        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs June 2, 2015

          STATE OF TENNESSEE v. GEORGE PRINCE WATKINS

                Appeal from the Circuit Court for Madison County
             Nos. 86-521, 90-227, 90-161, 90-935  Don H. Allen, Judge


              No. W2014-02393-CCA-R3-CD - Filed October 15, 2015


The Appellant, George Prince Watkins, appeals as of right from the Madison County
Circuit Court’s summary denial of his Tennessee Rule of Criminal Procedure 36.1
motion to correct an illegal sentence. The Appellant contends that the trial court erred by
denying his motion without a hearing. The State concedes that the trial court erred.
Following our review, we reverse the judgment of the trial court and remand the case for
further proceedings consistent with Rule 36.1 and this opinion.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;
                                  Case Remanded

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER, J., joined. ROBERT L. HOLLOWAY, JR., J. filed a separate opinion
concurring in part and dissenting in part.

George Prince Watkins, Memphis, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; James G. Woodall, District Attorney General; and Alfred Lynn Earls, Assistant
District Attorney, for the appellee, State of Tennessee.

                                       OPINION

        On July 23, 2014, the Appellant filed a Rule 36.1 motion to correct an illegal
sentence. The motion alleges that the Appellant pled guilty to “first degree” burglary in
1986 and was given a five-year sentence to be served on probation. The motion further
alleges that in 1989, the Appellant’s probation was revoked for having violated the terms
of his release. According to the Appellant, he committed four new offenses while he was
on bond for the probation violation and subsequently pled guilty to all four offenses. The
Appellant alleges that the sentences for all four offenses were ordered to be served
concurrently with his original 1986 sentence, in violation of Tennessee Code Annotated
section 40-20-111(b) and Tennessee Rule of Criminal Procedure 32(c)(3)(C), which
provide for mandatory consecutive sentences when a defendant commits an offense while
released on bail.

       The State filed a response to the Appellant’s motion in the trial court arguing that
“[a]ny attacks on the judgments could have been made pursuant to post[-]conviction
within three year [sic] of the judgment or under habeas corpus” and that the Appellant
“has had reasonable opportunity to raise the issue but the issue had [sic] been waived.”
The response concluded as follows:

      In this case no fundamental issue of fairness is implicated as the movant
      has slept on previous rights to bring the issue before the Court in a timely
      manner which have now expired. As a matter of sound interpretive
      principles the intent of the legislature could not have been to revive cases
      long since expired but the court should only interpret the rule to apply to
      cases presently active or sentences not yet expired.

On November 6, 2014, the trial court entered a written order denying the Appellant’s
motion, stating only that the motion was “denied for the reasons set forth in the State’s
response.”

      On appeal, the Appellant contends that the trial court erred in summarily denying
his motion. The Appellant argues that his motion stated a colorable claim and that he
should have been appointed counsel and given a hearing on the motion. The State now
concedes that the trial court erred in summarily denying the motion.

      Rule 36.1 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.

      (b) Notice of any motion filed pursuant to this rule shall be promptly
      provided to the adverse party. If the motion states a colorable claim that
      the sentence is illegal, and if the defendant is indigent and is not already
      represented by counsel, the trial court shall appoint counsel to represent the
      defendant. The adverse party shall have thirty days within which to file a
      written response to the motion, after which the court shall hold a hearing on
      the motion, unless all parties waive the hearing.
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(Emphasis added).

        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. June 17, 2014). “On its face, Rule 36.1 does not
limit the time within which a person seeking relief must file a motion, nor does it require
the person seeking relief to be restrained of liberty.” State v. Donald Terrell, No.
W2014-00340-CCA-R3-CO, 2014 WL 6883706, at *2 (Tenn. Crim. App. Dec. 8, 2014);
but cf. State v. Adrian R. Brown, No. E2014-00673-CCA-R3-CD, 2014 WL 5483011
(Tenn. Crim. App. Oct. 29, 2014) (affirming the trial court’s summary denial on the basis
of the mootness doctrine), perm. app. granted (Tenn. May 15, 2015). 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. Aug. 13, 2014) (quoting Tenn. Sup. Ct. R. 28, § 2(H)) (brackets and alterations in
original).

        The Appellant alleges that he committed four offenses while released on bail for
his original 1986 conviction and that the sentences for those convictions were ordered to
be served concurrently. Taking the Appellant’s allegations as true, his concurrent
sentences were in direct violation of Tennessee Code Annotated section 40-20-111(b)
and Tennessee Rule of Criminal Procedure 32(c)(3)(C), which provide for mandatory
consecutive sentences when a defendant commits an offense while released on bail.
Accordingly, the Appellant stated a colorable claim for relief under Rule 36.1, and the
trial court erred in summarily denying the motion. We remand this matter to the trial
court for the appointment of counsel to represent the Appellant and a hearing on the
motion pursuant to Rule 36.1

        Upon consideration of the foregoing and the record as a whole, the judgment of
the trial court is reversed. The case is remanded for proceedings consistent with Rule
36.1 and this opinion.



                                                   _________________________________
                                                   D. KELLY THOMAS, JR., JUDGE




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