        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs July 7, 2015

               STATE OF TENNESSEE v. JASON MARTINDILL

                  Appeal from the Circuit Court for Chester County
                        No. 07432    Donald H. Allen, Judge


               No. W2015-00207-CCA-R3-CD - Filed October 30, 2015
                         _____________________________

Defendant, Jason Martindill, appeals from the trial court’s summary dismissal of his
motion filed pursuant to Tennessee Rule of Criminal Procedure 36.1. Following our
review of the parties’ briefs, the record, and the applicable law, we affirm the trial court’s
dismissal of the motion.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the Court, in which JOHN EVERETT
WILLIAMS and D. KELLY THOMAS, JR., JJ., joined.

Jason Martindill, Henning, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
James G. (Jerry) Woodall, District Attorney General; and Al Earls, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                         OPINION

Procedural history

       On August 28, 2007, Defendant pleaded guilty in the Chester County Circuit
Court to premeditated first degree murder pursuant to a negotiated plea agreement. The
judgment form indicates that Defendant received a life sentence. The record reflects that
in return for his guilty plea, charges of aggravated arson and felony murder were
dismissed, and the State agreed to forego a sentence of life without parole or death.

       Defendant filed a subsequent petition for post-conviction relief alleging that he
received ineffective assistance of counsel and that he did not enter his guilty plea
voluntarily, knowingly, and intelligently. The trial court denied relief, and this court
affirmed the judgment of the trial court. Jason Martindill v. State, No. W2009-01003-
CCA-R3-PC, 2010 WL 2219589, 2010 WL 2219589 (Tenn. Crim. App. May 27, 2010).
Defendant also filed a petition for writ of habeas corpus alleging that his sentence was
void because the trial court lacked jurisdiction and authority to sentence him. The trial
court summarily dismissed the petition for failure to meet the procedural requirements
and failing to set forth any meritorious claims, and this court affirmed the dismissal.
Jason Martindill v. Dwight Barbee, Warden, No. W2012-02624-CCA0R3-CD, 2013 WL
6050748 (Tenn. Crim. App. Nov. 13, 2013).

        On August 4, 2014, Defendant filed a motion pursuant to Tennessee Rule of
Criminal Procedure 36.1 arguing that his sentence was illegal because he received a life
sentence with the possibility of parole as a “bargained for component of his guilty plea.”
He further asserts that “this is not authorized by the applicable statute T.C.A. § 40-35-
501(i)(1)(2) and directly contravenes this applicable statute.” On January 23, 2015, the
trial court summarily denied Defendant’s motion and made the following findings:

        1. Defendant alleges he entered into a guilty plea agreement in Chester
           County Circuit Court No. 07-432 on August 28th, 2007, in which he
           pled guilty to First Degree Premeditated Murder in exchange for a
           recommended sentence of “Life with the possibility of parole,” after
           serving 100% of the Life sentence.

        2. The court record in Chester Co. Circuit Court No. 07-432 reflects a
           plea agreement and sentence whereby the State agreed not to seek the
           death penalty and agreed not to seek “life without the possibility of
           parole” against the defendant in exchange for his pleading guilty and
           agreeing to serve a sentence of “Life” to be served at 100% release
           eligibility status.

        3. The transcript of the guilty plea proceeding, which is part of the court
           record pursuant to a previously filed Post-Conviction Petition which
           was previously heard and denied by the Court, shows that the
           defendant clearly understood that he would be required to serve in
           full “51 calendar years” in state prison custody before he could be
           considered eligible for release, which is a “Life” sentence.

        4. The sentence of “Life” in this case is a legal sentence and is
           authorized by statute as a punishment for First Degree Premeditated
           Murder.


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       5. As such, the Defendant has failed to make a colorable claim under
          which relief may be granted.

Analysis

      In 2012, the Tennessee Supreme Court promulgated and adopted Rule 36.1, which
was ratified and approved by the Tennessee General Assembly by House Resolution 33
and Senate Resolution 11 and became effective on July 1, 2013. Compiler’s Notes, Tenn.
R. Crim. P. 36.1. The rule provides, in part:

       (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.

       (2) If the court determines that the sentence is an illegal sentence, the
       court shall then determine whether the illegal sentence was entered
       pursuant to a plea agreement. If not, the court shall enter an amended
       uniform judgment document, see Tenn. Sup. Ct. R. 17, setting forth the
       correct sentence.

       (3) If the illegal sentence was entered pursuant to a plea agreement, the
       court shall determine whether the illegal provision was a material
       component of the plea agreement. If so, the court shall give the
       defendant an opportunity to withdraw his or her plea. If the defendant
       chooses to withdraw his or her plea, the court shall file an order stating
       its finding that the illegal provision was a material component of the plea
       agreement, stating that the defendant withdraws his or her plea, and
       reinstating the original charge against the defendant. If the defendant
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        does not withdraw his or her plea, the court shall enter an amended
        uniform judgment document setting forth the correct sentence.

        (4) If the illegal sentence was entered pursuant to a plea agreement, and
        if the court finds that the illegal provision was not a material component
        of the plea agreement, then the court shall enter an amended uniform
        judgment document setting forth the correct sentence.

Tenn. R. Crim. P. 36.1.

        The legislature also approved a proposed amendment to Tennessee Rule of
Appellate Procedure 3(b) to provide both the State and a defendant with an appeal as of
right from “an order or judgment entered pursuant to Rule 36 or Rule 36.1, Tennessee
Rules of Criminal Procedure.” Therefore, a new appeal as of right was created for
individuals who had received an illegal sentence. Pursuant to Rule 36.1, an appellant
would be entitled to a hearing and appointment of counsel if he stated a colorable claim
for relief. Tenn. R. Crim. P. 36.1(b); see Marcus Deangelo Lee v. State, No. W2013-
01088-CCA-R3-CO, 2014 WL 902450, at *6 (Tenn. Crim. App., Mar. 7, 2014). Because
Rule 36.1 does not define “colorable claim,” this court has adopted the definition of a
colorable claim used in the context of post-conviction proceedings from Tennessee
Supreme Court Rule 28 § 2(H): “A colorable claim is a claim . . . that, if taken as true, in
the light most favorable to the [appellant], would entitle [appellant] to relief. . . .” State v.
Mark Edward Greene, No. M2013-02710-CCA-R3-CD, 2014 WL 3530960, at *3 (Tenn.
Crim. App., July 16, 2014) (quoting Tenn. Sup. Ct. R. 28 § 2(H)).

       As noted above, Defendant on appeal argues that his sentence is illegal because he
received a life sentence with the possibility of parole as a “bargained for component of
his guilty plea.” He further asserts that “this is not authorized by the applicable statute
T.C.A. § 40-35-501(i)(1)(2) and directly contravenes this applicable statute.” We
disagree.

        T.C.A. § 40-35-501(i) provides that there is no release eligibility for a person
convicted of various crimes, including first degree murder, except for a possible
reduction of no more than fifteen percent of the sentence for earned and retained sentence
credits. See T.C.A. § 40-35-501(i)(1)-(2). The portions of the guilty plea acceptance
form and transcript of the guilty plea submission hearing included in the record indicate
that Defendant was to receive a sentence of life with the possibility of parole. However,
during the hearing, the trial court stated: “The current law is 51 years. That’s what life
with parole sentence carries. Of course, your release eligibility status is 100 percent
which means you would have to serve this sentence - - you would have to serve this
entire sentence.”
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        We agree with the State that Defendant has not presented a colorable claim for
relief. In Christopher A. Williams v. State, No. W2013-00555-CCA-R3-HC, 2013 WL
5493568 (Tenn. Crim. App. Sept. 30, 2013) this court held:

        [a]lthough 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 15 percent, or nine years,” see [Kermit Penley v.
        State], No. E2003-00129-CCA-R3-PC, [2004 WL 2439287, at *3]
        (Tenn. Crim. App., Knoxville, Nov. 1, 2004), use of the term would not
        render the petitioner’s judgment void.

Id. at *2. The judgment form in Defendant’s case indicates that he received a sentence of
“Life” which is a proper sentence for first degree murder. Therefore, Defendant’s
sentence is not illegal, and he is not entitled to relief.

      The judgment of the trial court is affirmed.

                                   ____________________________________________
                                   THOMAS T. WOODALL, PRESIDING JUDGE




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