        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs April 14, 2015

               STATE OF TENNESSEE v. TORRIE D. CARTER

                  Appeal from the Circuit Court for Carroll County
                       No. 11CR12      Donald Parish, Judge


                 No. W2014-02081-CCA-R3-CD - Filed June 1, 2015


The defendant, Torrie D. Carter, appeals the summary dismissal of his motion filed
pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure to correct an illegal
sentence. Discerning no error, we affirm the summary dismissal of his motion.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and NORMA MCGEE OGLE, J., joined.

Torrie D. Carter, Whiteville, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Tracy L. Alcock, Assistant
Attorney General; Hansel J. McAdams, District Attorney General; and R. Adam Jowers,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

               On October 11, 2011, the defendant pleaded guilty to one count of
possession of cocaine base and one count of possession of marijuana in exchange for a
total effective sentence of 12 years to be served consecutively to his prior unserved
sentence. On August 8, 2014, the defendant moved the court, pursuant to Tennessee Rule
of Criminal Procedure 36.1, to correct what he believed to be an illegal sentence, set
aside the fines and costs imposed for the convictions, and vacate his guilty pleas. In his
motion, the defendant alleged that his guilty pleas were not knowingly and voluntarily
entered because he did not understand that a $2,000 fine would be imposed for each of
his convictions. He also alleged that the State failed to establish that he actually
possessed any drugs and that his trial counsel was ineffective for “failing to ensure his
client plea agreement was according to law.”
               The State filed a motion to dismiss, arguing that the defendant’s claims did
not fall under the purview of Rule 36.1 and would more properly be addressed via either
a petition for post-conviction relief or a motion to withdraw the guilty plea pursuant to
Tennessee Rule of Criminal Procedure 32(f). The State noted that the defendant’s
motion, if treated as either a petition for post-conviction relief or a motion to withdraw
the guilty plea, was untimely.

               The trial court granted the State’s motion to dismiss, finding that the
defendant’s claims “which sound in the nature of post-conviction relief” and those
“which sound in the nature of vacating or withdrawing his previous guilty pleas” were
time barred. The court noted that the defendant had cited no other basis for relief. The
defendant appeals the dismissal of his motion, claiming that he is entitled to withdraw his
pleas of guilty because they were not knowingly and intelligently entered.

              Prior to July 1, 2013, a properly-filed petition for writ of habeas corpus was
the sole mechanism for pursuing an illegal sentence claim. See Moody v. State, 160
S.W.3d 512, 516 (Tenn. 2005) (“[T]he proper procedure for challenging an illegal
sentence at the trial level is through a petition for writ of habeas corpus, the grant or
denial of which can then be appealed under the Rules of Appellate Procedure.”). Our
supreme court then created new Rule 36.1, which became effective on July 1, 2013, and
which provides:

                      (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.


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                    (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 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.

                   (d) Upon the filing of an amended uniform judgment
             document or order otherwise disposing of a motion filed
             pursuant to this rule, the defendant or the state may initiate an
             appeal as of right pursuant to Rule 3, Tennessee Rules of
             Appellate Procedure.

Tenn. R. Crim. P. 36.1.

            Rule 36.1 is not a panacea. To avoid summary denial of an illegal sentence
claim brought under Rule 36.1, a defendant must “state[] a colorable claim that the
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sentence is illegal.” Tenn. R. Crim. P. 36.1(b). Unfortunately for the defendant, he failed
to state any claim of sentence illegality. Instead, he presents claims of involuntary guilty
pleas and ineffective assistance of counsel, claims which can only be addressed via a
timely-filed petition for post-conviction relief.

                Treating the defendant’s pro se filing as a petition for post-conviction relief
avails him nothing given that it was filed nearly three years after his judgments became
final. “[A] person in custody . . . must petition for post-conviction relief . . . within one
(1) year of the date of the final action of the highest state appellate court to which an
appeal is taken.” T.C.A. § 40-30-102(a) (2006). “If it plainly appears from the face of
the petition, . . . that the petition was not filed . . . within the time set forth in the statute
of limitations, . . . the judge shall enter an order dismissing the petition. The order shall
state the reason for the dismissal and the facts requiring dismissal.” Id. § 40-30-106(b).
The statute of limitations for filing a post-conviction petition is jurisdictional. See id. §
40-30-102(b) (“No court shall have jurisdiction to consider a petition filed after the
expiration of the limitations period unless [certain statutory prerequisites are met].”).

              Similarly, treating the pleading as a Rule 32(f) motion to withdraw his
guilty pleas would not avail the defendant of the relief he desires because such a motion
must be filed “before the judgment becomes final.” Tenn. R. Crim. P. 32(f). The
defendant filed his pleading nearly three years after his judgment became final.

              Because the defendant failed to state a colorable claim for relief pursuant to
Tennessee Rule of Criminal Procedure 36.1 and because the petition, when treated as
either a petition for post-conviction relief or a motion to withdraw a guilty plea, is
untimely, the trial court did not err by summarily dismissing the petition. Accordingly,
the judgment of the trial court is affirmed.

                                                     _________________________________
                                                     JAMES CURWOOD WITT, JR., JUDGE




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