Assigned on Briefs November 1, 2016
from the Criminal Court for Shelby County No. 01-07974,
02-02291 Glenn Ivy Wright, Judge
appellant, David T. Morrow, appeals the summary denial of his
Motion to Correct Illegal Sentence pursuant to Tennessee Rule
of Criminal Procedure 36.1. The appellant's sentences
have expired. He argues, however, that he is entitled to
relief because he received concurrent sentences instead of
statutorily required consecutive sentences, and the trial
court erred in summarily denying his motion without a
hearing. Following our review, we conclude the appellant does
not state a colorable claim for relief, and we affirm the
judgment of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Patrick E. Stegall, Memphis, Tennessee, for the appellant,
David T. Morrow.
Herbert H. Slatery III, Attorney General and Reporter;
Courtney N. Orr, Assistant Attorney General; Amy P. Weirich,
District Attorney General; and Lora Fowler, Assistant
District Attorney General, for the appellee, State of
Ross Dyer, J., delivered the opinion of the court, in which
John Everett Williams and Camille R. McMullen, JJ., joined.
ROSS DYER, JUDGE
October 8, 2000, the appellant was arrested and charged with
unlawful possession of a controlled substance with intent to
sell or deliver. While released on bail, the appellant was
arrested and charged with failure to appear. The appellant
pled guilty to both offenses, and the trial court sentenced
him to concurrent two year sentences.
August 22, 2013, the appellant filed a "Motion to
Correct Illegal Sentences pursuant to Tennessee Rule of
Criminal Procedure 36.1, " arguing that his concurrent
sentences were illegal because he committed the failure to
appear while released on bail. The trial court summarily
denied the motion, and the appellant appealed. This Court
held the appellant stated a colorable claim for relief under
Rule 36.1 and remanded the case to the trial court for
appointment of counsel and further proceedings. State v.
David Morrow, No. W2014-00338-CCA-R3-CO, 2014 WL 3954071
(Tenn. Crim. Ct. App. Aug. 13, 2014).
remand and after appointment of counsel, the appellant filed
an "Amended Motion to Correct Illegal Sentence, "
arguing that his sentence was illegal because consecutive
terms are mandated by both Tennessee Code Annotated section
40-20-111 and Tennessee Rule of Criminal Procedure
32(c)(3)(C). Relying on the Tennessee Supreme Court's
recent decision in State v. Brown, 479 S.W.3d 200
(Tenn. 2015), the trial court summarily dismissed the
appellant's amended motion because his sentences were
expired. This timely appeal followed.
appellant argues that the trial court erroneously denied his
motion without a hearing. Though conceding his sentences have
expired, he argues that he is not precluded from relief and
is entitled to an evidentiary hearing. The State argues that
the appellant is not entitled to relief under Rule 36.1
because his sentences have expired. We agree with the State.
Rule of Criminal Procedure 36.1 provides that the appellant
"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." Tenn. R. Crim. P. 36.1(a)(1). "A motion
to correct an illegal sentence must be filed before the
sentence set forth in the judgment order expires." Tenn.
R. Crim. P. 36.1(a)(1). A sentence is illegal if it "is
not authorized by the ...