        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs May 5, 2015

             STATE OF TENNESSEE v. FREDRICK SLEDGE

             Direct Appeal from the Criminal Court for Shelby County
                   No. 9204081    James M. Lammey, Jr., Judge



               No. W2014-02305-CCA-R3-CD - Filed August 25, 2015


A Shelby County jury convicted the Defendant, Fredrick Sledge, of first degree felony
murder and especially aggravated robbery, and it imposed a sentence of death for the first
degree felony murder conviction. The trial court imposed a consecutive twenty-year
sentence for the especially aggravated robbery conviction. The Defendant appealed his
convictions and sentences, and we affirmed his conviction and sentence for the especially
aggravated robbery conviction. We also affirmed his conviction for first degree felony
murder but concluded that errors during the sentencing phase required reversal of the
death sentence. We remanded the case to the trial court for resentencing for the first
degree felony murder conviction. See State v. Fredrick Sledge, No. 02C01-9405-CR-
00089, 1997 WL 730245, at *1 (Tenn. Crim. App., at Jackson, Nov. 25, 1997). On
remand, the Defendant was sentenced to life for the first degree murder conviction to be
served consecutively to his twenty-year sentence for the especially aggravated robbery
conviction. State v. Fredrick Sledge, No. W2001-02402-CCA-R3-CD, 2003 WL 57313,
at *1 (Tenn. Crim. App., at Jackson, Jan. 6, 2003). The Defendant’s sentence was
affirmed by this court. Id. In 2014, the Defendant filed a motion pursuant to Tennessee
Rule of Appellate Procedure 36.1 seeking to correct an illegal sentence. The trial court
summarily denied the Defendant’s motion. On appeal, the Defendant contends that the
trial court erred when it denied his motion. After a thorough review of the record and
applicable authorities, we affirm the trial court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ROGER A. PAGE, JJ., joined.

Fredrick Sledge, Only, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy P. Weirich, District Attorney General; and Jessica Banti, Assistant District Attorney
General, for the appellant, State of Tennessee.

                                       OPINION
                            I. Facts and Procedural History

       This case arises from the robbery and shooting death of the victim, Johnny Harris,
in an apartment complex in Memphis on the night of December 10, 1991. The Defendant
was seen by witnesses near where the victim was shot, and the Defendant later told police
that he robbed the victim for his money and then shot him. Sledge, 1997 WL 730245, at
*1-6. At trial, the Defendant was convicted of first degree felony murder and especially
aggravated robbery. The jury imposed a sentence of death for the first degree felony
murder conviction, and the trial court imposed a consecutive twenty-year sentence for the
especially aggravated robbery conviction. On direct appeal, this court affirmed the first
degree felony murder conviction but reversed the Defendant’s death sentence and
remanded the case for resentencing. This court affirmed the especially aggravated
robbery conviction and corresponding sentence. Id. at *33. Our supreme court affirmed.
See State v. Sledge, 15 S.W.3d 93 (Tenn. 2000) (modified on other grounds), cert. denied,
531 U.S. 889 (2000).

       On remand, the Defendant was resentenced to life imprisonment for the first
degree felony murder conviction to be served consecutively to his twenty-year sentence
for the especially aggravated robbery conviction. Sledge, 2003 WL 57313, at *1. The
Defendant challenged the imposition of consecutive sentencing on appeal, and we
affirmed the trial court’s judgment. Id. The Defendant subsequently filed a petition for
post-conviction relief claiming the ineffective assistance of counsel, which the post-
conviction court dismissed; this court affirmed the post-conviction court’s denial.
Fredrick Sledge v. State, No. W2004-02357-CCA-R3-PC, 2005 WL 2572364, at *1
(Tenn. Crim. App., at Jackson, Oct. 12, 2005), perm. app. denied (Tenn. March 27,
2006).

        In 2014, the Defendant filed a motion pursuant to Tennessee Rule of Criminal
Procedure 36.1 to correct his illegal sentence. In the Defendant’s motion, he contended
that: (1) the judge during resentencing should have disclosed that he had previously been
employed by the district attorney’s office that prosecuted the Defendant’s case; (2) during
resentencing, the trial court erred when it failed to instruct the jury regarding parole
eligibility; (3) the Tennessee Department of Correction violated the law when it did not
allow the Defendant to meet with the parole board; and (4) the Defendant was not
awarded pretrial jail credit days pursuant to the judgment form for his life sentence. The
State responded that the Defendant’s life sentence was a “correct and statutorily
permissible sentence” and that the Defendant had not stated a colorable claim in his
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motion because he had not cited any grounds that amounted to the imposition of an
illegal sentence. The State argued that the Defendant’s motion should be dismissed
“under both habeas corpus review or Rule 36.1.”

        The trial court subsequently issued an order denying the Defendant’s requested
relief. In its order, the trial court found:

              Regardless of the fact that the statutes cited by [the Defendant] fail
       to provide any grounds for relief, the motion should still be denied under
       both habeas corpus review or Rule 36.1. [The Defendant] requests the
       Court review the trial court’s sentencing procedures and Tennessee
       Department of Corrections’ procedures in administering parole review.
       Even taking [the Defendant’s] allegations as true, the judgment would be
       voidable, not void, and thus [the Defendant] is not entitled to habeas corpus
       relief. Further, under Rule 36.1, none of the grounds cited by [the
       Defendant] amount to an imposition of an illegal sentence, and thus [the
       Defendant] is not entitled to a correction of any sentence.

       It is from this judgment that the Defendant now appeals.

                                       II. Analysis

       On appeal, the Defendant contends that: (1) the “reassignment of [his] case from
Division 10 to Division 5 casts a shadow of impropriety over these proceedings,” and
warrants the trial court’s recusal; (2) the trial court erred by treating the Defendant’s
motion to correct an illegal sentence as a petition for writ of habeas corpus; (3) the
resentencing judge should have disclosed his prior employment with the district
attorney’s office; and (4) the trial court erred when it failed to charge the jury with the
parole eligibility statute at Tennessee Code Annotated section 40-35-501. The State
responds that, because none of the Defendant’s claims render his sentence illegal, the trial
court properly dismissed his motion. We agree with the State.

       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
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       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) (2014). Rule 36.1 does not define the term “colorable
claim.” In interpreting Rule 36.1, this Court has adopted the definition for “colorable
claim” from the post-conviction context: “A colorable claim is a claim . . . that, if taken
as true, in the light most favorable to the [defendant], would entitle [defendant] to relief .
. . .” State v. David Morrow, No. W2014-00338-CCA-R3-CO, 2014 WL 3954071, at *2
(Tenn. Crim. App., at Jackson, Aug. 13, 2014) (citing Tennessee Supreme Court Rule 28,
§ 2(H)), no Tenn. R. App. P. 11 filed.

       “Whether a sentence is illegal pursuant to Rule 36.1 is a question of law that we
review de novo with no presumption of correctness.” State v. Dusty Ross Binkley, No.
M2014-00173-CCA-R3-CD, 2015 WL 2148950, at *2 (Tenn. Crim. App., at Nashville,
May 7, 2015) (citing Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007) (stating that
the standard of review for a habeas corpus case is de novo with no presumption of
correctness)).

        We first address the Defendant’s issues (1) and (3), in which the Defendant raises
the issue of the alleged bias of the trial judge. Considering these allegations in the light
most favorable to the Defendant, we conclude that he has not presented a colorable claim.
The Defendant’s claims regarding the trial court’s recusal are not related to the legality of
his sentence, and, therefore, the Defendant has failed to establish that his sentences are in
direct contravention of a statute. See Tenn. R. Crim. P. 36.1. Thus, no relief is available
to him.

        Turning next to the Defendant’s issue (2), that the trial court erred by treating the
Defendant’s motion as a petition for writ of habeas corpus, the trial court addressed the
Defendant’s claims under Rule 36.1 and found no colorable claim. Specifically, the trial
court’s order states that it considered the Defendant’s motion to correct an illegal
sentence under “both habeas corpus review [and] Rule 36.1.” (Emphasis added). The
trial court merely widened the Defendant’s avenue for possible relief by considering his
motion as both a petition for habeas corpus relief and a motion pursuant to Tennessee
Rule of Criminal Procedure 36.1. The Defendant was not prejudiced by the trial court’s
consideration, and he is not entitled to relief on this issue.

       Finally, we address the Defendant’s issue (4), that the trial court improperly failed
to instruct the jury as to his parole eligibility, pursuant to Tennessee Code Annotated
section 39-13-204(e)(2) (2014). The Defendant contends that, during resentencing, the
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jury asked the trial court for clarification about the Defendant’s parole eligibility.
According to the Defendant, the trial court responded that it could not answer the
question and advised the jury that parole eligibility was not an issue for its consideration.
There is no evidence in the record supporting the Defendant’s assertion. Further, the
Defendant’s assertion, even if true, does not render his sentence illegal. The Defendant is
not entitled to relief as to this issue.

                                      III. Conclusion

        In accordance with the aforementioned reasoning and authorities, we affirm the
trial court’s summary dismissal of the Defendant’s Rule 36.1 motion to correct an illegal
sentence.


                                                   ________________________________
                                                    ROBERT W. WEDEMEYER, JUDGE




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