        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE

                  STATE OF TENNESSEE v. JIMMY HEARD

               Appeal from the Circuit Court for Rutherford County
                       No. F-58542A    Royce Taylor, Judge


              No. M2016-00622-CCA-R3-CD – Filed January 11, 2017
                        _____________________________

The Appellant, Jimmy Heard, is appealing the trial court’s denial of his motion to correct
an illegal sentence filed pursuant to Rules of Criminal Procedure Rule 36.1 The State has
filed a motion asking this Court to affirm pursuant to Court of Criminal Appeals Rule 20.
Said motion is hereby granted.

Tenn. R. App. P. 3 Appeal as of Right; Order of the Trial Court Affirmed Pursuant
                      to Court of Criminal Appeals Rule 20

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J., and ROBERT W. WEDEMEYER, J., joined.

Jimmy Heard, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Sophia Lee, Senior Counsel, for
the Appellee, State of Tennessee.


                             MEMORANDUM OPINION


       In 2007, the Appellant was convicted, among other crimes, of evading arrest, a
Class D felony. State v. Jimmy Lee Heard, No. M2010-01030-CCA-R3-CD, 2012 WL
976188 (Tenn. Crim. App., Mar. 5, 2012), perm to app. denied, (Tenn., Aug. 15, 2012).
He was sentenced as a Range II, multiple offender, and received a six-year sentence for
the evading arrest conviction, which was ordered to run consecutively to other sentences
imposed in the case. 2012 WL 976188 at *8. The original judgment sheet for that
offense was signed by the trial judge on April 2, 2007, but stamped “filed” by the clerk
on April 1, 2007. The original judgment reflected that the evading arrest conviction was
a Class E felony. On April 24, 2007, an amended judgment was filed on the evading
arrest offense to reflect that the conviction was for a Class D felony. See Tenn. Code
Ann. § 39-16-603(b)(3). The Appellant appealed his convictions and sentences, and this
Court upheld the judgments of the trial court. 2012 WL 976188 at *9.

        In February 2016, the Appellant filed a motion challenging the legality of his
sentence for evading arrest. See Tenn. R. Crim. P. 36.1. The Appellant argued that his
sentence for that offense is illegal because the trial court entered an amended judgment
without his presence, because the original judgment was stamped “filed” by the trial court
clerk on a Sunday, and because the sentencing judge should have recused himself. The
trial court summarily denied the motion. The Appellant has appealed. Following the
filing of the record and the Appellant’s brief, the State filed a motion to affirm the ruling
of the trial court pursuant to Rule 20. For the reasons stated below, said motion is hereby
granted.

       Rule 36.1 permits a defendant to seek correction of an unexpired illegal sentence
at any time. See State v. Brown, 479 S.W.3d 200, 211 (Tenn. 2015). “[A]n illegal
sentence is one that is not authorized by the applicable statutes or that directly
contravenes an applicable statute.” Tenn. R. Crim. P. 36.1(a). Our supreme court
recently interpreted the meaning of “illegal sentence” as defined in Rule 36.1 and
concluded that the definition “is coextensive, and not broader than, the definition of the
term in the habeas corpus context.” State v. Wooden, 478 S.W.3d 585, 594-95 (Tenn.
2015). The court then reviewed the three categories of sentencing errors: clerical errors
(those arising from a clerical mistake in the judgment sheet), appealable errors (those for
which the Sentencing Act specifically provides a right of direct appeal) and fatal errors
(those so profound as to render a sentence illegal and void). Id. Commenting on
appealable errors, the court stated that those “generally involve attacks on the correctness
of the methodology by which a trial court imposed sentence.” Id. In contrast, fatal errors
include “sentences imposed pursuant to an inapplicable statutory scheme, sentences
designating release eligibility dates where early release is statutorily prohibited, sentences
that are ordered to be served concurrently where statutorily required to be served
consecutively, and sentences not authorized by any statute for the offenses.” Id. The
court held that only fatal errors render sentences illegal. Id.

        As noted above, this Court affirmed the Appellant’s six-year sentence for evading
arrest, a Class D felony. The Court also upheld the trial judge’s decision regarding
recusal. 2012 WL 976188 at *6. Any challenge the Appellant had to the entry of the
amended judgment reflecting the change from a Class E to a Class D felony should have
been pursued on direct appeal. See Tenn. R. Crim. P. 36. Moreover, the error alleged by
the Appellant regarding the clerk’s filing of the judgment sheet is of a clerical nature and
does not render his sentence for evading arrest illegal. Clearly, the six-year sentence he
received for evading arrest, a Class D felony, is within the applicable range of four to
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eight years authorized by statute for a Range II offender. See Tenn. Code Ann. § 40-35-
112(b)(1).

       Accordingly, the ruling of the trial court is hereby affirmed pursuant to Court of
Criminal Appeals Rule 20. The matter is remanded to the trial court solely for the
purpose of correcting the amended judgment on the evading arrest conviction to reflect
the appropriate sentence imposition date of March 19, 2007.



                                               _________________________________
                                               ROBERT L. HOLLOWAY, JR., JUDGE




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