        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs December 9, 2015

                STATE OF TENNESSEE v. ANTHONY HILL

              Direct Appeal from the Criminal Court for Shelby County
                No. 90-09874, 90-15702    John W. Campbell, Judge



              No. W2015-01594-CCA-R3-CD - Filed February 26, 2016


In 1991, the Defendant, Anthony Hill, pleaded guilty to two counts of unlawful possession of
more than 26 grams of cocaine with intent to sell, in case numbers 90-09874 and 90-15702,
with agreed concurrent sentences of 7.2 years’ incarceration for each of the two convictions.
In 2014, the Defendant filed a motion pursuant to Tennessee Rule of Criminal Procedure
36.1 seeking to correct an illegal sentence, and the trial court held a hearing on the motion.
At the conclusion of the hearing, the trial court held the Defendant’s sentences should have
been ordered to run consecutively and thus were illegal. The trial court denied the
Defendant’s 36.1 motion, holding that his sentences had expired which rendered the issue
moot. On appeal, the Defendant contends that the trial court erred because he should have
been allowed to withdraw his guilty plea because his illegal sentence was a material
component of his plea agreement. After a thorough review of the record and applicable
authorities, and in accordance with the Tennessee Supreme Court’s recent holding in State v.
Adrian R. Brown, __ S.W.3d __, No. E2014-00673-SC-R11-CD, 2015 WL 7748275, at *7
(Tenn. Dec. 2, 2015), we affirm the trial court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and ALAN E. GLENN, J., joined.

Stephen C. Bush, District Public Defender; Tony N. Brayton, Assistant District Public
Defender, Memphis, Tennessee, for the appellant, Anthony Hill.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Amy
P. Weirich, District Attorney General; Kirby May, Assistant District Attorney General, for
the appellee, State of Tennessee.
                                        OPINION
                             I. Facts and Procedural History

        This case arises from the Defendant’s 1990 drugs arrests. In April 1990, law
enforcement officers arrested the Defendant for selling 26.2 grams of cocaine to a police
informant. The Defendant posted bond following his arrest, and a grand jury later indicted
him in case number 90-09874 for two counts of unlawful possession of cocaine with intent to
sell. In September 1990, law enforcement officers again arrested the Defendant for selling
more than 26 grams of cocaine, and a grand jury later indicted him in case number 90-15702
for one count of sale of a controlled substance and two counts of unlawful possession of
cocaine with intent to sell. By a negotiated plea agreement encompassing all the charges, the
Defendant pleaded guilty in May 1991 to two counts of unlawful possession of more than 26
grams of cocaine with intent to sell in exchange for concurrent sentences of 7.2 years’
incarceration for each conviction.

        In October 2014, the Defendant filed a Motion to Correct Illegal Sentence pursuant to
Tennessee Rule of Criminal Procedure 36.1. In it, he alleged that his sentences were illegal
because his arrest in case number 90-15702 occurred while he was released on bond in case
number 90-09874, and thus, his concurrent sentences were in direct contravention to a statute
requiring that the court order them to run consecutively. The State filed a response,
conceding that the Defendant’s motion presented a colorable claim and conceding that the
trial court should have ordered that the Defendant’s sentences run consecutively, thereby
rendering his sentences illegal. The State further responded that this error “allowed [the
Defendant] to serve less time in jail than the law required. Although filed under Rule 36.1,
the [Defendant’s] motion is effectively a writ of habeas corpus and should be treated as such.
 The [Defendant] is no longer in custody on these cases and therefore is not entitled to habeas
corpus relief.” The State went on to say that, in the event that the trial court found that the
Defendant had satisfied the requirements of Rule 36.1, it should hold a hearing to determine
whether the illegal sentence was a material component of the plea agreement.

        The trial court held a hearing on the Defendant’s motion, during which the
indictments and associated plea agreements for case numbers 90-09874 and 90-15702 were
entered as exhibits, as well as the transcript from the guilty plea hearing, the presentence
report, and documents related to the Defendant’s unrelated charges in federal district court.

       The Defendant testified that officers arrested him on April 27, 1990, and that he
posted bond in the amount of $5,000. Officers again arrested the Defendant on September
13, 1990, for which he also posted bond. The Defendant agreed that he pleaded guilty to
charges relating to those arrests on May 7, 1991. At the guilty plea hearing, the Defendant’s
attorney told him that his sentences would run concurrently, and he testified that concurrent

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sentencing was a main part of his plea agreement and a factor in his decision to plead guilty.
The Defendant testified that he was currently serving a federal sentence imposed in 2009 and
that the federal judge used his two prior convictions to enhance his federal sentence. The
Defendant’s counsel showed the Defendant the judgment sheets for case numbers 90-09874
and 90-15702, and he agreed that he had signed both judgments.

       On cross-examination, the Defendant agreed that he received the benefit of a shorter
sentence because of his plea agreement to concurrent sentences in case numbers 90-09874
and 90-15702. He agreed that he had already served and completed his sentences for the
1991 convictions and had since been arrested numerous times, including for a federal
offense. The Defendant stated that he pleaded guilty to the federal offense. The Defendant
agreed that he understood the plea agreement for his 1991 convictions and that he did benefit
from receiving concurrent 7.2-year sentences.

       Following the hearing, the trial court issued an order stating that it was clear from the
evidence presented that the Defendant was released on bond in case number 90-09874 when
officers arrested him in case number 90-15702. Therefore, the trial court noted, the trial
court should have ordered that his sentences run consecutively. The trial court also noted
that the Defendant’s sentences in case numbers 90-09874 and 90-15702 had “long since
expired,” and thus, Rule 36.1 would not apply. The trial court held that the Defendant’s
argument was “moot” and not subject to correction pursuant to Rule 36.1. The trial court
further found that “the fact that the [D]efendant is serving a federal sentence enhanced by
these convictions does not create a cause of action on his expired sentences.” The trial court
denied the Defendant’s motion. It is from this judgment that the Defendant now appeals.

                                         II. Analysis

        On appeal, the Defendant contends that he is entitled to relief because he served
illegal sentences and that the issue is not moot as a result of the sentences having been
served. He contends that the illegal sentences were a material component of his plea
agreement and thus he should be given the opportunity to withdraw his guilty plea and have
the original charges against him reinstated. In its brief filed October 15, 2015, the State
concedes that the trial court incorrectly found that the Defendant’s issue was moot and
contends that the case should be remanded for consideration pursuant to Tennessee Rule of
Criminal Procedure 36.1. We note that this Court is not bound by the State’s concession,
State v. Hester, 324 S.W.3d 1, 69 (Tenn. 2010), and we conclude that the Defendant has
failed to state a claim for relief because his alleged illegal sentences have expired.

       Tennessee Rule of Criminal Procedure 36.1 provides in pertinent part that:


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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.

Tenn. R. Crim. P. 36.1(a), (b) (2014). On its face, Rule 36.1 does not limit the time within
which a person seeking relief must file a motion, nor does it require the person seeking relief
to be restrained of liberty. The language contained within Rule 36.1 “at any time, even if the
sentence has become final” has come under different interpretation as to when a claim can be
brought pursuant to Rule 36.1. See Kevin Daws v. State, No. W2014-01002-CCA-R3-CO,
2015 WL 112787 (Tenn. Crim. App., at Jackson, Jan. 8, 2015) (holding the defendant,
convicted in 1999, was not entitled to relief because he did not present a “colorable claim”),
no Tenn. R. App. P. 11 application filed; State v. David Morrow, No. W2014-00338-CCA-
R3-CO, 2014 WL 3954071, at *2 (Tenn. Crim. App., at Jackson, Aug. 13, 2014) (reversing
summary dismissal of Rule 36.1 motion for defendant who filed his motion in August 2013
and whose conviction was entered before July 1, 2013), no Tenn. R. App. P. 11 application
filed; see State v. Sean Blake, No. W2014-00856-CCA-R3-CO, 2015 WL 112801, at *1
(Tenn. Crim. App., at Jackson, Jan. 8, 2015) (holding that, even though defendant’s sentence
had expired seven years before he filed his Rule 36.1 motion in 2014, he was still entitled to
seek relief pursuant to that Rule if he stated a “colorable claim” for relief noting that the
language of the rule stated that a defendant “may, at any time, seek the correction of an
illegal sentence . . . .”), no Tenn. R. App. P. 11 application filed.

        In the present case, we turn to a recent case authored by our Supreme Court and filed
after the State submitted its brief, State v. Adrian R. Brown, __ S.W.3d __, No. E2014-
00673-SC-R11-CD, 2015 WL 7748275, at *7 (Tenn. Dec. 2, 2015), which addressed
“whether Rule 36.1 expands the scope of relief available . . . by permitting either the
defendant or the State to correct expired illegal sentences.” Id. at *7. Our Supreme Court
held that “Rule 36.1 does not expand the scope of relief and does not authorize the correction
of expired illegal sentences. Therefore, a Rule 36.1 motion may be summarily dismissed for
failure to state a colorable claim if the alleged illegal sentence has expired.”

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        In the case herein, the uncontroverted evidence presented at the hearing on the motion
was that the Defendant’s sentence had long since expired. In accordance with our Supreme
Court’s recent interpretation of Rule 36.1 in Brown, we conclude that the Defendant in this
case is not entitled to relief.

                                      III. Conclusion

       In accordance with the aforementioned reasoning and authorities, we affirm the trial
court’s dismissal of the Defendant’s Rule 36.1 motion to correct an illegal sentence.


                                                    ________________________________
                                                     ROBERT W. WEDEMEYER, JUDGE




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