Assigned on Briefs December 2, 2014
Appeal from the Criminal Court for Shelby County Nos. 91-09143, 91-07725 John W. Campbell, Judge
Robert Todd Mosley, Waynesville, North Carolina, for the appellant, Jerome Wall.
Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Amy P. Weirich, District Attorney General; and George Kirby May, Assistant District Attorney General, for the appellee, State of Tennessee.
Roger A. Page, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.
ROGER A. PAGE, JUDGE
I. Rule 36.1 Motion
Appellant filed a motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1 on November 19, 2013. In the motion, appellant argued that by aligning his sentences concurrently, the trial court imposed an illegal sentence under Tennessee Code Annotated section 40-20-111(b) and Tennessee Rule of Criminal Procedure 32(c)(3)(C) because he was released on bail in case number 91-07725 (robbery) when he committed the crime in case number 91-09143 (aggravated robbery). He argued that the trial court should have aligned his sentences consecutively because Tennessee Code Annotated section 40-20-111(b) mandates consecutive sentences when a defendant commits a felony while the defendant is released on bail and the defendant is convicted of both offenses. However, the trial court summarily dismissed appellant's Rule 36.1 motion on April 7, 2014. Appellant now argues that the trial court erred by summarily dismissing his motion.
In its brief, the State concedes to appellant's Rule 36.1 argument stating, "Because Tenn. Code Ann. § 40-20-111 mandates consecutive sentences for offenses committed while on bond, it appears that [appellant] has made a colorable claim that his sentence is illegal, and he is thus entitled to a hearing."
In 2013, the Tennessee General Assembly promulgated Rule 36.1, which provides, in 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) 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, ...