Assigned on Briefs February 3, 2015.
Appeal from the Criminal Court for Shelby County Nos. 95-10473, 95-11561-62 James Lammey, Jr., Judge.
Marcus Deangelo Lee, Pro Se (on appeal) and Todd Mosley (at hearing), Memphis, Tennessee, for the Defendant-Appellant, Marcus Deangelo Lee.
Herbert H. Slatery III, Attorney General and Reporter; Rachel E. Willis, Senior Counsel; Amy P. Weirich, District Attorney General; and Glen Baity, Assistant District Attorney General, for the Appellee, State of Tennessee.
Alan E. Glenn, J., delivered the opinion of the court. John Everett Williams, J., filed a dissenting opinion. Camille R. McMullen, J., concurred in results only.
ALAN E. GLENN, JUDGE.
On December 11, 1995, the defendant pled guilty to possession of cocaine with intent to sell (case number 95-10473), possession of a deadly weapon with the intent to employ it during the commission of a crime (case number 95-11561), and the sale of cocaine (case number 95-11562). Pursuant to a plea agreement, the trial court sentenced the defendant to serve concurrent terms of three years, one year, and three years, respectively, in the county workhouse. Since that time, the defendant
has filed numerous pleadings challenging his convictions, including a petition for a writ of error coram nobis, Marcus Deangelo Lee v. State, No. W2006-02031-CCA-R3-CO, 2007 WL 1575220 (Tenn. Crim. App. May 31, 2007); a post-conviction petition, Marcus Deangelo Lee v. State, No. W2009-00256-CCA-R3-PC, 2009 WL 2517043 (Tenn. Crim. App. Aug. 18, 2009); a motion for delayed appeal, Marcus D. Lee v. State, No. W2009-02478-CCA-R3-PC, 2010 WL 2219659 (Tenn. Crim. App. May 27, 2010); a motion to reopen his post-conviction proceedings, Marcus Deangelo Lee v. State, W2011-01003-CCA-R3-PC, 2011 WL 3849629 (Tenn. Crim. App. Aug. 31, 2011); and a motion to correct clerical errors in his judgments, State v. Marcus Deangelo Lee, No. W2011-02160-CCA-R3-CD, 2012 WL 2913361 (Tenn. Crim. App. July 17, 2012). All of these pleadings were either denied or dismissed, and this Court affirmed their dispositions.
Marcus Deangelo Lee v. State, No. W2013-01088-CCA-R3-CO, 2014 WL 902450, at *2 (Tenn. Crim. App. Mar. 7, 2014).
Thereafter, the defendant filed a "Motion to Correct Clerical Errors in the Judgment or Entry that Renders the Judgments Void Nunc Pro Tunc, " arguing that his sentences in case numbers 95-11561 and 95-11562 were illegal because he was released on bail in case number 95-10473 when he committed those offenses; therefore, the sentences in those cases should have been ordered to be served consecutively. Id. at *1, 3. He asked this court to retroactively apply Tennessee Rule of Criminal Procedure 36.1 to his case and correct his sentence. Id. at *4. This court relied on its earlier rulings in George William Brady v. State, No. E2013-00792-CCA-R3-PC, 2013 WL 6729908, at *6 (Tenn. Crim. App. Dec. 19, 2013) and State v. Brandon Rollen, No. W2012-01513-CCA-R3-CD, slip op. at 6 (Tenn. Crim. App. Sept. 11, 2013), and agreed that Rule 36.1 should be applied retroactively to the defendant's claim of an illegal sentence. Id. at *5. The court determined that the defendant presented a colorable claim for relief under Rule 36.1 and remanded the case to the trial court for appointment of counsel and consideration of the merits of the defendant's claim. Id. at *6.
Upon remand, after a hearing, the trial court entered an order finding that the defendant's sentences in case numbers 95-11561 and 95-11562 were illegal because they should have been imposed consecutively to the sentence in case number 95-10473, and that the illegal provision for concurrent sentencing was a material component of the plea agreement. However, the court denied relief, finding that the sentences had expired and, therefore, the defendant was no longer a defendant for purposes of Rule 36.1. The defendant appealed.
The Tennessee Rules of Criminal Procedure were amended effective July 1, 2013, with the addition of Rule ...