Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs December 9, 2014 at Knoxville
Appeal from the Criminal Court for Davidson County Nos. 97-C-1437, 2001-A-257 J. Randall Wyatt, Jr., Judge
Sanchez Lewan Bradford, Memphis, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Sophia Lee, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Amy Hunter, Assistant District Attorney General, for the Appellee, State of Tennessee.
Alan E. Glenn, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Timothy L. Easter, J., joined.
ALAN E. GLENN, JUDGE
On October 2, 1997, in case number 97-C-1437, the petitioner pled guilty to possession of 0.5 grams or more of cocaine with intent to sell or deliver, a Class B felony, and was sentenced to eight years, suspended to probation upon serving one year. Thereafter, on April 26, 2001, in case number 2001-A-257, the petitioner pled guilty to possession of 0.5 grams or more of cocaine with intent to sell, a Class B felony, and was sentenced to ten years. The court ordered that the ten-year sentence in case number 2001-A-257 run concurrently with the sentence in 97-C-1437.
On April 21, 2014, the petitioner filed a pro se motion to correct an illegal sentence pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure, arguing that his sentences were illegal because they were ordered to be served concurrently, rather than consecutively. On June 23, 2014, the trial court entered an order summarily dismissing the motion, determining that "the imposition of consecutive sentencing is left to the discretion of the sentencing court; it is not mandatory. The [petitioner] benefited greatly from the agreement when he received a concurrent sentence." The petitioner appealed.
The Tennessee Rules of Criminal Procedure were amended effective July 1, 2013, with the addition of Rule 36.1 which provides as follows:
(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 ...