                                                                                              01/17/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs December 6, 2016

                STATE OF TENNESSEE v. BYRON J. WALKER

                 Appeal from the Criminal Court for Shelby County
          Nos. 98-01078, 98-01079, 98-01252  James C. Beasley, Jr., Judge


                              No. W2016-00076-CCA-R3-CD
                         _____________________________

The Defendant, Byron J. Walker, entered guilty pleas in 1998 in case numbers 98-01078,
98-01079, and 98-01252 to two counts of possession with the intent to sell cocaine and to
one count of possession of marijuana. Pursuant to the negotiated plea agreement, the
Defendant received concurrent sentences of three years for each possession with the
intent to sell cocaine conviction and sixty days’ confinement for the possession of
marijuana conviction, for an effective three-year sentence. On January 26, 2015, the
Defendant filed a motion pursuant to Tennessee Criminal Procedure Rule 36.1 requesting
that the trial court correct illegal sentences. After an evidentiary hearing, the trial court
denied relief for failure to state a colorable claim. On appeal, the Defendant contends
that (1) the trial court erred by denying relief, (2) the trial court erred in its application of
the habeas corpus statute, (3) the trial court’s application of State v. Brown, 479 S.W.3d
200 (Tenn. 2015), as the basis for denying relief violated procedural due process, and (4)
this court should overturn our supreme court’s holding in Brown. We affirm the
judgment of the trial court.

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

ROBERT H. MONTGOMERY, JR., delivered the opinion of the court, in which NORMA
MCGEE OGLE and ROBERT L. HOLLOWAY, JR., JJ., joined.

Brandi L. Heiden (on appeal) and Shannon Davis (at hearing), Memphis, Tennessee, for
the Appellant, Byron J. Walker.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Kenya Smith,
Assistant District Attorney General, for the Appellee, State of Tennessee.
                                       OPINION

       On January 29, 1998, the grand jury returned an indictment in case number 98-
01079 for possession with the intent to sell cocaine and possession with the intent to
deliver cocaine. On February 3, 1998, the grand jury returned an indictment in case
number 98-01252 for possession with the intent to sell cocaine and possession with the
intent to deliver cocaine. On April 2, 1998, the Defendant entered guilty pleas to
possession with the intent to sell cocaine in both cases and to possession of marijuana in
case number 98-01078. Pursuant to the plea agreement, the sentences were to be served
concurrently.

       On January 26, 2015, the Defendant filed a motion to correct an illegal sentence
pursuant to Tennessee Rule of Criminal Procedure 36.1. The Defendant argued that
concurrent service of his sentences was illegal because Tennessee Rule of Criminal
Procedure 32(c)(3)(C) and Tennessee Code Annotated section 40-20-111(b) required
consecutive service. He alleged that consecutive service of his sentences in case numbers
98-01079 and 98-01252 was required because he committed one of the offenses while he
was released on bail for the other offense. The trial court appointed counsel and held an
evidentiary hearing.

       At the hearing, defense counsel conceded that the Defendant had served the
sentences but argued that Marcus Deangelo Lee, No. W2014-00994-CCA-R3-CO, 2015
WL 2330063 (Tenn. Crim. App. May 13, 2015), perm. app. denied (Tenn. May 9, 2016),
provided a basis for relief pursuant to Rule 36.1. Counsel noted that at the time of the
hearing, Brown was pending before our supreme court. The trial court agreed to hear the
proof and to take the matter under advisement.

       The Defendant testified that after his arrest in case number 98-01252, he was
released on bond and that while he was released, he was charged in case number 98-
01079. The Defendant said that he entered a plea agreement resolving these cases and
that the plea agreement allowed him to serve the sentences concurrently. He denied he
was told that concurrent sentencing was illegal because the offense in case number 98-
01079 was committed while he was released on bond. He said he relied on the
concurrent service term in accepting the plea offer. He said, though, that he would not
have accepted the plea offer had he known concurrent sentencing was illegal and that he
wanted to withdraw his guilty pleas. He agreed that his sentences were fully served by
2000 and that he was serving a sentence in federal prison for an unrelated matter at the
time of the hearing.



                                           -2-
       On cross-examination, the Defendant testified that he was charged in federal court
about seven or eight years after he served his sentences in the present cases. He agreed
that his federal sentence was enhanced based upon his convictions in the present cases
and that he hoped to have his convictions in these cases overturned in an effort to reduce
his federal sentence.

        The Defendant testified that his attorney told him accepting the plea agreement
“was the best thing to do,” that he believed he could have “beat” the charges had he gone
to trial, and that he signed the plea agreement because counsel told him to sign it. He
said he did not sign the plea agreement because it called for concurrent sentences. He
said later, though, that concurrent sentences “had something to do with it, too.”

        The trial court denied relief, relying upon Brown and State v. Wooden, 478 S.W.3d
585 (Tenn. 2015), after finding that the Defendant’s sentences had expired. The court
concluded that Tennessee Code Annotated section 29-21-101(b) regarding habeas corpus
relief did not allow a defendant to attack an illegal sentence when it was the received as a
result of a negotiated plea agreement. This appeal followed.

       On appeal, the Defendant contends that the trial court erred by denying relief
because he stated a colorable claim for relief, that the trial court erred in its application of
the habeas corpus statute, that the trial court’s application of Brown violated procedural
due process, and that this court should overturn our supreme court’s holding in Brown.

       Tennessee Criminal Procedure Rule 36.1 states, in relevant 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.

A defendant is entitled to a hearing and the appointment of counsel if the motion states a
colorable claim for relief. Tenn. R. Crim. P. 36.1(b). Further, the trial court is required
to file an order denying the motion if it determines that the sentence is not illegal. Id. at
36.1(c)(1).

       Whether a defendant states a colorable claim is a question of law and is reviewed
de novo. State v. Wooden, 478 S.W.3d 585, 588 (Tenn. 2015). A colorable claim 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.” Id. at 593. A
motion filed pursuant to Rule 36.1 “must state with particularity the factual allegations on
                                              -3-
which the claim for relief from an illegal sentence is based.” Id. at 594. A trial court
“may consult the record of the proceeding from which the allegedly illegal sentence
emanated” when determining whether a motion states a colorable claim for relief. Id.

       Only fatal errors result in an illegal sentence and “are so profound as to render the
sentence illegal and void.” Id. at 595; see State v. Cantrell, 346 S.W.2d 445, 452 (Tenn.
2011). Fatal errors include sentences imposed pursuant to an inapplicable statutory
scheme, sentences that designate release eligibility dates when early release is prohibited,
sentences that are ordered to be served concurrently when consecutive service is required,
and sentences that are not authorized by statute. Wooden, 478 S.W.3d at 595. Errors
which are merely appealable, however, do not render a sentence illegal and include
“those errors for which the Sentencing Act specially provides a right of direct appeal.”
Id.; see Cantrell, 346 S.W.2d at 449. Appealable errors are “claims akin to . . .
challenge[s] to the sufficiency of the evidence supporting a conviction” and “involve
attacks on the correctness of the methodology by which a trial court imposed sentence.”
Wooden, 478 S.W.3d at 595; see Cantrell, 346 S.W.2d at 450-52.

        Resolution of the Defendant’s appeal is controlled by the recent opinion of our
supreme court in State v. Brown, 479 S.W.3d 200, 209-11 (2015). The Brown court said
that Rule 36.1 did not extend to the correction of illegal sentences which have expired.
Id. The record reflects that the Defendant conceded at the evidentiary hearing that his
sentences had long since expired and that he had completed the service of his sentences
in 2000, approximately fifteen years before he filed his motion for the correction of an
illegal sentence. Although the Defendant relies upon the principle that a sentence that is
void ab initio cannot expire because it never existed, our supreme court’s treatment of
expired sentences in Brown forecloses the Defendant’s reasoning. See Brown, 479
S.W.3d at 210-11. Brown overruled all previous opinions extending Rule 36.1 to expired
sentences. Therefore, the trial court properly denied relief on the basis that the Defendant
failed to state a colorable claim for relief.

        To the extent that the trial court relied upon Tennessee Code Annotated section
29-21-101(b) in denying the Defendant’s motion to correct an illegal sentence, we note
that this statute applies to defendants seeking a writ of habeas corpus and does not apply
to motions to correct illegal sentences pursuant to Rule 36.1. See T.C.A. § 29-21-
101(b)(1) (2009) (“Persons restrained of their liberty pursuant to a guilty plea and
negotiated sentence are not entitled to the benefits of this writ on any claim that . . . [t]he
petitioner received concurrent sentencing where there was a statutory requirement for
consecutive sentencing.”); see also State v. Sean Blake, No. W2014-00856-CCA-R3-CO,
2015 WL 112801, at *3 (Tenn. Crim. App. Jan. 8, 2015). Furthermore, habeas corpus
relief is not permitted when a sentence has expired. See Summers v. State, 212 S.W.3d
251, 257-58 (Tenn. 2007); Benson v. State, 153 S.W.3d 27, 32 (Tenn. 2004).
                                             -4-
      Relative to the Defendant’s claim that application of Brown violated procedural
due process, he argues the following:

      Appellant waived his sacrosanct right to a trial by a jury of his peers in
      reliance on the fact that his sentence was legal, and it was not. He was
      denied relief . . . not because the court found that his claim lacked merit,
      but because the trial court relied on a recent unconstitutional ruling that
      prevented him from receiving a hearing on the merits of his claim. This
      court should reverse the trial court’s summary dismissal, and remand for
      the trial court to evaluate the merits of Appellant’s claim.

We note that although summary dismissal of the Defendant’s motion would have been
proper because his sentences had expired, the trial court did not summarily dismiss the
Defendant’s motion. The court appointed counsel and held an evidentiary hearing
regarding the Defendant’s claim that concurrent service of his sentences was illegal
because he committed an offense while released on bond. See Tenn. R. Crim. P.
32(c)(3)(C). In any event, the Defendant does not state in his brief how application of
Brown violates procedural due process, but he mentions he continues to suffer collateral
consequences from his guilty pleas.

       The holding in Brown is based upon our supreme court’s interpretation of the
language and the purpose of Rule 36.1. Brown, 479 S.W.3d at 210-12. After reviewing
the language of the Rule, its expressed purpose, and “the jurisprudential background from
which it developed,” the court determined that Rule 36.1 was created “to provide a
mechanism for the defendant or the State to seek to correct an illegal sentence” but that
the Rule was not “intended to expand the scope of relief available on such claims by
permitting the correction of expired illegal sentences.” Id. at 210-11 (emphasis in
original). The court noted that had Rule 36.1 been created to apply to expired illegal
sentences, the language of the Rule would have “clearly express[ed] that intent.” Id. at
211. The court explained that “[w]hen a sentence has expired and the restraint on a
petitioner’s liberty is merely a collateral consequence . . . , habeas corpus is not an
appropriate avenue for relief” and that “[t]his same limitation applies to the scope of
relief available under Rule 36.1.” Id. n.12 (internal citations and quotation marks
omitted).

       We have not overlooked the Defendant’s request for this court to overturn Brown.
However, this court is bound by the precedents established by our supreme court. See
State v. Pendergrass, 795 S.W.2d 150, 155-56 (Tenn. Crim. App. 1989) (stating The
Tennessee Court of Criminal Appeals “is bound by the decisions of our Supreme Court”).
This court

                                           -5-
      does not have the jurisdiction to review the propriety of an order by our
      supreme court. [I]t is a controlling principle that inferior courts must abide
      [by] orders, decrees and precedents of higher courts. The slightest
      deviation from this rigid rule would disrupt and destroy the sanctity of the
      judicial process.

Thompson v. State, 958 S.W.2d 156, 173 (Tenn. Crim. App. 1997); see State v. Irick, 906
S.W.2d 440, 443 (Tenn. 1995).

        In consideration of the foregoing and the record as a whole, the judgment of the
trial court is affirmed.




                                         ____________________________________
                                         ROBERT H. MONTGOMERY, JR., JUDGE




                                           -6-
