                                                                                     07/31/2020
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                          Assigned on Briefs June 9, 2020

            STATE OF TENNESSEE v. HARVEY LEE WEBSTER

              Appeal from the Criminal Court for Davidson County
              Nos. 2001-I-1273, 2003-B-851, 2003-A-169, 2003-C-1726
                           Cheryl A. Blackburn, Judge
                     ___________________________________

                          No. M2019-02182-CCA-R3-CD
                      ___________________________________


Petitioner, Harvey Lee Webster, appeals the trial court’s summary dismissal of his
motion filed pursuant to Tennessee Rule of Criminal Procedure 36.1. He alleges that his
sentences are illegal because his concurrent sentences had to run consecutively because
he was on probation at the time of the offenses. After a thorough review, we affirm the
judgment of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR. and TIMOTHY L. EASTER, JJ., joined.

Harvey Lee Webster, Nashville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior
Assistant Attorney General; Glenn R. Funk, District Attorney General; and Megan King,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                      OPINION

      I.     Background

       Petitioner pled guilty on December 20, 2001, in Case No. 2001-I-1273 to
aggravated burglary with a three-year sentence to be served as a Range I offender,
suspended to probation. On February 7, 2003, a Davidson County Grand Jury returned
an indictment against Petitioner in Case No. 2003-A-169 charging him with one count of
theft of property valued at more than five hundred dollars but less than one thousand
dollars. The offense was alleged to have occurred in January 2002. On May 8, 2003, a
Davidson County Grand Jury returned an indictment against Petitioner in Case No. 2003-
B-851 charging him and his co-defendants with one count of especially aggravated
kidnapping, one count of kidnapping, and two counts of aggravated robbery. The
offenses were alleged to have occurred in October 2002. On May 28, 2003, the trial
court sustained a probation violation in Case No. 2001-I-1273, and Petitioner’s sentence
was placed into effect. On August 1, 2003, a Davidson County Grand Jury returned an
indictment against Petitioner in Case No. 2003-C-1726 charging him and his co-
defendants with one count of aggravated burglary. The offense was alleged to have
occurred in April 2003.

       On April 19, 2004, Petitioner pled guilty to especially aggravated kidnapping and
aggravated robbery in Case No. 2003-B-851, aggravated burglary in Case No. 2003-C-
1726, and theft of property valued at more than five hundred dollars but less than one
thousand dollars in Case No. 2003-A-169. Petitioner pled open with no agreement as to
the sentence except that all sentences were to be served concurrently with each other. A
sentencing hearing was held, and the trial court imposed an effective twenty-five-year
sentence to be served concurrently to the sentence in Case No. 2001-I-1273 for which
Petitioner was on probation when he committed those offenses. Petitioner did not appeal
his sentence.

       On July 1, 2005, Petitioner filed a petition for post-conviction relief alleging that
his guilty plea was not knowingly, understandingly, and voluntarily entered due to the
ineffective assistance of counsel. The post-conviction court denied the petition. In the
post-conviction appeal, Petitioner also sought a delayed appeal of his sentences in Case
No. 2003-B-851 arguing that the trial court improperly enhanced his sentence to twenty-
five years for especially aggravated kidnapping and twelve years for aggravated robbery.
Harvey Lee Webster v. State, No. M2006-00886-CCA-R3-PC, 2007 WL 1836092 (Tenn.
Crim. App. June 27, 2007). This court affirmed the denial of post-conviction relief and
also found that the record supported the trial court’s imposition of an effective twenty-
five-year sentence.

        On September 3, 2019, Petitioner filed a motion to correct an illegal sentence
pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure. He asserted that
concurrent sentencing in his case was illegal because he was on probation for the offense
committed in Case No. 2001-I-1273 when he committed the offenses in Case Nos. 2003-
B-851, 2003-C-1726, and 2003-A-169. The motion was denied by the trial court for
failing to state a colorable claim.

       II.    Analysis

      Petitioner argues on appeal that the trial court erred by summarily dismissing his
motion to correct an illegal sentence for failure to state a colorable claim.


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       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). “[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 has
interpreted the meaning of “illegal sentence” as defined in Rule 36.1 and concluded that
the definition “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). That
court then reviewed the three categories of sentencing errors: clerical errors (those arising
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 trial court may summarily
dismiss a Rule 36.1 motion if it does not state a colorable claim for relief. Tenn. R. Crim.
P. 36.1(b)(2).

      In this case, Petitioner argues that his sentences should have been ordered to run
consecutively instead of concurrently because he was on probation in Case No. 2001-I-
1273 when he committed the offenses in Case Nos. 2003-B-851, 2003-C-1726, and 2003-
A-169.

       Tenn. R. Crim. P. Rule 32(c)(3) states that

       [w]hen the defendant has additional sentences not yet fully served as the
       result of convictions in the same or other courts and the law requires
       consecutive sentences, the sentence shall be consecutive whether the
       judgment explicitly so orders or not. This rule shall apply:

       (A) to a sentence for a felony committed while on parole for a felony;

       (B) to a sentence for escape or for a felony committed while on escape;

       (C) to a sentence for a felony committed while the defendant was released
       on bail and the defendant is convicted of both offenses; and

       (D) for any other ground provided by law.



                                            -3-
       There is nothing in the language of Rule 32(c) that mandates the imposition of
consecutive sentencing when a defendant commits a felony offense while on probation.
A trial court has discretion to impose a consecutive sentence when a defendant is
sentenced for an offense committed while on probation. T.C.A. § 40-35-115(b)(6); see
also Frederick O. Edwards v. State, No. W2014-01463-CCA-R3-CD, 2014 WL 7432166
(Tenn. Crim. App. Dec. 30, 2014). Moreover, as stated by the trial court, “the
requirement of consecutive sentences does not apply when a defendant already has pled
guilty to the first charge and is on probation when he commits the subsequent offense.”
See also State v. Terry Lee Adams, No. W2015-00917-CCA-R3-CD, 2015 WL 9170819,
at *1 (Tenn. Crim. App. Dec. 15, 2015); State v. Michael Christopher Bigbee, No.
M2014-01999-CCA-R3-CD, 2015 WL 5968524, at *3 (Tenn. Crim. App. Oct. 14,
20150). Petitioner is not entitled to relief.

      To the extent that Petitioner attempts to raise a variety of other issues related to
sentencing, we agree with the State that these claims were not raised in the trial court and
are waived for appellate review. See Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn.
1983); John W. Smith v. Wayne Brandon, Warden, No. M2006-01042-CCA-R3-HC,
2006 WL 3290835, at *1 (Tenn. Crim. App. Nov. 3, 2006).

     The trial court did not err in summarily dismissing the petition. We affirm the
judgment of the trial court.

                                   ____________________________________________
                                   THOMAS T. WOODALL, JUDGE




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