       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                          Assigned on Briefs July 19, 2016

                 STATE OF TENNESSEE v. MACK C. STONE

               Appeal from the Criminal Court for Davidson County
               Nos. 91-D-2338, 92-A-556 Cheryl Blackburn, Judge


                No. M2016-00273-CCA-R3-CD – Filed July 22, 2016


The defendant, Mack C. Stone, appeals the summary dismissal of his motion, filed
pursuant to Tennessee Rule of Criminal Procedure 36.1, to correct what he believes to be
an illegal sentence imposed for his 1992 Davidson County Criminal Court guilty-pleaded
convictions of the sale of cocaine. Discerning no error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and TIMOTHY L. EASTER, JJ., joined.

Mack. C. Stone, Manchester, Kentucky, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Nathan McGregor,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                      OPINION

               The defendant, who is currently incarcerated in a federal correctional
institution in Manchester, Kentucky, pleaded guilty in the Davidson County Criminal
Court to the conviction offenses on May 1, 1992, in exchange for concurrent sentences of
eight years‟ incarceration. On February 6, 2015, the defendant moved the trial court
under Rule 36.1 to deem the concurrent alignment of his eight-year sentences illegal and
permit him to withdraw his guilty pleas. He argued that because he was on bail for the
drug charge in case number 91-D-2338 when he committed the drug offense in case
number 92-A-556, the Code mandated consecutive alignment of the resulting sentences.

             On July 1, 2015, the trial court entered a preliminary order on the
defendant‟s motion, finding that the indigent defendant had stated a colorable claim for
relief and appointing counsel to represent the petitioner. The court also ordered the State
to respond to the defendant‟s allegations and set the matter for an evidentiary hearing.
On December 7, 2015, the trial court ordered the defendant to address within five days
the merits of his claims in light of the Tennessee Supreme Court‟s decisions in State v.
Wooden, 478 S.W.3d 585 (Tenn. 2015), and State v. Brown, 479 S.W.3d 200 (Tenn.
2015), both of which opinions were filed on December 2, 2015. On January 19, 2016,
the trial court entered an order summarily dismissing the defendant‟s Rule 36.1 motion
on grounds that the defendant‟s sentences “expired years before he filed his pro se motion
in February 2015.”

              In this appeal, the defendant argues that the trial court erred by summarily
dismissing his motion, reiterating his claim that the illegal concurrent alignment of his
sentences entitles him to Rule 36.1 relief. The State asserts that summary dismissal was
appropriate because the defendant‟s sentences, even if they were illegal, have expired.

               Rule 36.1 provides the defendant and the State an avenue to “seek the
correction of an illegal sentence,” defined as a sentence “that is not authorized by the
applicable statutes or that directly contravenes an applicable statute.” Tenn. R. Crim. P.
36.1; see also State v. Wooden, 478 S.W.3d 585, 594-95 (Tenn. 2015) (holding that “the
definition of „illegal sentence‟ in Rule 36.1 is coextensive with, and not broader than, the
definition of the term in the habeas corpus context”). To avoid summary denial of an
illegal sentence claim brought under Rule 36.1, a defendant must “state with particularity
the factual allegations,” Wooden, 478 S.W.3d at 594, establishing “a colorable claim that
the sentence is illegal,” Tenn. R. Crim. P. 36.1(b). “[F]or purposes of Rule 36.1 . . .
„colorable claim‟ means a claim that, if taken as true and viewed in a light most favorable
to the moving party, would entitle the moving party to relief under Rule 36.1.” Wooden,
478 S.W.3d at 593. The determination whether a Rule 36.1 “motion states a colorable
claim for correction of an illegal sentence under Rule 36.1 is a question of law, to which
de novo review applies.” Id. at 589 (citing Summers v. State, 212 S.W.3d 251, 255
(Tenn. 2007)).

              Although Rule 36.1 purports to allow for the correction of an illegal
sentence “at any time,” see Tenn. R. Crim. P. 36.1, our supreme court has concluded that
“the phrase „at any time‟ has no bearing on whether Rule 36.1 authorizes relief from
expired illegal sentences” but instead “conveys two other important, but unrelated,
principles: (1) an illegal sentence may be corrected „at any time, even if [the sentence]
has become final,‟ and (2) Rule 36.1 motions, like habeas corpus petitions, are not subject
to any statute of limitations.” State v. Brown, 479 S.W.3d 200, 210 (Tenn. 2015). The
high court ultimately held “that Rule 36.1 does not expand the scope of relief and does
not authorize the correction of expired illegal sentences. Therefore, a Rule 36.1 motion

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may be summarily dismissed for failure to state a colorable claim if the alleged illegal
sentence has expired.” Id. at 211.

              In this case, the defendant pleaded guilty in exchange for an eight-year
sentence in 1992. The defendant was released on probation in January 1993, and his
probation was revoked in April 1994. Clearly, the defendant‟s sentences expired long
before he filed the Rule 36.1 motion. In consequence, the trial court did not err by
summarily dismissing the motion.

             Accordingly, we affirm the judgment of the trial court.

                                                 _________________________________
                                                JAMES CURWOOD WITT, JR., JUDGE




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