        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs August 4, 2015

               STATE OF TENNESSEE v. DECORNICK MOORE

                 Appeal from the Circuit Court for Haywood County
                     No. 5153-B Clayburn L. Peeples, Judge


               No. W2015-00169-CCA-R3-CD - Filed August 26, 2015


The Defendant, Decornick Moore, pleaded guilty to attempt to commit second degree murder
and received a ten-year sentence. More than ten years later, the Defendant filed a motion
pursuant to Tennessee Criminal Procedure Rule 36.1 requesting that the trial court correct an
illegal sentence because his sentence should have been served consecutively to a previously
imposed sentence. The trial court summarily dismissed the motion for failure to state a
colorable claim. On appeal, he contends that the trial court erred in dismissing his motion.
We affirm the judgment of the trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which ALAN E.
GLENN and ROGER A. PAGE, JJ., joined.

Decornick Moore, Memphis, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney
General; and Garry Brown, District Attorney General, Jerald M. Campbell, Jr., Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

       In 2003, the Defendant and his codefendant were indicted for attempt to commit first
degree murder and especially aggravated burglary. On May 26, 2004, the Defendant pleaded
guilty pursuant to a negotiated agreement to attempt to commit second degree murder in
exchange for a ten-year sentence and a dismissal of the burglary-related charge.
        On September 25, 2014, the Defendant filed a motion to correct an illegal sentence.
In the motion, the Defendant stated that on January 27, 2003, he pleaded guilty in Madison
County case number 02-632 to a burglary-related offense, theft, and possession of burglary
tools. He stated that he received an effective four-year sentence to be served on community
corrections. The Defendant said that on August 13, 2003, two months after the trial court
imposed sentencing, he was arrested in connection with the present case. He alleged that
defense counsel advised him that the State would agree to concurrent sentences if he pleaded
guilty. The Defendant argued that concurrent sentences violated Tennessee Code Annotated
section 40-28-123 (2012) and Tennessee Criminal Procedure Rule 32(c)(3), which required
consecutive service, and that he entered an involuntary and unknowing guilty plea because he
was unaware the law required consecutive sentences.

       The State responded to the Defendant’s motion, arguing that the Defendant presented
no evidence supporting his claim that he was serving a previously imposed sentence on
community corrections at the time of the present case. Alternatively, the State argued that
even if the Defendant’s claim was accurate, his reliance on Code section 40-28-123 and
Tennessee Criminal Procedure Rule 32(c)(3) was misplaced because he was not on parole at
the time of the offenses. The State, likewise, treated the Defendant’s motion as a petition for
a writ of habeas corpus, arguing that the Defendant was not entitled to habeas corpus relief
because the judgment was valid and because his sentence expired on May 26, 2014. The trial
court summarily dismissed the Defendant’s motion “for good cause shown.” This appeal
followed.

       The Defendant contends that the trial court erred by summarily dismissing his motion
for a corrected sentence. He argues that his concurrent sentences were in direct
contravention of Tennessee Criminal Procedure Rule 32(c)(3)(A) and (D) and Tennessee
Code Annotated section 40-28-123. He also argues that the trial court erred by treating his
motion as a petition for habeas corpus relief. The State responds that the trial court properly
denied the motion. We agree with the State.

       Tennessee Criminal Procedure Rule 36.1 states, in relevant part, that

       (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.




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Tenn. R. Crim. P. 36.1(a). A defendant is entitled to a hearing and the appointment of
counsel if the motion states a colorable claim for relief. Id. at 36.1(b). Further, the trial court
is required to file an order denying the motion if it determines that the sentence is not illegal.
Id. at 36.1(c)(1).

        The record reflects that pursuant to a negotiated plea agreement, the Defendant
pleaded guilty to attempt to commit second degree murder in exchange for a ten-year
sentence. The plea agreement form and the judgment form do not reference the Madison
County convictions and sentences. Although the State notes that the Defendant did not attach
to his motion for a corrected sentence supporting documentation relative to his Madison
County convictions, a defendant who seeks correction of an illegal sentence is not required to
attach supporting documents to support a colorable claim. State v. Brandon Rollen, No.
W2012-01513-CCA-R3-CD, slip op. at 5 (Tenn. Crim. App. September 11, 2013); see
George William Brady v. State, No. E2013-00792-CCA-R3-PC, 2013 WL 6729908, at *6
(Tenn. Crim. App. Dec. 19, 2013) (“Under the liberal terms of Rule 36.1, the petitioner’s
raising a colorable claim would entitle him to the appointment of counsel and a hearing on
his claim, even without any documentation from the underlying record to support his
claim.”). In any event, the record contains the State’s notice of intent to impeach the
Defendant at a trial with his previous convictions from Madison County, which was filed on
October 31, 2003. The notice referenced the Defendant’s previous convictions for burglary,
theft, and possession of burglary tools and stated the conviction date for each offense was
January 27, 2004. Although the notice does not state the length and manner of service of the
sentences, the Defendant stated in his petition and in his appellate brief that he was sentenced
to an effective four years to be served on community corrections.

       The Defendant relies on Tennessee Criminal Procedure Rule 32(c)(3), which states, in
relevant part,

       When a . . . 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;

       ...

       (D) for any other ground provided by law.



                                        -3-
Tenn. R. Crim. P. 32(c)(3)(A), (D). The Defendant also relies on Tennessee Code Annotated
section 40-28-123, which addresses the board of parole’s authority relative to service of
sentences when a defendant commits a felony while on parole. See T.C.A. § 40-28-123(a),
(b)(1)-(2) (2012). The Defendant’s reliance is misplaced.

        The Defendant states in his brief that he pleaded guilty in Madison County and
received a four-year sentence “in the Community Correction to a suspended sentence of four
years” and that he committed the present offense while in the “Community Correction
Program.” Community corrections is a form of alternative sentencing, and it is distinct from
release on parole. See State v. Anderson, 7 S.W.3d 100, 102 (Tenn. Crim. App. 1999)
(stating that our appellate courts “have recognized that community corrections is more
similar to probation” than work release and parole). A defendant serving a sentence on
community corrections is not a prisoner within the meaning of Code section 40-28-123. As
a result, Tennessee Criminal Procedure Rule 32(c)(3) and Code section 40-28-123 are
inapplicable.

       However, Tennessee Criminal Procedure Rule 32(c)(2)(A)(i) states, in relevant part,
that

       [i]f the defendant has additional sentences not yet fully served as the result of
       convictions . . . in other courts of Tennessee and if this fact is made known to
       the court prior to sentencing, the court shall recite this fact in the judgment
       setting sentence, and the sentence imposed is deemed to be concurrent with the
       prior sentence . . . , unless it affirmatively appears that the new sentence being
       imposed is to be served consecutively to the prior sentence[.]

Although the judgment in the present case does not reference the Madison County
convictions, the trial court was aware of the convictions prior to the Defendant’s pleading
guilty in the present case because the notice of impeachment appears in the record. As a
result, the Defendant’s ten-year sentence is deemed to be served concurrently with his
effective four-year sentence in Madison County. Although a trial court may impose
consecutive sentences for an offense committed while a defendant is serving a sentence on
community corrections, consecutive service is not mandatory. See T.C.A. § 40-35-115
(2014); see also State v. Pettus, 986 S.W.2d 540, 544-45 (Tenn. 1999) (concluding that
although a community corrections sentence cannot be imposed consecutively pursuant to
Code section 40-35-115(6), nothing prevents a trial court from imposing consecutive
sentences when the record supports consecutive sentences based on the other statutory
factors). As a result, we conclude that the Defendant’s concurrent sentences are not illegal
and do not contravene any statute and that the Defendant has failed to state a colorable claim
for relief.

                                       -4-
        Relative to the Defendant’s contention that the trial court erred by treating his motion
as a petition for a writ of habeas corpus, we conclude that no evidence reflects that the court
treated the motion as a petition for habeas corpus relief. The State, as an alternative
argument in its response to the Defendant’s motion, addressed the Defendant’s contentions in
the context of habeas corpus relief. The court’s order summarily dismissing the motion did
not state the court’s reasoning. In any event, the Defendant would not be entitled to habeas
corpus relief because the judgment form reflects that his ten-year sentence expired before he
filed his motion. See T.C.A. § 39-21-101 (2012); see also Hickman v. State, 153 S.W.3d 16,
22-24 (Tenn. 2004). We also note that the Defendant has not stated he is currently in
confinement pursuant to the relevant convictions.

         Based on the foregoing and the record as a whole, we affirm the judgment of the trial
court.



                                             ____________________________________
                                             ROBERT H. MONTGOMERY, JR., JUDGE




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