Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs May 20, 2015
Appeal from the Criminal Court for Hamilton County No. 162235, 164970 Rebecca J. Stern, Judge
Rodney Bates, Atlanta, Georgia, pro se.
Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant Attorney General; Neal Pinkston, District Attorney General, for the Appellee, State of Tennessee.
Camille R. McMullen, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and D. Kelly Thomas, Jr., J., joined
CAMILLE R. McMULLEN, JUDGE
On November 13, 1985, the Petitioner, Rodney Bates, was indicted by the Hamilton County Grand Jury for grand larceny in case number 162235. After he was arrested on August 22, 1985, the Petitioner was released on bond on November 6, 1985. While the case was pending, the Petitioner committed an armed robbery on May 9, 1986. As a result, the Hamilton County Grand Jury returned an indictment in case number 164970 charging the Petitioner with robbery by use of a deadly weapon. The Petitioner entered guilty pleas to both offenses and was sentenced as a Range I, standard offender to three years for grand larceny and ten years for armed robbery. The judgments of conviction, which were entered on May 16, 1986 and on October 20, 1986, did not specify the alignment of the two sentences.
On November 3, 2014, the Petitioner filed a pro se motion to correct his sentences pursuant to Tennessee Rule of Criminal Procedure 36.1. Specifically, the Petitioner asserted that because he committed the armed robbery in case number 164970 while released on bond for grand larceny in case number 162235, the trial court should have imposed consecutive sentencing. The Petitioner argued that his concurrent sentences were illegal and in direct contravention of Tennessee Code Annotated section 40-20-111(b). On November 10, 2014, the Hamilton County Criminal Court summarily dismissed the Petitioner's motion. The Petitioner then timely appealed the trial court's order.
On appeal, the Petitioner argues that the trial court erred in summarily dismissing his motion to correct an illegal sentence. The State agrees that the trial court erred in dismissing the motion without appointment of counsel or consideration of the merits of the Petitioner's claim.
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 ...