                                                                                      02/05/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                       Assigned on Briefs December 13, 2017

          STATE OF TENNESSEE v. TRAVIS EUGENE TAYLOR

               Appeal from the Criminal Court for Davidson County
                   No. 2009-C-2139 Mark J. Fishburn, Judge
                    ___________________________________

                          No. M2017-00302-CCA-R3-CD
                      ___________________________________


Defendant, Travis Eugene Taylor, pled guilty to voluntary manslaughter and employing a
firearm during the commission of a dangerous felony. In exchange for his guilty pleas,
he received consecutive sentences of fifteen years for voluntary manslaughter and six
years for employing a firearm during the commission of a dangerous felony. Many years
later, Defendant sought to set aside the trial court’s judgment, arguing that his
convictions violated the principles of double jeopardy. Defendant appeals the denial of
his motion. Because Defendant’s motion fails regardless of how it is construed, the
judgment of the trial court is affirmed.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and CAMILLE R. MCMULLEN, JJ., joined.

Travis Eugene Taylor, Wartburg, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Glenn Funk, District Attorney General; and Janice Norman, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                      OPINION

       Nearly ten years ago, Defendant killed Timothy Eugene Morton. Defendant was
indicted for one count of first degree murder, three counts of attempted first degree
murder, and one count of employing a firearm during the commission of a dangerous
felony. On August 14, 2009, Defendant pled guilty to the reduced charge of voluntary
manslaughter and employing a firearm during the commission of a dangerous felony. In
exchange for the pleas, Defendant received consecutive sentences of fifteen years for
voluntary manslaughter and six years for employing a firearm during the commission of a
dangerous felony.

       The sparse appellate record contains little information about the facts underlying
Defendant’s guilty pleas. The only factual background for the pleas in the record comes
from a police report attached as an exhibit to Defendant’s motion to set aside the trial
court’s judgment. From this document, it appears that two children witnessed Defendant
chase a moving vehicle on foot and fire multiple shots at the vehicle, which was occupied
by multiple people. Mr. Morton, one of the occupants of the vehicle, suffered a fatal
gunshot wound to the back of the head.

       Over seven years after he entered his pleas, Defendant filed a motion to withdraw
or correct the plea agreement, arguing that his dual convictions violated double jeopardy
principles. The trial court denied this motion on September 28, 2016, stating that
Defendant was mistaken in his argument that he could not be convicted of both voluntary
manslaughter and employing a firearm during the commission of a dangerous felony.
The trial court further noted that Defendant did not allege that his pleas were not
knowingly and voluntarily entered and that the statute of limitations for Defendant to
withdraw his pleas had run.

       At some point, Defendant also filed a document titled “Motion to Set Aside
Judgment,”1 making essentially the same argument that he made in his motion to
withdraw or correct his plea agreement. He added the additional arguments that his pleas
were unknowingly and unintelligently entered and that the trial court imposed an
unlawful sentence. Defendant also claimed to have been paroled on all of his sentences
except his six-year sentence for employing a firearm during the commission of a
dangerous felony. Defendant never stated when he was granted parole or when his
sentence for the offense of employing a firearm during the commission of a dangerous
felony began. On January 17, 2017, the trial court denied this motion for the same
reasons mentioned above. On February 10, 2017, Defendant filed a timely notice of
appeal from the denial of this second motion.

                                                Analysis

      The Tennessee Rules of Criminal Procedure do not expressly provide for a
“motion to set aside judgment” as a procedural mechanism to challenge a conviction or
sentence, and no appeal as of right exists for such a motion under Tennessee Rule of
Appellate Procedure 3. However, we construe the filings of pro se appellants liberally.

      1
          The “Motion to Set Aside Judgment” is not file-stamped by the trial court clerk.
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See State v. Shelton Hall, No. M2012-01622-CCA-R3-CD, 2013 WL 1200266, at *4
(Tenn. Crim. App. Mar. 26, 2013), no perm. app. filed. Considering the options available
to Defendant over which this Court has jurisdiction to hear the appeal, this motion could
be construed as a motion to withdraw a guilty plea under Tennessee Rule of Criminal
Procedure 32(f) or a motion to correct an illegal sentence under Tennessee Rule of
Criminal Procedure 36.1. Either way, Defendant is not entitled to relief.

       If construed as a motion to withdraw a guilty plea, Defendant’s motion is
untimely. The Tennessee Rules of Criminal Procedure provide for a motion to withdraw
a guilty plea either before the sentence is imposed or after the sentence is imposed but
before the judgment becomes final. Tenn. R. Crim. P. 32(f). “A trial court’s judgment
becomes final thirty days after its entry unless a timely notice of appeal or specified post-
trial motion is filed.” Hill v. State, 111 S.W.3d 579, 580 (Tenn. Crim. App. 2003) (citing
Tenn. R. App. P. 4(a), (c)). The record contains nothing which would indicate that the
judgments did not become final thirty days after their entry on August 14, 2009. The
record does not indicate the date upon which Defendant filed his “Motion to Set Aside
Judgment.” However, the first motion in the appellate record was filed approximately
seven years after the judgments in this case became final. From this, we deduce that
Defendant’s motion is at least seven years too late.

        In their appellate briefs, both Defendant and the State refer to Defendant’s motion
as a motion to correct an illegal sentence under Rule 36.1.2 However, Defendant does not
mention Rule 36.1 in his motion nor does the trial court mention Rule 36.1 in its order
denying the motion. If the motion were construed as a Rule 36.1 motion, Defendant’s
motion fails to present a colorable claim that the unexpired sentence is illegal. Whether a
defendant’s motion states a colorable claim under Rule. 36.1 is a question of law, which
we review de novo. State v. Wooden, 478 S.W.3d 585, 593 (Tenn. 2015). “[F]or
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. “[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)(2). Only a fatal error will render a sentence illegal. Wooden, 478 S.W.3d at 595.
Illegal sentences resulting from fatal error include “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. Defendant’s only argument is that a violation of double

        2
           In his appellate brief, Defendant states that his Rule 36.1 motion was filed on March 10, 2017,
which is one month after the notice of appeal was filed in this case. If there were additional motions filed
in the trial court after the notice of appeal, they are not included in the record presently before this Court
and are not part of the present appeal.
                                                      -3-
jeopardy occurred, which is an attack on his underlying convictions, not his sentence.
Defendant has not properly presented an argument that his sentence is illegal. Thus, he
has failed to present a colorable claim for the purposes of Rule 36.1.

                                      Conclusion

      For the aforementioned reasons, we affirm the judgment of the trial court.


                                        ____________________________________
                                        TIMOTHY L. EASTER, JUDGE




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