                                                                                          12/21/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs November 7, 2017

                STATE OF TENNESSEE v. TORRY HOLLAND

                 Appeal from the Criminal Court for Shelby County
                  No. 12-00532, 13-00791   Lee V. Coffee, Judge


                            No. W2017-00691-CCA-R3-CD


The defendant, Torry Holland, appeals the summary dismissal of his petition, filed
pursuant to Tennessee Rule of Criminal Procedure 36.1, to correct what he believes to be
an illegal sentence imposed for his convictions of drug and firearms possession.
Discerning no error, we affirm the trial court’s order of summary dismissal. Although we
affirm the order dismissing the defendant’s motion, we do notice a clerical error in the
judgment form for count 3 in case number 12-00532 that requires entry of a corrected
judgment in that count.

     Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed; Remanded

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.

Torry Holland, Tiptonville, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Aland Dwyer,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

               In case number 12-00532, the Shelby County Grand Jury charged the
defendant via an 11-count indictment with alternative counts of possession with intent to
sell or deliver 26 grams or more of cocaine, alternative counts of possession with intent to
sell or deliver methylenedioxymethamphetamine, alternative counts of possession with
intent to sell or deliver oxycodone, alternative counts of possession with intent to sell or
deliver dihydrocodeinone, alternative counts of possession with intent to sell or deliver
alprazolam, and one count of possession with intent to sell one-half ounce or more of
marijuana. In case number 13-00791, the Shelby County Grand jury charged the
defendant via a 13-count indictment with alternative counts of possession with intent to
sell or deliver .5 grams or more of cocaine, alternative counts of possession with intent to
sell or deliver methylenedioxymethamphetamine, alternative counts of possession with
intent to sell or deliver dihydrocodeinone, possession of a firearm with the intent to go
armed during the commission of a dangerous offense after having been previously
convicted of possession of a controlled substance, possession of a firearm by a convicted
felon, possession of a handgun after having been previously convicted of driving
following designation as a Motor Vehicle Habitual Offender, alternative counts of the
possession with intent to sell or deliver marijuana, and alternative counts of possession
with intent to sell or deliver promethazine/codeine. In March 2014, the defendant entered
into a plea agreement with the State that provided for the following disposition:

Case No. 12-00532
Count    Charged Offense                           Conviction Offense
1        possession with intent to sell 26         possession with intent to sell less than .5
         grams or more of cocaine                  grams cocaine
2        possession with intent to deliver         dismissed
         26 grams or more of cocaine
3        possession with intent to sell            criminal attempt to possess with intent to
         methylenedioxymethamphetamine             sell methylenedioxymethamphetamine
4        possession with intent to deliver         dismissed
         methylenedioxymethamphetamine
5        possession with intent to sell            same
         oxycodone
6        possession with intent to deliver         dismissed
         oxycodone
7        possession with intent to sell            same
         dihydrocodeinone
8        possession with intent to deliver         dismissed
         dihydrocodeinone
9        possession with intent to sell            same
         alprazolam
10       possession with intent to deliver         dismissed
         alprazolam
11       possession with intent to sell one-       possession with intent to sell marijuana
         half ounce or more of marijuana

Case No. 13-00791
Count Charged Offense                              Conviction Offense
1        possession with intent to sell .5         same
         grams or more of cocaine
                                             -2-
2        possession with intent to deliver .5     dismissed
         grams or more of cocaine
3        possession with intent to sell           same
         methylenedioxymethamphetamine
4        possession with intent to deliver        dismissed
         methylenedioxymethamphetamine
5        possession with intent to sell           dismissed
         dihydrocodeinone
6        possession with intent to deliver        dismissed
         dihydrocodeinone
7        possession of a firearm with the         possession of a firearm
         intent to go armed during a
         dangerous felony having been
         previously convicted of a drug
         offense
8        possession of a firearm by a             dismissed
         convicted felon
9        possession of a handgun having           dismissed
         previously been declared a motor
         vehicle habitual offender
10       possession with intent to sell one-      dismissed
         half ounce or more of marijuana
11       possession with intent to deliver        dismissed
         one-half ounce or more of
         marijuana
12       possession with intent to sell           dismissed
         promethazine/codeine
13       possession with intent to deliver        dismissed
         promethazine/codeine

The agreement provided for a total effective sentence in case number 12-00532 of five
years’ incarceration with a 30 percent release eligibility percentage. In case number 13-
00791, the agreement provided for a total effective sentence of 11 years’ incarceration,
with the three years of the sentence attributable to the defendant’s firearm conviction to
be served at 100 percent and the remaining eight years to be served at 30 percent.
Because the agreement also provided that the effective sentences in case number 12-
00532 and case number 13-00791 are to be served consecutively, the total effective
sentence is 16 years with three years to be served at 100 percent and 13 years to be served
at 30 percent.


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               In December 2016, the defendant moved the court to correct what he
believed to be an illegal sentence imposed pursuant to his plea agreement. The defendant
claimed that the trial court had ordered that he serve 100 percent of his entire 16-year
total effective sentence in violation of his plea agreement and in direct contravention of
the applicable law. The defendant also claimed that the trial court had imposed
concurrent sentences where consecutive sentence alignment was required by law. The
trial court summarily dismissed the motion, finding that the defendant had “grossly and
intentionally” misstated the terms of Code section 39-17-1324 relative to the possession
of a firearm during the commission of a dangerous felony as well as “grossly
misinterpreting the judgments that were entered on these convictions.” The court pointed
out that a corrected judgment had been entered in August 2014 to clearly effectuate the
agreed sentence of 16 years, three years of which was to be served at 100 percent.

             In this appeal, the defendant asserts that the trial court erred by summarily
dismissing his motion. He also adds that the trial court erred by entering a corrected
judgment form without holding a hearing. The State contends that summary dismissal
was appropriate.

               Rule 36.1 provides the defendant and the State an avenue to “seek the
correction of an illegal sentence,” defined as a sentence “that is not authorized by the
applicable statutes or that directly contravenes an applicable statute.” Tenn. R. Crim. P.
36.1; see also State v. Wooden, 478 S.W.3d 585, 594-95 (Tenn. 2015) (holding that “the
definition of ‘illegal sentence’ in Rule 36.1 is coextensive with, and not broader than, the
definition of the term in the habeas corpus context”). To avoid summary denial of an
illegal sentence claim brought under Rule 36.1, a defendant must “state with particularity
the factual allegations,” Wooden, 478 S.W.3d at 594, establishing “a colorable claim that
the sentence is illegal,” Tenn. R. Crim. P. 36.1(b). “[F]or purposes of Rule 36.1 . . .
‘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.” Wooden,
478 S.W.3d at 593. The determination whether a Rule 36.1 “motion states a colorable
claim for correction of an illegal sentence under Rule 36.1 is a question of law, to which
de novo review applies.” Id. at 589 (citing Summers v. State, 212 S.W.3d 251, 255
(Tenn. 2007)).

             Simply put, the record does not support either of the claims made by the
defendant. The judgment forms filed on March 6, 2014, effectuated the agreed sentence
of 16 years with 3 years to be served at 100 percent and 13 years to be served at 30
percent. Although the handwritten notation in the Special Conditions portion of the
judgment form for the firearm offense could be more legible, it does read, “Effective
Sentence 16 years TDOC, 3 @ 100%.” The corrected judgment form filed on August 18,
2014, does not alter terms of the agreed sentence but contains a typewritten instead of
                                            -4-
handwritten note in the Special Conditions portion of the judgment form that reads,
“Effective Sentence 16 Years Tdoc. 3 years At 100%.” The trial court acted well within
its authority to file the corrected judgment under the terms of Rule 36. See Tenn. R.
Crim. P. 36 (“After giving any notice it considers appropriate, the court may at any time
correct clerical mistakes in judgments, orders, or other parts of the record, and errors in
the record arising from oversight or omission.”).

              Although the trial court did not directly address the defendant’s claim
regarding sentence alignment, we find that it similarly lacks merit. It appears that the
defendant claims that he was on bond for the offenses contained in case number 12-
00532 when he committed the offenses at issue in case number 13-00791. He is correct
that the law mandates consecutive alignment of offenses committed while released on
bail. See T.C.A. § 40-20-111(b); Tenn. R. Crim. P. 32(c)(3)(C). That is exactly what
happened in this case. Pursuant to the plea agreement, the 11-year effective sentence
imposed in case number 13-00791 is to be served consecutively to the 5-year effective
sentence imposed in case number 12-00532. As indicated, the judgment forms effectuate
the terms of the plea agreement.

               Although we discern no merit to the defendant’s claims of an illegal
sentence, we do discern a clerical error in the judgment form for count 3 of case number
12-00532. The defendant was charged in that count with the possession with intent to
sell methylenedioxymethamphetamine.              Methlyenedioxymethamphetamine, also
commonly known as MDMA or Ecstacy, is a Schedule I controlled substance, see T.C.A.
§     39-17-406(d)(24),       and     the     possession     with     intent    to    sell
methylenedioxymethamphetamine is prohibited by Code section 39-17-417, see id. § 39-
17-417(a)(4). The punishment for a violation of Code section 39-17-417 with relation to
methylenedioxymehtamphetamine is a Class B felony. Methamphetamine, “meth” in the
common parlance, is a Schedule II controlled substance, see id. § 39-17-408(d)(2), and at
the time of the defendant’s guilty plea, the possession with intent to sell
methamphetamine was also governed by Code section 39-17-417, but the punishment for
a violation of that section with respect to methamphetamine was a Class C felony unless
the amount alleged was .5 grams or more.1 Despite that possession with intent to sell
methylenedioxymethamphetamine and possession with intent to sell methamphetamine
are distinct and entirely unrelated offenses, a handwritten notation on the judgment form
for count 3 indicates that the defendant was charged with possession with intent to sell
“meth” and convicted of the criminal attempt to possess with intent to sell “meth.” The
terms of the plea agreement as well as the judgment form provide for a sentence
1
        Offenses related to the manufacture, sale, or delivery or the possession with intent to sell or
deliver methamphetamine are now located in Code section 39-17-434. See T.C.A. § 39-17-434(c) (“If the
violation is for methamphetamine, the defendant shall be charged, indicted, prosecuted and convicted
under this section rather than §§ 39-17-417 or 39-17-418.”).
                                                 -5-
commensurate with a conviction of the criminal attempt to possess with intent to sell
methylenedioxymethamphetamine. Consequently, the handwritten notation on the
judgment form indicating that the defendant was charged with and convicted of an
offense related to “meth” appears to be a clerical error. Nevertheless, it must be
corrected.

              Accordingly, we affirm the dismissal of the defendant’s motion but remand
the case to the trial court for the entry of a corrected judgment form in count 3 of case
number 12-00532.

                                                  _________________________________
                                                 JAMES CURWOOD WITT, JR., JUDGE




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