           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs April 12, 2016

             STATE OF TENNESSEE v. MARKHAYLE JACKSON

                  Appeal from the Criminal Court for Shelby County
                          No. 1101634 Lee V. Coffee, Judge


                No. W2015-02068-CCA-R3-CD - Filed May 31, 2016



The Defendant, Markhayle Jackson, entered a guilty plea in 2011 to first degree premeditated
murder and was sentenced to life without the possibility of parole pursuant to a negotiated
plea agreement. In 2015, the Defendant filed a motion pursuant to Tennessee Criminal
Procedure Rule 36.1 requesting the correction of an illegal sentence. The trial court
summarily dismissed the motion for failure to state a colorable claim. On appeal, the
Defendant contends that the trial court erred by dismissing the motion. We affirm the
judgment of the trial court.

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

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

Markhayle Jackson, Whiteville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Alanda Dwyer, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                        OPINION

       The Defendant entered a guilty plea to first degree premeditated murder and was
sentenced to life without the possibility to parole. See Markhayle Jackson v. State, No.
W2013-02027-CCA-R3-PC, 2015 WL 799448, at *1 (Tenn. Crim. App. Jan. 30, 2015),
perm. app. denied (Tenn. June 15, 2015).
        The Defendant unsuccessfully sought post-conviction relief, alleging that (1) his plea
was not knowingly, voluntarily, and intelligently entered, (2) trial counsel provided
ineffective assistance by failing to inform the Defendant of his right against self-
incrimination, by pressuring him to plead guilty, and by telling him he could file an appeal
after entering his guilty plea, and (3) the trial court failed to advise the Defendant of his right
against self-incrimination before accepting the plea in violation of Tennessee Rule of
Criminal Procedure 11. See id. at *12-13. This court affirmed the denial of post-conviction
relief.

        On September 9, 2015, the Defendant filed a motion to vacate, set aside, or correct an
illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. The Defendant
argued that (1) trial counsel failed to advise him of his right against self-incrimination, (2) the
Defendant was not aware of his right against self-incrimination and had he been aware of it,
he would not have pleaded guilty, (3) the trial court violated Tennessee Rule of Criminal
Procedure 11 during the plea hearing, (4) the State failed to abide by the plea agreement
because the court questioned the Defendant regarding his guilt, and (5) the plea was
involuntary.

       The trial court entered an order summarily dismissing the motion on the grounds that
the motion raised issues previously adjudicated and that the Defendant failed to state a
colorable claim for which relief could be granted. This appeal followed.

        The Defendant contends that the trial court erred by summarily dismissing his motion
for a corrected sentence. He argues that the court only considered the voluntariness of his
plea and that his remaining contentions were not previously determined. The State responds
that the trial court properly dismissed the motion.

       Tennessee Criminal Procedure Rule 36.1 states, in relevant part, that

       (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.

Tenn. R. Crim. P. 36.1(a). A defendant is entitled to a hearing and the appointment of
counsel if the motion states a colorable claim for relief. Id. at 36.1(b). Further, the trial court
is required to file an order denying the motion if it determines that the sentence is not illegal.
Id. at 36.1(c)(1).

      Whether a defendant states a colorable claim is a question of law and is reviewed de
novo. State v. Wooden, 478 S.W.3d 585, 588 (Tenn. 2015). A colorable claim is defined as
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“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. A trial court “may consult the record of the
proceeding from which the allegedly illegal sentence emanated” when determining whether a
motion states a colorable claim for relief. Id.

       Only fatal errors result in an illegal sentence and “are so profound as to render the
sentence illegal and void.” Id. at 595; see State v. Cantrell, 346 S.W.2d 445, 452 (Tenn.
2011). Fatal errors include sentences imposed pursuant to an inapplicable statutory scheme,
sentences that designate release eligibility dates when early release is prohibited, sentences
that are ordered to be served concurrently when consecutive service is required, and
sentences that are not authorized by statute. Wooden, 478 S.W.3d at 595. Errors which are
merely appealable, however, do not render a sentence illegal and include “those errors for
which the Sentencing Act specially provides a right of direct appeal.” Id.; see Cantrell, 346
S.W.2d at 449. Appealable errors are “claims akin to . . . challenge[s] to the sufficiency of
the evidence supporting a conviction” and “involve attacks on the correctness of the
methodology by which a trial court imposed sentence.” Wooden, 478 S.W.3d at 595; see
Cantrell, 346 S.W.2d at 450-52.

       The record reflects that the trial court properly denied the motion for a corrected
sentence. Even if the Defendant’s contentions were true, he would not be entitled to relief
pursuant to Rule 36.1. Relative to the Defendant’s arguments regarding whether counsel
provided ineffective assistance, whether the Defendant’s plea was knowingly and voluntarily
entered, and whether the trial court violated Tennessee Rule of Criminal Procedure 11 during
the plea hearing, the Defendant raises appealable errors that would not render his sentence
void or illegal. Therefore, the Defendant failed to state a colorable claim for relief.

        Relative to the trial court’s questioning the Defendant about his guilt during the plea
hearing, the claim is not cognizable pursuant to Rule 36.1. We note that the Defendant
argues the plea agreement is void, not that his sentence is illegal. As a result, the Defendant
failed to state a colorable claim for relief, and the Defendant is not entitled to relief on this
basis.

       Based upon the foregoing and the record as a whole, the judgment of the trial court is
affirmed.


                                            ____________________________________
                                            ROBERT H. MONTGOMERY, JR., JUDGE


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