        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                       Assigned on Briefs September 7, 2016

          STATE OF TENNESSEE v. GEORGE PRINCE WATKINS

                Appeal from the Circuit Court for Madison County
           Nos. 86-521, 90-227, 90-161, 90-935  Donald H. Allen, Judge
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              No. W2016-00171-CCA-R3-CD - Filed October 27, 2016
                    ___________________________________

The Defendant, George Prince Watkins, pleaded guilty to burglary in 1989 and was given
a probationary sentence. The Defendant violated his probation, and while on bond for his
probation violation, he committed four new offenses, to all of which he subsequently
pleaded guilty. The trial court ordered concurrent sentencing for all of the convictions.
The Defendant filed a motion pursuant to Tennessee Rule of Criminal Procedure 36.1,
contending that his sentence was illegal. The trial court summarily dismissed the motion,
and the Defendant appealed. This Court held that the Defendant had presented a
colorable claim and remanded the case to the trial court for Rule 36.1 proceedings. State
v. George Prince Watkins, No. W2014-02393-CCA-R3-CD, 2015 WL 6145899, at *1
(Tenn. Crim. App., at Jackson, Oct. 15, 2015), no perm. app. filed. The Defendant
moved forward with his Rule 36.1 motion, and the trial court again summarily dismissed
the Defendant’s motion finding that he failed to state a colorable claim since his
sentences were expired and citing State v. Brown, 479 S.W.3d 200, 211 (Tenn. 2015),
which was released in December 2015. Based upon Brown, we affirm the trial court’s
judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and D. KELLY THOMAS, JR., JJ., joined.

George Prince Watkins, Memphis, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
James G. (Jerry) Woodall, District Attorney General; and Alfred L. Earls, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION
                                        I. Facts
        In our original opinion regarding the Defendant’s Rule 36.1 motion, this Court
stated the facts as follows:

              On July 23, 2014, the [Defendant] filed a Rule 36.1 motion to
      correct an illegal sentence. The motion alleges that the [Defendant] 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
      [Defendant’s] probation was revoked for having violated the terms of his
      release. According to the [Defendant], he committed four new offenses
      while he was on bond for the probation violation and subsequently pled
      guilty to all four offenses. The [Defendant] 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 [Defendant’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 [Defendant] “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 [Defendant’s] motion, stating only that the motion was “denied for the
      reasons set forth in the State’s response.”

             On appeal, the [Defendant] contends that the trial court erred in
      summarily denying his motion. The [Defendant] argues that his motion
      stated a colorable claim and that he should have been appointed counsel

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      and given a hearing on the motion. The State now concedes that the trial
      court erred in summarily denying the motion.

Watkins, 2015 WL 6145899, at *1-2. This Court reversed the case, finding that the
Defendant had stated a colorable claim for relief. Id.

       Shortly after our remand, the Tennessee Supreme Court issued State v. Brown, 479
S.W.3d 200, 211 (Tenn. 2015). In that case, the Court held that Rule 36.1 “does not
authorize the correction of expired illegal sentences.” Id. at 211.

       Included in the record is the Defendant’s original pleading, in which he contends
that he pleaded guilty in 1990 and was sentenced to four years of incarceration. He then
cites pre-Brown law regarding the requirement that a trial court hold a hearing “even
though the State opposed relief prior to the appointment of counsel, and even though the
Defendant’s sentences had long since expired.”

       After our remand and after the Tennessee Supreme Court issued Brown, the trial
court entered an order dismissing the Defendant’s Rule 36.1 motion. In it, the trial court
found that the Defendant’s sentences had all expired. It is from this order that the
Defendant now appeals.

                                       II. Analysis

        On appeal, the Defendant contends that the trial court erred when it dismissed his
Rule 36.1 motion, arguing that an “illegal sentence can never expire when it’s void ab
initio” and has never been served. He contends that his sentences have never been served
because they should have been served consecutively rather than concurrently. The State
counters that the Defendant is not entitled to relief because his original illegal sentence
has expired.

      Tennessee Rule of Criminal Procedure 36.1 provides, in part:

      (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
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       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.

Prior to the adoption of this Rule, defendants generally had to seek relief from illegal
sentences through habeas corpus or post-conviction proceedings. See, e.g., Cantrell v.
Easterling, 346 S.W.3d 445, 453, 453 n.7 (Tenn. 2011).

       Pursuant to Rule 36.1, the defendant is entitled to a hearing and appointment of
counsel if he states a colorable claim for relief. Tenn. R. Crim. P. 36.1(b). Our Supreme
Court has recently stated that a colorable claim pursuant to Rule 36.1 is “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.” State v. James D. Wooden, – S.W.3d –, No.
E2014-01069-SC-R11-CD, 2015 WL 7748034, at *6 (Tenn. Dec. 2, 2015).

        Rule 36.1 defines an illegal sentence as “one that is not authorized by the
applicable statutes or that directly contravenes an applicable statute.” Tenn. R. Crim. P.
36.1(a). In this case, if the Defendant’s claims are taken as true, he received an illegal
sentence as “a sentence ordered to be served concurrently where statutorily required to be
served consecutively” is an illegal sentence. Our Supreme Court, however, has analyzed
Rule 36.1 and concluded that Rule 36.1 “does not authorize the correction of expired
illegal sentences.” Brown, 479 S.W.3d at 211. The Court further held that “a Rule 36.1
motion may be summarily dismissed for failure to state a colorable claim if the alleged
illegal sentence has expired.” Id. The Defendant’s sentence in the case at hand has
expired and, because of such, relief is not available under Rule 36.1. Therefore, we
affirm the summary dismissal of the Defendant’s motion.

                                     III. Conclusion

       After a thorough review of the record and relevant authorities, we affirm the trial
court’s judgment.

                                              ____________________________________
                                             ROBERT W. WEDEMEYER, JUDGE




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