        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs January 5, 2016

          STATE OF TENNESSEE v. IVAN CHARLES MARABLE

                   Appeal from the Circuit Court for Gibson County
                  No. H6486, H6545    Joseph H. Walker III, Judge


               No. W2015-01670-CCA-R3-CD - Filed March 4, 2016



In 1997, the defendant, Ivan Charles Marable, pled guilty to burglary and two charges of
possession of a controlled substance. He claims that, although the offenses were
committed serially, with the second and third committed while he was on bond, he pled
to concurrent three-year sentences. He does not dispute that these sentences have
expired. Now an inmate in a federal penitentiary, he filed a motion pursuant to
Tennessee Rule of Criminal Procedure 36.1 to correct his alleged illegal sentences and to
award jail credits. The trial court granted the motion for an evidentiary hearing but
ordered that it would not be held until after the defendant’s release from federal prison.
The defendant appealed this order and sought to have a hearing after which he would be
allowed to withdraw his pleas of guilty. Based upon the decision of our supreme court in
State v. Adrian R. Brown, --- S.W.3d ---, No. E2014-00673-SC-R11-CD, 2015 WL
7748275 (Tenn. Dec. 2, 2015), which was released while the appeal was pending in this
matter, we reverse the order of the trial court granting a hearing on the defendant’s
motion and direct that his motion be dismissed because the 1997 Tennessee sentences of
which he complains have expired.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JAMES CURWOOD WITT,
JR., and D. KELLY THOMAS, JR., JJ., joined.

Ivan Charles Marable, Forrest City, Arkansas, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Garry G. Brown, District Attorney General; and Hillary Lawler
Parham, Assistant District Attorney General, for the appellee, State of Tennessee.
                                        OPINION

        During the pendency of this appeal, our supreme court released an opinion which
is fatal to the defendant’s argument that Rule 36.1 requires the review of the trial court’s
delaying his hearing until he is released from federal custody. In Brown, 2015 WL
7748275, at *1-2, our supreme court reviewed the claim that in sentencing a defendant in
1997 for a Class C felony to five years, two above the minimum, without finding
enhancement factors, an illegal sentence was imposed entitling him to Rule 36.1 relief.
Additionally, the defendant in that case argued, as in this matter, that he was not given all
of the sentence credits to which he was entitled. In Brown, the court concluded that Rule
36.1 “does not authorize the correction of expired illegal sentences.” Id. at *1.
Accordingly, since the sentences have expired, he is not entitled to a hearing, and his
motion may be summarily dismissed. Likewise, as to pretrial trial jail credits, the court in
Brown determined that the failure to award such credits does not result in the subsequent
sentence’s illegality and, thus, may not be the basis for a Rule 36.1 claim. Applying that
determination, we conclude that the motion in this matter does not present a colorable
claim and, therefore, should be dismissed.

                                         CONCLUSION

       Based upon the foregoing authorities and reasoning, we remand this matter for an
order dismissing the motion.

                                                  _________________________________
                                                  ALAN E. GLENN, JUDGE




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