        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs October 6, 2015

                  STATE OF TENNESSEE v. JOHN T. DAVIS

               Appeal from the Circuit Court for Lauderdale County
                 No. 8452, 8050, 9171   Joe H. Walker, III, Judge


               No. W2015-00445-CCA-R3-CD - Filed April 26, 2016
                       _____________________________

Defendant, John T. Davis, filed a motion under Tennessee Rule of Criminal Procedure
36.1 alleging that his concurrent sentences in case numbers 8050, 8452, and 9171 were
illegal because he was released on parole in case numbers 8050 and 8452 at the time he
committed the offenses in case number 9171. The trial court summarily dismissed the
motion. After review of the record and the briefs, we affirm the judgment of the trial
court.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the Court, in which CAMILLE R.
MCMULLEN and ROBERT L. HOLLOWAY, JR., JJ., joined.

John T. Davis, Memphis, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; and M. Michael Dunavant, District Attorney General, for the Appellee,
State of Tennessee.

                                       OPINION

Background

       On January 24, 2007, Defendant pleaded guilty in case number 8050 to aggravated
assault, for which he received a six-year sentence. On March 30, 2007, Defendant filed a
“Petition for Alternative Sentencing.” A hearing was held on that same day, and
Defendant was placed on community corrections with the Corrections Management
Corporation (CMC). Defendant‟s community corrections sentence was revoked on
September 29, 2008, for multiple reasons, including Petitioner‟s arrest on other charges.
       On October 6, 2008, Defendant was charged in case number 8452 with aggravated
robbery, reckless endangerment, and felony possession of a handgun. On February 11,
2009, Defendant pleaded guilty to robbery, reckless endangerment, and felony possession
of a weapon, and he received an effective six-year sentence to be served concurrently
with the sentence in case number 8050.

      Defendant was charged on February 6, 2012, in case number 9171 with burglary,
evading arrest, and felony possession of a handgun. On May 17, 2012, Defendant
pleaded guilty to the charges and received a four-year sentence to be served on
community corrections upon release. The “Sentencing Order” contains the following:

        IT IS THEREFORE ORDERED by the Court that the Defendant is
        sentenced to four (4) years to serve under the intensive supervision of
        Corrections Management Corporation pursuant to the Community
        Corrections Act and to serve under the terms and conditions imposed by
        said Corrections Management Corporation.

        IT IS FURTHER ORDERED by the Court that the Defendant will
        serve a period of 45 days in the Lauderdale County Jail and will be given
        65 days credit. Upon completion of his parole violation sentence, the
        Defendant will report to the intensive supervision of Corrections
        Management Corporation.

(Emphasis in original). The judgments in case number 9171 do not refer to Petitioner‟s
sentences in case numbers 8050 or 8452. Likewise, the judgments in case numbers 8050
and 8452 do not reference the sentence in case number 9171. There is a “Motion to
Revoke Bond” filed in case number 9171 on April 2, 2012, which notes that Defendant
was on parole in case number 8452. On September 24, 2013, the trial court entered an
order noting that Defendant had received 180 months in March of 2013 in a federal court
sentence and therefore could not be supervised by community corrections for the
sentence in case number 9171.

        On February 11, 2015, Defendant filed a motion pursuant to Tenn. R. Crim. P.
36.1 to correct illegal sentences in case numbers 8050, 8452, and 9171. The trial court
entered an order on February 24, 2015, denying the motion without a hearing. The trial
court found that Defendant had “failed to state a colorable claim that the sentence is
illegal.”




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Analysis

        On appeal, Defendant essentially argues that his sentence in case number 9171 is
illegal because he was on parole from case numbers 8050 and 8452 when he committed
the offenses in case number 9171. He contends that the sentences in case number 9171
were improperly ordered to be served concurrently to case numbers 8050 and 8452 in
violation of Tenn. R. Crim. P. 32(c)(3). Therefore, according to Defendant, the trial court
erred by summarily dismissing his motion pursuant to Tenn. R. Crim. P. 36.1.

      Tennessee Rule of Criminal Procedure 36.1 provides, in part:

        (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.

Therefore, pursuant to Rule 36.1, a defendant would be entitled to a hearing and the
appointment of counsel if he or she stated a colorable claim for relief. Tenn. R. Crim. P.
36.1(b). Prior to the adoption of Rule 36.1, a defendant generally had to seek relief from
an illegal sentence through post-conviction or habeas corpus proceedings. See Cantrell v.
Easterling, 346 S.W.3d 445, 453 (Tenn. 2011).

       The Tennessee Supreme Court recently stated that a colorable claim pursuant to
Rule 36.1 is 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.” State v.
Wooden, 478 S.W.3d 585, 593 (Tenn. 2015). Rule 36.1 also defines an illegal sentence
as “one that is not authorized by the applicable statutes or that directly contravenes an
applicable statute.” Tenn. R. 36.1(a).


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        Tennessee Code Annotated § 40-28-123(a) states in part that “[a]ny prisoner who
is convicted in this state of a felony, committed on parole . . . , shall serve the remainder
of the sentence under which the prisoner was paroled . . . before the prisoner commences
serving the sentence received for the felony committed while on parole.” Tennessee Rule
of Criminal Procedure 32 provides, in pertinent part:

        When the defendant has additional sentences not yet fully served as the
        result of convictions in the same or other courts and the law requires
        consecutive sentences, the sentence shall be consecutive whether the
        judgment explicitly so orders or not. This rule shall apply:

        (A)      to a sentence for a felony committed while on parole for a
              felony[.]

Tenn. R. Crim. P. 32(c)(3)(A). “[A] sentence ordered to be served concurrently where
statutorily ordered to be served consecutively” is an illegal sentence. Davis v. State, 313
S.W.3d 751, 759 (Tenn. 2010).

      As noted above, Defendant asserts that he committed the offenses in case number
9171 while he was on parole in case numbers 8050 and 8452 and that his sentences in
case number 9171 were ordered to be served concurrently with the sentences in case
numbers 8050 and 8452 rather than consecutively as required by Tenn. R. Crim. P. 32.
In Wooden, the supreme court noted that Tenn. R. Crim. P. 36.1 is silent as to the “nature
of the factual allegations and documentation required to state a colorable claim.”
Wooden, 478 S.W.3d at 593. The court stated:

        In the face of this silence, we turn to another rule of criminal procedure,
        which prescribes the form and content of motions – Tennessee Rule of
        Criminal Procedure 47 (“Rule 47”). Rule 47 makes clear that, unless
        made during a trial or a hearing, motions “shall be in writing” and “shall
        state . . . with particularity the grounds on which it is made [ ] and . . .
        the relief or order sought.” Tenn. R. Crim. P. 47(b), (c). Rule 47 also
        permits motions to “be supported by affidavit.” Tenn. R. Crim. P. 47(d).

        Considering the text of Rule 47, along with that of Rule 36.1, we
        conclude that, at a minimum, any motion filed under Rule 36.1 must
        state with particularity the factual allegations on which the claim for
        relief from an illegal sentence is based. Additionally, the moving party
        may support the motion with affidavits. Finally, when determining
        whether a Rule 36.1 motion sufficiently states a colorable claim, a trial
        court may consult the record of the proceeding from which the allegedly
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        illegal sentence emanated. Indeed, by requiring Rule 36.1 motions to be
        filed “in the trial court in which the judgment of conviction was
        entered,” Rule 36.1 ensured that a trial court considering a Rule 36.1
        motion would have ready access to the record of the proceedings from
        which the allegedly illegal sentence(s) arose.

Id. at 593-94. The court further stated that “an appellate court may determine, in the first
instance, whether the allegations of a Rule 36.1 motion, and any supporting materials,
state a colorable claim for relief under Rule 36.1.” Wooden, 478 S.W.3d at 594-95; State
v. Mark Edward Greene, No. M2013-0217-CCA-R3-CD, 2014 WL 3530960, at *3(Tenn.
Crim. App. July 16, 2014).

        We conclude that Defendant‟s motion and the documents submitted along with it
do not state a colorable claim for relief under Rule 36.1. Although Defendant claims that
his sentences in 9171 were ordered to be served concurrently to the sentences in 8050 and
8452, there is nothing in the documents submitted on appeal to support this claim. The
sentencing order states that “Defendant will serve a period of 45 days in the Lauderdale
County Jail and will be given 65 days credit.” Therefore, he has served his jail time. The
sentencing order further states that Defendant does not start serving his sentence in case
number 9171 until “his parole violation sentence is completed.” Both the guilty plea and
the judgments are silent as to whether the sentences are to be served concurrently or
consecutively. Therefore, according to the sentencing order, and by operation of law, as
pointed out by the State, the sentences in case number 9171 are consecutive to those in
case numbers 8050 and 8452. Additionally we point out, the Tennessee Supreme Court
has held that if the judgments are silent as to the consecutive or concurrent nature of the
sentences and the law requires consecutive sentencing, the sentences are deemed to be
consecutive under Rule 32(c)(3). Hogan v. Mills, 168 S.W.3d 753, 756-57 (Tenn. 2005);
see also State v. Elashanti Dean, No. E2014-02169-CCA-R3-CD, 2015 WL 5031775, at
*4(Tenn. Crim. App. Aug. 6, 2015). Defendant‟s sentence was lawful, and he is not
entitled to relief on this issue.

       Defendant also argues that his guilty plea was not “knowingly and voluntarily
entered” and that the trial court did not address the “mandatory criteria set forth in 40-35-
210(a) which states „at the conclusion of a sentencing hearing, the Court shall first
determine the appropriate range of sentence.‟” Defendant contends that the trial court
failed to consider enhancement and mitigating factors, and the trial court did not
determine the “appropriate facts presented in open court.” We find that these claims are
not colorable under Tenn. R. Crim. P. 36.1. State v. Dusty Ross Binkley, No. M2014-
01173-CCA-R3-CD, 2015 WL 2148950, at *4(Tenn. Crim. App. May 7, 2015)(Rule 36.1
does not apply to constitutional challenges); State v. David Wayne Hearing, No. E2014-
01908-CCA-R3-CD, 2015 WL 2128600, at *2(Tenn. Crim. App. May 6,
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2015)(Unknowing guilty plea claims are not a ground for relief under Rule 36.1); State v.
Jonathan T. Deal, No. E2014-02623-CCA-R3-CD, 2014 WL 2802910, at *2(Tenn. Crim.
App. June 17, 2014)(“[T]he rule is directed at the sentence finally imposed, not the
methodology by which is imposed.”). Defendant is not entitled to relief on this issue.

      Accordingly, the judgment of the trial court is affirmed.


                                  ____________________________________________
                                  THOMAS T. WOODALL, PRESIDING JUDGE




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