        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs December 2, 2014

                  JEFFERY YATES v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                    No. 02-00754     J. Robert Carter, Jr., Judge


                No. W2014-00325-CCA-R3-CO - Filed January 8, 2015


The Appellant, Jeffery Yates, 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 the trial court erred in summarily denying his
motion because his motion stated a colorable claim for relief. 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. K ELLY T HOMAS, JR., J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and R OGER A. P AGE, JJ., joined.

Jeffery Yates, Mountain City, Tennessee, pro se.

Herbert H. Slatery, III, Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy
P. Weirich, District Attorney General; and Eric Christensen, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

        The Appellant was convicted in 2003 of aggravated robbery and sentenced as a Range
III, career offender to thirty years. The sentencing court’s classification of the Appellant as
a career offender was based upon the Appellant’s prior convictions for attempted aggravated
robbery, aggravated kidnapping, especially aggravated kidnapping, two convictions for
possession of a controlled substance with intent to sell, and five convictions for aggravated
assault. This court affirmed the Appellant’s conviction and sentence on direct appeal. State
v. Jeffery Yates, No. W2003-02422-CCA-MR3-CD, 2005 WL 1707974 (Tenn. Crim. App.
July 21, 2005), perm. app. denied, (Tenn. Dec. 19, 2005).
       The Appellant filed a timely petition for post-conviction relief alleging, among
numerous other issues, that his trial counsel was ineffective for failing “to notify the trial
court that [his] prior convictions were void and could not be considered for sentencing
purposes.” Jeffery Yates v. State, No. W2008-02498-CCA-R3-PC, 2009 WL 2985949, at
*5 (Tenn. Crim. App. Sept. 18, 2009), perm. app. denied, (Tenn. Feb. 22, 2010). The post-
conviction court rejected the Appellant’s claim, and this court affirmed that decision on
appeal. Id. at *12.

       The Appellant filed a petition for writ of habeas corpus arguing that the convictions
the sentencing court used to classify him as a career offender were void; therefore, his thirty-
year sentence as a Range III, career offender was an illegal sentence. Jeffery Yates v. State,
No. W2007-02868-CCA-R3-HC, 2008 WL 3983111 (Tenn. Crim. App. Aug. 27, 2008)
(memorandum opinion), perm. app. denied, (Tenn. Jan. 20, 2009). The habeas corpus court
summarily denied the Appellant’s petition, and this court affirmed the decision on appeal.
Id.

        At the heart of the Appellant’s argument in his habeas corpus petition were two sets
of convictions. Yates, 2008 WL 3983111, at *1. In 1993, the Appellant was convicted by
a jury of especially aggravated kidnapping, aggravated kidnapping, and attempted aggravated
robbery for which he received an effective sentence of eighteen years.1 Id. In 1994, the
Appellant pled guilty to five counts of aggravated assault and two counts of possession of
cocaine with intent to sell for which he received an effective sentence of ten years. The
sentences for the 1994 convictions were ordered to be served concurrently to the sentences
for the 1993 convictions. Id.

        In his petition for writ of habeas corpus, the Appellant argued that he was on bail for
some of the crimes which resulted in his 1994 convictions when he committed the offenses
that resulted in his 1993 convictions. Yates, 2008 WL 3983111, at *1. As such, the
Appellant argued that the sentences for each set of convictions were statutorily mandated
to be served consecutively rather than concurrently. Id.; see also Tenn. Code Ann. § 40-20-
111(b) (mandating consecutive sentences when a defendant commits a felony while released
on bail and is convicted of both offenses). The Appellant concluded that his sentences for
his 1993 and 1994 convictions were illegal and void; therefore, his 2003 sentence was also
illegal because the 1993 and 1994 convictions had been used to classify the Appellant as a
career offender. Yates, 2008 WL 3983111, at *1.


1
 These convictions were affirmed on direct appeal, see State v. Jeffery Yates, No. 02C01-9307-CR-00164,
1994 WL 466825 (Tenn. Crim. App. Aug. 31, 1994), as was the dismissal of the Appellant’s petition for
post-conviction relief regarding the convictions, see Jeffery D. Yates v. State, No. 02C01-9608-CR-00276,
1997 WL 399311 (Tenn. Crim. App. July 16, 1997), perm. app. denied, (Tenn. Feb. 23, 1998).

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        This court rejected the Appellant’s arguments, holding that he was “not currently
restrained of his liberty as a result of” the 1993 and 1994 convictions. Yates, 2008 WL
3983111, at *2. The opinion stated that it was well-established that “habeas corpus relief is
not available for expired sentences that are used solely to enhance a subsequent conviction.”
Id. (quoting Paul Wilson v. Stephen Dotson, Warden, No. W2005-02317-CCA-R3-HC, 2006
WL 1205636, at *2 (Tenn. Crim. App. May 4, 2006), perm. app. denied, (Tenn. Sept. 25,
2006)).

        The Appellant filed a second petition for writ of habeas corpus alleging that his 2003
sentence was illegal because “the trial court relied on an invalid prior conviction to classify
him as a Range III, career offender.” Yates v. Parker, 371 S.W. 3d 152, 154 (Tenn. Crim.
App. 2012). The habeas corpus court summarily denied the petition. This court affirmed the
summary denial holding that the Appellant had failed to “state which of the prior convictions
. . . was invalid or the basis of the invalidity.” Id. at 156. The opinion further stated that an
error in a defendant’s offender classification was not a cognizable claim for habeas corpus
relief because such an error generally did not render a sentence illegal. Id.

        The Appellant also filed two petitions for writ of habeas corpus directly challenging
the concurrent service of his 1993 and 1994 convictions. Both petitions were summarily
denied. In affirming the summary dismissal of the first petition, this court held that the
Appellant had “failed to attach any other documents [beyond the judgments of conviction]
to his petition which show that he was on bail for the prior six offenses when he committed
the latter three offenses.” Jeffery Yates v. State, No. W2006-00969-CCA-R3-HC, 2007 WL
936117, at *2 (Tenn. Crim. App. Mar. 29, 2007), perm. app. denied, (Tenn. Aug. 13, 2007).
Summary dismissal of the second petition was affirmed because the Appellant was not
presently restrained of liberty for the challenged judgments and because the issue had been
previously determined. Jeffery Yates v. State, No. W2009-01136-CCA-R3-HC, 2010 WL
4540063, at *3 (Tenn. Crim. App. Sept. 24, 2010), perm. app. denied, (Tenn. Dec. 22, 2010).

        In July 2013, the Appellant filed the instant Tennessee Rule of Criminal Procedure
36.1 motion to correct an illegal sentence. In the motion, the Appellant again argued that his
1993 and 1994 convictions were void because their sentences were not ordered to be served
consecutively; therefore, his 2003 sentence for aggravated robbery was illegal because the
sentencing court had relied on the 1993 and 1994 convictions in classifying the Appellant as
a career offender. The Appellant also argued that his 2003 sentence was illegal because the
sentencing court, in classifying him as a career offender, relied on a void judgment of
conviction that “had been withdrawn through a prior [p]ost-[c]onviction proceeding.” The
Appellant further argued that his 2003 sentence was illegal because he was denied his right
to “allocution” at the sentencing hearing.



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        On January 7, 2014, the trial court entered a written order summarily denying the
Appellant’s motion. The Appellant filed a timely notice of appeal. On appeal, the Appellant
contends that the trial court erred in summarily denying his motion because the issues raised
in the motion stated colorable claims for relief under Rule 36.1. The State responds that none
of the issues raised in the motion stated a colorable claim for relief under Rule 36.1 and that
the trial court did not err in summarily denying the motion.

       Rule 36.1 provides as follows:

       (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 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.

       (c)(1) If the court determines that the sentence is not an illegal sentence, the
       court shall file an order denying the motion.

(Emphasis added).

       A Rule 36.1 motion is a remedy separate and distinct from habeas corpus or post-
conviction relief. See State v. Jonathan T. Deal, No. E2013-02623-CCA-R3-CD, 2014 WL
2802910, at *2 (Tenn. Crim. App. June 17, 2014). As such, a Rule 36.1 motion should only
be summarily denied where the motion fails to state a colorable claim for relief. This court
has defined a colorable claim as a claim “that, if taken as true, in the light most favorable to
the [appellant], would entitle [appellant] to relief.” State v. David Morrow, No. W2014-
00338-CCA-R3-CO, 2014 WL 3954071, at *2 (Tenn. Crim. App. Aug. 13, 2014) (quoting
Tenn. Sup. Ct. R. 28, § 2(H)) (brackets and alterations in original).

       The following are examples of illegal sentences:




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       (1) a sentence imposed pursuant to an inapplicable statutory scheme; (2) a
       sentence designating a [Release Eligibility Date (RED)] where a RED is
       specifically prohibited by statute; (3) a sentence ordered to be served
       concurrently where statutorily required to be served consecutively; and (4) a
       sentence not authorized for the offense by any statute.

Davis v. State, 313 S.W.3d 751, 759 (Tenn. 2010) (internal citations omitted). The
Appellant’s challenge to the sentence for his 2003 aggravated robbery conviction does not
fall under any of these examples.

        Rather, the Appellant argues that his sentence is illegal because the sentencing court
erred in classifying him as a career offender. Generally, a trial court’s error “in offender
classification” will not “render the sentence illegal so long as the classification falls within
the purview of the Sentencing Act.” Cantrell v. Easterling, 346 S.W.3d 445, 458 (Tenn.
2011). This is because an error in the offender classification does not create a sentence that
is not authorized by the applicable statutes or that directly contravenes an applicable statute.
The Appellant’s thirty-year sentence for a Class B felony conviction was a statutorily
authorized sentence for a Range III, career offender. See Tenn. Code Ann. § 40-35-
112(c)(2).

        The only time an error in the classification of an offender would ever rise to the level
of an illegal sentence would be if a trial court, somehow, classified a defendant in a category
not available under the Sentencing Act. Cantrell, 346 S.W.3d at 458-59. Put another way,
an offender classification would create an illegal sentence only if the trial court classified a
defendant in a category for which it did “not have the authority or the jurisdiction to classify
a defendant.” Id. at 458. Otherwise, “[c]orrection of an alleged error in offender
classification must be sought on direct appeal.” Id.; see also Tenn. Code Ann. § 40-35-
108(d) (authorizing direct appellate review of a defendant’s classification as a career
offender).

       Even if the Appellant’s allegations about his offender classification were taken as true,
they would not present a colorable claim that his sentence for the 2003 aggravated robbery
conviction was illegal. Any error in the sentencing court’s classification of the Appellant as
a career offender should have been raised on direct appeal. The same reasoning also applies
to the Appellant’s argument that his sentence was illegal because he was denied his right to
“allocution” at the sentencing hearing. Failure to allow a defendant to speak on his own
behalf at sentencing is an issue that should be raised on direct appeal and would not create
a sentence that is not authorized by the applicable statutes or that directly contravenes an
applicable statute. See William W. Osepczuk v. Ricky J. Bell, Warden, No. M2006-00131-
CCA-R3-HC, 2007 WL 49552, at *3 (Tenn. Crim. App. Jan. 8, 2007) (holding that a

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petitioner’s claim that he was not allowed to speak on his own behalf at sentencing was “not
a recognized claim for habeas corpus relief” that would make the sentence illegal or
otherwise void the judgment of conviction). Accordingly, we affirm the trial court’s
summary denial of the Appellant’s Rule 36.1 motion to correct an illegal sentence.

        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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