Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs November 18, 2014
Appeal from the Criminal Court for Bradley County Nos. 96297, 97133 Carroll L. Ross, Judge
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.
Timothy L. Easter, J., delivered the opinion of the court, in which John Everett Williams and Robert W. Wedemeyer, JJ., joined.
TIMOTHY L. EASTER, JUDGE
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.
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 lengthy sentences have been fully served, we conclude that there is no longer any remedy he can seek from the ...