemplated by Rule 36.1. The Defendant’s allegation,
even if true, is an appealable error that would not render the sentence illegal and void
pursuant to Rule 36.1. To the extent that the Defendant argues the indictment is defective,
this, even if true, is also an appealable error that would not render the sentence illegal and
void under Rule 36.1. The Defendant is not entitled to relief.




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        In reaching this determination, we have not overlooked the Defendant’s allegation
that he is entitled to Rule 36.1 relief because he received the ineffective assistance of counsel
and because his guilty pleas were involuntary and unknowing. These allegations are also not
fatal errors for purposes of Rule 36.1 relief but rather are appealable errors that do not render
a sentence illegal. See Wooden, 478 S.W.3d at 595. Allegations of this nature are properly
addressed in a petition for post-conviction relief. As a result, the Defendant is not entitled to
relief.

         Based on the foregoing and the record as a whole, we affirm the judgment of the trial
court.



                                            ____________________________________
                                            ROBERT H. MONTGOMERY, JR., JUDGE




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