                                                                                                        05/21/2019
            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                               Assigned on Briefs April 16, 2019

                    STATE OF TENNESSEE v. RONNIE WALLS

                     Appeal from the Circuit Court for Moore County
                     No. 2012-CR-1248 Forest A. Durard, Jr., Judge
                        ___________________________________

                               No. M2018-00903-CCA-R3-CD
                           ___________________________________

The Petitioner, Ronnie Walls, appeals from the Moore County Circuit Court’s denial of
his pro se motion to correct an illegal sentence.1 In March 2013, the Petitioner entered
guilty pleas to conspiracy to introduce contraband into a penal institution and attempt to
introduce contraband into a penal institution and was sentenced as a Range II, multiple
offender to concurrent terms of six years, with the balance to be served on community
corrections after four months imprisonment. This sentence was ordered to be served
consecutively to all unexpired sentences. In August 2014, a warrant was issued alleging
the Petitioner violated his community corrections sentence. He later agreed that he had
failed to comply with the terms of his community corrections sentence based upon a new
arrest and other violations. On October 31, 2014, he entered a guilty plea to the
community corrections violation and agreed to a two-year increase in his sentence.
Nearly three years later, the Petitioner filed a pro se motion to correct an illegal sentence,
claiming that he is entitled to relief pursuant to Rule 36.1 of the Tennessee Rules of
Criminal Procedure because the trial court that accepted his guilty plea for his community
corrections violation failed to advise him during the plea colloquy that he was entitled to
a new sentencing hearing. The trial court denied relief, finding that the Petitioner failed
to state a cognizable claim. Following our review, we affirm the judgment of the trial
court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and D. KELLY THOMAS, JR., JJ., joined.

Donna Orr Hargrove, District Public Defender; Dorothy D. Buck, Assistant Public
Defender, for the Defendant-Appellant, Ronnie Dewayne Walls.


        1
         Although the Petitioner filed a pro se motion to correct an illegal sentence, he was subsequently
appointed counsel who represented him at the hearing.
Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Assistant Attorney General; Robert J. Carter, District Attorney General; and Holly
Eubanks, Assistant District Attorney General, for the Appellee, State of Tennessee.

                                                 OPINION

       The record shows that a hearing was conducted on October 31, 2014, which
encompassed the community corrections violation and the Petitioner’s guilty plea to the
same. At the top of the hearing, the trial court engaged in extensive questioning of the
Petitioner and ensured that he was aware of the rights he had during the proceedings, the
rights he was waiving should his guilty plea be accepted, and the burden of proof should
he go forward with the hearing. The Petitioner acknowledged that he understood.
During the colloquy, the Petitioner conceded that he entered a guilty plea to a new charge
of criminal impersonation while on community corrections. The court then asked,
“Okay. Now, is it your understanding that you agree to a resentencing of your case of
eight years at 35 percent with 330 days credit; is that correct?” The Petitioner replied,
“Yes.” The Petitioner further agreed that it was his intent to plead guilty. The trial court
then engaged in a litany of questions to determine if entry of the guilty plea was the
Petitioner’s “free and voluntary act.” The Petitioner assured the court that no one had
promised or threatened him anything and that he was acting of his own free will. Asked
if he had any questions, the Petitioner replied, “No, sir.” The trial court accepted the
Petitioner’s plea and entered an order revoking his community corrections along with an
amended judgment resentencing him to eight years’ imprisonment.

        On September 5, 2017, the Petitioner filed a pro se motion to correct an illegal
sentence pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure alleging
that the trial court failed to give him proper jail credits for time he served while on
community corrections.2 Following the State’s written response, on November 15, 2017,
the Petitioner filed a pro se, handwritten “Amended Motion to Correct Illegal Sentence”
urging the court to review his jail credits specifically related to his six-year sentence. The
public defender’s office was subsequently appointed to represent the Petitioner. On
December 17, 2017, the Petitioner filed another pro se Rule 36.1 motion alleging that the
trial court “erred when it resentenced him to the eight (8) year sentence” and “abused its
discretion when it applied incorrect legal standards, sentencing [the Defendant] from a
six (6) year sentence to an eight (8) year sentence without conducting a sentencing
hearing.”

       At the December 21, 2017 motion hearing, defense counsel addressed the
Petitioner’s primary issue and explained that the Petitioner’s sentence was illegal because

       2
           The Petitioner abandoned this issue before the trial court, and it is not included in this appeal.
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the trial court resentenced him, based on a negotiated plea, without conducting a
sentencing hearing. The Petitioner did not contest the eight-year sentence imposed by the
trial court and conceded that it was within the proper statutory range. At the conclusion of
arguments, the trial court continued the matter to obtain a transcript of the community
corrections violation hearing, and on April 20, 2018, issued a written order denying the
Petitioner relief. The order provided, in pertinent part, as follows:

               [The Petitioner] relies upon State v. Samuel, 44 S.W.3d 489, 491
       (Tenn. 2001) for the proposition a resentencing hearing must be held. This
       reliance is misplaced. Had there been no agreed upon sentence, the
       [Petitioner] would be correct. However, as part of a plea acceptance, the
       [Petitioner] could agree to a specific sentence and, thereby, remove the
       necessity of the hearing. This is exactly what happened.

               [The Petitioner] was free to voluntarily, knowingly and intelligently
       enter into an agreed disposition of his Community Corrections violation . . .
       . Defendants may agree for purposes of plea bargaining to mix and match
       ranges and percentages provided the offense is statutory eligible. . . .
       Consequently, a defendant would also be free to enter into an agreement in
       their actual range as well. . . . [Petitioner’s] sentence herein was eligible
       and was within the range he originally pled. Having determined the
       [Petitioner’s] assertions are without merit, the Rule 36.1 petition is hereby
       dismissed.

       It is from this order that the Petitioner timely appeals.


                                        ANALYSIS

        The Petitioner seeks relief under Rule 36.1 based upon State v. Samuels, 44
S.W.3d 489 (Tenn. 2001), arguing that the trial court erred in failing to “adequately
advise inform him of the rights he was giving up without a sentencing hearing,” and
failing to conduct “a short hearing to determine if the defendant was aware of the rights
he was waiving.” In response, the State contends that this issue is waived for failure to
raise it before the trial court. Waiver notwithstanding, the State maintains that the trial
court properly dismissed the petition because it failed to state a cognizable claim for
relief. We decline waiver of this issue because the Petitioner’s pro se Rule 36.1 motion
alleged that the trial court improperly resentenced him to eight years’ imprisonment
without conducting a sentencing hearing. Although the precise issue was not articulated
in the record below, the trial court sufficiently addressed it for our review. In all other
respects, we agree with the State.
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        Rule 36.1 allows a defendant or the State to seek the correction of an unexpired
illegal sentence. See Tenn. R. Crim. P. 36.1(a)(1); State v. Brown, 479 S.W.3d 200, 211
(Tenn. 2015). For the purposes of Rule 36.1, “an illegal sentence is one that is not
authorized by the applicable statutes or that directly contravenes an applicable statute.”
Tenn. R. Crim. P. 36.1(a)(2). To avoid summary denial of an illegal sentence claim
brought under Rule 36.1, the defendant must establish a colorable claim that the sentence
is illegal. Tenn. R. Crim. P. 36.1(b)(2). A colorable claim is 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.” State v. Wooden, 478 S.W.3d 585, 593 (Tenn. 2015).
The determination of whether a Rule 36.1 motion states a colorable claim is a question of
law, which this court reviews de novo. Id. at 589 (citing Summers v. State, 212 S.W.3d
251, 255 (Tenn. 2007)).

       A brief review of the law applicable to community corrections sentencing is also
helpful in placing this issue in context. A trial court has the power, upon revocation of a
community corrections sentence, to resentence a defendant to a period of incarceration up
to the maximum for the offense originally committed. Tenn. Code Ann. § 40-36-
106(e)(4). In State v. Samuels, the Tennessee Supreme Court addressed the issue of
“predetermined sentencing” or the practice of setting an increased sentence, pursuant to a
plea agreement, that will be imposed if the defendant subsequently violates community
corrections. See, e.g., State v. Crook, 2 S.W.3d 238, 241 (Tenn. Crim. App. 1999); State
v. Roberts, No. M2002-00806-CCA-R3-CD, 2003 WL 1233778, at *2 (Tenn. Crim. App.
Mar. 18, 2003). The Court in Samuels observed that when a court resentences a
defendant after violation of the conditions of community corrections, it must conduct a
new sentencing hearing under the Criminal Sentencing Reform Act. 44 S.W.3d at 494.
This includes the requirement that the trial court make specific findings as set forth in the
Act. The trial court in Samuels had warned the defendant at the time of sentencing that
he would “probably” get an increased eight-year sentence if he violated the terms of
community corrections. Id. at 493. The defendant’s community corrections sentence was
eventually revoked, and he received the eight-year sentence. He appealed, arguing that
the sentence was arbitrarily imposed. Because the trial court conducted a proper
resentencing hearing, made extensive findings on enhancement and mitigating factors,
our supreme court upheld the sentence. Id. at 494.

      A formal sentencing hearing or a revocation hearing, however, is not required
when a defendant concedes that he violated the terms of the community corrections
sentence and elects to accept, knowingly and voluntarily, an increased sentence by
agreement with the State. George T. McClain v. State, No. M2009-02244-CCA-R3-PC,
2011 WL 303269, at *3 (Tenn. Crim. App. Jan. 26, 2011) (citing State v. Joe W. France,
No. E2003-01293-CCA-R3-CD, Jefferson County, slip op. at 4 (Tenn. Crim. App. July
                                            -4-
19, 2004) and State v. Mahler, 735 S.W.2d 226 (Tenn. 1987)); see also Tenn. Code Ann.
§§ 40-35-203(b), -205(d) (dispensing with the sentencing hearing when the district
attorney general and the defendant agree upon a sentence which is accepted by the trial
court).

        As an initial matter, Rule 36.1 seeks to provide a mechanism to correct “an illegal
sentence . . . not authorized by the applicable statutes or that directly contravenes an
applicable statute.” Tenn. R. Crim. P. 36.1. It is not the proper vehicle to collaterally
attack a guilty plea as the Petitioner suggests, see Carpenter v. State, 136 S.W.3d 608,
609 (Tenn. 2004), and we can dismiss this appeal on that ground alone. Nevertheless, the
record clearly shows that the violation of community corrections hearing and the guilty
plea hearing were collapsed into one colloquy. Upon extensive examination by the trial
court, the Petitioner acknowledged the rights he was waiving upon entering the plea. He
further acknowledged his intent to accept the negotiated plea agreement, which increased
his community corrections sentence from six to eight years. The record demonstrates the
Petitioner entered a knowing and voluntary plea to the revocation of his community
corrections. Accordingly, we agree with the trial court, and conclude that the Petitioner
has failed to state a colorable claim for relief under Rule 36.1. He is not entitled to relief.

                                      CONCLUSION

       Based on the foregoing reasoning and analysis, the judgment of the trial court is
affirmed.


                                               ____________________________________
                                               CAMILLE R. MCMULLEN, JUDGE




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