                                                                                           05/03/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE

                STATE OF TENNESSEE v. FRED E. SMITH, JR.

                 Appeal from the Criminal Court for Wilson County
                           No. 3377  Brody Kane, Judge


                             No. M2017-01360-CCA-R3-CD
                        _____________________________

Defendant, Fred E. Smith, Jr., is appealing the trial court’s denial of his motion to correct
an illegal sentence filed pursuant to Rule of Criminal Procedure Rule 36.1 The State has
filed a motion asking this Court to affirm pursuant to Court of Criminal Appeals Rule 20.
Said motion is hereby granted.

Tenn. R. App. P. 3 Appeal as of Right; Order of the Trial Court Affirmed Pursuant
                      to Court of Criminal Appeals Rule 20

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J. and ROBERT W. WEDEMEYER, J., joined.

Comer L. Donnell, District Public Defender, and Thomas H. Bilbrey, Assistant Public
Defender, for the Appellant, Fred E. Smith, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel,
for the Appellee, State of Tennessee.


                              MEMORANDUM OPINION


       In 1989, Defendant pled guilty to second degree murder and received an agreed
upon sentence of fifty years at thirty percent as a Range I standard offender. Defendant
was unsuccessful in his pursuit of three previous habeas corpus petitions. Fred Smith v.
Henry Steward, Warden, No. W2012-00633-CCA-R3-HC, 2012 WL 5859660 (Tenn.
Crim. App. Nov. 19, 2012), perm. app. denied (Tenn. Mar. 5, 2013); State v. Fred E.
Smith, No. W2006-02504-CCA-R3-HC, 2007 WL 2323384 (Tenn. Crim. App. Aug. 13,
2007), perm. app. denied (Tenn. Jan. 28, 2008); Fred E. Smith v. State, No. 02C01-9906-
CC-00185, 1999 WL 1095696 (Tenn. Crim. App. Oct. 28, 1999), no perm. app. filed. In
July 2016, Defendant filed a motion to correct an alleged illegal sentence pursuant to
Tennessee Rule of Criminal Procedure 36.1. Following a hearing, the trial court denied
the motion. This appeal ensued. The record and Defendant’s brief have been filed. In
response, the State filed a motion to affirm the ruling of the trial court pursuant to Rule
20. For the reasons stated below, said motion is hereby granted.

        In the motion he filed in the trial court, Defendant argued his fifty-year sentence is
illegal because at the time of his crime the sentence range for a Range I standard offender
convicted of second degree murder was ten to thirty-five years. Under the 1982
Sentencing Act, which applied to Defendant’s case, second degree murder was a Class X
felony and carried a range of punishment from ten years to life in prison. T.C.A. §§ 39-
2-211(b) and -212 (1982) (repealed 1989). A life sentence was presumed to be sixty
years. T.C.A. § 40-35-109(d)(1) (1982) (repealed 1989). Defendant correctly identified
the applicable sentencing range for a Range I standard offender as between ten and thirty-
five years. Id.

       Recognizing the fact that Defendant previously challenged the validity of his
sentence via habeas corpus petitions, the trial court concluded Defendant did not present
a colorable claim for relief in his Rule 36.1 motion. Citing this Court’s opinions from
2007 and 1999, the court ruled Defendant’s plea-bargained sentence did not exceed the
maximum punishment for second degree murder and waived any irregularity as to
offender classification and release eligibility. In this Court’s most recent opinion from
2012, we reiterated our holding from 2007: “‘the petitioner’s fifty-year sentence would
not be an illegal sentence even though it exceeded the maximum sentencing range for a
Range I offender because the sentence fell within the maximum punishment range of
sixty years authorized for Class X felony offenses such as second degree murder.’”
Smith, 2012 WL 5859660 at *2 (quoting Smith, 2007 WL 2323384 at *3).

       Rule 36.1 permits a defendant to seek correction of an unexpired illegal sentence
at any time. See State v. Brown, 479 S.W.3d 200, 211 (Tenn. 2015). “[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). Our supreme court has
interpreted the meaning of “illegal sentence” as defined in Rule 36.1 and concluded that
the definition “is coextensive, and not broader than, the definition of the term in the
habeas corpus context.” State v. Wooden, 478 S.W.3d 585, 594-95 (Tenn. 2015). The
court then reviewed the three categories of sentencing errors: clerical errors (those arising
from a clerical mistake in the judgment sheet), appealable errors (those for which the
Sentencing Act specifically provides a right of direct appeal) and fatal errors (those so
profound as to render a sentence illegal and void). Id. Commenting on appealable errors,
the court stated that those “generally involve attacks on the correctness of the
methodology by which a trial court imposed sentence.” Id. In contrast, fatal errors
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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. The
court held that only fatal errors render sentences illegal. Id.

       The trial court did not err in denying Defendant’s motion in this case. “[A] plea-
bargained sentence is legal so long as it does not exceed the maximum punishment
authorized by the plea offense.” Hoover v. State, 215 S.W.3d 776, 780 (Tenn. 2007).
Moreover, as noted above, our Supreme Court recently interpreted the meaning of
“illegal sentence” as defined in Rule 36.1 and concluded that the definition “is
coextensive, and not broader than, the definition of the term in the habeas corpus
context.” Wooden, 478 S.W.3d at 594-95. Indeed, that court observed the language of
Rule 36.1 “mirrors” the definition of an illegal sentence for habeas corpus purposes. Id.
Accordingly, this Court’s analysis in the Defendant’s previous habeas corpus actions
controls the outcome herein. The trial court correctly ruled Defendant did not state a
colorable claim for relief pursuant to Rule 36.1.

       Any other challenges by Defendant to the voluntariness of his guilty plea are
insufficient to state a colorable claim for relief in a Rule 36.1 motion. As this Court has
emphasized, Rule 36.1 “provide[s] an avenue for correcting allegedly illegal sentences.
The Rules 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 (Tenn. Crim.
App., Mar. 31, 2014), perm. app. denied, (Tenn., Nov. 19, 2014) (emphases in original).

      Accordingly, the ruling of the trial court is hereby affirmed pursuant to Court of
Criminal Appeals Rule 20.



                                                  _________________________________
                                                  TIMOTHY L. EASTER, JUDGE




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