        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                  Assigned on Briefs August 16, 2016 at Knoxville

            STATE OF TENNESSEE v. JAMES RAY BARTLETT

                Appeal from the Circuit Court for Lincoln County
       Nos. 009-89, 285-90, 286-90, S0800007  Forest A. Durand, Jr., Judge


               No. M2016-00217-CCA-R3-CD – Filed August 26, 2016


The defendant, James Ray Bartlett, appeals the dismissal of his motion, filed pursuant to
Tennessee Rule of Criminal Procedure 36.1, to correct what he believes to be an illegal
sentence. In this appeal, the defendant asserts that the trial court erred by denying his
motion on the grounds that his sentence had expired. Because Rule 36.1 cannot avail the
defendant of meaningful relief, we affirm the judgment of the trial court.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and D. KELLY THOMAS, JR., JJ., joined.

M. Wesley Hall, IV, Unionville, Tennessee, for the appellant, James Ray Bartlett.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; Robert J. Carter, District Attorney General; and Ann L. Filer, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

               This case has quite a convoluted history. It appears that the defendant, in
1989, pleaded guilty in case number 009-89 to aggravated assault in Lincoln County in
exchange for a two-year sentence. At some point, the defendant was placed on probation,
and in 1990, the defendant was extradited from Alabama to Lincoln County for, inter
alia, violating his probation in case number 009-89. The defendant escaped from custody
in June of 1990. On November 2, 1990, the defendant pleaded guilty to two counts of
aggravated burglary in Moore County in case numbers 717-90 and 718-90 and received
concurrent four-year sentences. Two weeks later, the defendant pleaded guilty to four
counts of felony theft in Lincoln County in case numbers 283-90, 284-90, 285-90, and
286-90. The defendant was sentenced to four years‟ incarceration on each of the four
convictions, to be served consecutively to one another and to the four-year sentence in
Moore County and to be served concurrently to the two-year sentence in case number 09-
89, for an effective sentence of 20 years. At some point thereafter, the defendant was
convicted in Lincoln County in case number S0800007 of five counts of aggravated
burglary, four counts of felony theft, one count of felony vandalism, one count of
misdemeanor theft, and one count of misdemeanor vandalism. On October 21, 2008, the
defendant received an effective sentence of 30 years‟ incarceration as a Range III,
persistent offender.

               On July 13, 2015, the defendant challenged, via Tennessee Rule of
Criminal Procedure 36.1, the concurrent alignment of his sentence in case number 009-89
with his sentences in cases 283-90 through 286-90. The defendant posited that, because
the felony thefts were committed during the time period in which he had escaped
custody, his sentences for those crimes must be served consecutively by law and that the
agreement to run the sentences concurrently with the sentence in case 009-89 resulted in
an illegal sentence. The defendant sought to vacate the 1990 plea agreement and amend
the plea agreement in case number S0800007 because the sentence in that case had been
improperly enhanced by the 1990 convictions.

              The trial court conducted a hearing on November 17, 2015, and shortly
thereafter issued a written order denying the defendant‟s motion, concluding that the
defendant‟s 1990 sentences had expired and thus were not justiciable under Rule 36.1.

              In this appeal, the defendant reiterates his claim of entitlement to Rule 36.1
relief on grounds that his 1990 sentences were illegal due to concurrent alignment and
that his 2008 sentence was thus illegal due to improper enhancement.

               Rule 36.1 provides the defendant and the State an avenue to “seek the
correction of an illegal sentence,” defined as a sentence “that is not authorized by the
applicable statutes or that directly contravenes an applicable statute.” Tenn. R. Crim. P.
36.1; see also State v. Wooden, 478 S.W.3d 585, 594-95 (Tenn. 2015) (holding that “the
definition of „illegal sentence‟ in Rule 36.1 is coextensive with, and not broader than, the
definition of the term in the habeas corpus context”). To avoid summary denial of an
illegal sentence claim brought under Rule 36.1, a defendant must “state with particularity
the factual allegations,” Wooden, 478 S.W.3d at 594, establishing “a colorable claim that
the sentence is illegal,” Tenn. R. Crim. P. 36.1(b). “[F]or purposes of Rule 36.1 . . .
„colorable claim‟ means 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.” Wooden,
478 S.W.3d at 593. The determination whether a Rule 36.1 “motion states a colorable
claim for correction of an illegal sentence under Rule 36.1 is a question of law, to which

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de novo review applies.” Id. at 589 (citing Summers v. State, 212 S.W.3d 251, 255
(Tenn. 2007)).

               Recently, our supreme court addressed the issue of whether Rule 36.1 relief
extends to the correction of expired illegal sentences. State v. Brown, 479 S.W.3d 200,
205 (Tenn. 2015). The high court held that Rule 36.1 “does not expand the scope of
relief and does not authorize the correction of expired illegal sentences” and, accordingly,
“a Rule 36.1 motion may be summarily dismissed for failure to state a colorable claim if
the alleged illegal sentence had expired.” Id. at 211.

              In the instant case, the trial court determined, and the defendant agreed, that
the defendant‟s sentence had fully expired by the time he filed his Rule 36.1 motion. The
record before us appears to support the finding that the defendant‟s sentence had expired,
but because the defendant was clearly out of prison for some period of time in order to
commit the crimes for which he was convicted in 2008 and because the record does not
indicate the length of that time period, we cannot say with certainty that the record
supports a finding that the 20-year effective sentence had expired. In any event, the onus
was on the defendant to show that his sentence had not yet expired. See generally
Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994); see also State v.
Ballard, 855 S.W.2d 557, 560 (Tenn. 1993) (holding that appellant bears the burden of
preparing adequate record on appeal). Finally, the defendant‟s claim that his sentence in
case number S0800007 had been improperly enhanced by the allegedly illegal 1990
sentence is not a cognizable claim for relief under Rule 36.1.

              Accordingly, we affirm the judgment of the trial court.

                                                    _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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