                                                                                             04/29/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs April 2, 2019

              STATE OF TENNESSEE v. DEREK CUNNINGHAM

                  Appeal from the Criminal Court for Shelby County
                     No. 14-01981       W. Mark Ward, Judge
                      ___________________________________

                            No. W2018-02075-CCA-R3-CD
                        ___________________________________

Defendant, Derek Cunningham, appeals from the denial of his motion to correct an illegal
sentence under Tennessee Rule of Criminal Procedure 36.1. Because Defendant has
failed to state a colorable claim for relief, we affirm the trial court’s denial of the motion.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and ALAN E. GLENN, J., joined.

Derek Cunningham, Wartburg, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                         OPINION

        A Shelby County Grand Jury indicted Defendant for first degree premeditated
murder, felony murder, especially aggravated robbery, and aggravated robbery. Derek
Cunningham v. State, No. W2016-01974-CCA-R3-PC, 2017 WL 2972229, at *1 (Tenn.
Crim. App. July 12, 2017), perm. app. denied (Tenn. Oct. 5, 2017). Defendant reached
an agreement with the State and pled guilty to second degree murder. Id. As a result,
Defendant received a sentence of thirty years of incarceration. Id. Subsequently,
Defendant sought post-conviction relief, to no avail. Id. Defendant has filed two
motions for correction of an illegal sentence. In its order denying the second motion, the
trial court remarked that Defendant’s second motion was “identical” to his prior motion
and instructed Defendant to “stop re-filing the same previously denied motion.” It is
from the order denying his second motion that Defendant now appeals.
      On appeal, Defendant argues that his thirty-year sentence for second degree
murder is an illegal sentence. The State responds that the sentence is legal and that
Defendant has not presented a colorable claim for relief under Tennessee Rule of
Criminal Procedure 36.1. We agree with the State.

       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)(2). Our supreme court
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 form), 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. at 595. 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. A trial court may summarily
dismiss a Rule 36.1 motion if it does not state a colorable claim for relief. Tenn. R. Crim.
P. 36.1(b)(2). 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.” Wooden, 478 S.W.3d at 593.

        Defendant claims that he should not have been classified as a Range II, multiple
offender; thus, his thirty-year sentence is illegal because it is above the maximum of
twenty-five years for a Range I, standard offender Class A felony sentence. However,
our supreme court has held that “a knowing and voluntary guilty plea waives any
irregularity as to offender classification or release eligibility.” Hicks v. State, 945 S.W.2d
706, 709 (Tenn. 1997). Defendant has waived any challenge to his offender
classification. Furthermore, it is the statutorily authorized punishment range for the
offense that is considered when determining if a sentence is illegal. Hoover v. State, 215
S.W.2d 776, 779 (Tenn. 2007). Defendant pled guilty to second degree murder, a Class
A felony, which carries a maximum authorized sentence of sixty years. See T.C.A. § 40-
35-112(c)(1). Defendant’s thirty-year sentence is well under the statutorily authorized
maximum sentence, and he has not presented a colorable claim for relief.

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Accordingly, the judgment of the trial court is affirmed.


                                      ____________________________________
                                      TIMOTHY L. EASTER, JUDGE




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