Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs December 9, 2014
Appeal from the Criminal Court for Hamilton County Nos. 159257, 159258, 164952, 164953, 164955 Barry A. Steelman, Judge
John Talley, pro se, Memphis, Tennessee, appellant.
Herbert H. Slatery, III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant Attorney General; and, Neal Pinkston, District Attorney General, for the appellee, State of Tennessee.
Timothy L. Easter, J., delivered the opinion of the court. Thomas T. Woodall, P.J., with whom Alan E. Glenn, J., joins, filed a separate opinion concurring in results only.
TIMOTHY L. EASTER, JUDGE
Factual and Procedural Background
In December of 1984, Appellant was indicted by a Hamilton County grand jury in case numbers 159257 and 159258 for two counts of felony selling and/or delivering cocaine. On January 29, 1985, Appellant pled guilty to two counts of the sale of cocaine. He was sentenced to a four-year term of imprisonment for each conviction. Appellant was paroled on April 30, 1985.
In June of 1986, Appellant was indicted by the Hamilton County grand jury in case numbers 164952, 164593, and 164595 to three counts of the sale or delivery of cocaine. On October 13, 1986, Appellant pled guilty to three counts of feloniously selling cocaine in exchange for a six-year sentence on each count, to be served concurrently with each other and with prior sentences in case numbers 159257 and 159258.
On April 14, 2014, Appellant filed a motion pursuant to Tennessee Rule of Criminal Procedure 36.1 (the Rule) to correct the illegal sentences in cases 159257, 159258, 164952, 164953, and 164595. Appellant alleged that because the offenses in case numbers 164952, 164953, and 164955 occurred while he was on parole for the offenses in case numbers 159257 and 159258, the trial court did not have the authority to order the sentences to run concurrently. Appellant alleged that the sentences were in direct contravention of Tennessee Code Annotated section 40-28-123 and Tennessee Rule of Criminal Procedure 32(c)(3)(A).Appellant also alleged that the illegality of the sentences was a material component of the plea agreement, thereby rendering the guilty pleas involuntary or unintelligently entered. Appellant asked the trial court to appoint counsel, hold a hearing, and give him the opportunity to withdraw the guilty pleas. He attached no documentation to support his claims, which notably is not required by the Rule.
The trial court summarily dismissed the motion without a hearing and without appointment of counsel. Specifically, the trial court determined that Appellant did not allege any illegality in the sentences in case numbers 159257 and 159258. Therefore, the trial court determined that Appellant did not state a colorable claim for relief pursuant to the Rule in cases 159257 and 159258 and, consequently, Appellant is not entitled to relief from those sentences.
Additionally, the trial court acknowledged the alleged illegality in case numbers 164952, 164953, and 164955—that concurrent sentences were agreed to and imposed when consecutive sentences were mandatory. However, the trial court noted that the record did not corroborate Appellant's claims because there was no proof in the record that the sentences were to be served concurrently rather than consecutively and that, in any event, the sentences in cases 164952, 164953, and 164955 have expired. The trial court found:
[W]hile the [c]ourt could find that, without a provision for consecutive sentences, the sentences were illegal under Tenn. R. Crim. P. 32(c)(3)(A), it could not find that the ...