                                                                                       04/13/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs January 5, 2017

                STATE OF TENNESSEE v. MARCUS BOALES

                 Appeal from the Circuit Court for Henderson County
         Nos. 94-470, 96-162, 96-164, 00-002-1  Roy B. Morgan, Jr., Judge


                            No. W2016-00567-CCA-R3-CD



The defendant, Marcus Boales, appeals from the trial court’s dismissal of his motion to
correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1 for
failure to assert a colorable claim. Discerning no error, we affirm the judgment of the
trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and CAMILLE R. MCMULLEN, JJ., joined.

George Morton Googe, District Public Defender; Hewitt Chatman (on appeal) and
Caroline Ballentine (at hearing), Assistant Public Defenders, for the appellant, Marcus
Boales.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; James G. (Jerry) Woodall, District Attorney General; and Angela R.
Scott, Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                        FACTS

      On October 3, 1994, in case number 94-470, the defendant was indicted for theft
of property over $1000. On April 8, 1996, in case numbers 96-162 and 96-164, the
defendant was indicted for sale of .5 grams or more of cocaine, delivery of .5 grams or
more of cocaine, possession with intent to sell .5 grams or more of cocaine, and
possession with intent to deliver .5 grams or more of cocaine. The defendant agreed to
pled guilty to the theft charge, one count of sale of cocaine, and one count of possession
with intent to sell cocaine, in exchange for sentences of four years on the theft charge and
eight years on each of the drug charges, all to run concurrently with each other but
consecutively to prior sentences he was serving. The trial court imposed the agreed-upon
sentence on December 6, 1996.

        On February 7, 2000, in case number 00-002-1, the defendant was indicted for two
counts of sale of cocaine and two counts of delivery of cocaine. The defendant pled
guilty to one count of sale of cocaine in exchange for a sentence of four-and-a-half years.
On August 18, 2000, the trial court imposed a sentence of four-and-a-half years’
probation effective the day of sentencing. On September 24, 2004, the trial court revoked
the defendant’s probation and ordered him to serve his original four-and-a-half-year
sentence. On October 13, 2004, the trial court entered a corrected judgment, noting that
the four-and-a-half-year sentence was to run concurrently with the defendant’s sentence
from a case in another county.

       Years later, the defendant filed a petition for writ of habeas corpus, which the
habeas court dismissed on July 1, 2013, for lack of jurisdiction as the defendant was in
federal custody in Arkansas. The defendant then filed a motion in opposition to the
habeas court’s order. The habeas court entered another order denying the motion, filed
on August 5, 2013, stating that it was “without jurisdiction” because the defendant was in
federal custody and, additionally, because “[p]ursuant to [Tennessee Code Annotated
section] 29-21-102, the [p]etitioner [was] not entitled to the benefits of a writ in the State
of Tennessee.” This court affirmed the habeas court’s judgment on appeal. Marcus
Boales v. State, No. W2013-02512-CCA-R3-HC, 2014 WL 3954029, at *3 (Tenn. Crim.
App. July 30, 2014).

       Finally, on March 4, 2015, the defendant filed a motion to correct an illegal
sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. The trial court
appointed counsel and then held a hearing on July 20, 2015. At the hearing, the State
noted that all of the defendant’s sentences had expired. The trial court observed that the
Tennessee Supreme Court had recently granted an appeal in order to decide whether Rule
36.1 applied to expired sentences. The trial court proposed continuing the case until the
supreme court ruled on the issue. The State agreed with the approach, but the defendant
asked the trial court to rule on the motion. The trial court told the defendant that, if it
were to rule on the motion, it would agree with the State that the sentences were expired
and that the motion should be denied. The defendant then agreed that the case be
continued until the supreme court ruled on the issue.

       The Tennessee Supreme Court ruled on the question on December 2, 2015, in
State v. Brown, 479 S.W.3d 200, 211 (Tenn. 2015), holding that Rule 36.1 was
inapplicable to expired sentences. The trial court then dismissed the defendant’s Rule
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36.1 motion on February 19, 2016, noting that the defendant’s sentences expired on
March 31, 20041 and that he was not entitled to relief under Brown. The defendant
appealed.

                                              ANALYSIS

       Rule 36.1 provides “a mechanism for the defendant or the State to seek to correct
an illegal sentence.” Brown, 479 S.W.3d at 208-09. When a defendant files a motion
under Rule 36.1, the trial court must determine whether the motion “states a colorable
claim that the sentence is illegal.” Tenn. R. Crim. P. 36.1(b). If it does, the trial court
should appoint counsel for the defendant and hold a hearing to consider the motion.2 Id.
In the context of Rule 36.1, a colorable claim 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. Wooden, 478 S.W.3d 585, 593 (Tenn. 2015). Rule 36.1 “does
not authorize the correction of expired illegal sentences,” and “a Rule 36.1 motion may
be summarily dismissed for failure to state a colorable claim if the alleged illegal
sentence has expired.” Brown, 479 S.W.3d at 211.

       On appeal, the defendant acknowledges that his sentences have expired and that
the Tennessee Supreme Court has ruled that Rule 36.1 does not authorize the correction
of expired illegal sentences. Apparently asserting that the trial court should have
construed his initial habeas petition as a Rule 36.1 motion, the defendant claims that the
state of the law was “clearly unsettled” at the time he originally filed his habeas corpus
petition and that he might have received a favorable decision had his motion not taken so
long to resolve. He cites to unpublished, subsequently abrogated case law to argue that
the law was unsettled. The defendant’s argument fails for a number of reasons.

       First, the defendant waived the issue because it should have been raised on direct
appeal. After the habeas court dismissed his petition and subsequent motion in
opposition, the defendant appealed to this court, which affirmed the habeas court’s
judgment. Marcus Boales v. State, 2014 WL 3954029, at *3. The defendant did not
argue before this court that the habeas court should have treated his petition as a Rule

        1
          Although the trial court noted that all of the defendant’s sentences expired on March 31, 2004,
the court had revoked the defendant’s probation on his 2000 conviction after that date. The substance of
the defendant’s claim with regard to that conviction was that the sentence was illegal because it ran
concurrently with an expired sentence. It is possible the trial court did not view this as a colorable claim
and therefore focused only upon the expiration date of the 1996 convictions. Regardless, the defendant’s
sentence on the 2000 conviction would have expired well before he filed his Rule 36.1 motion.
        2
            Rule 36.1 was amended in part effective July 1, 2016. The prior version is applicable to this
case.
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36.1 motion. In fact, he apparently argued that the court should have treated it as a
petition for writ of error coram nobis. Id. at *1. The defendant has therefore waived this
issue for failing to raise it on direct appeal.

        Second, the habeas corpus petition is not a part of the appellate record. The
defendant has included what purports to be the habeas petition as an appendix to his
appellate brief, but he did not include the document in the record itself. This court has
previously noted that “[d]ocuments attached to briefs are not cognizable as part of an
appellate record.” LaBryant King v. State, No. M2004-01371-CCA-R3-PC, 2005 WL
1307802, at *3 n.3 (Tenn. Crim. App. June 1, 2005), perm. app. denied (Tenn. Dec. 19,
2005); see State v. Matthews, 805 S.W.2d 776, 783-84 (Tenn. Crim. App. 1990); State v.
Kenneth Shane Story, No. M2005-02281-CCA-R3-CD, 2006 WL 2310534, at *4 (Tenn.
Crim. App. Aug. 9, 2006), perm. app. denied (Tenn. Dec. 27, 2006). “While our Rules of
Appellate Procedure permit an appellant to file an appendix containing relevant portions
of a record, see Tenn. R. App. P. 28, the documents must also be included in the record
itself.” LaBryant King, 2005 WL 1307802, at *3 n.3 (citing Matthews, 805 S.W.2d at
783-84). This court is precluded from considering an issue when the record is incomplete
and does not contain the proceedings and documents relevant to the issue. State v.
Bennett, 798 S.W.2d 783, 789 (Tenn. Crim. App. 1990). Because the defendant’s
argument turns on whether the habeas court should have construed his petition as a Rule
36.1 motion at the time it was filed, the petition should have been made a part of the
appellate record. As such, we conclude that the habeas court properly dismissed the
defendant’s petition for lack of jurisdiction, rather than sua sponte construing it as a Rule
36.1 motion.

       Third, Rule 36.1 was not effective until July 1, 2013, approximately one year after
the defendant filed his petition for writ of habeas corpus. In fact, the habeas court entered
the order dismissing the petition on June 27, 2013, although it was not filed until four
days later on July 1, 2013, the same day that Rule 36.1 became effective. The
defendant’s argument that the habeas court should have construed the petition as a Rule
36.1 motion fails because Rule 36.1 was not effective until after the court denied the
petition.

       Fourth, even if this court were to consider the habeas corpus petition the defendant
included with his brief, the petition does not contain the argument he eventually asserted
in his Rule 36.1 motion. In the petition, the defendant admitted that his sentences have
expired, but he explained that he was seeking relief in order to avoid collateral
consequences in his federal case on unrelated charges. He claimed that his guilty plea
was unknowing and involuntary, that he received ineffective assistance of counsel, and
that he was not advised of his right to compulsory process. Even though he also
challenged his sentence, he did not raise the argument he now raises but, instead, argued
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that he should have received the benefit of reclassified drug sentences enacted after his
sentencing. As such, setting aside the fact that Rule 36.1 was not in effect, the habeas
petition and Rule 36.1 motion alleged different arguments.

       Fifth, our supreme court made it clear in Brown that Rule 36.1 does not apply to
expired sentences. 479 S.W.3d at 211. The court reached this holding after concluding
that Rule 36.1 was not intended to expand the scope of relief available in habeas corpus,
which was also inapplicable to expired sentences. Id. at 209-11. The defendant’s
sentences expired before he filed his initial habeas petition and were long since expired
by the time he filed his Rule 36.1 motion; thus, neither the defendant’s habeas petition
nor his Rule 36.1 motion sought relief that the trial court was empowered to provide.

       Lastly, to the extent the defendant’s argument might be construed as a complaint
regarding the delay between the filing of his Rule 36.1 motion and the trial court’s
ultimate ruling on it, the defendant consented to the continuance and cannot now
challenge the delay.

                                    CONCLUSION

       Based on the foregoing authorities and reasoning, the judgment of the trial court is
affirmed.

                                                  _________________________________
                                                  ALAN E. GLENN, JUDGE




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