        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs February 3, 2015

           MARCUS DEANGELO LEE v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
             Nos. 95-10473, 95-11561-62 James Lammey, Jr., Judge


                No. W2014-00994-CCA-R3-CO - Filed May 13, 2015


The defendant, Marcus Deangelo Lee, argues that the trial court erred in denying him
relief under Tennessee Rule of Criminal Procedure 36.1 after finding that his sentences
were illegal and the illegality was a material component of the plea agreement. The State
agrees with the defendant’s assertion. After review, we conclude that the trial court
should have allowed the defendant the remedies available to him under Rule 36.1, and
we, therefore, reverse the judgment of the trial court and remand for proceedings
consistent with this opinion.

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

ALAN E. GLENN, J., delivered the opinion of the court. JOHN EVERETT WILLIAMS, J.,
filed a dissenting opinion. CAMILLE R. MCMULLEN, J., concurred in results only.

Marcus Deangelo Lee, Pro Se (on appeal) and Todd Mosley (at hearing), Memphis,
Tennessee, for the Defendant-Appellant, Marcus Deangelo Lee.

Herbert H. Slatery III, Attorney General and Reporter; Rachel E. Willis, Senior Counsel;
Amy P. Weirich, District Attorney General; and Glen Baity, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                       OPINION

                                        FACTS

        On December 11, 1995, the defendant pled guilty to possession of cocaine with
intent to sell (case number 95-10473), possession of a deadly weapon with the intent to
employ it during the commission of a crime (case number 95-11561), and the sale of
cocaine (case number 95-11562). Pursuant to a plea agreement, the trial court sentenced
the defendant to serve concurrent terms of three years, one year, and three years,
respectively, in the county workhouse. Since that time, the defendant

       has filed numerous pleadings challenging his convictions, including a
       petition for a writ of error coram nobis, Marcus Deangelo Lee v. State, No.
       W2006-02031-CCA-R3-CO, 2007 WL 1575220 (Tenn. Crim. App. May
       31, 2007); a post-conviction petition, Marcus Deangelo Lee v. State, No.
       W2009-00256-CCA-R3-PC, 2009 WL 2517043 (Tenn. Crim. App. Aug.
       18, 2009); a motion for delayed appeal, Marcus D. Lee v. State, No.
       W2009-02478-CCA-R3-PC, 2010 WL 2219659 (Tenn. Crim. App. May
       27, 2010); a motion to reopen his post-conviction proceedings, Marcus
       Deangelo Lee v. State, W2011-01003-CCA-R3-PC, 2011 WL 3849629
       (Tenn. Crim. App. Aug. 31, 2011); and a motion to correct clerical errors in
       his judgments, State v. Marcus Deangelo Lee, No. W2011-02160-CCA-R3-
       CD, 2012 WL 2913361 (Tenn. Crim. App. July 17, 2012). All of these
       pleadings were either denied or dismissed, and this Court affirmed their
       dispositions.

Marcus Deangelo Lee v. State, No. W2013-01088-CCA-R3-CO, 2014 WL 902450, at *2
(Tenn. Crim. App. Mar. 7, 2014).

       Thereafter, the defendant filed a “Motion to Correct Clerical Errors in the
Judgment or Entry that Renders the Judgments Void Nunc Pro Tunc,” arguing that his
sentences in case numbers 95-11561 and 95-11562 were illegal because he was released
on bail in case number 95-10473 when he committed those offenses; therefore, the
sentences in those cases should have been ordered to be served consecutively. Id. at *1,
3. He asked this court to retroactively apply Tennessee Rule of Criminal Procedure 36.1
to his case and correct his sentence. Id. at *4. This court relied on its earlier rulings in
George William Brady v. State, No. E2013-00792-CCA-R3-PC, 2013 WL 6729908, at
*6 (Tenn. Crim. App. Dec. 19, 2013) and State v. Brandon Rollen, No. W2012-01513-
CCA-R3-CD, slip op. at 6 (Tenn. Crim. App. Sept. 11, 2013), and agreed that Rule 36.1
should be applied retroactively to the defendant’s claim of an illegal sentence. Id. at *5.
The court determined that the defendant presented a colorable claim for relief under Rule
36.1 and remanded the case to the trial court for appointment of counsel and
consideration of the merits of the defendant’s claim. Id. at *6.

       Upon remand, after a hearing, the trial court entered an order finding that the
defendant’s sentences in case numbers 95-11561 and 95-11562 were illegal because they
should have been imposed consecutively to the sentence in case number 95-10473, and
that the illegal provision for concurrent sentencing was a material component of the plea
agreement. However, the court denied relief, finding that the sentences had expired and,
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therefore, the defendant was no longer a defendant for purposes of Rule 36.1. The
defendant appealed.

                                       ANALYSIS

       The Tennessee Rules of Criminal Procedure were amended effective July 1, 2013,
with the addition of Rule 36.1 which provides as follows:

             (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
      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.

             (c)(1) If the court determines that the sentence is not an illegal
      sentence, the court shall file an order denying the motion.

             (2) If the court determines that the sentence is an illegal sentence, the
      court shall then determine whether the illegal sentence was entered
      pursuant to a plea agreement. If not, the court shall enter an amended
      uniform judgment document, see Tenn. Sup. Ct. R. 17, setting forth the
      correct sentence.

             (3) If the illegal sentence was entered pursuant to a plea agreement,
      the court shall determine whether the illegal provision was a material
      component of the plea agreement. If so, the court shall give the defendant
      an opportunity to withdraw his or her plea. If the defendant chooses to
      withdraw his or her plea, the court shall file an order stating its finding that
      the illegal provision was a material component of the plea agreement,
      stating that the defendant withdraws his or her plea, and reinstating the
      original charge against the defendant. If the defendant does not withdraw
      his or her plea, the court shall enter an amended uniform judgment
      document setting forth the correct sentence.
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             (4) If the illegal sentence was entered pursuant to a plea agreement,
       and if the court finds that the illegal provision was not a material
       component of the plea agreement, then the court shall enter an amended
       uniform judgment document setting forth the correct sentence.

             (d) Upon the filing of an amended uniform judgment document or
       order otherwise disposing of a motion filed pursuant to this rule, the
       defendant or the state may initiate an appeal as of right pursuant to Rule 3,
       Tennessee Rules of Appellate Procedure.

Tenn. R. Crim. P. 36.1. 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). “On its
face, Rule 36.1 does not limit the time within which a person seeking relief must file a
motion, nor does it require the person seeking relief to be restrained of liberty.” State v.
Donald Terrell, No. W2014-00340-CCA-R3-CO, 2014 WL 6883706, at *2 (Tenn. Crim.
App. Dec. 8, 2014).

        The trial court’s denial of relief because the defendant’s sentences were expired is
essentially a finding that the defendant’s claim is moot. The concept of mootness deals
with the circumstances that render a case no longer justiciable. McIntyre v. Traughber,
884 S.W.2d 134, 137 (Tenn. Ct. App. 1994). “A moot case is one that has lost its
character as a present, live controversy.” Id. “A case will generally be considered moot
if it no longer serves as a means to provide relief to the prevailing party.” Id. Along
these lines, we acknowledge that at least two other panels of this court have recently
concluded that a challenge to the legality of a sentence becomes moot once the sentence
has been served. See State v. John Talley, No. E2014-01313-CCA-R3-CD, 2014 WL
7366257, at *3 (Tenn. Crim. App. Dec. 26, 2014); State v. Adrian R. Brown, No. E2014-
00673-CCA-R3-CD, 2014 WL 5483011, at *6 (Tenn. Crim. App. Oct. 29, 2014).
However, it is our view that the trial court erred in finding that it was without jurisdiction
to handle the defendant’s proceeding under Rule 36.1 and determine that the concurring
in results only opinion in John Talley is the correct view of the law.

       In his concurring in results only opinion in John Talley, Presiding Judge Woodall
explained:

               Rule 36.1 was promulgated and adopted by the Tennessee Supreme
       Court in an order filed December 18, 2012, and Rule 36.1 was subsequently
       “ratified and approved [by the Tennessee General Assembly] by House
       Resolution 33 and Senate Resolution 11.” Compiler’s Notes, Tenn. R.
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       Crim. P. 36.1. This rule, authored by our supreme court and ratified and
       approved by the Tennessee General Assembly, begins with the following
       clear and unambiguous words:

              Either the defendant or the state may, at any time, seek
              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) (emphasis added).

              To me “at any time” means what it says, whether before or after
       sentences have been fully served. If our supreme court had intended for
       Rule 36.1 relief to not be available when the challenged sentences have
       been fully served, that specification would have been clearly stated. If the
       General Assembly had desired the restriction in the rule, one or both houses
       of the General Assembly would have refused to ratify and approve Rule
       36.1 as it is written.

              It is my respectful opinion that even if (1) I disagree with some or all
       of Rule 36.1’s provisions, and (2) I believe the consequences of the rule can
       ultimately and unfairly lead to trial courts in Tennessee vacating decades’
       old convictions, as a judge on an intermediate appellate court I must apply
       the plain meaning of Rule 36.1. Accordingly, I respectfully concur only to
       the extent the judgment is reversed and the case is remanded for
       proceedings in accordance with my understanding of the wording in Rule
       36.1.

John Talley, 2014 WL 7366257, at *3-4. See also State v. Omar Robinson, No. E2014-
00393-CCA-R3-CD, 2014 WL 5393240, at *2 (Tenn. Crim. App. Oct. 22, 2014).

        In light of the trial court’s findings that the defendant’s sentence was illegal and
that the illegal provision for concurrent sentencing was a material component of the plea
agreement, the trial court should have followed the procedure outlined in Tennessee Rule
of Criminal Procedure 36.1(c)(3). On remand, the defendant should be given an
opportunity to withdraw his plea. If the defendant chooses to withdraw his plea, the court
shall file an order stating its finding that the illegal provision was a material component
of the plea agreement, stating that the defendant withdraws his plea, and reinstating the
original charge against the defendant. If the defendant does not withdraw his plea, the
court shall enter an amended uniform judgment document setting forth the correct
sentence.
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                                CONCLUSION

        Based on the foregoing authorities and reasoning, we reverse the judgment of the
trial court and remand for further proceedings consistent with this opinion.


                                               _________________________________
                                               ALAN E. GLENN, JUDGE




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