        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs December 9, 2015

             STATE OF TENNESSEE v. DEANGELO T. COLLINS

                   Appeal from the Criminal Court for Shelby County
                  Nos. 99-12013, 99-04113   W. Mark Ward, Judge


              No. W2015-00781-CCA-R3-CD - Filed February 8, 2016


In 2000, the defendant pled guilty to aggravated robbery and, apparently, a lesser-
included offense of possession with intent to sell less than one-half gram of cocaine,
receiving concurrent sentences of eight years and three years. In 2014, apparently now in
federal custody, he filed a Tennessee Rule of Criminal Procedure 36.1 motion, claiming
that the second offense was committed while he was free on bond for the first, thus
requiring the sentences to be served consecutively. He asked, in his pro se motion, that
the convictions be vacated and the indictments set for trial. However, at an evidentiary
hearing, after counsel had been appointed, the defendant asked that he be resentenced in
the two cases to consecutive terms. The trial court found that the manner of service of
the sentences had not been a material component to the guilty pleas and resentenced the
defendant, as requested, to consecutive terms for his two state convictions. The
defendant then appealed, asserting that the trial court had erred in concluding that the
manner of service of the sentences was not a material part of the guilty pleas and arguing
that he was entitled to a new hearing on his motion. Following our review, we reverse
the trial court’s order that the sentences be served consecutively and reinstate the original
judgments for concurrent sentences.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed,
                        Original Judgments Reinstated

ALAN E. GLENN, J., delivered the opinion of the court, in which THOMAS T. WOODALL,
P.J., and ROBERT W. WEDEMEYER, J., joined.

Stephen Bush, District Public Defender; Phyllis Aluko (on appeal) and Trent Hall (at
hearing), Assistant Public Defenders, for the appellant, Deangelo T. Collins.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
Amy P. Weirich, District Attorney General; and Greg Gilbert, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                       OPINION

        The record in this matter is sparse. The single 2000 judgment of conviction
included in the record on appeal shows that on February 2, 2000, the defendant entered a
plea of guilty as charged in Indictment 99-04113, alleging aggravated robbery and was
sentenced to confinement for eight years, with the sentenced to be served concurrently
with that imposed in Indictment 99-12013. The record on appeal includes a copy of this
second indictment, charging, in count one, possession with intent to sell one-half gram or
more of a substance containing cocaine and, in count two, possession of this substance
with intent to deliver. However, the record does not include a copy of the judgment for
this indictment, although the defendant’s appellate brief states that he pled guilty to a
lesser-included offense of count one of the indictment.

        As we have set out, in the trial court, the defendant complained that he had been
entitled to consecutive rather than concurrent sentences and asked that new judgments be
filed to correct this mistake of years earlier. The trial court granted his request and
imposed consecutive sentences. On appeal, the defendant asked that the original
sentences be set aside and an evidentiary hearing be conducted upon his claim that the
original sentences were illegal because they were concurrent rather than consecutive.

      Rule 36.1(a) 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.

        In this matter, even if the defendant long ago received an illegal sentence, our
supreme court has recently analyzed Rule 36.1 and concluded that it “does not authorize
the correction of expired illegal sentences.” State v. Adrian R. Brown, __ S.W.3d __,
No. E2014-00673-SC-R11-CD, 2015 WL 7748275, at *8 (Tenn. Dec. 2, 2015). Here, the
defendant readily admits that his sentence has long since expired and, because of such,
relief is not available under Rule 36.1. Therefore, we reverse the trial court’s correction
of the judgments against the defendant and reinstate the original judgments.


                                                 _________________________________
                                                 ALAN E. GLENN, JUDGE



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