                                                                                        08/15/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs June 6, 2017

           MARCUS DEANGELO LEE v. STATE OF TENNESSEE
                   Appeal from the Criminal Court for Shelby County
                      No. 97-01964     John W. Campbell, Judge

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                            No. W2016-02208-CCA-R3-CD
                        ___________________________________

The Defendant, Marcus Deangelo Lee, pleaded guilty in 1997 to escape from felony
incarceration, and the trial court sentenced him to one year and ordered that his sentence
run consecutively to a three-year sentence the Defendant received for drug-related and
firearm convictions in 1995. Since that time, the Defendant has been arrested and
convicted on other charges unrelated to this case. Almost seventeen years later, the
Defendant filed a motion to correct an illegal sentence pursuant to Tennessee Rule of
Criminal Procedure 36.1 with regard to jail credits for his 1997 felony escape conviction.
The trial court summarily dismissed the motion, and the Defendant appeals. On appeal,
he contends that the trial court erred when it summarily dismissed his motion because the
trial court improperly amended his judgment to reflect 103 days of jail credit, which he
argues resulted in his sentences running concurrently rather than consecutively as
mandated by statute. We affirm the trial court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J., and NORMA MCGEE OGLE, J., joined.

Marcus DeAngelo Lee, Springfield, Missouri, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Amy P. Weirich, District Attorney General; and G. Kirby May, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                       OPINION
                                        I. Facts

      This case arises from the Defendant’s escape from incarceration in 1997. The
Defendant has been before this court on nine previous occasions and has been before a
federal appellate court numerous other times, never obtaining the relief he sought and, on
occasion, having his appeal dismissed because it was not filed in good faith. Because the
procedural history is so complex, we will only summarize it as it relates to our holding.

        The Defendant filed his motion to correct an illegal judgment entered on May 30,
1997, as amended on September 3, 1998. That judgment of conviction shows that the
Defendant pleaded guilty to felony escape from an institution where he was incarcerated
serving time for felony drug related and firearm offenses committed in 1995. The trial
court sentenced him as a Range I Offender, to one year in the workhouse. The Defendant
asserted in his motion to correct the judgment that, as a part of his felony escape plea
agreement, the “state promised [him] . . . a 1 year sentence at 30%, with 103 days jail
credit in exchange for his admission of guilt.” The Defendant asserted that, after he was
incarcerated, he noticed that his judgment of conviction did not reflect the jail credit. He
notified his defense counsel, and ultimately an amended judgment was issued in
September 1998 showing the jail credit.

       In the Defendant’s Rule 36.1 motion currently before us, filed some seventeen
years later, he now asserts that the trial court improperly granted him the 103 days of jail
credit because the Court “effectively ran [his] felony escape sentence concurrent with his
Sale of Controlled Substance offense when it awarded him 103 days jail credit that was
promised to him by the State, in direct contravention of T.C.A. 39-16-605(c).”

       The trial court summarily dismissed his petition, and the Defendant filed an
appeal.
                                    II. Analysis

       On appeal, the Defendant contends that the trial court erred when it summarily
dismissed his petition because when the trial court awarded him 103 days of jail credit for
his 1997 escape conviction, it had the effect of his serving his time for his drug-related
convictions concurrently with his escape conviction, which is in contravention of statute.
The State counters that the sentences about which the Defendant complains have expired,
so he is not entitled to relief. We agree with the State.

        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). Rule 36.1 “does not
authorize the correction of expired illegal sentences.” Id. at 211. “[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 recently interpreted
the meaning of “illegal sentence” as defined in Rule 36.1 and concluded that the
definition “is coextensive with, 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
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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
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.


        A rule 36.1 motion is a remedy separate and distinct from habeas corpus or post-
conviction relief. See State v. Jonathan T. Deal, No. E2013-02623-CCA-R3-CD, 2014
WL 2802910, at *2 (Tenn. Crim. App., at Knoxville, June 17, 2014), no Tenn. R. App. P.
11 application filed. As such, a Rule 36.1 motion should only be summarily denied
where the motion fails to state a colorable claim for relief. This Court has defined a
colorable claim as a claim “that, if taken as true, in the light most favorable to the
[appellant], would entitle [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) (quoting State v. Mark Edward Greene, No. 2013-02710-CCA-R3-CD, 2014 WL
3530960 (Tenn. Crim. App., at Nashville, July 16, 2014), perm. app. denied (Tenn. Dec.
18, 2014)), no Tenn. R. App. P. 11 application filed. The following are examples of
illegal sentences: (1) a sentence imposed pursuant to an inapplicable statutory scheme;
(2) a sentence designating a [Release Eligibility Date (RED)] where a RED is specifically
prohibited by statute; (3) a sentence ordered to be served concurrently where statutorily
required to be served consecutively; and (4) a sentence not authorized for the offense by
any statute. Davis v. State, 313 S.W.3d 751, 759 (Tenn. 2010) (internal citations
omitted).

       The Tennessee Supreme Court has held:

       Although pretrial jail credits allow a defendant to receive credit against his
       sentence for time already served, awarding or not awarding pretrial jail
       credits does not alter the sentence in any way, although it may affect the
       length of time a defendant is incarcerated. A trial court’s failure to award
       pretrial jail credits may certainly be raised as error on appeal, as the
       defendant in Stubbs chose to do. But a trial court’s failure to award pretrial
       jail credits does not render the sentence illegal and is insufficient, therefore,
       to establish a colorable claim for relief under Rule 36.1. See Wooden, 478
       S.W.3d at 595-96 (defining colorable claim as “a claim that, if taken as true
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       and viewed in a light most favorable to the moving party, would entitle the
       moving party to relief under Rule 36.1”).

Brown, 479 S.W.3d at 212-13.

        In this case, the trial court awarded the Defendant 103 days of jail credit toward
his sentence for escape as reflected by the September 3, 1998 judgment of conviction.
First, there is nothing before this court to indicate that the jail credits were applied to both
his sentence for his 1995 drug and firearm convictions and also to his 1998 escape
conviction. The September 3, 1998 judgment of conviction reflects that the trial court
ordered that the sentence for that conviction be served consecutively to his 1995
sentences. Second, all of those sentences, both the three-year 1995 sentence and the 1998
one-year sentence, have been served and are expired. The Defendant is currently
incarcerated on sentences, both state and federal, unrelated to the 1995 and 1998
sentences. As previously stated and as the Tennessee Supreme Court made clear in
Brown, a Rule 36.1 motion does not authorize the correction of an expired sentence. See
Brown, at 211. Accordingly, we affirm the trial court’s judgment.

                                       III. Conclusion

     In accordance with the foregoing reasoning and authorities, we affirm the
judgment of the trial court.

                                                   _________________________________
                                                   ROBERT W. WEDEMEYER, JUDGE




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