        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                 Assigned on Briefs February 19, 2015 at Knoxville

            JOE CLARK MITCHELL v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Maury County
       Nos. 2311-12, 2314, 2316-18, 2320-22  Robert L. Holloway, Jr., Judge



                No. M2014-00754-CCA-R3-CD – Filed May 20, 2015



The appellant, Joe Clark Mitchell, filed in the Maury County Circuit Court a motion to
correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. The
motion was summarily denied, and the appellant timely appealed the ruling. Upon
review, we affirm the judgment of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Joe Clark Mitchell, Only, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; and Brent A. Cooper, District Attorney General, for the appellee, State of
Tennessee.

                                       OPINION

                                I. Factual Background

       In 1986, the appellant was charged with offenses in Giles County; after a change
of venue was granted, he was tried in Maury County and convicted of two counts of
aggravated assault, two counts of armed robbery, two counts of aggravated kidnapping,
one count of arson, one count of first degree burglary, and two counts of aggravated rape.
State v. Joe Clark Mitchell, No. 87-152-III, 1988 WL 32362, at *1 (Tenn. Crim. App. at
Nashville, Apr. 7, 1988). The trial court imposed four consecutive life sentences for the
aggravated kidnapping and the aggravated rape convictions; the remaining sentences
were to be served concurrently with the four consecutive life sentences. Id. On direct
appeal, this court modified one of the aggravated rape convictions to rape, and the
sentence was reduced to thirteen years. Id.

       Since his convictions, the appellant has repeatedly pursued relief from his
convictions and sentences. His most recent attempt, which is the subject of the instant
appeal, is a motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal
Procedure 36.1. In the motion, the appellant alleged that “the trial court in this case was
without jurisdiction to indict/convict and/or enter[] sentence . . . thus rendering the
judgments of conviction illegal and void.” The appellant argued that because the
Twenty-second Judicial District encompassed Giles, Lawrence, Maury, and Wayne
Counties, the trial court was required to select members of the grand jury and the petit
jury from all four counties. The appellant also alleged that the trial court erred by finding
the appellant to be both an especially aggravated offender and a persistent offender and
by failing to include the release eligibility percentage on the judgment as required by
Tennessee Code Annotated section 40-35-501.1 Finally, the appellant alleged that the
trial court erroneously sentenced him as a persistent offender in contravention of
Tennessee Code Annotated section 40-35-106(a)(1) (1982).2

       The trial court entered an order summarily dismissing the motion, holding that the
appellant‟s claims regarding the trial court‟s jurisdiction and sentencing were without
merit. On appeal, the appellant challenges this ruling.

                                              II. Analysis


1
  Tennessee Code Annotated section 40-35-501 (1982) provided the release eligibility percentages for
especially mitigated, standard, multiple, and persistent offenders. Additionally, the statute provided that
“[t]he release eligibility date provided for herein shall be separately calculated for each offense for which
a defendant is convicted.” Tenn. Code Ann. ' 40-35-501(g) (1982).


2
  At the time of the appellant‟s convictions, Tennessee Code Annotated section 40-35-106 (1982)
provided that for determination of sentencing ranges:

                (a) A “persistent offender” is a defendant who has received:

                (1) Two (2) or more prior felony convictions for offenses committed
                within five (5) years immediately preceding the commission of the
                instant offense; or

                (2) Four (4) or more prior felony convictions for offenses committed
                within ten (10) years immediately preceding the commission of the
                instant offense.
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        First, the appellant contends that the grand jury that indicted him was chosen
solely from citizens of Giles County, not from all of the counties comprising the Twenty-
second Judicial District. He maintains that selecting a jury from a single county within a
judicial district, instead of from the district as a whole, violates Tennessee Code
Annotated sections 16-2-506 and 16-2-510(c) and thereby deprives the trial court of
jurisdiction and renders the indictment and resulting convictions and sentences void.

       Tennessee Code Annotated section 16-2-501(a), which was enacted in 1984,
explained that the purpose of the legislation was “to reorganize the existing trial court
system of this state in such a way that its growth occurs in a logical and orderly manner.”
Within Part 5, the legislature created thirty-one judicial districts. Tenn. Code Ann. ' 16-
2-506. The Twenty-second Judicial District was comprised of Giles, Lawrence, Maury,
and Wayne Counties. Tenn. Code Ann. ' 16-2-506(19)(A)(1)(i).

        The appellant contends the establishment of judicial districts “stripped original
jurisdiction from the County courts [and] in the same stroke abolished and outlawed the
operation of County juries, (grand or petit) and replaced them with „District juries and
District Criminal/Circuit Courts . . . .‟”

       Historically, “two distinct procedural avenues [were] available to collaterally
attack a final judgment in a criminal case - habeas corpus and post-conviction petitions.”
Hickman v. State, 153 S.W.3d 16, 19 (Tenn. 2004); see also State v. Donald Terrell, No.
W2014-00340-CCA-R3-CO, 2014 WL 6883706, at *2 (Tenn. Crim. App. at Jackson,
Dec. 8, 2014). However, effective July 1, 2013, the Tennessee Rules of Criminal
Procedure were amended by the addition of Rule 36.1, which provides, in part:

              Either the appellant 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(a); see Secdrick L. Booker v. State, No. M2014-00846-CCA-R3-
CD, 2014 WL 7191041, at *2 (Tenn. Crim. App. at Nashville, Dec. 18, 2014). If the
motion states a “colorable claim that the sentence is illegal,” the trial court shall appoint
counsel and hold a hearing on the motion. See Tenn. R. Crim. P. 36.1(b). “A sentence is
not illegal when it is „statutorily available but ordinarily inapplicable to a given
defendant‟; rather, an illegal sentence is one that is „simply unavailable under the
Sentencing Act.‟” State v. Adrian R. Brown, No. E2014-00673-CCA-R3-CD, 2014 WL
                                            -3-
5483011, at *3 (Tenn. Crim. App. at Knoxville, Oct. 29, 2014) (quoting Cantrell v.
Easterling, 346 S.W.3d 445, 454 (Tenn. 2011)), application for perm. to appeal filed,
(Mar. 16, 2015).

        Although Rule 36.1 does not define what constitutes a “colorable claim,” this
court has adopted the following definition: “[a] colorable claim is a claim . . . that, if
taken as true, in the light most favorable to the [appellant], would entitle [the appellant]
to relief.” State v. David Morrow, No. W2014-00338-CCA-R3-CO, 2014 WL 3954071,
at *2 (Tenn. Crim. App. at Jackson, Aug. 13, 2014) (internal quotation marks and citation
omitted). The requirements for a Rule 36.1 motion are more lenient than for a habeas
corpus petition; notably, in a Rule 36.1 motion, a defendant is required only to state a
colorable claim in his motion but is not required to attach supporting documents in order
to survive summary dismissal, and the motion may be filed “at any time.” See State v.
Sean Blake, No. W2014-00856-CCA-R3-CO, 2015 WL 112801, at *2 (Tenn. Crim. App.
at Jackson, Jan. 8, 2015); State v. John Talley, No. E2014-01313-CCA-R3-CD, 2014 WL
7366257, at *2 (Tenn. Crim. App. at Knoxville, Dec. 26, 2014).

      The appellant‟s complaints, however, do not constitute a colorable claim for relief
under Rule 36.1. This court has explained that

              Rule 36.1 provides an avenue for pursuing the correction of
              illegal sentences, defined by the Rule as a sentence „not
              authorized by the applicable statutes‟ or a sentence „that
              directly contravenes an applicable statute.‟ Thus, the Rule is
              directed at the sentence finally imposed, not the methodology
              by which it is imposed.

State v. Jonathan T. Deal, No. E2013-02623-CCA-R3-CD, 2014 WL 2802910, at *2
(Tenn. Crim. App. at Knoxville, June 17, 2014) (citations omitted). In other words, Rule
36.1 provides “an avenue for correcting allegedly illegal sentences. The Rule does not
provide an avenue for seeking the reversal of convictions.” State v. Jimmy Wayne
Wilson, No. E2013-02354-CCA-R3-CD, 2014 WL 1285622, at *2 (Tenn. Crim. App. at
Knoxville, Mar. 31, 2014) (citing Cantrell v. Easterling, 346 S.W.3d 445, 455-56 (Tenn.
2011)), perm. to appeal denied, (Tenn. Nov. 19, 2014). The appellant‟s challenge to the
process of choosing members of grand juries or petit juries, even if taken as true, would
affect his convictions, not his sentences. Accordingly, the appellant is not entitled to
relief on this basis.

       Next, the appellant alleges that the trial court erred by finding that the appellant
was subject to sentencing ranges for both an especially aggravated offender and a
persistent offender and by failing to “pronounce judgment on the percentage” as required
                                            -4-
by Tennessee Code Annotated section 40-35-501. The appellant also alleges that the trial
court‟s finding that he was a persistent offender for the purpose of sentencing ranges was
based upon an incorrect interpretation of Tennessee Code Annotated section 40-35-
106(a)(1).

        The record belies the appellant‟s contentions. The trial court determined the
appellant‟s sentencing range based upon the finding that the appellant was a Range II,
especially aggravated offender, and the judgments of conviction clearly reflect the
appellant‟s designation as an especially aggravated offender. The trial court‟s finding
that the appellant was a persistent offender was for the purpose of consecutive
sentencing, not for the purpose of determining his sentencing range. Further, the failure
to pronounce judgment on release eligibility percentages does not entitle the appellant to
relief; the appellant‟s release eligibility was determined by statute. Tenn. Code Ann. '
40-35-501(e) (1982). Regardless, the appellant‟s claim is not one that falls under the
auspices of Rule 36.1. State v. Robert B. Ledford, No. E2014-01010-CCA-R3-CD, 2015
WL 757807, at *2 (Tenn. Crim. App. at Knoxville, Feb. 23, 2015) (stating that a trial
court‟s error in offender classification will generally not render the sentence illegal).
Accordingly, the appellant is not entitled to relief in this regard.

                                    III. Conclusion

       Finding no error, we conclude that the trial court did not err by dismissing the
appellant‟s motion to correct an illegal sentence.



                                                 _________________________________
                                                 NORMA McGEE OGLE, JUDGE




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