Assigned on Briefs April 14, 2015.
Appeal from the Circuit Court for Carroll County No. 11CR12 Donald Parish, Judge.
Torrie D. Carter, Whiteville, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney General; Hansel J. McAdams, District Attorney General; and R. Adam Jowers, Assistant District Attorney General, for the appellee, State of Tennessee.
James Curwood Witt, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Norma McGee Ogle, J., joined.
JAMES CURWOOD WITT, JR., JUDGE.
On October 11, 2011, the defendant pleaded guilty to one count of possession of cocaine base and one count of possession of marijuana in exchange for a total effective sentence of 12 years to be served consecutively to his prior unserved sentence. On August 8, 2014, the defendant moved the court, pursuant to Tennessee Rule of Criminal Procedure 36.1, to correct what he believed to be an illegal sentence, set aside the fines and costs imposed for the convictions, and vacate his guilty pleas. In his motion, the defendant alleged that his guilty pleas were not knowingly and voluntarily entered because he did not understand that a $2, 000 fine would be imposed for each of his convictions. He also alleged that the State failed to establish that he actually possessed any drugs and that his trial counsel was ineffective for "failing to ensure his client plea agreement was according to law."
The State filed a motion to dismiss, arguing that the defendant's claims did not fall under the purview of Rule 36.1 and would more properly be addressed via either a petition for post-conviction relief or a motion to withdraw the guilty plea pursuant to Tennessee Rule of Criminal Procedure 32(f). The State noted that the defendant's motion, if treated as either a petition for post-conviction relief or a motion to withdraw the guilty plea, was untimely.
The trial court granted the State's motion to dismiss, finding that the defendant's claims "which sound in the nature of post-conviction relief" and those "which sound in the nature of vacating or withdrawing his previous guilty pleas" were time barred. The court noted that the defendant had cited no other basis for relief. The defendant appeals the dismissal of his motion, claiming that he is entitled to withdraw his pleas of guilty because they were not knowingly and intelligently entered.
Prior to July 1, 2013, a properly-filed petition for writ of habeas corpus was the sole mechanism for pursuing an illegal sentence claim. See Moody v. State, 160 S.W.3d 512, 516 (Tenn. 2005) ("[T]he proper procedure for challenging an illegal sentence at the trial level is through a petition for writ of habeas corpus, the grant or denial of which can then be appealed under the Rules of Appellate Procedure."). Our supreme court then created new Rule 36.1, which became effective on July 1, 2013, and which provides:
(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, ...