        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs January 13, 2016


           STATE OF TENNESSEE v. JOHN EUGENE GRIGSBY

               Appeal from the Criminal Court for Davidson County
                  No. 2012D3333    J. Randall Wyatt, Jr., Judge




              No. M2015-01376-CCA-R3-CD – Filed February 9, 2016
                       _____________________________

Appellant, John Eugene Grigsby, was convicted of attempted second degree murder and
reckless endangerment. Appellant later filed a motion to correct an illegal sentence
pursuant to Tennessee Rule of Criminal Procedure 36.1, which the trial court summarily
dismissed, holding that appellant had failed to state a colorable claim. On appeal,
appellant argues that the trial court erred in summarily dismissing his motion. Following
our review of the parties’ briefs, the record, and the applicable law, we affirm the
judgment of the trial court.

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

ROGER A. PAGE, J., delivered the opinion of the Court, in which THOMAS T. WOODALL,
P.J., and TIMOTHY L. EASTER, J., joined.

John Eugene Grigsby, Henning, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Amy Hunter, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

       Appellant was convicted of attempted second degree murder and reckless
endangerment and received an effective sentence of thirteen years in July 2013. In 2015,
appellant filed a pro se motion challenging his sentence pursuant to Tennessee Rule of
Criminal Procedure 36.1, which the trial court summarily dismissed on July 2, 2015.
Appellant now argues that the trial court erred by summarily dismissing his motion after
he had presented a colorable claim for relief from an illegal sentence. Specifically,
appellant argues that he stated a colorable claim when he argued that his judgment of
conviction did not properly reflect the trial court’s ruling that he was not responsible for
court fees and fines and that the trial court improperly classified him as a Range II
offender instead of a Range I offender.

        In 2013, the Tennessee General Assembly promulgated Rule 36.1, which 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
       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.

       ....

       Pursuant to Rule 36.1, appellant would be entitled to a hearing and appointment of
counsel if he stated 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). The
supreme court elaborated that a Rule 36.1 motion “must state with particularity the
factual allegations on which the claim for relief from an illegal sentence is based,” and
the motion may be supported with affidavits. Id.

       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). Our supreme court held that this definition of an illegal sentence is “coextensive
with, and not broader than, the definition of the term in the habeas corpus context” as




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articulated in Cantrell v. Easterling.1 James D. Wooden, __ S.W.3d at __, 2015 WL
7748034, at *7. The supreme court stated:

       Sentencing errors fall into three categories—clerical errors, appealable
       errors, and fatal errors. Only fatal errors render sentences illegal. Clerical
       errors “arise simply from a clerical mistake in filling out the uniform
       judgment document” and may be corrected at any time under Tennessee
       Rule of Criminal Procedure 36. The second category—appealable errors—
       consists of “those errors for which the Sentencing Act specifically provides
       a right of direct appeal.” Included in this category are claims “akin to . . .
       challenge[s] to the sufficiency of the evidence supporting a conviction,”
       such as claims that the record does not support the trial court’s factual
       findings regarding sentencing. Claims of appealable error generally
       involve attacks on the correctness of the methodology by which a trial court
       imposed sentence. The final category is fatal errors, and these errors are
       “so profound as to render the sentence illegal and void.” This category
       consists of any sentence “that is not authorized by the applicable statutes or
       that directly contravenes an applicable statute.” Included in this category
       are 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. (citations omitted).

        Appellant has failed to state a colorable Rule 36.1 claim. First, appellant argues
that his judgment of conviction did not properly reflect the trial court’s ruling that he was
not responsible for court fees and fines. This argument does not allege that his sentences
were not authorized by the applicable statutes or directly contravened an applicable
statute. Instead, his argument alleges that a mistake was made in filling out the
judgment; therefore, this argument falls in the first category of sentencing
errors―clerical mistakes. As such, this argument does not state a colorable Rule 36.1
claim and should instead be properly addressed pursuant to Tennessee Rule of Criminal
Procedure 36.

        Appellant’s second claim fits squarely within the second category of sentencing
errors―appealable errors. Appellant argues that “an amended judgment should be issued
to reflect a legal sentencing of 12 years or less instead of his 13-yr. sentence [at] 30% and
not 35%.” This argument essentially challenges appellant’s offender classification as a

       1
           Cantrell v. Easterling, 346 S.W.3d 445 (Tenn. 2011).
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Range II offender for his attempted second degree murder conviction, which made his
sentencing exposure “not less than twelve (12) nor more than twenty (20) years.” Tenn.
Code Ann. § 40-35-112(b)(2). However, if appellant had been classified as a Range I
offender, his sentencing exposure would have been “not less than eight (8) nor more than
twelve (12) years.” Id. § 40-35-112(a)(2). Furthermore, if appellant had been classified
as a Range I standard offender, his release eligibility date would “occur after service of
thirty percent (30%) of the actual sentence imposed less sentence credits earned and
retained by the defendant.” Id. § 40-35-501(c). However, because he was classified as a
Range II multiple offender, his release eligibility date is set to “occur after service of
thirty-five percent (35%) of the actual sentence imposed less sentence credits earned and
retained by the defendant.” Id. § 40-35-501(d). Therefore, appellant’s challenges to his
sentencing length and release eligibility date amount to an offender classification
challenge. Our supreme court in Cantrell explained that offender classification rests on
issues of fact, such as “number, classes, and dates of his prior convictions.” Cantrell v.
Easterling, 346 S.W.3d 445, 451 (Tenn. 2011). The court stated that “[s]uch an appeal is
in the nature of a challenge to the sufficiency of the evidence” and may be raised on
direct appeal. Id. However, “an allegedly erroneous offender classification does not
create an illegal sentence so long as the offender classification is available under the
Sentencing Act.” Id. at 459. Therefore, because Range II multiple offender is an
available sentencing classification, appellant has failed to show that he received an illegal
sentence pursuant to Rule 36.1. Appellant alleges an appealable rather than a fatal error.
Appellant failed to present a colorable Rule 36.1 claim.

        Finally, appellant asserts that the State erred in failing to respond to his motion
within the thirty-day time allotment set forth in Rule 36.1(b). However, subsection b
states, in part:

       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.

Based on this language, the thirty-day time frame is only applicable after the court
determines that appellant’s motion states a colorable claim and appoints counsel.
Therefore, appellant’s claim is meritless.




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                                  CONCLUSION

       Because we conclude that appellant has failed to allege a colorable Rule 36.1
claim, we affirm the judgment of the trial court.



                                              _________________________________
                                              ROGER A. PAGE, JUDGE




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