        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                   Assigned on Briefs May 18, 2016 at Knoxville

                 STATE OF TENNESSEE v. MARCUS O. HILL

                  Appeal from the Circuit Court for Maury County
                   Nos. 21549 & 22113 Robert L. Jones, Judge



                 No. M2015-02308-CCA-R3-CD – Filed June 9, 2016


The Appellant, Marcus O. Hill, appeals as of right from the Maury County Circuit
Court’s summary dismissal of his several motions, wherein he alleged that he was falsely
imprisoned due to the improper restructuring of his plea agreement by the Tennessee
Department of Correction (“TDOC”). The gravamen of the Appellant’s complaint is
with the TDOC’s alignment of his sentences in violation of the terms of his plea
agreement. After a review of the record, we affirm.

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

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

Marcus O. Hill, Columbia, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter, and Nicholas W. Spangler,
Assistant Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                              FACTUAL BACKGROUND

        On December 3, 2012, the Appellant was charged, in Case Number 22113, with
four Class D felonies—three counts of selling one-half ounce or more of marijuana
within a drug-free school zone and one count of possession of one-half ounce or more of
marijuana with the intent to sell in a drug-free school zone. See Tenn. Code Ann. §§ 39-
17-417, -432. The judgment forms reflected that, on July 24, 2014, the Appellant pled
guilty to one Class D felony (Count 1) and to three Class E felonies (Counts 2, 3, and 4).
The judgment form for Count 1 provided that the Range I, three-year sentence imposed
for that count was to be served consecutively to Count 1 in Case Number 21549 (no
sentence length is provided for Count 1 in Case Number 21549).1 The drug-free school
zone box was also checked and service was ordered at 100%. Range II, three-year
sentences at 35% were imposed for Counts 2 through 4. Count 2 was ordered to be
served consecutively to Count 1; Count 3 consecutively to Count 2; and Count 4
concurrently with Count 3. In the special conditions section of the Count 1 judgment
form, it was stated, “Total sentence is 12 years; 3 years at 100%; then 9 years at Range
II.”

      On September 18, 2015, the Appellant filed a “Motion to Follow Court Order.”
Therein he stated the following:

                On July 24, 2014[,] I plead[ed] guilty to six separate counts of Sale
        of [a] Schedule VI controlled substance, and received a sentence of three
        years for each count, several of which are to be served concurrently to each
        other while others are to be served consecutively, but the effective total
        sentence is summarized in a hand-written note on my judgment statin[g]
        that [the] total sentence is 12 years; 3 years at 100% due to drug free zone;
        then 9 years at Range II. I ask that the courts order TDOC to go by the
        special conditions of the judgment and make me due [sic] the 3 years at
        100% first.

On September 21, 2015, the Appellant filed a “Motion for Contempt of Courts,” seeking
to hold the TDOC in contempt of court for “not following the hand-written agreement of
the judgment,” and noting that the TDOC was “also in breach of the contract that was
filed July 24, 2014.” Thereafter, the Appellant filed a “Motion to Overturn Sentence” on
October 8, 2014, asserting that the “TDOC is not going by the . . . hand-written note on
the judg[ment] which make[s] it a[n] illegal agreement.” The Appellant filed two more
motions in October, making the same arguments—that he is falsely imprisoned, that his
sentence is illegal, and that the TDOC is in contempt of court and breach of contract.2

       Attached to one of these motions appears to be an excerpted page from a guilty
plea petition. In addition to the same information contained in the judgment forms for
Case Number 22113, this page provides that the Appellant received concurrent Range II,

1
  No judgment forms for Case Number 21549 are included in the technical record.
2
  The Appellant has also included a copy of an order from the United States District Court, asserting that
the district judge stated therein that the “TDOC is in co[n]tempt by not going by the hand-written note”
on the judgment form and that the Tennessee courts will be held in contempt if they allow the TDOC’s
actions to continue. However, the order states no such thing. It merely references the agreement as
outlined by the Appellant in his civil rights complaint and relays the information as stated in the plea
agreement and judgment form for Count 1 of Case Number 22113. The Appellant has grossly
mischaracterized the district court’s order.
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three-year sentences for “Sale of Schedule VI controlled substance [greater than] .5
[ounces]” in Counts 1 and 2 of Case Number 21549. A hand-written notation can be seen
at the bottom of the page: “Total sentence is 12 years; 3 years at 100% due to drug free
zone; then 9 years at Range II.”

       The trial court filed an order “denying all pending motions” on November 9, 2015.
The court concluded that the Appellant had not established that his sentences were illegal
or that he had been “adversely affected by TDOC’s calculation and structure of his
sentences[,]” reasoning as follows:

              Because the offenses in Case No. 21549 were committed first, and
       the offenses in Case No. 22113 were apparently committed while [the
       Appellant] was out on bond in Case No. 21549, TDOC contends that the 3-
       year sentence in Case No. 21549 must be served first. The [c]ourt has been
       informed by the Director of Sentence Management Services that the 100%
       3-year sentence in Case No. 22113 is beginning at the expiration of the first
       3 years in 21549, which is currently February 27, 2016. However, with jail
       credits applied, the sentence effective date on the 100% 3-year sentence
       will be October 2, 2015. The 100% 3-year sentence will end on October 2,
       2018, at which time [the Appellant] will then begin serving the remaining 6
       years in Case No. 22113.

It is from this ruling that the Appellant appeals.

                                     ANALYSIS

        On appeal, the Appellant contends that the trial court erred in summarily denying
his motions and allowing the TDOC “to restructure the agreement by their policy.”
Specifically, he requests that we reverse the trial court’s ruling that the TDOC has “the
right to restructure the agreement” and order that he “has the right to a state habeas
corpus.” The State responds that the Appellant’s claims do not present any illegality or
set forth a cognizable ground for relief under Tennessee Rule of Criminal Procedure 36.1
and that we should, therefore, affirm.

       Historically, “two distinct procedural avenues [were] available to collaterally
attack a final judgment in a criminal case—habeas corpus and post-conviction petitions.”
Hickman v. State, 153 S.W.3d 16, 19 (Tenn. 2004); see also State v. Donald Terrell, No.
W2014-00340-CCA-R3-CO, 2014 WL 6883706, at *2 (Tenn. Crim. App. Dec. 8, 2014).
However, effective July 1, 2013, the Tennessee Rules of Criminal Procedure were
amended by the addition of Rule 36.1, which provides as follows:


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       (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.

        Rule 36.1 provides that either the defendant or the state may “seek the correction
of an illegal sentence.” Tenn. R. Crim. P. 36.1(a). An illegal sentence is defined as “one
that is not authorized by the applicable statutes or that directly contravenes an applicable
statute.” Tenn. R. Crim. P. 36.1(a). “[A] sentence ordered to be served concurrently
where statutorily required to be served consecutively” is an illegal sentence. Davis v.
State, 313 S.W.3d 751, 759 (Tenn. 2010). Rule 36.1 provides for appointment of counsel
for indigent defendants and a hearing if the motion “states a colorable claim.” Tenn. R.
Crim. P. 36.1(b). A colorable claim is “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. Wooden, 478 S.W.3d 585, 593 (Tenn. 2015). “[W]hen determining
whether a Rule 36.1 motion sufficiently states a colorable claim, a trial court may consult
the record of the proceeding from which the allegedly illegal sentence emanated.” Id. at
594.

       The Appellant does not claim that the judgment forms do not accurately portray
the agreed-upon sentence or that the sentences imposed were not authorized by statute.
Rather, the crux of the Appellant’s complaint involves how the TDOC is structuring his
various sentences, contending that the TDOC is contravening the sentence alignment
provided for in his plea agreement and stated in the special conditions section of the
Count 1 judgment form for Case Number 22113. However, the Count 1 judgment form
in Case Number 22113 states that the three-year sentence imposed for that count is to be
served consecutively to the sentence imposed in Count 1 of Case Number 21549, which
is evidently the order of service instituted by the TDOC. The length of the sentence
imposed in Count 1 of Case Number 21549 is not mentioned therein. We agree with the
State that the Appellant’s claim does not present a ground for relief under Rule 36.1. See
State v. Thomas Paul Gagne, Jr., No. E2015-00502-CCA-R3-CD, 2015 WL 5121399, at
*2 (Tenn. Crim. App. Aug. 31, 2015) (“To the extent that the petitioner seeks to

                                            -4-
challenge the manner in which the [TDOC] has implemented the judgments in his case, a
motion pursuant to Rule 36.1 is not the appropriate vehicle for such a claim.”), perm. app.
denied (Tenn. Jan. 21, 2016). Additionally, there is no entitlement to the correction of a
clerical error in his judgments. See Tenn. R. Crim. P. 36; see also Brandon Neal v. State,
No. E2012-01563-CCA-R3-PC, 2013 WL 358178, at *3 (Tenn. Crim. App. Jan. 30,
2103) (“[T]he Petitioner’s complaint stems from actions taken by TDOC, not from
actions taken by the trial court in filling out the judgment orders.”).

       The Appellant also requests habeas corpus relief. Even if we were to construe the
Appellant’s motions as a petition for a writ of habeas corpus, and ignore any procedural
deficiencies for filing said petition, TDOC’s actions neither render the Appellant’s
judgments void nor do they render illegal the sentences imposed by the trial court. See
Neal, 2013 WL 358178, at *3. The Appellant is not entitled to habeas corpus relief on
this basis.

       Furthermore, any petition for post-conviction relief would be time-barred. See
Tenn. Code Ann. § 40-30-102(a) (providing for a one-year statute of limitations).
Moreover, TDOC’s actions do not render the Petitioner’s guilty pleas constitutionally
infirm. See Neal, 2013 WL 358178, at *2. Actions taken by TDOC regarding a
defendant’s sentence calculation do not form a basis for a claim under the Post-
Conviction Procedure Act. See Rendell Corey Jones v. James T. Fortner, Warden, No.
E2009-00233-CCA-R3-HC, 2009 WL 3364354, at *3 (Tenn. Crim. App. Oct. 20, 2009)
(holding that complaints of improper sentence calculation do not fall within the purview
of the Post-Conviction Procedure Act). Rather, the Appellant’s proper avenue of relief, if
any is due him, is under the Uniform Administrative Procedures Act (“UAPA”). See
Tenn. Code Ann. §§ 4-5-101 to -325; see also Stewart v. Schofield, 368 S.W.3d 457, 459
(Tenn. 2012) (“We clarify that the UAPA governs an inmate’s challenge to the TDOC
calculation of a release eligibility date.”); Tucker v. Morrow, 335 S.W.3d 116, 122
(Tenn. Crim. App. 2009) (“[C]laims relative to the calculation of sentencing credits and
parole dates must be reviewed pursuant to the [UAPA] rather than via a petition for writ
of habeas corpus[.]”).

                                     CONCLUSION

       In accordance with the foregoing reasoning and authorities, we conclude that the
trial court did not err by summarily dismissing the Appellant’s various motions
challenging his two cases and resulting sentences. Accordingly, we affirm.



                                                  _________________________________
                                                  D. KELLY THOMAS, JR., JUDGE
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