Assigned on Briefs November 1, 2016
from the Criminal Court for Shelby County No. 10-04027 James
C. Beasley, Jr., Judge
Petitioner, Christopher Hubbard, appeals from the Shelby
County Criminal Court's dismissal of his motion to
correct an illegal sentence pursuant to Tennessee Rule of
Criminal Procedure 36.1. On appeal, the Petitioner argues
that the trial court erred by summarily dismissing his
motion. Upon review, we affirm the judgment of the trial
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Christopher Hubbard, Whiteville, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter;
Zachary T. Hinkle, Assistant Attorney General; Amy P.
Weirich, District Attorney General; and Pamela Diane Fleming,
Assistant District Attorney General, for the Appellee, State
Camille R. McMullen, J., delivered the opinion of the court,
in which John Everett Williams and J. Ross Dyer, JJ., joined.
CAMILLE R. McMULLEN, JUDGE
November 15, 2010, the Petitioner was convicted by a Shelby
County Jury of aggravated kidnapping and aggravated assault.
The trial court sentenced the Petitioner as a repeat violent
offender to life without the possibility of parole for the
aggravated kidnapping conviction. The Petitioner was also
sentenced to ten years for the aggravated assault conviction
and the sentences were ordered to run concurrently. The
Petitioner's conviction was affirmed on direct appeal,
see State v. Christopher Hubbard, No.
W2011-01078-CCA-R3-CD, 2012 WL 2196303 (Tenn. Crim. App. June
15, 2012), and his petition for post-conviction relief was
subsequently denied by this court. See Christopher
Hubbard v. State, No. W2014-01716-CCA-R3-PC, 2015 WL
5683092 (Tenn. Crim. App. Sep. 25, 2015). On April 26, 2016,
the Petitioner filed a motion to correct an illegal sentence
pursuant to Tennessee Rule of Criminal Procedure 36.1,
essentially arguing that his sentence was illegal due to an
error in the State's pretrial notice of intent to seek
enhanced punishment. The trial court summarily dismissed the
motion on May 3, 2016, specifically finding that:
The [P]etitioner was properly put on notice of his prior
conviction. The applicable information was provided. Even if
it was not sufficient, which the Court finds that it was, the
[P]etitioner has failed to state a colorable claim upon which
relief could be granted. The issue he raises should have been
raised at the time of trial, sentencing and appeal of the
from this order that the Petitioner timely appeals.
appeal, the Petitioner asserts that his sentence is illegal
because the State's omission of the Petitioner's
dates of prior incarceration on its notice of intent to seek
enhanced punishment "rendered the State's notice a
nullity as [a] matter of law and fact as the Tennessee
Supreme Court held in[ ] State v. Cooper, 321 S.W.3d
501 (Tenn. 2010)." The State responds that the trial
court properly denied the motion because the Petitioner's
claim merely constitutes an "'appealable error,
' not a 'fatal error' as required to allege a
colorable claim for relief." We agree with the State.
Rule 36.1 of the Tennessee Rules of Criminal Procedure,
"[e]ither the defendant or the [S]tate may, at any time,
seek the correction of an illegal sentence[.]" Tenn. R.
Crim. P. 36.1(a). "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." Id. A petitioner is only entitled to
a hearing and appointment of counsel "[i]f the motion
states a colorable claim that the sentence is illegal."
Tenn. R. Crim. P. 36.1(b); see Marcus Deangelo Lee v.
State, No. W2013-01088-CCA-R3-CO, 2014 WL 902450, at *6
(Tenn. Crim. App. Mar. 7, 2014). This court has stated that a
colorable claim "is a claim . . . that, if taken as
true, in the light most favorable to the [petitioner], would
entitle [the petitioner] to relief[.]" State v.
David A. Brimmer, No. E2014-01393-CCA-R3-CD, 2014 WL
201759, at ...