        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs November 18, 2014

                STATE OF TENNESSEE v. JAMES D. WOODEN

                 Appeal from the Criminal Court for Bradley County
                    Nos. 96297, 97133    Carroll L. Ross, Judge




            No. E2014-01069-CCA-R3-CD          - Filed December 26, 2014



Appellant, James D. Wooden, appeals the trial court’s summary denial of his motion to
correct an illegal sentence, as permitted by Tennessee Rule of Criminal Procedure 36.1, for
lack of jurisdiction because the sentences have already expired. Although the trial court had
jurisdiction to consider the motion, we determine Appellant has failed to state a colorable
claim entitling him to relief and, therefore, affirm the denial of the motion.

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

T IMOTHY L. E ASTER, J., delivered the opinion of the court, in which JOHN E VERETT
W ILLIAMS and R OBERT W. W EDEMEYER, JJ., joined.

James D. Wooden, pro se, Memphis, Tennessee, appellant.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Senior
Counsel; Steven Bebb, District Attorney General; and Carl Petty, Assistant District Attorney,
for the appellee, State of Tennessee.

                                         OPINION

                                  Procedural Background

       On August 12, 1996, Appellant pled guilty to aggravated burglary, a class C felony,
and theft of property valued over $1000, a Class D felony. He was sentenced as a standard
offender for both convictions. He received a three-year sentence for the aggravated burglary
and a two-year sentence for the theft, both to be served on probation after thirty days in the
custody of the Tennessee Department of Correction. These sentences were to be served
concurrently. Appellant was represented by the Public Defender’s Office.

        On September 23, 1997, Appellant was convicted by a jury of facilitation of armed
robbery, a Class C felony, while on probation for the first two offenses. He was sentenced
to five years in prison as a standard offender. This sentence was to be served concurrently
with the reinstated sentences from the first two offenses, after the revocation of his probation.

        On May 1, 2014, Appellant filed a motion to correct an illegal sentence with the trial
court under Rule 36.1 of the Tennessee Rules of Criminal Procedure. The trial court entered
an order on May 14, 2014, summarily dismissing Appellant’s motion because it did not have
jurisdiction over motions in expired cases. Appellant filed a timely notice of appeal on May
30, 2014.

                                            Analysis

        Appellant argues that the trial court erred in summarily dismissing his motion to
correct an illegal sentence for want of jurisdiction. Appellant also argues that his motion
stated a colorable claim for relief because: (1) his aggravated burglary and facilitation
sentences were improperly raised above the presumptive minimum sentence without
enhancement factors, as required by Tennessee Code Annotated section 40-35-210(c); and
(2) all of his sentences were improperly run concurrently rather than consecutively, under
Tennessee Code Annotated section 40-35-115(b)(6). The State did not respond to the
jurisdictional issue but argues that Appellant’s claims are not colorable. We agree with the
State.

       Rule 36.1 of the Tennessee Rules of Criminal Procedure became effective on July 1,
2013. It provides a mechanism for the correction of a sentence “that is not authorized by the
applicable statutes or that directly contravenes an applicable statute.” Tenn. R. Crim. P.
36.1(a). This Court recently reversed a summary dismissal of a Rule 36.1 motion because
the sentence at issue was expired. State v. Omar Robinson, No. E2014-00393-CCA-R3-CD,
2014 WL 5393240, at *2 (Tenn. Crim. App. Oct. 22, 2014). Because the plain text of the
rule authorizes relief “at any time,” this Court held that, “even though [the] original sentence
ha[s] expired, [the] appellant may still seek correction of that sentence if he states a colorable
claim.” Id.

       However, another recent case from this Court held that the mootness doctrine may
render a claim based on an expired sentence non-justiciable, notwithstanding the permissive
scope of Rule 36.1. See State v. Adrian R. Brown, No. E2014-00673-CCA-R3-CD, 2014 WL
5483011, at *6 (Tenn. Crim. App. Oct. 29, 2014) (“Because the appellant’s allegedly illegally

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lengthy sentences have been fully served, we conclude that there is no longer any remedy he
can seek from the court to correct any illegality in his sentences, and his controversy is
moot.”). As explained in that case:

       Mootness is a doctrine regarding the justiciability of a controversy. McIntyre
       v. Traughber, 884 S.W.2d 134, 137 (Tenn. Ct. App. 1994). A case is
       justiciable when it involves “a genuine and existing controversy requiring the
       present adjudication of present rights.” Id. “A moot case is one that has lost
       its character as a present, live controversy. The central question in a mootness
       inquiry is whether changes in the circumstances existing at the beginning of
       the litigation have forestalled the need for meaningful relief.” Id. (citations
       omitted). When the case may no longer provide relief to the prevailing party,
       it is considered moot. Id.

Id. This Court acknowledged that failure to award mandatory pre-trial jail credit constitutes
an illegal sentence, but determined that the alleged failure to do so was moot because the
sentence had expired and there was no remedy available. Id. at *4, *6.

       Reading these cases together, we conclude that a trial court presented with a claim
under Rule 36.1 based on an expired sentence does not lose jurisdiction to consider the claim
based solely on the expiration of that sentence, but has the authority to deny the claim as
moot when appropriate.1

        As we have done on several occasions since the adoption of Rule 36.1, rather than
remanding this case to the trial court for a determination on the merits, we choose to evaluate
Appellant’s claims for the sake of judicial efficiency. See, e.g., State v. John Robert Quinton
Jackson, No. M2013-02172-CCA-R3-CD, 2014 WL 5242615, at *3 (Tenn. Crim. App. Oct.
15, 2014) (finding that “the trial court did have jurisdiction to hear the claim” but disposing
of the claim on the merits by applying the law of the case doctrine); State v. Mark Edward
Greene, No. M2013-02710-CCA-R3-CD, 2014 WL 3530960, at *3 (Tenn. Crim. App. July
16, 2014) (construing a Rule 36 motion to correct a clerical error that was dismissed by the
trial court for lack of jurisdiction as a Rule 36.1 motion to correct an illegal sentence and
finding no colorable claim); cf. Omar Robinson, 2014 WL 5393240, at *2-3 (remanding
because the appellant stated a colorable claim).

       Because Rule 36.1 does not provide a definition for a “colorable claim,” this Court
has adopted the definition available for post-conviction proceedings: “A colorable claim is
a claim . . . that, if taken as true, in the light most favorable to the [appellant], would entitle

       1
           We do not read Adrian R. Brown to adopt a per se rule of mootness for expired sentences.

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[appellant] to relief. . . .” Mark Edward Greene, 2014 WL 3530960, at *3 (quoting Tenn.
Sup. Ct. R. 28 § 2(H)) (alteration in original).

        We find Appellant’s assertion that two of his sentences were illegally set above the
presumptive minimum without evidence of enhancing factors to be an inadequate basis for
relief. As the State correctly notes, Appellant, in fact, received minimum sentences for both
the burglary and theft convictions in his first case. See T.C.A. § 40-35-112 (1997). The five-
year sentence for the facilitation of armed robbery conviction, although not a minimum
sentence, was within the applicable legal range for that offense. See id. Therefore, even
assuming that Appellant was sentenced above the presumptive minimum without the trial
court’s findings of applicable enhancing factors,2 his claim is not colorable under Rule 36.1.
Any error by the trial court would have resulted in an a voidable judgment rather than an
illegal sentence. See Adrian R. Brown, 2014 WL 5483011, at *6 n.6 (noting that the
assertion that the trial court failed to put enhancement factors on the record “would at most
render [the appellant’s] convictions voidable, and not void, and thus are not within the ambit
of Rule 36.1”). The thrust of Appellant’s claim is that the trial court made a legal error by
its failure to make factual findings as to the enhancing factors supporting the sentencing
determination. As such, Appellant’s claim is one in the nature of an appealable error, which
should have been raised on direct appeal, rather than an error resulting in an illegal sentence,
which may be raised collaterally. See Cantrell v. Easterling, 346 S.W.3d 445, 449-53 (Tenn.
2011) (distinguishing between clerical errors, appealable errors, and fatal errors in
sentencing). “[S]entences containing alleged errors dependent upon a review of the trial
court’s findings of fact should be challenged on direct appeal . . . .” Id. at 455. Moreover,
“[a] sentence is not illegal when it is ‘statutorily available but ordinarily inapplicable to a
given defendant’; rather, an illegal sentence is one that is ‘simply unavailable under the
Sentencing Act.’” Adrian R. Brown, 2014 WL 5483011, at *3 (quoting Cantrell, 346 S.W.3d
at 454).3

        2
         We note that much has changed in the legal landscape of sentencing since Appellant’s sentencing
in 1997. In State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012), our supreme court expressly rejected the
language in the Sentencing Commission’s Comment to Tennessee Code Annotated section 40-35-210 that
required imposition of the minimum sentence within the applicable range in the absence of enhancing factors.
See also State v. Caudle, 388 S.W.3d 273, 278 (Tenn. 2012). However, Appellant correctly states the
applicable law at the time of his sentencing.
        3
         Appellant’s claim does not fit into any of the “four non-exclusive categories of illegal sentences”
previously identified by our supreme court:

        (1) a sentence imposed pursuant to an inapplicable statutory scheme; (2) a sentence
        designating a [release eligibility date] where . . . 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.

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        Here, Appellant seeks relief from the alleged lack of findings of fact made by the trial
court. This is not the proper time or manner for that claim. Therefore, Appellant has failed
to state a colorable claim for relief under Rule 36.1 because he has not alleged an illegal
sentence from which he may be entitled to relief. The sentence he received was a sentence
statutorily available to him.

       We also find no merit in Appellant’s argument that his sentences were run
concurrently in contravention of the applicable statute. Tennessee Code Annotated section
40-35-115(b)(6) provides that a court “may order sentences to run consecutively if the court
finds by a preponderance of the evidence that . . . [t]he defendant is sentenced for an offense
committed while on probation.” This language is permissive and not mandatory. See also
State v. Dorantes, 331 S.W.3d 370, 392 (Tenn. 2011) (citing T.C.A. § 40-35-115(b))
(“Whether sentences are to be served concurrently or consecutively is primarily within the
discretion of the trial court.”). Appellant does not cite to any other authority that required
his sentences to run consecutively.

        Because we find that Appellant has not raised any issues that, if taken as true, would
entitle him to relief, we find that Appellant has failed to state a colorable claim for relief.
Accordingly, he is not entitled to appointed counsel or a hearing. Tenn. R. Crim. P. 36.1(b).
Because we find that Appellant has failed to state a colorable claim, we need not determine
whether the expiration of his sentences has rendered his claim moot.

                                            Conclusion

        Although the trial court had jurisdiction to consider Appellant’s motion for correction
of an illegal sentence, the trial court did not err in denying the motion because Appellant has
not stated a colorable claim for relief in his motion. We affirm the trial court’s denial of the
motion.


                                                       _________________________________
                                                       TIMOTHY L. EASTER, JUDGE




Cantrell, 346 S.W.3d at 452, 455 (quoting Davis v. State, 313 S.W.3d 751, 759 (Tenn. 2010)) (emphasis
omitted).

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