        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE

                STATE OF TENNESSEE v. EARL JUNIOR PIKE

                Appeal from the Criminal Court for Davidson County
                  No. 97-A-369       Cheryl A. Blackburn, Judge
                     ___________________________________

                 No. M2015-01573-CCA-R3-CD – Filed July 11, 2016
                      ___________________________________

The Appellant, Earl Junior Pike, is appealing the trial court’s order denying his motion to
correct an illegal sentence filed pursuant to Rule of Criminal Procedure Rule 36.1 The
State has filed a motion asking this Court to affirm pursuant to Court of Criminal Appeals
Rule 20. Said motion is hereby granted.

Tenn. R. App. P. 3 Appeal as of Right; Order of the Trial Court Affirmed Pursuant
                      to Court of Criminal Appeals Rule 20

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and TIMOTHY L. EASTER, JJ., joined.

Earl Junior Pike, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel, for the Appellee, State of Tennessee.

                             MEMORANDUM OPINION

       The Appellant was convicted of aggravated sexual battery and rape of a child in
1998. State v. Earl Junior Pike, No. 01C01-9804-CR-00168, 1999 WL 737876 (Tenn.
Crim. App., Sep. 22, 1999), perm. to app. denied, (Tenn., Mar. 6, 2000). He was
sentenced to twelve years for the aggravated sexual battery conviction and twenty-five
years for the rape of a child conviction, to be served consecutively. Id. This Court
affirmed those convictions and sentences on appeal. The Appellant subsequently sought
post-conviction relief, but was unsuccessful in his pursuit. Earl Junior Pike v. State, No.
M2002-01363-CCA-R3-PC, 2003 WL 21486896 (Tenn. Crim. App., June 27, 2003).

       On May 8, 2015, the Appellant filed a motion to correct an illegal sentence. See
Tenn. R. Crim. P. 36.1. The Appellant argued that, pursuant to the “24 hour merger
rule,” the twelve year sentence should be merged into the twenty-five year sentence
because he committed the offenses against one victim on a single day. The trial court
disagreed. Concluding that the Appellant’s sentence was legal, the court held:

               In this case, Petitioner is mixing up legal concepts; specifically, the
       definition of “prior convictions” for purposes of determining range under
       the Sentencing Act in attempt[] to apply it to consecutive sentencing. The
       “24-hour rule” Petitioner references is [] contained in subsections under
       T.C.A. §§ 40-35-106, 107, and 108 to assist in defining what constitutes a
       prior conviction when calculating convictions for Multiple, Persistent, and
       Career Offender ranges, respectively.

              Petitioner’s consecutive sentences for his aggravated sexual battery
       and rape of a child convictions comport with Tennessee sentencing statutes.
       Petitioner has failed to state a colorable claim pursuant to Rule 36.1 of the
       Tennessee Rules of Criminal Procedure.

        This Court hereby affirms that ruling. Rule 36.1 permits a defendant to seek
correction of an unexpired illegal sentence at any time. See State v. Brown, 479 S.W.3d
200, 211 (Tenn. 2015). “[A]n illegal sentence is 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 recently interpreted the meaning of “illegal sentence” as
defined in Rule 36.1 and concluded that the definition “is coextensive, and not broader
than, the definition of the term in the habeas corpus context.” State v. Wooden, 478
S.W.3d 585, 594-95 (Tenn. 2015). The court then reviewed the three categories of
sentencing errors: clerical errors (those arising from a clerical mistake in the judgment
sheet), appealable errors (those for which the Sentencing Act specifically provides a right
of direct appeal) and fatal errors (those so profound as to render a sentence illegal and
void). Id. Commenting on appealable errors, the court stated that those “generally
involve attacks on the correctness of the methodology by which a trial court imposed
sentence.” Id. In contrast, fatal errors include “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. The court held that only fatal errors render sentences
illegal. Id.

        The Appellant challenged the length and manner of his sentences on direct appeal.
This Court concluded that his consecutive sentences were authorized by statute. Pike,
1999 WL 737876 at *6-8. Accordingly, the trial court correctly held that the Appellant
did not state a colorable claim for relief pursuant to Rule 36.1. The Appellant raises for
the first time in his brief on appeal an issue relating to a double jeopardy violation. That
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issue was not presented to the trial court and thus it is waived on appeal. See, e.g., Butler
v. State, 789 S.W.2d 898, 902 (Tenn. 1990). Regardless of waiver, this Court has
emphasized that Rule 36.1 “provide[s] an avenue for correcting allegedly illegal
sentences. The Rules does not provide an avenue for seeking the reversal of
convictions.” State v. Jimmy Wayne Wilson, No. E2013-02354-CCA-R3-CD, 2014 WL
1285622 (Tenn. Crim. App., Mar. 31, 2014), perm. to app. denied, (Tenn., Nov. 19,
2014) (emphases in original).

      Accordingly, the ruling of the trial court is hereby affirmed pursuant to Court of
Criminal Appeals Rule 20.



                                             ____________________________________
                                             ROBERT W. WEDEMEYER, JUDGE




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