                                                                                         03/08/2018
               IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT NASHVILLE
                       Assigned on Briefs November 14, 2017

                   STATE OF TENNESSEE v. PATRIC POPE

                  Appeal from the Circuit Court for Maury County
                   Nos. 16944, 16945   Stella L. Hargrove, Judge
                     ___________________________________

                           No. M2017-01040-CCA-R3-CD
                       ___________________________________


The pro se Defendant, Patric Pope, appeals from the trial court’s denial of his motion to
correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1.
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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and NORMA MCGEE OGLE, JJ., joined.

Patric Pope, Nashville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
and Brent A. Cooper, District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                                         FACTS

       On November 19, 2008, the Defendant entered an open Alford guilty plea in the
Maury County Circuit Court in case number 16945 to aggravated robbery, with the
sentencing to be determined by the trial court. The guilty plea agreement reflects that the
State recommended that the Defendant be sentenced concurrently with his eleven-year
sentence in case number 16944. Also included on the guilty plea agreement was the
notation: “Defendant receives jail credit starting at 8/2/06 reserved until sentencing[.]”

       At sentencing, the trial court rejected the State’s recommendation of concurrent
sentencing and sentenced the Defendant to ten years in the Department of Correction, to
be served consecutively to his eleven-year sentence in case number 16944. The judgment
form for case number 16945 reflects jail credits from August 2, 2006, through June 26,
2008. The judgment form for count one of case number 16944 also reflects jail credits
from August 2, 2006, through June 26, 2008, the date that the judgments in case number
16944 were entered.

       On April 18, 2017, the Defendant filed a motion to correct an illegal sentence
pursuant to Tennessee Rule of Criminal Procedure 36.1. In his motion, the Defendant
alleged that he had not received all the jail credits listed in his judgments. He further
asserted that the jail credits were a material part of his plea agreement and that, if not
awarded all the jail credits reflected in his judgments, he should be allowed the
opportunity to withdraw his guilty plea.

       On May 4, 2017, the trial court entered an order in which it granted the
Defendant’s motion to the extent of ordering an amended judgment in case number
16945 “to reflect no pretrial jail credits.” The court noted that it had exercised its
discretion in rejecting the State’s sentencing recommendation and had ordered the
Defendant’s ten-year sentence in case number 16945 to be served consecutively to his
eleven-year sentence in case number 16944, which meant that the pretrial jail credit
applied only to case number 16944.

                                        ANALYSIS

       The Defendant argues on appeal, as he did before the trial court, that he is entitled
to pretrial jail credits for both cases or, in the alternative, the opportunity to withdraw his
guilty plea in case number 16945. The State responds by arguing that the Defendant has
not asserted a colorable claim under Rule 36.1. We agree with the State.

        Rule 36.1 provides “a mechanism for the defendant or the State to seek to correct
an illegal sentence.” State v. Brown, 479 S.W.3d 200, 208-09 (Tenn. 2015). An illegal
sentence is defined as “one that is not authorized by the applicable statutes or that directly
contravenes an applicable statute.” Tenn. R. Crim. P. 36.1(a). When a defendant files a
motion under Rule 36.1, the trial court must determine whether the motion “states a
colorable claim that the sentence is illegal.” Tenn. R. Crim. P. 36.1(b). In the context of
Rule 36.1, 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).

        A trial court’s failure to award pretrial jail credits does not render a sentence
illegal and is, thus, “insufficient . . . to establish a colorable claim for relief under Rule
36.1.” Brown, 479 S.W.3d at 213. By ordering an amended judgment for case number
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16945 to reflect that no pretrial jail credits were awarded in that case, the trial court acted
properly to correct the error on the judgment. See, e.g., State v. Anthony L. Moore, No.
W2016-02601-CCA-R3-CD, 2017 WL 4051268, at *2 (Tenn. Crim. App. Sept. 13, 2017)
(noting that trial court properly awarded pretrial jail credits on only one of a defendant’s
convictions when ordering consecutive service of the sentences).

       The Defendant’s assertion that the jail credits were a material part of his plea is
belied by the plea agreement, which clearly reflects that sentencing and jail credits were
to be left to the trial court’s determination. Regardless, we agree with the State that a
claim of an involuntary plea does not render the sentence illegal and, thus, does not
present a cognizable claim for Rule 36.1 relief. See Wooden, 478 S.W.3d at 595.

                                      CONCLUSION

        Based on the foregoing authorities and reasoning, we affirm the judgment of the
trial court.

                                           ______________________________________
                                           ALAN E. GLENN, JUDGE




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