from the Criminal Court for Shelby County No. 01-09093 Glenn
Ivy Wright, Judge
Defendant, Christopher Hatcher, appeals from the trial
court's denial of his motion to correct an illegal
sentence pursuant to Tennessee Rule of Criminal Procedure
36.1. The State has filed a motion requesting that this court
affirm the trial court's judgment pursuant to Rule 20 of
the Rules of the Court of Criminal Appeals. Following our
review, we grant the State's motion and affirm the
judgment of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed Pursuant to Rule 20 of the Rules of the Court
of Criminal Appeals
Christopher Hatcher, Whiteville, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter;
Zachary T. Hinkle, Assistant Attorney General; Amy Weirich,
District Attorney General; and Austin B. Scofield, Assistant
District Attorney General, for the appellee, State of
E. Glenn, J., delivered the opinion of the court, in which
John Everett Williams and Camille R. McMullen, JJ., joined.
E. GLENN, JUDGE.
Defendant was indicted on first degree premeditated murder,
first degree felony murder, and two counts of attempted first
degree murder. See State v. Christopher Hatcher, No.
W2003-01867-CCA-R3-CD, 2004 WL 2058909, at *1 (Tenn. Crim.
App. Sept. 15, 2004), perm. app. denied (Tenn. Jan.
24, 2005). Following a jury trial, the Defendant was
convicted of first degree felony murder, second degree
murder, attempted first degree murder, and reckless
endangerment. Id. at *10. The trial court merged the
second degree murder conviction into the felony murder
conviction and sentenced the Defendant to life imprisonment
for felony murder. Id. The trial court sentenced the
Defendant to twenty years for attempted first degree murder
and eleven months and twenty-nine days for reckless
endangerment and ordered the Defendant to serve his sentences
for the convictions concurrently to his life sentence for
felony murder. Id. This court upheld the
Defendant's convictions and sentences on direct appeal.
Id. at *1.
Defendant subsequently sought post-conviction relief,
alleging that his trial counsel was ineffective. The
post-conviction court denied relief, and this court upheld
the post-conviction court's judgment on appeal. See
Christopher Hatcher v. State, No. W2007-02275-CCA-R3-PC,
2009 WL 55951, at *1 (Tenn. Crim. App. Jan. 8, 2009),
perm. app. denied (Tenn. May 26, 2009).
February 10, 2016, the Defendant filed a motion to correct an
illegal sentence pursuant to Tennessee Rule of Criminal
Procedure 36.1. The Defendant maintained that he was
convicted of attempted felony murder and was sentenced to
twenty years. He argued that under State v.
Kimbrough, 924 S.W.2d 888 (Tenn. 1996), attempted felony
murder is not a crime in Tennessee and that as a result, the
trial court was without jurisdiction to impose the
twenty-year sentence. The Defendant also argued that the void
sentence rendered his concurrent life sentence void also. The
State filed a response, asserting that the Defendant was
never indicted for or convicted of attempted felony murder.
On May 4, 2016, the trial court entered an order denying the
36.1 of the Tennessee Rules of Criminal Procedure permits a
defendant to seek correction of an unexpired illegal sentence
at any time. See State v. Brown, 479 S.W.3d 200, 211
(Tenn. 2015). "[A]n 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). Our supreme court recently interpreted the meaning
of "illegal sentence" as defined in Rule 36.1 and
concluded that the definition "is coextensive, and not
broader than, the definition of the term in the habeas corpus
context." State v. Wooden, 478 S.W.3d 585,
594-95 (Tenn. 2015). The court then reviewed the three
categories of sentencing errors: clerical errors (those
arising from a clerical mistake in the judgment sheet),
appealable errors (those for which the Sentencing Act
specifically provides a right of direct appeal) and fatal
errors (those so profound as to render a sentence illegal and
void). Id. Commenting on appealable errors, the
court stated that those "generally involve attacks on
the correctness of the methodology by which a trial court
imposed sentence." Id. In contrast, fatal
errors include "sentences imposed pursuant to an
inapplicable statutory scheme, sentences designating release
eligibility dates where early release is statutorily
prohibited, sentences that are ordered to be served
concurrently where statutorily required to be served
consecutively, and sentences not authorized by any statute
for the offenses." Id. The court held that only
fatal errors render sentences illegal. Id.
appeal, it appears that the Defendant concedes that he was
convicted of felony murder and not attempted felony murder.
Rather, he argues that he was indicted for attempted felony
murder and that as a result, his conviction for felony murder
is void and his resulting sentence is illegal. He maintains
that the jury returned a conviction for an offense for which
he was never indicted and that he never consented to an
amendment to the indictment. The Defendant, however, did not
raise this issue in the trial court. Therefore, this issue is
waived. Cauthern v. State, 145 S.W.3d 571, 599
(Tenn. Crim. App. 2004) ("[A]n issue raised for the
first time on appeal is waived.") (citing State v.
Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim. App. 1996)).
the Defendant is not entitled to relief. The gravamen of the
Defendant's motion is an attack upon his convictions, and
"[t]he attack upon his sentence is simply a collateral
effect of his endeavor to reverse his conviction and dismiss
the underlying charge." State v. Jimmy Wayne
Wilson, No. E2013-02354-CCA-R3-CD, 2014 WL 1285622, at
*2 (Tenn. Crim. App. Mar. 31, 2014), perm. app.
denied (Tenn. Nov. 19. 2014). The Defendant's
argument that his sentences are illegal depends upon his
conviction that he was either indicted for or convicted of
attempted felony murder, which is not a criminal offense. The
Defendant has not argued that "his sentence, independent
of his conviction, was imposed outside of, or in
contravention of, the applicable statutory authority."
Id. The Defendant has not set forth a colorable
claim that his sentence, rather than his conviction, is
illegal pursuant to Rule 36.1. Furthermore, although the
indictments and judgments are not included in the appellate
record, this court, on direct appeal, listed the offenses for
which the Defendant was indicted and convicted, none of which
included attempted felony murder. See Christopher
Hatcher, 2004 WL 2058909, at *1, 10. Accordingly, the
Defendant is not entitled to relief.
opinion would have no precedential value, the Court of
Criminal Appeals may affirm the judgment or action of the
trial court by memorandum opinion when the judgment is
rendered or the action is taken in a proceeding without a
jury, such judgment or action is not a determination of
guilt, and the evidence does not preponderate against the
finding of the trial judge. See Tenn. Crim. App. R.
20. We conclude that this case satisfies the criteria of Rule