Court of Criminal Appeals of Tennessee, Nashville
SAMUEL L. GIDDENS
STATE OF TENNESSEE
Assigned on Briefs February 19, 2015 at Knoxville
Appeal from the Circuit Court for Williamson County No. II-1100-367-B Timothy L. Easter, Judge
Samuel L. Giddens, Nashville, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Kim R. Helper, District Attorney General; and Sean Duddy, Assistant District Attorney General, for the appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Robert H. Montgomery, Jr., JJ., joined.
NORMA McGEE OGLE, JUDGE
On November 6, 2001, the appellant was convicted in Williamson County in case number II-1100-367-B of facilitation of possession of heroin with the intent to sell or deliver and possession of cocaine with the intent to sell or deliver, Class C felonies. The trial court sentenced the appellant as a Range II, multiple offender to concurrent sentences of nine years and six months for each offense. The judgments of conviction, which were entered on December 17, 2001, reflect that the appellant received nine days and six hours of pretrial jail credit. The same day, the appellant posted an appeal bond. On January 23, 2002, the appellant filed a notice of appeal to this court. This court's opinion was filed on April 4, 2003, and the mandate was issued on June 10, 2003.
On March 12, 2002, while the direct appeal of his Williamson County convictions was pending, the appellant was taken into custody for offenses that were committed in Davidson County. See State v. Samuel L. Giddens, No. M2012-00858-CCA-R3-CD, 2013 WL 1953498, at *1 (Tenn. Crim. App. at Nashville, May 13, 2013) (dismissing the appeal of the denial of the appellant's motion to receive pretrial jail credits on his Davidson County convictions). He remained in custody on the Davidson County offenses until December 30, 2002, when he was transferred to the penitentiary to begin serving his Williamson County sentences. Id. On April 4, 2004, the appellant was convicted of the Davidson County offenses and received a sentence of fourteen years, which was ordered to be served consecutively to the Williamson County sentences.
On July 1, 2014, the appellant filed a motion to correct his Williamson County sentences pursuant to Tennessee Rule of Criminal Procedure 36.1, alleging that his sentences were illegal because he was not awarded mandatory pretrial jail credits from March 13, 2002, through June 10, 2003. The trial court summarily denied the motion, finding that the concurrent sentences of nine years and six months were within the range for a Range II offender convicted of Class C felonies. The court noted that the appellant's convictions and sentences had been upheld by this court on direct appeal and on appeal after denial of post-conviction relief. The court further noted that the sentences had expired. On appeal, the appellant challenges the trial court's ruling.
Historically, "two distinct procedural avenues [were] available to collaterally attack a final judgment in a criminal case B habeas corpus and post-conviction petitions." Hickman v. State, 153 S.W.3d 16, 19 (Tenn. 2004); see also State v. Donald Terrell, No. W2014-00340-CCA-R3-CO, 2014 WL 6883706, at *2 (Tenn. Crim. App. at Jackson, Dec. 8, 2014). However, effective July 1, 2013, the Tennessee Rules of Criminal Procedure were amended with the addition of Rule 36.1, which provides in part:
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.
Tenn. R. Crim. P. 36.1(a); see Secdrick L. Booker v. State, No. M2014-00846-CCA-R3-CD, 2014 WL 7191041, at *2 (Tenn. Crim. App. at Nashville, Dec. 18, 2014). The requirements for a Rule 36.1 motion are more lenient than for a habeas corpus petition; notably, in a Rule 36.1 motion, a defendant is required only to state a colorable claim in the motion but is not required to attach supporting documents in order to survive summary dismissal, and the motion may be filed "at any time, " even after the sentence has expired. See State v. Sean Blake, No. W2014-00856-CCA-R3-CO, 2015 WL 112801, at *2 (Tenn. Crim. App. at Jackson, Jan. 8, 2015); State v. John Talley, No. E2014-01313-CCA-R3-CD, 2014 WL 7366257, at *2 (Tenn. Crim. App. at Knoxville, Dec. 26, 2014).
If the motion states a "colorable claim that the sentence is illegal, " the trial court shall appoint counsel and hold a hearing on the motion. See Tenn. R. Crim. P. 36.1(b). "A sentence is not considered illegal when it is statutorily available but ordinarily inapplicable to a given defendant; rather, an illegal sentence is one that is simply unavailable under the Sentencing Act." State v. Adrian R. Brown, No. E2014-00673-CCA-R3-CD, 2014 WL 5483011, at *3 (Tenn. Crim. App. at Knoxville, Oct. 29, 2014) (internal quotation marks and citation omitted); application for perm. to appeal granted, (Tenn. May 15, 2015). Although Rule 36.1 does not define what constitutes a "colorable claim, " this court has adopted the following definition: "[a] colorable claim is a claim . . . that, if taken as true, in the light most favorable to the defendant, would entitle [the petitioner] to relief." State v. David Morrow, No. W2014-00338-CCA-R3-CO, 2014 WL 3954071, at *2 (Tenn. Crim. App. at Jackson, Aug. 13, 2014) (internal quotation marks and citation omitted).
The appellant claims his sentences are void because the trial court failed to award him mandatory pretrial jail credits. Tennessee Code ...