        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on Briefs May 6, 2014

                 TRAVIS DAVISON v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Shelby County
                      No. 07-06894    John W. Campbell, Judge


                 No. W2013-02048-CCA-R3-CO - Filed August 27, 2014


The petitioner, Travis Davison, appeals the trial court’s summary dismissal of his motion to
correct an illegal sentence, asserting that his sentence was illegal in that he received a shorter
term than that mandated by statute. The State agrees that the petitioner has made a colorable
claim that his sentence is illegal and that the matter should be remanded. After review, we
remand the case for the appointment of counsel and an evidentiary hearing pursuant to
Tennessee Rule of Criminal Procedure 36.1.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P.J., and
C AMILLE R. M CM ULLEN, J., joined.

Travis Davison, Memphis, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Chris West, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                           OPINION

                                            FACTS

       The record shows that in 2007, the petitioner was indicted for one count of possession
of marijuana with intent to sell and one count of possession of marijuana with intent to
deliver, Class E felonies. See State v. Travis Davison, No. W2011-02167-CCA-R3-CO,
2012 WL 3114572, at *1 (Tenn. Crim. App. July 31, 2012). On January 4, 2008, the
petitioner pled guilty to possession of marijuana with intent to sell, a Class E felony. The
plea agreement and judgment reflected that the petitioner would be sentenced to eighty-five
days as a time-served settlement, although the petitioner claims that he pled guilty in
exchange for a ninety-day term of imprisonment with five days of sentence credit.

        On August 22, 2011, the petitioner filed a “motion for correction of clerical error, or
clarification of judgment pursuant to Rule 36 Tennessee Rules of Criminal Procedure.” In
his motion, the petitioner argued that because he received a sentence of less than one year,
“the offense was reduced to a misdemeanor offense” from a Class E felony and that the
judgment should be altered to reflect that he was convicted of a misdemeanor. The trial court
denied his motion, and the petitioner appealed. This court dismissed the petitioner’s appeal
on July 31, 2012, determining that there was no appeal as of right from the denial of a Rule
36 motion to correct a judgment.

       Sometime after July 31, 2013 and before August 8, 2013,1 the petitioner filed a motion
for correction of illegal judgment or clarification of judgment pursuant to Rule 36.1 of the
Tennessee Rules of Criminal Procedure. On August 8, 2013, the trial court entered an order
denying the motion, finding that the petitioner’s case “was not reduced to a misdemeanor but
instead he clearly entered a guilty plea to a felony.” This timely appeal followed.

                                                ANALYSIS

        The petitioner argues that his sentence for Class E felony possession of marijuana with
intent to sell is illegal. He asserts that, because Tennessee Code Annotated section 40-35-
105 mandates a sentence of not less than one year, the trial court did not have authority to
impose the sentence he received. The State agrees that the petitioner has presented a
colorable claim of an illegal sentence and that the case should be remanded for an evidentiary
hearing.

       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


        1
          There is no file-stamped copy of the petitioner’s motion in the record, but the certificate of service
states that he mailed the motion on July 31, 2013, and the trial court denied his motion on August 8, 2013.

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       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.

               (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 (emphasis added). 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).



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       In this case, the petitioner pled guilty to possession of marijuana with intent to sell,
a Class E felony. The judgment reflects that he was sentenced as a Range I offender to
eighty-five days as a time-served settlement. Tennessee Code Annotated section 40-35-
112(a)(5) mandates a sentence of not less than one year and no more than two years for a
Range I, Class E felony. Because the petitioner was sentenced to only eighty-five days, his
sentence fails to comply with the statute and he has, therefore, made a colorable claim that
his sentence is illegal.

       Accordingly, we remand this matter to the trial court for further proceedings pursuant
to Tennessee Rule of Criminal Procedure 36.1. The trial court shall appoint counsel to the
petitioner if necessary and, unless both parties waive a hearing, conduct a hearing to
determine the merits of the petitioner’s colorable claim.

                                      CONCLUSION

       Based on the foregoing authorities and reasoning, we remand this matter to the trial
court for further proceedings pursuant to Tennessee Rule of Criminal Procedure 36.1.




                                                    _________________________________
                                                    ALAN E. GLENN, JUDGE




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