        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs May 4, 2016

               STATE OF TENNESSEE v. TERRELL BURGESS

                 Appeal from the Criminal Court for Shelby County
                      No. 96-06387   W. Mark Ward, Judge


                No. W2015-01138-CCA-R3-CD - Filed June 22, 2016


The Appellant, Terrell Burgess, appeals as of right from the Shelby County Criminal
Court‟s summary denial of his Tennessee Rule of Criminal Procedure 36.1 motion to
correct an illegal sentence. The Appellant contends that his motion stated a colorable
claim for relief; therefore, the trial court erred in summarily denying the motion.
Discerning no error, we affirm the judgment of the trial court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which ALAN E. GLENN
and J. ROSS DYER, JJ., joined.

Stephen C. Bush, District Public Defender; and Phyllis Aluko (on appeal) and Robert
Trent Hall (on motion), Assistant District Public Defenders, for the appellant, Terrell
Burgess.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Douglas Gregory
Gilbert, Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

       The Appellant is currently serving a total effective sentence of life plus ten years
for his 1999 guilty pleas for first degree felony murder, aggravated robbery, and two
counts of aggravated assault. On October 28, 2014, the Appellant filed the instant
Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence alleging
that his life sentence for first degree felony murder was illegal because the trial court
used the phrase “life in the penitentiary with the possibility of parole” during his guilty
plea submission hearing. On January 9, 2015, the trial court entered a written order
summarily denying the Appellant‟s Rule 36.1 motion for failing to state a colorable
claim. The Appellant now appeals to this court raising the same argument found in his
Rule 36.1 motion.

        Rule 36.1 allows for either the defendant or the State to “seek the correction of an
illegal sentence.” Tenn. R. Crim. P. 36.1(a). “Illegal sentence” is defined in the rule as a
sentence “that is not authorized by the applicable statutes or that directly contravenes an
applicable statute.” Id. The term “illegal sentence” “is synonymous with the habeas
corpus concept of a „void‟ sentence.” Cox v. State, 53 S.W.3d 287, 292 (Tenn. Crim.
App. 2001), overruled on other grounds, Moody v. State, 160 S.W.3d 512 (Tenn. 2005).
“[F]ew sentencing errors [will] render [a sentence] illegal.” State v. Wooden, 478
S.W.3d 585, 595 (Tenn. 2015).

        Examples of illegal sentences include “sentences imposed pursuant to an
inapplicable statutory scheme, sentences designating release eligibility dates where early
release is statutorily prohibited, sentences that are ordered to be served concurrently
where statutorily required to be served consecutively, and sentences not authorized by
any statute for the offense.” Wooden, 478 S.W.3d at 595. Conversely, “attacks on the
correctness of the methodology by which a trial court imposed [a] sentence” will not rise
to the level of an illegal sentence. Id.

       Tennessee Code Annotated subsections 40-35-501(i)(1) and (i)(2)(A) provide that
there is no release eligibility for a defendant convicted of first degree murder. A
defendant convicted of first degree murder must serve 100% of his sentence less any
retained and earned sentence credits, which may not exceed fifteen percent. Tenn. Code
Ann. § 40-35-501(i)(1). The Appellant has not included the applicable judgment in the
appellate record, but the trial court in its order summarily dismissing the Rule 36.1
motion stated that the judgment reflected “that the sentence imposed was „Life.‟”
Furthermore, this court has previously held as follows:

       Although this court has observed that the phrase “life with parole” is
       inaccurate because a defendant sentenced to life is entitled “to be released,
       as opposed to being paroled, after serving 100 percent of sixty years less
       any eligible credits so long as they do not operate to reduce the sentence by
       more than [fifteen] percent, or nine years,” use of the term would not render
       [a defendant‟s] judgment void.

Christopher A. Williams v. State, No. W2013-00555-CCA-R3-HC, 2013 WL 5493568, at
*2 (Tenn. Crim. App. Sept. 30, 2013) (quoting State v. Kermit Penley, No. E2004-00129-
CCA-R3-PC, slip op. at 4 (Tenn. Crim. App. Nov. 1, 2004)) (internal citations omitted).
Accordingly, we conclude that the Appellant‟s Rule 36.1 motion failed to state a
colorable claim for relief and affirm the trial court‟s summary denial of the motion.

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        Upon consideration of the foregoing and the record as a whole, the judgment of
the trial court is affirmed.



                                               _________________________________
                                               D. KELLY THOMAS, JR., JUDGE




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