        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs November 8, 2016

          STATE OF TENNESSEE v. CANDACE RENEE BENNETT

                Appeal from the Criminal Court for Davidson County
                    No. 2011-D-2978       Seth Norman, Judge


                            No. M2016-00287-CCA-R3-CD


The Defendant, Candace Renee Bennett, pleaded guilty to attempted aggravated child
neglect in exchange for an agreed eight-year sentence. The trial court ordered that the
Defendant serve her sentence on probation and that her sentence run concurrently with a
sentence in another case. The Defendant filed a motion pursuant to Tennessee Rule of
Criminal Procedure 36.1 contending that her sentence was illegal. She asked to withdraw
her guilty plea and have the charges dismissed. The trial court denied her motion. On
appeal, the Defendant contends that her sentence is illegal because it is not authorized by,
and directly contravenes the criminal responsibility statute. After review, we affirm the
trial court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J., and ALAN E. GLENN, J., joined.

Chelsea Nicholson, Nashville, Tennessee, for the appellant, Candace Renee Bennett.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Dan Hamm, Catrin
Novak Miller and Brian Holmgren, Assistant District Attorneys General, for the appellee,
State of Tennessee.

                                        OPINION
                                         I. Facts

       This case arises from injuries sustained by a child placed in a hot bathtub, which
occurred between July 29, 2011, and August 2, 2011. On October 21, 2011, a Davidson
County grand jury indicted the Defendant for one count of aggravated child neglect and
four counts of being an accessory after the fact in aid of Jarico Levon Huey and Suzanne
Ruth Wiley, both of whom were alleged to have committed felonies.

       The Defendant filed a motion to dismiss the indictment. In the motion, the
Defendant’s attorney asserted that there had been a hearing on a motion to reduce bond,
and that the following were undisputed facts:

             At the time of the indictment, the Defendant was on probation for
      unrelated cases in Division II, Criminal Court. A probation violation
      warrant was filed on January 6, 2012. This indictment and case was the
      sole basis for the violation. A hearing was held on February 16, 2012. At
      the hearing the lead detective for this case, Detective John Grubbs, testified.
      The Court made an Order with specific findings of fact regarding the
      violation. . . . Based on the testimony offered at these hearings and specific
      finding of fact made by the Honorable Judge J. Randall Wyatt, Jr., the
      Defendant offers the following undisputed facts in support of this Motion:

             Detective John Grubbs is the lead detective on this case. He is with
      the Youth Services Department with the Metro Nashville Police
      Department. He was assigned to this case to investigate allegations of a
      victim’s burn injuries. He was contacted on August 2, 2011 by Vanderbilt
      Hospital in regards to the victim. He testified that the victim in this case,
      [M.D.]1, who was roughly one year and seven months old at the time, had
      sustained second degree and third degree burns while in the car of her
      mother, Suzanne Wiley, and her mother’s boyfriend, Jarico Huey.
      Detective Grubbs could not say when the injury occurred, but based on his
      investigation, he believed the injury occurred on July 29, 2011. The
      statements of Suzanne Wiley and Jarico Huey indicate that the baby’s
      injuries occurred while she was severely burned in the bathtub. The
      Defendant . . . was not present when this occurred.

             The baby was burned in the bathtub at the mother, Suzanne Wiley’s
      apartment located [in] . . . Nashville, TN . . . where the mother resided with
      the baby. Jarico Huey, the mother’s boyfriend, resided [on] . . . 1st Avenue
      South, Nashville, TN . . . [with] the Defendant . . . and codefendants: Doris
      Buford, Donald Higgins, and Karen Higgins Huey. Doris Buford is Jarico
      Huey’s grandmother. Donald Higgins is Jarico Huey’s brother, and was at
      the time, the Defendant’s boyfriend. Karen Higgins Huey is Jarico Huey’s
      mother. The Defendant was renting a room in this house from Doris

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          It is the policy of this Court to refer to minor victims by their initials only.
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      Buford, which she shared with Donald Higgins. All the persons who
      resided in this house located [on] 1st Avenue South are indicated in Counts
      5-9 for aggravated child neglect and accessory after the fact.

              At some point, the mother, Suzanne Wiley, brought the baby to this
      residence located [on] . . . 1st Avenue South. Detective Grubbs is unsure
      when. At the probation violation hearing, he stated that it could have been
      the next day. Detective Grubbs testified that the Defendant . . . only saw
      this baby once after the baby was burned. He cannot say which day during
      the 5 days of the indictment [the Defendant] saw the baby. In her
      statement, [the Defendant] indicated that she saw the baby once when she
      and her boyfriend, codefendant Donald Higgins, spent the night with Ms.
      Wiley at her apartment where she and the baby lived. Detective Grubbs
      testified that the Defendant told the mother on this occasion to take [the]
      baby to the hospital at least once. Detective Grubbs stated in her statement
      that on this date, she applied ointment and saline solution to the baby’s
      injury.

              Based on this one incident, the Defendant is charged with aggravated
      child neglect and four (4) counts of accessory after the fact. The Defendant
      is not the child’s mother, not the child’s caretaker or baby-sitter, and not the
      child’s relative. The Defendant was not present at the apartment when the
      baby’s injuries were inflicted. On August 2, 2011, when the mother took
      the baby to the hospital, the Defendant was not present.

The State responded to the Defendant’s motion contending that the charges should not be
dismissed.

      The trial court filed an order granting in part and denying in part the Defendant’s
motion. The trial court found:

            Ms. Wiley’s eighteen-month-old daughter was severely burned when
      Mr. Huey placed the child in a hot bath. While visiting Mr. Huey and Ms.
      Wiley, the Defendant observed and helped treat the victim’s wounds. She
      apparently advised the couple to seek medical attention for the child at the
      emergency room and recommended other types of treatment as well. Ms.
      Wiley’s mother eventually convinced her to take the child to the hospital,
      where the child was treated for second and third degree burns.

            The Defendant . . . argues that the State must first show that the
      Defendant owed a legal duty to the Victim in order to prove neglect. . . .
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      The State counters that the [law upon which the Defendant relies to support
      her contention] was misapplied and should therefore not control. Initially,
      it should be noted that the statutory provisions for the offense of child
      neglect include neither a definition for the term nor is there any mention of
      what particular degree of relationship must exist between the victim and the
      defendant before a duty arises.

             ....

              In the opinion of the Court, it appears . . . [a] jury may conclude that
      a relationship existed between the Defendant [who was a nurse’s assistant
      by trade] and the Victim wherein the former owed a duty to protect and
      care for the former. Therefore, the Defendant’s Motion to Dismiss is
      respectfully denied with regard to the charge of aggravated child neglect.

        The trial court went on to dismiss the charges against the Defendant of accessory
after the fact. It stated:

             The Defendant did not provide Mr. Huey and Ms. Wiley any aid in
      avoiding arrest, trial, conviction or punishment. Rather, since she was a
      nurse’s assistant by trade, her help was requested in administering
      treatment for the victim’s wounds. The indictment does not contend that
      the Defendant harbored, concealed or warned the principal of impending
      apprehension or discovery.

             Considering the aforementioned undisputed facts, in conjunction
      with the pertinent statutory provisions, the Court is of the opinion that the
      indictment on counts five through nine in this matter need not be
      determined by a jury. Therefore, the Defendant’s Motion to Dismiss is
      hereby granted with respect to counts six through nine.

       On September 12, 2012, after the trial court’s ruling on the Defendant’s motion to
dismiss, the Defendant entered a plea of guilty to the lesser-included offense of attempted
aggravated child neglect in exchange for a sentence of eight years, to be served at 45%.
The parties agreed to allow the trial court to determine the manner of service of the
sentence and the extent to which it ran concurrently with or consecutively to another case
in which she had been convicted and sentenced. The trial court’s judgment, entered
September 19, 2012, reflects that the trial court sentenced the Defendant to eight years of
probation. The judgment does not reference the Defendant’s other sentence.


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       The Defendant’s boyfriend at the time, Mr. Higgins, proceeded to trial on his
charges. A jury convicted him of aggravated neglect. Mr. Higgins appealed, and, on July
27, 2015, this Court held that the evidence presented by the State was insufficient to
sustain Mr. Higgins’s conviction. We concluded that there was no relationship between
Mr. Higgins and the victim that gave rise to a legal duty to seek medical treatment for the
victim. State v. Donald W. Higgins, III, No. M2014-01171-R3-CD, 2015 WL 4515122,
at *5 (Tenn. Crim. App., at Nashville, July 27, 2015), no Tenn. R. App. P. 11 application
filed.

       On October 12, 2015, the Defendant filed a motion to correct an illegal sentence
pursuant to Tennessee Rule of Criminal Procedure 36.1(a). The Defendant contended
that her sentence was illegal based upon this Court’s ruling in Higgins. She asserted that,
because Mr. Higgins had no legal duty to the victim she also had no legal duty to the
victim, and she never should have been indicted. This, she asserted, resulted in her
sentence being illegal and in contravention to statute. The Defendant asked the trial court
to allow her to withdraw her plea.

       The State responded that Tennessee Rule of Criminal Procedure 36.1 did not apply
to this sentence and that the Defendant had not presented a colorable claim that her
sentence was illegal. The State asserted that the Defendant was raising the sufficiency of
the evidence supporting her conviction, which was not a proper ground for a Rule 36.1
claim.

       On January 28, 2016, the trial court issued an order denying the Defendant’s Rule
36.1 motion. The trial court noted that four of the Defendant’s five co-defendants had
pleaded guilty and that only Mr. Higgins had proceeded to trial, where a jury convicted
him. The trial court acknowledged that this Court had found that there was insufficient
evidence to sustain Mr. Higgins’s conviction and that, based upon this, the Defendant had
asserted that there was no legal basis upon which her indictment could stand. The trial
court then found:

             Tenn. R. Crim. P. 36.1 permits a party to seek correction of an
      illegal sentence by filing a motion claiming the sentence is either
      unauthorized or contravenes applicable statutes at any time. Thus, similar
      to post-conviction relief, if [a] Petitioner not only makes a colorable claim
      warranting a hearing, but also succeeds on the merits of his claim, all
      charges are reinstated – including any that were dismissed as part of the
      plea negotiations – and the case starts anew with the original charges (not
      the lesser included offenses to which Petitioner pled). The parties may
      reach a different settlement agreement complying with all sentencing
      requirements, the State may dismiss the charges, or, should the State
                                            5
      decline to extend a plea offer or the defendant reject any offers extended,
      the case would proceed to trial on the original charges set forth in the
      indictment.

              Before this Court may grant [the Defendant] a hearing to determine
      if there was an illegal sentencing provision that was material to her plea,
      this Court must determine whether [the Defendant] has met her burden of
      establishing a colorable claim. If the facts were as [the Defendant] stated in
      her petitioner she would nevertheless have failed to meet the burden
      because the sentence is not void. . . .

             [The Defendant] fails to assert a claim that her sentence is illegal.
      [The Defendant] instead asserts that there is no legal basis to her
      conviction. Without reaching any conclusions on [the Defendant’s]
      assertions, this Court must find that Rule 36.1 does not provide a remedy
      even if [the Defendant’s] assertion[s] were correct. The sentence of eight
      years of probation for the charge of attempted aggravated child neglect is a
      legal sentence authorized by [statute].

It is from this judgment that the Defendant now appeals.

                                      II. Analysis

      On appeal, the Defendant contends that her sentence is illegal because, based on
Higgins, the evidence is insufficient to sustain her conviction. The State counters that
Rule 36.1 contemplates only the challenging of an illegal sentence, not an underlying
conviction. We agree with the State.

      Tennessee Rule of Criminal Procedure 36.1 provides in pertinent part that:

      (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
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       written response to the motion, after which the court shall hold a hearing on
       the motion, unless all parties waive the hearing.

Tenn. R. Crim. P. 36.1(a), (b) (2014).

       A “colorable claim” within the language of Rule 36.1 is defined as “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. Brown, 479 S.W.3d 200, 213 (Tenn.
2015) (citing State v. Wooden, 478 S.W.3d 585, 595-96 (Tenn. 2015)).

        As stated, an “illegal sentence,” as defined by this statute, is one that is “not
authorized by the applicable statutes or that directly contravenes the applicable statute.”
The Defendant does not argue, and we see no basis for concluding, that her sentence is
illegal. Her argument is based upon the fact that she would like this Court to revisit
whether she had a legal duty to the victim, based upon our conclusion in Higgins that her
boyfriend did not have a legal duty to the victim. The Defendant chose to enter a plea of
guilty, and Rule 36.1 does not provide her an avenue for withdrawing that guilty plea.
This is not a proper ground for a Rule 36.1 claim, and she is not entitled to relief.

                                     III. Conclusion

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


                                                 _________________________________
                                                 ROBERT W. WEDEMEYER, JUDGE




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