                                                                                      12/23/2019
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                       Assigned on Briefs November 14, 2019

            STATE OF TENNESSEE v. ANDREW K. JOHNSTON

                 Appeal from the Circuit Court for Bedford County
                    No. 17189 Forest A. Durard, Jr., Judge
                     ___________________________________

                          No. M2019-00219-CCA-R3-CD
                      ___________________________________

The Appellant, Andrew K. Johnston, filed a pro se motion to correct an illegal sentence
pursuant to Tennessee Rule of Criminal Procedure 36.1, and the Bedford County Circuit
Court summarily denied the motion. On appeal, the Appellant contends that the twenty-
seven-year sentence he received pursuant to his guilty plea to second degree murder is
illegal because it is outside the maximum range of punishment for a Range I offender
convicted of a Class A felony. Based upon our review of the record and the parties’
briefs, we affirm the judgment of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ALAN E. GLENN
and J. ROSS DYER, JJ., joined.

Andrew K. Johnston, Pro Se, Only, Tennessee.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant
Attorney General; Robert James Carter, District Attorney General; and Michael David
Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

                                      OPINION

                               I. Factual Background

       The Appellant was indicted for first degree murder in April 2011 and entered a
best interest guilty plea to second degree murder, a Class A felony, in October 2011.
Pursuant to the plea agreement, he was sentenced as a Range I, violent offender to
twenty-seven years in confinement.
        In January 2019, the Appellant filed a pro se motion to correct an illegal sentence
pursuant to Tennessee Rule of Criminal Procedure 36.1, arguing that his sentence was
illegal because the maximum punishment for a Range I offender convicted of a Class A
felony was twenty-five years. The trial court denied the motion without a hearing,
concluding that the Appellant’s sentence was not illegal because the statutorily
authorized punishment for a Class A felony was fifteen to sixty years, and the
Appellant’s bargained-for sentence of twenty-seven years was within that range.

                                        II. Analysis

      On appeal, the Appellant maintains that his twenty-seven-year sentence is illegal
because it falls outside the range of punishment for a Range I offender convicted of a
Class A felony. The State argues that the trial court properly dismissed the Appellant’s
Rule 36.1 motion. We agree with the State.

        Rule 36.1, Tennessee Rules of Criminal Procedure, 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). As our supreme court has explained, only “fatal” sentencing errors render
sentences illegal. State v. Wooden, 478 S.W.3d 585, 595 (Tenn. 2015). “Included in this
category are 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.
Conversely, “[c]laims of appealable error generally involve attacks on the correctness of
the methodology by which a trial court imposed sentence.” Id. Few appealable errors
rise to the level of an illegal sentence. Id.

        If a Rule 36.1 motion states a “colorable claim that the sentence is illegal,” the
trial court shall appoint counsel and hold a hearing on the motion. See Tenn. R. Crim. P.
36.1(b). Our supreme court has recognized that “Rule 36.1 does not define ‘colorable
claim.’” Wooden, 478 S.W.3d at 592. Nevertheless, the court explained that “for
purposes of Rule 36.1, . . . ‘colorable claim’ means 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.” Id. at 593. A motion filed pursuant to Rule 36.1 “must state
with particularity the factual allegations on which the claim for relief from an illegal
sentence is based.” Id. at 594. In determining whether a motion states a colorable claim,
the trial court “may consult the record of the proceeding from which the allegedly illegal
sentence emanated.” Id. Whether a Rule 36.1 motion states a colorable claim is a
question of law, which we review de novo. Id. at 588.
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        In summarily denying the Appellant’s Rule 36.1 motion, the trial court relied on
Hoover v. State, 215 S.W.3d 776 (Tenn. 2007). Likewise, the State relies on Hoover on
appeal. In Hoover, our supreme court stated that “[a] plea-bargained sentence may
legally exceed the maximum available in the offender Range so long as the sentence does
not exceed the maximum punishment authorized for the plea offense.” 215 S.W.3d at
779. The range of punishment for a Range I offender convicted of a Class A felony is
fifteen to twenty-five years. See Tenn. Code Ann. § 40-35-112(a)(1). However, as the
trial court correctly found, the statutorily authorized maximum punishment for a Class A
felony is sixty years. See Tenn. Code Ann. § 40-35-112(c)(1). The Appellant’s twenty-
seven-year sentence does not exceed the maximum punishment authorized for the plea
offense. Therefore, the Appellant’s twenty-seven-year sentence is not illegal.

                                      III. Conclusion

         Based upon the record and the parties’ briefs, we affirm the judgment of the trial
court.


                                                  _________________________________
                                                  NORMA MCGEE OGLE, JUDGE




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