        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs October 27, 2015


                STATE OF TENNESSEE v. HORACE DUNLAP

              Appeal from the Criminal Court for Davidson County
             No. 92-A-14, 92-A-23, 91-D-1953  Steve R. Dozier, Judge




              No. M2015-00358-CCA-R3-CD – Filed February 11, 2016
                        _____________________________

The defendant, Horace Dunlap, appeals the denial of his Rule 36.1 motion to correct an
illegal sentence. Because the defendant‟s sentences have expired, we affirm the
judgment of the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which ROBERT W.
WEDEMEYER and D. KELLY THOMAS, JR., JJ., joined.

Richard L. Tennent, Nashville, Tennessee, for the Appellant, Horace Lee Dunlap.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Assistant
Attorney General; Glenn Funk, District Attorney General; and J. Wesley King, Assistant
District Attorney General, for the Appellee, State of Tennessee.


                                       OPINION

                      FACTS AND PROCEDURAL HISTORY

       The defendant was arrested on May 30, 1991, in case number 92-A-23 for several
offenses, including possession of cocaine with intent to sell, and he was released on bond
on May 31, 1991. While on bond, he was arrested on July 5, 1991, in case number 91-D-
1953 for possession of cocaine with intent to sell, along with other charges, and he was
released on bond the next day. He was arrested again on August 24, 1991, in case
number 92-A-14 for being a convicted felon in possession of a firearm, in addition to
several other charges.

       On April 16, 1992, the defendant pled guilty to one count of possession of cocaine
with the intent to sell in case number 92-A-23, one count of possession of cocaine with
intent to sell in case number 91-D-1953, and one count of being a convicted felon in
possession of a firearm in case number 92-A-14. The plea agreement does not contain
the lengths of the sentences, but the agreement indicates that all sentences were to be
served concurrently with each other and with the defendant‟s federal sentence. The
judgments, which are dated April 16, 1992, indicate that the defendant received twelve-
year sentences for each conviction for possession of cocaine with intent to sell and that he
received a two-year sentence for the felon in possession of a firearm conviction.

       On July 17, 1992, the trial court entered an order imposing the defendant‟s
sentences “in absentia” because the defendant was in federal custody. The order stated
that “the parties [were] in agreement” regarding the sentences. The sentences were
ordered to be served concurrently with each other and with the defendant‟s federal
sentence, for a total effective sentence of twelve years.

       It was later discovered that the defendant was not in federal custody as originally
believed. On August 26, 1993, the trial court issued an order reviewing the July 17, 1992
sentencing order. The order stated that “[i]t was contemplated that” the defendant would
serve all of his sentences in federal custody. The court noted that the defendant was
actually in State custody at the time of the July 17, 1992 order and was presently in State
custody. The court ordered that the defendant be released into federal custody to begin
serving his federal sentence and ordered his State sentences to run concurrently with his
federal sentence. On September 8, 1993, the defendant was transferred to federal
custody.

       On March 9, 1994, while the defendant was still in federal custody, the Tennessee
Department of Correction placed a detainer on the defendant. The defendant was
released from federal custody on December 23, 1994. The Tennessee Board of Parole
conducted an in absentia parole hearing on June 29, 1994, and the defendant received
parole on August 18, 1994. The Department of Correction lifted the detainer against the
defendant on March 7, 1995, after learning that the defendant was on parole. Because he
had received parole for his sentences, it was no longer necessary to return the defendant
to the Department of Correction.

       On May 15, 2014, the defendant filed a “Motion to Reopen and Correct Errors in
the Judgment that Renders Sentence Illegal and Void.” The defendant argued that his
State sentences were illegally imposed concurrently because he was released on bond for
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case number 92-A-23 when he committed the offense in case number 91-D-1953 and
because he was released on bond for case number 91-D-1953 when he committed the
offense in case number 92-A-14. On July 24, 2014, the defendant filed a second motion
to reopen, reiterating his arguments from his first motion. The trial court found that the
defendant had stated a colorable claim, and the court appointed counsel and scheduled a
hearing.

        The hearing was held on December 12, 2014, and the defendant was not present at
the hearing. It appears that he was incarcerated in a federal institution on an unrelated
charge. Counsel explained that the Tennessee Department of Correction had initially
agreed to pay for the transportation of the defendant to the hearing, but they could not do
so after learning of the cost of transporting the defendant via federal marshals. In lieu of
an actual appearance, the defendant submitted an affidavit in which he asserted his
innocence of the drug charges. He stated that his attorney advised him to plead guilty
because the sentences would be aligned concurrently with his federal sentence and he
would not have to serve any time in State custody. The defendant stated that the offer
was “a good offer” at the time because his federal attorney had informed him that he
would be released from federal custody after forty months, and his State cases could not
be used against him. The defendant asserted that had he known that the State charges
could later be used against him, he would have gone to trial instead of pleading guilty.
He stated that the drugs belonged to his brother and that his brother would have testified
to the same effect.

       The defendant‟s brother, Richard Dunlap, testified that he and the defendant were
co-defendants in the possession of cocaine with intent to sell cases. Mr. Dunlap
explained that if the defendant had gone to trial, Mr. Dunlap would have testified on the
defendant‟s behalf that the drugs actually belonged to Mr. Dunlap. Mr. Dunlap testified
that he and the defendant were “just together” and “just hanging out” when the drugs
were discovered, and Mr. Dunlap said that the cocaine “actually belonged to” him. Mr.
Dunlap stated that he told the defendant he would testify on his behalf.

        The trial court issued an order denying the motion. The court found that the
defendant had stated a colorable claim for relief because he was released on bond for case
number 92-A-23 when he committed the offense in case number 91-D-1953. The court
found that the defendant was again on bond when he committed the offense in case
number 92-A-14. The court found that there was “inadequate proof in the record” to
demonstrate that the promise of concurrent sentencing was a material element of the
defendant‟s plea agreement. Citing to the petitioner‟s filings and his motion, the court
found that it was material to the defendant that he serve his sentence in federal custody
and that he asserted a claim of actual innocence based upon information available to him
at the time of the plea. The court nevertheless found that the defendant‟s sentencing
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issues were moot because the defendant was paroled on his State sentences. The court
concluded that the defendant‟s sentences were expired and that there was no longer a
meaningful remedy that the court could provide.
                                     ANALYSIS

        On appeal, the defendant argues that the trial court erred in determining that his
claim was moot. He also contends that his concurrent sentences were illegal and that this
illegality was a material element of his plea agreement. The State concedes that the
defendant‟s sentences are illegal and that the trial court erred by dismissing the petition
on the grounds of mootness. The State also concedes that the trial court erred in
dismissing the petition for a lack of adequate proof that the concurrent sentencing was a
material element of the guilty plea, arguing that the trial court improperly found that the
proof was “inadequate due to the defendant‟s absence from the hearing and the
unavailability of the defendant‟s testimony regarding his motivation to plead guilty.”

        Tennessee Rule of Criminal Procedure 36.1 provides that the defendant “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.” Tenn. R.
Crim. P. 36.1(a). A sentence is illegal if it is not authorized by the applicable statutes or
directly contravenes an applicable statute. Id. If the motion states a colorable claim, the
trial court shall appoint counsel if the defendant is indigent and not already represented
by counsel and hold a hearing on the motion, unless the parties waive the hearing. Tenn.
R. Crim. P. 36.1(b). A “„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.” State v. James D. Wooden, __ S.W.3d __, No. E2014-01069-SC-R11-
CD, 2015 WL 7748034, at *6 (Tenn. Dec. 2, 2015).

        In State v Adrian R. Brown, ____ S.W.3d _____, No. E2014-00673-SC-R11-CD,
2015 WL 7748275, at *8 (Tenn. Dec. 2, 2015), a case decided after the briefs were filed
in the instant case, our supreme court held that “Rule 36.1 . . . does not authorize the
correction of expired illegal sentences.” Additionally, the court noted that while the
collateral consequences of a challenged conviction “may prevent a case from becoming
moot in the traditional sense of the mootness doctrine, . . . Rule 36.1 is not an appropriate
avenue for seeking relief from collateral consequences.” Id. at *8 n.12. Here, the
defendant‟s twelve-year sentence was imposed on July 17, 1992, and he received a
certificate of parole on August 18, 1994. The record reflects that his sentence has
expired, and he is not entitled to relief under Rule 36.1. As a result, we need not
determine whether the trial court committed any error in its determination that the record
was inadequate to support a finding that concurrent sentencing was a material element of
the defendant‟s plea bargain. We conclude that the defendant is not entitled to any relief.

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                             CONCLUSION

Based upon the foregoing, we affirm the judgment of the trial court.



                                         _________________________________
                                         JOHN EVERETT WILLIAMS, JUDGE




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