        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs May 5, 2015

            STATE OF TENNESSEE v. NICKELLE N. JACKSON

               Appeal from the Criminal Court for Shelby County
  Nos. 93-09264, 93-09265, 93-09266, 93-08166, 93-08167, W94-00337, W94-00338
                          James M. Lammey, Jr., Judge


                No. W2014-02445-CCA-R3-CD - Filed July 14, 2015


In 1993, the Defendant, Nickelle N. Jackson, pleaded guilty to three counts of aggravated
robbery, one count of unlawful carrying a weapon, one count of theft of property valued
between $10,000 and $60,000, and two counts of theft of property valued over $500. In
accordance with the plea agreement, the trial court sentenced the Defendant as a Range
II, multiple offender, to a total effective sentence of twelve years in confinement. In
2014, the Defendant filed a motion to correct an illegal sentence pursuant to Tennessee
Rule of Criminal Procedure 36.1, which the trial court summarily dismissed based upon
its finding that the Defendant’s illegal sentence had expired in 2006. On appeal, the
Defendant contends that the trial court erred when it dismissed his motion because his
sentence contravenes the Tennessee Criminal Sentencing Reform Act of 1989. He
explains that the trial court erred when it ordered his sentences to run concurrently
because he had been released from jail on bail for some of the offenses when he
committed the other offenses, which would require consecutive sentencing. After review,
and for the reasons stated below, we reverse the trial court’s judgment and remand the
case for appointment of counsel and a hearing on the Defendant’s Rule 36.1 motion.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which NORMA
MCGEE OGLE and ROGER A. PAGE, JJ., joined.

Nickelle N. Jackson, Memphis, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Tracy L. Alcock, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Jessica Banti,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                       OPINION
                                        I. Facts

       This case arises from several instances of criminal conduct perpetrated by the
Defendant. A Shelby County grand jury indicted the Defendant for the following: in case
numbers 93-09264 and 93-09265, two counts of aggravated robbery occurring on March
7, 1993; in case number 93-09266, one count of aggravated robbery occurring on
February 22, 1993; in case number 93-08166, carrying an unlawful weapon on May 18,
1993; in case number 93-08167, theft of property valued between $10,000 and $60,000
during the time period of April 22, 1993, and May 19, 1993. By criminal information,
the Defendant was charged in case numbers W94-00337 and W94-00338 for two counts
of theft of property over $500 occurring on March 9, 1994.

       Included in the record are the petitions for waiver of trial and request for
acceptance of the guilty plea, signed by the Defendant for each of the indictments against
him. Also in the record are the trial court’s orders accepting the Defendant’s guilty pleas
for each of the indictments, all signed on May 11, 1994.

       The judgments of conviction, all entered May 11, 1994, reflect that the trial court
sentenced the Defendant as follows:

              In case number 93-09264, aggravated robbery, the trial court
       sentenced Defendant to twelve years, at 35%, to run concurrently with his
       sentences in case numbers 93-09265, 93-09266, 93-08166, 93-08167, W94-
       00337, and W94-00338. The judgment shows that this sentence should run
       consecutively to a sentence already received by the Defendant in another
       case, 94-02318.

              In case number 93-09265, aggravated robbery, the trial court
       sentenced the Defendant to twelve years, at 35%, to run concurrently with
       his sentences in case numbers 93-09264, 93-09266, 93-08166, 93-08167,
       W94-00337, and W94-00338. The judgment shows that this sentence
       should run consecutively to a sentence already received by the Defendant in
       another case, 94-02318.

              In case number 93-09266, aggravated robbery, the trial court
       sentenced the Defendant to twelve years, at 35%, to run concurrently with
       his sentences in case numbers 93-09264, 93-0925, 93-08166, 93-08167,
       W94-00337, and W94-00338. The judgment shows that this sentence
       should run consecutively to a sentence already received by the Defendant in
       another case, 94-02318.
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              In case number 93-08166, unlawful carrying of a weapon, the trial
      court sentenced the Defendant to eleven months and twenty nine days to
      run concurrently with his sentences in case numbers 93-09264, 93-0925,
      93-09266, 93-08167, W94-00337, and W94-00338. The judgment shows
      that this sentence should run consecutively to a sentence already received
      by the Defendant in another case, 94-02318.

             In case number 93-08167, theft, the trial court sentenced the
      Defendant to six years, at 35%, to run concurrently with his sentences in
      case numbers 93-09264, 93-0925, 93-09266, 93-08166, W94-00337, and
      W94-00338.      The judgment shows that this sentence should run
      consecutively to a sentence already received by the Defendant in another
      case, 94-02318.

             In case number W94-00337, theft of property over $500, the trial
      court sentenced the Defendant to four years, at 35%, to run concurrently
      with his sentences in case numbers 93-09264, 93-0925, 93-08166, 93-
      08166, 93-08167, and W94-00338. The judgment shows that this sentence
      should run consecutively to a sentence already received by the Defendant in
      another case, 94-02318.

             In case number W94-00338, theft of property over $500, the trial
      court sentenced the Defendant to four years, at 35%, to run concurrently
      with his sentences in case numbers 93-09264, 93-0925, 93-09266, 93-
      08166, 93-08167, and W94-00337. The judgment shows that this sentence
      should run consecutively to a sentence already received by the Defendant in
      another case, 94-02318.

On March 31, 2014, the Defendant filed a motion to correct an illegal sentence pursuant
to Tennessee Rules of Criminal Procedure 36.1. In it, he alleged that police officers
arrested him on May 18, 1993, for three counts of aggravated robbery in case numbers
93-09264, 93-09265, and 93-09266. He avers that he posted bail and was released from
custody on May 21, 1993. The Defendant asserts that he was out on bond on May 27,
1993, when police officers arrested him for unlawful possession of a weapon and theft of
property valued over $500 in case numbers 93-08166 and 93-08167, which the
indictments allege occurred during the period of time between April 22, 1993 and May
19, 1993. He was also later arrested for two counts of theft of property valued over $500
in case numbers W94-00337 and W94-00338, which the indictment alleges occurred on
March 9, 1994.

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       The Defendant states in his motion that he wanted to proceed to trial but that his
attorney advised him that, if he would plead guilty, the State would agree to concurrent
sentences. The Defendant stated that, pursuant to this agreement, he would serve 35% of
his twelve-year sentence, or 4.2 years. The Defendant notes, however, that concurrent
sentences in his case contravenes Tennessee Code Annotated section 40-20-111 (2014)
which requires that a defendant who commits a felony while on bail serve his sentences
consecutively. He further notes that his guilty plea was not knowingly and voluntarily
entered because he did not know the sentence was illegal.

       The State responded to this motion asserting that the Defendant had made a
colorable claim pursuant to Rule 36.1 and that he was, therefore, entitled to the
appointment of counsel. The State cited Cumecus R. Cates v. State, No. E2014-00011-
CCA-R3-CD, 2014 WL 4104556, at *3 (Tenn. Crim. App., at Knoxville, Aug. 20, 2014),
no Tenn. R. App. P. 11 application filed.

      The trial court filed an order dismissing the Defendant’s motion. It found:

            The State responded, “The defendant has made a colorable claim
      under Rule 36.1, and is therefore entitled to the appointment of counsel.
      Cates v. State, No. E2014-00011-CCA-R3-CD, *3 (Tenn. Ct. Crim. App.
      Aug. 20, 2014).” This court disagrees.

             The Cates case seems to be very similar to the case at hand, but is
      distinguishable. It appears that [the defendant in Cates] was still serving an
      alleged illegal sentence having been convicted on September 28, 2000 and
      received sixteen years for four different cases. [The defendant] filed his
      motion on October 29, 2013 well within the sixteen year sentence time
      period. There was no mention of the arrest dates. In the present case,
      assuming [the Defendant] served 100% of his twelve year sentence his
      sentence would have expired in 2006. Interestingly, the Cates court said:

              “We emphasize that the purpose (emphasis added) of this new Rule
      is to provide an avenue for correcting allegedly illegal sentences. The Rule
      does not provide an avenue for seeking the reversal of convictions. See
      Cantrell v. Easterling, 346 S.W.3d 445, 446-56 (2011) (recognizing that
      convictions and sentence are distinct aspects of a judgment order) (citations
      omitted).”

            Upon reading the MOTION TO CORRECT AN ILLEGAL
      SENTENCE filed by [the Defendant] it is evident the intent of the
      [Defendant] is to reverse said convictions long since expired by utilizing a
                                            4
Rule designed to offer relief to those presently serving time and who are
presently being deprived of liberty due to a possible illegality. [The
Defendant] in essence has received a tremendous windfall by being allowed
to plead to multiple offenses at a fraction of what he would have been
facing had he been sentenced consecutively only to use said generosity now
to have his cases reversed. Allowing [the Defendant to] use this new Rule
to set aside those convictions now, years after the sentence has expired,
would be a grave injustice and contrary to the purpose of said Rule.

        Considering that the General Assembly amended the Habeas Corpus
statute, T.C.A. § 19-21-101(b)(1), to remove relief from persons who
“received concurrent sentencing where there was a statutory requirement
for consecutive sentencing: this Court finds that Rule 36.1 does not undo
that change, rendering T.C.A. § 39-21-101(b)(1) superfluous, and open all
these cases to attack, but instead only applies to persons presently serving a
possibly illegal sentence not yet expired. To use this new Rule to
circumvent a statute specifically enacted to address these exact situations
may also be a violation of separation of powers.

       The Rules state that “either the defendant or the State” may seek to
correct an illegal sentence. Since the cases have expired there is no longer
a defendant present to seek relief. A defendant for purposes of Rule 36.1 is
someone who is presently facing or serving time for a Tennessee crime.
The Tennessee code defines a defendant as: “Defendant” – means a person
accused (emphasis added) of an offense under this title and includes any
person who aids or abets the commission of such offense. T.C.A. § 39-11-
106(7).

       The [Defendant] was a defendant on the above listed indictments
back in 1994. Assuming he served one hundred percent of his twelve year
sentence, he ceased being a defendant for purposes of Rule 36.1 in 2006.
[The Defendant] is no more a defendant than someone who was convicted
of shoplifting in the summer of 1969.

        The fact that the prior convictions may have been used to enhance
punishment in another jurisdiction does not resurrect the earlier cases. At
some point this Court loses jurisdiction to handle a case under Rule 36.1.
Eight years after the sentence expires would place this case outside the
jurisdiction of the Court.


                                      5
             Because the [Defendant] is no longer a [d]efendant as defined under
      Tennessee law there is no need to look further into whether or not he has
      made a colorable claim for relief. Furthermore, since [the Defendant’s]
      intent is to reverse an expired sentence rather than correct an illegal
      sentence, a colorable claim cannot be seriously entertained. The Motion of
      [the Defendant] is not well taken and is hereby denied.

      The Defendant now appeals.

                                       II. Analysis

        On appeal, the Defendant contends that the trial court erred when it summarily
dismissed his petition because: (1) the language of the rule contemplates that a defendant
may “at any time” seek the correction of an illegal sentence and does not require, he says,
that he be incarcerated; and (2) the trial court improperly treated his Rule 36.1 motion as
a petition for habeas corpus relief. The State counters that the Defendant has failed to
state a colorable claim for relief.

      Tennessee Rule of Criminal Procedure 36.1 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
      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.
                                             6
      (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.

       A rule 36.1 motion is a remedy separate and distinct from habeas corpus or post-
conviction relief. See State v. Jonathan T. Deal, No. E2013-02623-CCA-R3-CD, 2014
WL 2802910, at *2 (Tenn. Crim. App., at Knoxville, June 17, 2014), no Tenn. R. App. P.
11 application filed. As such, a Rule 36.1 motion should only be summarily denied
where the motion fails to state a colorable claim for relief. This Court has defined a
colorable claim as a claim “that, if taken as true, in the light most favorable to the
[defendant], would entitle [defendant] to relief.” State v. David Morrow, No. W2014-
00338-CCA-R3-CO, 2014 WL 3954071, at *2 (Tenn. Crim. App., at Jackson, Aug. 13,
2014) (quoting Tenn. Sup. Ct. R. 28, § 2(H)) (brackets and alterations in original), no
Tenn. R. App. P. 11 application filed.

      The following are examples of illegal sentences:

      (1) a sentence imposed pursuant to an inapplicable statutory scheme; (2) a
      sentence designating a [Release Eligibility Date (RED) ] where a RED is
      specifically prohibited by statute; (3) a sentence ordered to be served
      concurrently where statutorily required to be served consecutively; and (4)
      a sentence not authorized for the offense by any statute.

Davis v. State, 313 S.W.3d 751, 759 (Tenn. 2010) (internal citations omitted). The
Defendant’s assertions in this case, taken as true and in the light most favorable to him,
would state a colorable claim that his sentence is illegal because the Defendant received
concurrent sentences, rather than the statutorily required consecutive sentences for crimes
committed while released on bond. See id. The issue addressed by the trial court,
                                             7
however, is whether he is no longer able to seek relief pursuant to Rule 36.1 because his
sentence is expired.

      A panel of this Court recently addressed an issue on point, holding:

             Prior to the adoption of Rule 36.1, 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). “On its face, Rule 36.1 does not limit the time within
      which a person seeking relief must file a motion, nor does it require the
      person seeking relief to be restrained of liberty.” State v. Donald Terrell,
      No. W2014-00340-CCA-R3-CO, 2014 WL 6883706, at *2 (Tenn. Crim.
      App. Dec. 8, 2014).

              The trial court’s denial of relief because the [d]efendant’s sentences
      were expired is essentially a finding that the [d]efendant’s claim is moot.
      The concept of mootness deals with the circumstances that render a case no
      longer justiciable. McIntyre v. Traughber, 884 S.W.2d 134, 137 (Tenn. Ct.
      App. 1994). “A moot case is one that has lost its character as a present, live
      controversy.” Id. “A case will generally be considered moot if it no longer
      serves as a means to provide relief to the prevailing party.” Id. Along
      these lines, we acknowledge that at least two other panels of this court have
      recently concluded that a challenge to the legality of a sentence becomes
      moot once the sentence has been served. See State v. John Talley, No.
      E2014-01313-CCA-R3-CD, 2014 WL 7366257, at *3 (Tenn. Crim. App.
      Dec. 26, 2014); State v. Adrian R. Brown, No. E2014-00673-CCA-R3-CD,
      2014 WL 5483011, at *6 (Tenn. Crim. App. Oct. 29, 2014). However, it is
      our view that the trial court erred in finding that it was without jurisdiction
      to handle the defendant’s proceeding under Rule 36.1 and determine that
      the concurring in results only opinion in John Talley is the correct view of
      the law.

            In his concurring in results only opinion in John Talley, in which
      Judge Glenn joined, Presiding Judge Woodall explained:

                    Rule 36.1 was promulgated and adopted by the
             Tennessee Supreme Court in an order filed December 18,
             2012, and Rule 36.1 was subsequently “ratified and approved
             [by the Tennessee General Assembly] by House Resolution
             33 and Senate Resolution 11.” Compiler’s Notes, Tenn. R.
             Crim. P. 36.1. This rule, authored by our supreme court and
                                            8
              ratified and approved by the Tennessee General Assembly,
              begins with the following clear and unambiguous words:

                      Either the defendant or the state may, at any time, seek
              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.

              Tenn. R. Crim. P. 36.1(a) (emphasis added).

                     To me “at any time” means what it says, whether
              before or after sentences have been fully served. If our
              supreme court had intended for Rule 36.1 relief to not be
              available when the challenged sentences have been fully
              served, that specification would have been clearly stated. If
              the General Assembly had desired the restriction in the rule,
              one or both houses of the General Assembly would have
              refused to ratify and approve Rule 36.1 as it is written.

                      It is my respectful opinion that even if (1) I disagree
              with some or all of Rule 36.1’s provisions, and (2) I believe
              the consequences of the rule can ultimately and unfairly lead
              to trial courts in Tennessee vacating decades’ old convictions,
              as a judge on an intermediate appellate court I must apply the
              plain meaning of Rule 36.1. Accordingly, I respectfully
              concur only to the extent the judgment is reversed and the
              case is remanded for proceedings in accordance with my
              understanding of the wording in Rule 36.1.

       John Talley, 2014 WL 7366257, at *3-4. See also State v. Omar Robinson,
       No. E2014-00393-CCA-R3-CD, 2014 WL 5393240, at *2 (Tenn. Crim.
       App. Oct. 22, 2014).

Marcus Deangelo Lee v. State, No. W2014-00994-CCA-R3-CO, 2015 WL
2330063, at *2-3 (Tenn. Crim. App., at Jackson, May 13, 2015), no Tenn. R. App.
P. 11 application yet filed.

       In accordance with our Court’s reasoning, the fact that the Defendant’s
sentences in this case may have expired does not preclude him from obtaining
Rule 36.1 relief if he proves that his sentences were illegal. It is not clear from the
record whether the Defendant’s sentences have, in fact, expired. Regardless, he
                                              9
has stated a colorable claim that his sentence was illegal because he was on bond
at the time that he committed a new offense, requiring consecutive sentencing.
We therefore remand the case to the trial court for the appointment of counsel and
for a hearing to determine the merits of the Defendant’s Rule 36.1 motion.

                                    III. Conclusion

       In accordance with the aforementioned reasoning and authorities, we reverse the
trial court’s judgment, and we remand the case for proceedings consistent with this
opinion.

                                                _________________________________
                                                ROBERT W. WEDEMEYER, JUDGE




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