                                                                                          01/19/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE

          STATE OF TENNESSEE v. WILLIAM LAMONT GREEN

                Appeal from the Criminal Court for Davidson County
                   No. 2007-B-1404    Cheryl Blackburn, Judge


                            No. M2017-00734-CCA-R3-CD
                        _____________________________

The Appellant, William Lamont Green, is appealing the trial court’s denial of his motion
to correct an illegal sentence. 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 W. WEDEMEYER, J., delivered the opinion of the Court, in which ROBERT L.
HOLLOWAY, JR., J. and TIMOTHY L. EASTER, J. joined.

William Lamont Green, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel,
for the Appellee, State of Tennessee.


                              MEMORANDUM OPINION


       In 2010, the Appellant was convicted of second degree murder and he received a
twenty-three-year sentence. His conviction was affirmed on appeal. State v. William
Lamont Green, No. M2010-01631-CCA-R3-CD, 2011 WL 2893088 (Tenn. Crim. App.
July 20, 2011), perm. to app. denied (Tenn. Nov. 15, 2011). The Appellant was
unsuccessful in his subsequent pursuit of post-conviction relief. William Lamont Green
v. State, No. M2013-02840-CCA-R3-PC, 2014 WL 5502359 (Tenn. Crim. App. Oct. 31,
2014), perm to app. denied (Tenn. Feb. 13, 2015). In June 2016, the Appellant filed a
motion to correct an alleged illegal sentence. See Tenn. R. Crim. P. 36.1. The trial court
summarily denied the motion. The Appellant appealed. Following the filing of the
record on appeal 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.

        In the motion he filed in the trial court, the Appellant argued his sentence is illegal
because the trial court misapplied an enhancement factor and failed to consider certain
mitigating factors. 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. A trial court may summarily
dismiss a Rule 36.1 motion if it does not state a colorable claim for relief. Tenn. R. Crim.
P. 36.1(b)(2).

       The trial court did not err in summarily dismissing the Appellant’s motion. The
Appellant’s complaints regarding the trial court’s application of enhancement and
mitigating factors fall squarely in the category of appealable errors and they should have
been raised on direct appeal. See, e.g., State v. Charles Macklin, No. W2016-01711-
CCA-R3-CD, 2017 WL 1380014 (Tenn. Crim. App. Apr. 13, 2017), perm. to app. denied
(Tenn. June 8, 2017) (citing Wooden).

        The Appellant also raises for the first time in his brief on appeal a claim of
ineffective assistance of counsel. Despite the fact that issues raised for the first time on
appeal are considered waived, see State v. Johnson, 970 S.W.2d 500, 508 (Tenn. Crim.
App. 1996), Rule 36.1 is not the vehicle for presenting a claim of ineffective assistance of
counsel and, regardless, the Appellant has otherwise already had his bite at the apple on
this claim in his previous post-conviction challenge.



                                              2
      The ruling of the trial court is hereby affirmed pursuant to Court of Criminal
Appeals Rule 20.




                                _______________________________________
                                ROBERT W. WEDEMEYER, JUDGE




                                         3
