        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs August 19, 2015

          STATE OF TENNESSEE v. THOMAS PAUL GAGNE, JR.

                  Appeal from the Criminal Court for Knox County
                       No. 62279A     Bob R. McGee, Judge


               No. E2015-00502-CCA-R3-CD – Filed August 31, 2015


The petitioner, Thomas Paul Gagne, Jr., appeals the denial of his motion, filed pursuant
to Tennessee Rule of Criminal Procedure 36.1, to correct what he believes to be an illegal
sentence. Discerning no error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS and TIMOTHY L. EASTER, JJ., joined.

Thomas Paul Gagne, Jr., Whiteville, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; and Charme P. Allen, District Attorney General, for the appellee, State
of Tennessee.

                                       OPINION

               On September 10, 2014, the petitioner moved the trial court, pursuant to
Tennessee Rule of Criminal Procedure 36.1, to correct the judgments filed in his case to
reflect the sentence alignment provided for in his plea agreement. He claimed that he
was “mislead [sic] into thinking that the Petitioner‟s State Sentences was [sic] to be
served concurrent[ly] with count 3 to be served consecutive[ly].” The petitioner
specifically stated that he did “not wish to completely break with the plea agreement” but
simply wanted the court “to ORDER the State to perform the agreement . . . by recording
it correctly.”

              In a written order denying relief, the trial court observed that the total
effective sentence for the petitioner‟s pleas of guilty in case number 62279A to two
counts of felony murder, one count of aggravated burglary, and two counts of theft of
property valued at $500 or less was two consecutive life sentences that were to be served
consecutively to the sentence imposed in Knox County case number 59006 and that the
sentence imposed was that “agreed to on the original Waiver of Jury Trial and entry of
plea.” In consequence, the court concluded that the sentences were neither illegal nor
incorrect.

       In this appeal, the petitioner reiterates his claim that the judgment orders entered
do not reflect the terms of the plea agreement.

              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.

                     (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
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              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.

               To avoid summary denial of an illegal sentence claim brought under Rule
36.1, a petitioner need only “state[] a colorable claim that the sentence is illegal.” Tenn.
R. Crim. P. 36.1(b). “Because Rule 36.1 does not define „colorable claim,‟” this court
has “adopted the definition of a colorable claim used in the context of post-conviction
proceedings.” State v. David Morrow, No. W2014-00338-CCA-R3-CO, slip op. at 3-4
(Tenn. Crim. App., Jackson, Aug. 13, 2014) (citing State v. Mark Edward Greene, No.
M2013-02710-CCA-R3-CD, slip op. at 4 (Tenn. Crim. App., Nashville, July 16, 2014).
Supreme Court Rule 28 provides that “[a] colorable claim is a claim . . . that, if taken as

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true, in the light most favorable to the petitioner, would entitle [the] petitioner to relief.”
Tenn. Sup. Ct. R. 28 § 2(H).

                The petitioner‟s claims, even if true, would not render his sentence illegal
and entitle him to relief under Rule 36.1. The petitioner does not allege, and the record
does not establish, that the sentences imposed contravene any applicable law. Moreover,
the trial court found that, contrary to the petitioner‟s assertion in his motion, the sentences
imposed complied with the terms of the plea agreement. To the extent that the petitioner
seeks to challenge the manner in which the Department of Correction has implemented
the judgments in his case, a motion pursuant to Rule 36.1 is not the appropriate vehicle
for such a claim.

              Accordingly, we affirm the judgment of the trial court.

                                                     _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




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