       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                          Assigned on Briefs June 2, 2015


               STATE OF TENNESSEE v. MICHAEL LINDSEY

                 Appeal from the Criminal Court for Shelby County
                   No. 88-03169     Carolyn W. Blackett, Judge




              No. W2014-02109-CCA-R3-CD - Filed October 13, 2015
                       _____________________________

The Defendant, Michael Lindsey, filed a Motion to Correct an Illegal Sentence pursuant
to Rule 36.1 of the Tennessee Rules of Criminal Procedure. The trial court summarily
dismissed the motion for failing to state 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 Criminal Court Affirmed

ROBERT L. HOLLOWAY, JR. J., delivered the opinion of the Court, in which ROBERT W.
WEDEMEYER, and D. KELLY THOMAS, JR., JJ., joined.

Michael Lindsey, Whiteville, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Amy P. Weirich, District Attorney General, for the Appellee, State of
Tennessee.


                                      OPINION

                        Factual and Procedural Background

       In 1985, the Defendant shot and killed the victim during the course of a drug
transaction with the victim’s uncle. A jury convicted the Defendant of second degree
murder, and following a sentencing hearing, the trial court found the Defendant
committed an “especially aggravated offense” and sentenced the Defendant to a Range II
sentence of seventy years. This court affirmed his judgment of conviction on direct
appeal. State v. Michael Lindsey, No. 35, 1990 WL 14557, at *3 (Tenn. Crim. App. Feb.
21, 1990), no perm. app. filed. The Defendant filed petitions for post-conviction relief in
1993 and 2003, both of which were denied. Michael Lindsey v. State, No. W2004-
01169-CCA-R3-PC, 2005 WL 957340, at *1 (Tenn. Crim. App. Apr. 25, 2005), no perm.
app. filed. In 2004, the Defendant filed a pro se petition for DNA testing under the Post-
Conviction DNA Analysis Act of 2001. Id. The post-conviction court denied relief, and
this court affirmed the denial on appeal. Id. at *1, *2. In 2005, the Defendant filed a
petition for writ of error coram nobis “and/or” post-conviction relief, alleging that this
sentence was “illegal, void, or voidable” because he was sentenced under the 1982
Sentencing Act rather than the 1989 Sentencing Act. Michael Lindsey v. State, No.
W2006-02518-CCA-R3-PC, 2007 WL 2713375, at *1 (Tenn. Crim. App. Sept. 18,
2007), perm. app. denied (Tenn. Feb. 4, 2008). In the appeal from that proceeding, this
court held that, because the Defendant was sentenced before November 1, 1989, he was
not entitled to sentencing under the 1989 Sentencing Act. Id. at *2.

      On September 3, 2014, the Defendant filed a pro se Motion to Correct an Illegal
Sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. The trial court
summarily dismissed the motion for failing to state a colorable claim. This timely appeal
followed.

                                         Analysis

        In 2013, the Tennessee General Assembly promulgated Rule 36.1, which provides,
in pertinent part:

      (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-
Either party may appeal the trial court’s decision pursuant to Rule 3 of the Tennessee
Rules of Appellate Procedure. Tenn. R. Crim. P. 36.1(d).

        The term “colorable claim” is not defined in Rule 36.1. This court has adopted the
definition of colorable claim from post-conviction cases: “A colorable claim is a
claim . . . that, if taken as true, in light most favorable to [the Defendant], would entitle
[the Defendant] to relief[.]” State v. Mark Edward Greene, No. M2013-02710-CCA-R3-
CD, 2014 WL 3530960, at *3 (Tenn. Crim. App. July 16, 2014). Whether a sentence is
illegal under Rule 36.1 is a question of law which we review de novo with no
presumption of correctness. State v. Antonio Williams, No. W2014-02108-CCA-R3-CD,
2015 WL 3407472, at *2 (Tenn. Crim. App. May 28, 2015).

       On appeal, the Defendant argues that the classification of his conviction for
second degree murder as an “especially aggravated offense” directly contravenes
Tennessee Code Annotated section 40-35-107(7)(A) (Supp. 1988). Specifically, the
Defendant avers that his conviction cannot be classified as an “especially aggravated
offense” because an element of the offense, death, is also included in the definition of
“especially aggravated offense.” Consequently, the Defendant contends that his Range II
sentence is illegal and he is entitled to relief under Rule 36.1.

       As relevant to the Defendant’s sentence, “especially aggravated offense” is
defined as “[a] felony resulting in the death or bodily injury or involving the threat of
death or bodily injury to another person where the defendant has previously been
convicted of a felony that resulted in death or bodily injury[.]” Tenn. Code Ann. § 40-
35-107(1) (Supp. 1988). However, the statute also provides:

       If the provision of either subdivision (1), (2), (3), or (4) of this section are
       used to show that an offense was committed in an especially aggravated
       manner but all of the factors of the applicable subdivision or subdivisions
       are also essential elements of the crime charged in the indictment, the
       subdivision or subdivisions in which all factors are all essential elements
       shall not be used to elevate the offense to an especially aggravated offense.
       Provided, however, nothing in this subdivision shall be construed to
       prohibit the use of such subdivision or subdivisions to elevate an offense if
       all the factors within a particular subdivision are not essential elements of
       the crime charged in the indictment.

Tenn. Code Ann. § 40-35-107(7)(A) (Supp. 1988). If the trial court finds, beyond a
reasonable doubt, that a defendant committed an especially aggravated offense, then that
defendant shall receive a Range II sentence. Tenn. Code Ann. § 40-35-107(8) (Supp.
1988).

                                            -3-
       In this case, the Defendant correctly states that death is an essential element of his
second degree murder conviction. At the time of the offense, second degree murder was
defined as “all other kinds of murder” other than first degree murder. Tenn. Code Ann. §
39-2-211 (Supp. 1985). The Defendant also freely admits that he had previously been
convicted of second degree murder at the time he was convicted of the instant offense.
However, the factor of the Defendant’s prior conviction for a felony resulting in the death
or bodily injury of another is not an essential element of the crime of second degree
murder. See id.; Tenn. Code Ann. § 40-35-107(1) (Supp. 1988). Therefore, all of the
factors in the subdivision used to elevate the Defendant’s offense were not essential
elements of the crime charged in the Defendant’s indictment. See Tenn. Code Ann. § 40-
35-107(7)(A) (Supp. 1988). Therefore, the Defendant’s sentence did not directly
contravene Tennessee Code Annotated section 40-35-107(7)(A), and the Defendant failed
to present a colorable claim that his sentence was illegal.

                                        Conclusion

       For the aforementioned reasons, the judgment of the trial court is affirmed.



                                                  _________________________________
                                                  ROBERT L. HOLLOWAY, JR., JUDGE




                                            -4-
