         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs July 22, 2014


                CUMECUS R. CATES v.STATE OF TENNESSEE
                      Direct Appeal from the Criminal Court for Knox County
                   No. 68311, 68366, 68367, 68827, Mary Beth Leibowitz, Judge



                 No. E2014-00011-CCA-R3-CD - Filed August 20, 2014


The pro se petitioner appeals the summary dismissal of his motion to correct an illegal
sentence, per Tennessee Rule of Criminal Procedure 36.1. Following our review of the
parties' briefs, the record, and the applicable law, we find the petitioner’s motion stated a
colorable Rule 36.1 claim for review of illegal sentences. Therefore, we reverse the trial
court's summary dismissal and remand for proceedings consistent with this opinion.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed
    and Remanded

J OE H. W ALKER, III, Sp.J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, JR., J., and R OBERT W EDEMEYER, J., joined.

Cumecus Cates, Appellant, Whiteville, Tennessee, pro se.

Robert Cooper, Attorney General and Reporter; Lacy Wilber, Assistant Attorney General
Criminal Justice Division, for the appellee, State of Tennessee.




                                          OPINION

      Petitioner entered a plea of guilty on September 28, 2000, in four cases in the
Criminal Court of Knox County, as follows:


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       R.D. 68311, a B felony of possession of cocaine with intent (July 27, 1998 event).
       R.D. 68366, a C felony of sale of cocaine (July 21, 1998 event).

       For theses two convictions the defendant received concurrent sentences of eight and
three years, for an effective eight year sentence.

       R.D. 68367, a C felony of sale of cocaine (August11, 1998 event).
       R.D. 68827, a B felony of possession of cocaine with intent (June 25, 1999 event).

       For these two convictions the defendant received concurrent sentences of eight and
three years, for an effective eight year sentence, with R.D. 68827 running consecutively to
R.D. 68311.

       Petitioner received an effective sentence of sixteen years.

      On October 29, 2013, petitioner filed a motion to correct an illegal sentence, per
Tennessee Rules of Criminal Procedure Rule 36.1.

       The trial court summarily dismissed the petition, finding in “each case [petitioner]
received the minimum sentence for the offense. He agreed to plea . . . for a total of sixteen
years as a Range I Standard Offender.” The trial court further found the “consecutive
sentence was by agreement and was required because the defendant was on bond at the time
of the commission of docket numbers 68827 and 68367.”

       The trial court found that the petition did not state a colorable claim pursuant to Rule
36.1, and summarily dismissed the petition.

       Petitioner filed this appeal pursuant to Tennessee Rule of Criminal Procedure
36.1(d).

                                         ANALYSIS

       Effective July 1, 2013, the Tennessee Rules of Criminal Procedure were amended
with the addition of Rule 36.1 which provides as follows:

       (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
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       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.. . . .(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.

        We emphasize that the purpose of this new Rule is to provide an avenue for
correcting allegedly illegal sentences. The Rule does not provide an avenue for seeking the
reversal of convictions. See, Cantrell v. Easterling, 346 S.W.3d 445, 455-56 (Tenn. 2011)
(recognizing that convictions and sentences are distinct aspects of a judgment order)
(citations omitted).

       The State in it’s brief asserts that the petitioner made a colorable claim that his
sentences were illegal, and that the trial court erred when she did not appoint counsel and
conduct a hearing on the defendant’s colorable claim. The State agreed with petitioner. The
State alleges the defendant made a colorable claim that the sentences were illegal because
they were not ordered to be served consecutively to each other, because he was on bond.

      The trial court found the “consecutive sentence was by agreement and was required
because the defendant was on bond at the time of the commission of docket numbers 68827
and 68367.”

      The dates for the crimes according to the judgment sheets are as follows: possession
of cocaine with intent in R.D. 68311 occurred on July 27, 1998; sale of cocaine in R.D.
68366 occurred on July 21, 1998; sale of cocaine in R.D. 68367 occurred August 11, 1998;
possession of cocaine with intent to sell in R.D. 68827 occurred on June 25, 1999.

       Three of the crimes occurred in 1998: July 21, July 27 and August 11. The fourth
occurred in June 1999.

      The trial court in its order of dismissal did not specify when the petitioner made bond
and which events occurred while out on bond.




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        The only pre-trial jail credit is on the judgment form in R.D. 68311, which indicates
pretrial jail credit of 90 days. There are no dates when petitioner was in jail, which might
help indicate when bond was made. No other judgment form allows pre-trial jail credit.
         The judgment form in R.D. 68367 does not state it is consecutive to R.D. 68311, but
states it is concurrent to R.D. 68827, which is consecutive to R.D. 68311.

       It is not possible to determine from the record on appeal which events occurred while
petitioner was out on bond.

        When a defendant commits a felony while released on bail for a felony, consecutive
sentencing is required. See, Tenn. R. Crim. P. 32(c)(3)(C); Tenn. Code Ann. § 40-20-111(b)
(stating that when "a defendant commits a felony while such defendant was released on bail .
. . and the defendant is convicted of both such offenses, the trial judge shall not have
discretion as to whether the sentences shall run concurrently or cumulatively, but shall order
that such sentences be served cumulatively"); Stephenson v. Carlton, 28 S.W.3d 910, 911
(Tenn. 2000) (holding that "[a] sentence imposed in direct contravention of a statute is void
and illegal").

       Therefore, petitioner’s motion with regard to his sentences stated a colorable Rule
36.1 claim for review of illegal sentences.      Having determined that appellant's motion
presents a colorable claim for relief under Rule 36.1, we must remand this matter to the trial
court. By its very language, Rule 36.1 requires that once appellant has stated a colorable
claim, he must be afforded counsel. See Tenn. R. Crim. P. 36.1(b). Moreover, if the trial
court determines that the sentence in question is illegal, it must make additional findings of
fact, presumably following a hearing on the matter. See Tenn. R. Crim. P. 36.1(c)(2). The
trial court was not presented with the opportunity to consider the merits of appellant's
argument within the context of Rule 36.1. Accordingly, we remand this cause for
proceedings consistent with this opinion.


                                                 _______________________________
                                                  JOE H. W ALKER, III




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