        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs November 1, 2016

           STATE OF TENNESSEE v. CHRISTOPHER HUBBARD

                 Appeal from the Criminal Court for Shelby County
                  No. 10-04027       James C. Beasley, Jr., Judge
                     ___________________________________

              No. W2016-01263-CCA-R3-CD - Filed January 20, 2017
                     ___________________________________

Pro se Petitioner, Christopher Hubbard, appeals from the Shelby County Criminal
Court‟s dismissal of his motion to correct an illegal sentence pursuant to Tennessee Rule
of Criminal Procedure 36.1. On appeal, the Petitioner argues that the trial court erred by
summarily dismissing his motion. Upon review, we affirm the judgment of the trial
court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and J. ROSS DYER, JJ., joined.

Christopher Hubbard, Whiteville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Pamela Diane
Fleming, Assistant District Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

       On November 15, 2010, the Petitioner was convicted by a Shelby County Jury of
aggravated kidnapping and aggravated assault. The trial court sentenced the Petitioner as
a repeat violent offender to life without the possibility of parole for the aggravated
kidnapping conviction. The Petitioner was also sentenced to ten years for the aggravated
assault conviction and the sentences were ordered to run concurrently. The Petitioner‟s
conviction was affirmed on direct appeal, see State v. Christopher Hubbard, No. W2011-
01078-CCA-R3-CD, 2012 WL 2196303 (Tenn. Crim. App. June 15, 2012), and his
petition for post-conviction relief was subsequently denied by this court. See Christopher
Hubbard v. State, No. W2014-01716-CCA-R3-PC, 2015 WL 5683092 (Tenn. Crim. App.
Sep. 25, 2015). On April 26, 2016, the Petitioner filed a motion to correct an illegal
sentence pursuant to Tennessee Rule of Criminal Procedure 36.1, essentially arguing that
his sentence was illegal due to an error in the State‟s pretrial notice of intent to seek
enhanced punishment. The trial court summarily dismissed the motion on May 3, 2016,
specifically finding that:

       The [P]etitioner was properly put on notice of his prior conviction. The
       applicable information was provided. Even if it was not sufficient, which
       the Court finds that it was, the [P]etitioner has failed to state a colorable
       claim upon which relief could be granted. The issue he raises should have
       been raised at the time of trial, sentencing and appeal of the original
       conviction.

       It is from this order that the Petitioner timely appeals.

                                         ANALYSIS

        On appeal, the Petitioner asserts that his sentence is illegal because the State‟s
omission of the Petitioner‟s dates of prior incarceration on its notice of intent to seek
enhanced punishment “rendered the State‟s notice a nullity as [a] matter of law and fact
as the Tennessee Supreme Court held in[ ] State v. Cooper, 321 S.W.3d 501 (Tenn.
2010).” The State responds that the trial court properly denied the motion because the
Petitioner‟s claim merely constitutes an “„appealable error,‟ not a „fatal error‟ as required
to allege a colorable claim for relief.” We agree with the State.

         Under Rule 36.1 of the Tennessee Rules of Criminal Procedure, “[e]ither the
defendant or the [S]tate may, at any time, seek the correction of an illegal sentence[.]”
Tenn. R. Crim. P. 36.1(a). “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.”
Id. A petitioner is only entitled to a hearing and appointment of counsel “[i]f the motion
states a colorable claim that the sentence is illegal.” Tenn. R. Crim. P. 36.1(b); see
Marcus Deangelo Lee v. State, No. W2013-01088-CCA-R3-CO, 2014 WL 902450, at *6
(Tenn. Crim. App. Mar. 7, 2014). This court has stated that a colorable claim “is a claim
. . . that, if taken as true, in the light most favorable to the [petitioner], would entitle [the
petitioner] to relief[.]” State v. David A. Brimmer, No. E2014-01393-CCA-R3-CD, 2014
WL 201759, at *2 (Tenn. Crim. App. Dec. 18, 2014) (citing and quoting State v. Mark
Edward Greene, No. M2013-02710-CCA-R3-CD, 2014 WL 3530960, at *3 (Tenn. Crim.
App. July 16, 2014)); Tenn. Sup. Ct. R. 28 § 2(H).




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        Taking the Petitioner‟s assertions as true and viewing them in the light most
favorable to him, we conclude that he has not presented a colorable claim for relief. The
Petitioner‟s argument that he received inadequate notice of the State‟s intent to seek
classification as a repeat violent offender relates to the underlying sentencing procedure,
not the legality of the Petitioner‟s sentence, and, as such, should have been raised on
direct appeal. See Cantrell v. Easterling, 346 S.W.3d 445, 449-53 (Tenn. 2011)
(distinguishing between “appealable errors” and “fatal errors” in sentencing and noting
that “if a defendant is aggrieved by the trial court‟s determination that he is a multiple
offender, he may raise this issue on direct appeal.”); see also State v. Jonathan T. Deal,
No. E2013-02623-CCA-R3-CD, 2014 WL 2802910, at *2 (Tenn. Crim. App. June 17,
2014) (explaining that Rule 36.1 provides a means for correcting an illegal sentence as
finally imposed, not the methodology by which the sentence is imposed); see also State v.
Robert B. Ledford, No. E2014-01010-CCA-R3-CD, 2015 WL 757807, at *2 (Tenn.
Crim. App. Feb. 23, 2015) (stating that “an error in the offender classification does not
create a sentence that is not authorized by the applicable statutes or that directly
contravenes an applicable statute.”).

       Additionally, although this precise issue has not yet been addressed in a Rule 36.1
context in Tennessee, it has been addressed in a habeas corpus proceeding, and the
Tennessee Supreme Court has held that an “illegal sentence” as defined in Rule 36.1 “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); see Jeffrey E. Dunlap
v. Tony Parker, Warden, No. W2004-01042-CCA-R3-HC, 2004 WL 1944141, at *1
(Tenn. Crim. App. Dec. 20, 2004) (noting that “[a] defect in the notice of intent to seek
sentence enhancement does not render an enhanced sentence illegal.”). Accordingly, the
Petitioner‟s claims, even if true, are not within the purview of Tennessee Rule of
Criminal Procedure Rule 36.1.

       We further note that, while the Petitioner is correct that the State‟s notice did not
set forth the dates of the prior periods of incarceration as required by Tennessee Code
Annotated section 40-35-120(i)(2), this court has held that when the only defect on an
enhancement notice is the absence of the prior dates of incarceration, the notice is
substantially compliant and a defendant “„must show prejudice to obtain relief.‟” State v.
Alvertis Boyd, No. W2010-01513-CCA-R3-CD, 2011 WL 2586811 at *6 (Tenn. Crim.
App. July 1, 2011) (quoting State v. Adams, 788 S.W.2d 557, 559 (Tenn. 1990)).
Likewise, the Petitioner‟s reliance on State v. Cooper is misplaced. In Cooper, the
defendant did not receive any pretrial notice that the State intended to seek sentencing
under the repeat violent offender statute. 321 S.W.3d at 506. Here, the Petitioner
received notice that the State intended to pursue sentencing as a repeat violent offender
for the Petitioner‟s second degree murder conviction and the notice included the date of
the Petitioner‟s prior conviction, the indictment number, and the court division.
                                           -3-
Therefore, even considering the merits of the Petitioner‟s claims, he is not entitled to
relief. Because the Petitioner has failed to state a colorable claim for relief pursuant to
Rule 36.1, we affirm the summary dismissal of his motion to correct an illegal sentence.

                                    CONCLUSION

       Upon review, we affirm the judgment of the trial court.



                                             ____________________________________
                                            CAMILLE R. McMULLEN, JUDGE




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