Assigned on Briefs November 1, 2016
from the Circuit Court for Madison County No. 91-53, 92-515,
93-945, 93-1133, 93-1134, 93-1135, 93-1136, 93-1137 Donald H.
Petitioner, Rocky White, appeals from the Madison County
Circuit Court's summary dismissal of his motion to
correct an illegal sentence pursuant to Rule 36.1 of the
Tennessee Rules of Criminal Procedure. On appeal, the
Petitioner argues that the trial court erred by summarily
dismissing his motion. Because the sentences in this action
have expired, we affirm the judgment of the trial court
pursuant to Rule 20 of the Court of Criminal Appeals.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Court Affirmed Pursuant to Rule 20 of the Court of Criminal
M. White, Forrest City, Arkansas, pro se.
Herbert H. Slatery III, Attorney General and Reporter; Brent
C. Cherry, Assistant Attorney General; James G. Woodall,
District Attorney General; and Al Earls, Assistant District
Attorney General, for the Appellee, State of Tennessee.
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
23, 1994, the Petitioner plead guilty in Madison County Case
Nos. 93-945, 93-1133, 93-1134, 93-1135, 93-1136, 93-1137 and
Chester County Case No. 3355. The Petitioner received a total
effective sentence of twelve years for the Chester County
Case and ten years for the Madison County Case No. 93-1137,
to be served concurrently, but consecutive to Madison County
Case Nos. 92-515 and 91-53. The record does not include any
information regarding, nor does the Petitioner challenge Case
Nos. 92-515 and 91-53. On September 18, 2015, the Petitioner
filed a "Pro Se Motion to Correct Illegal Sentence
Pursuant to [Tennessee Rule of Criminal Procedure] 36.1"
arguing that the sentences in Madison County Case No. 93-1137
and Chester County Case No. 3355 were illegal because he was
released on bail when he committed the offenses, which
required the sentences to be served consecutively. On
December 28, 2015, the trial court dismissed the
Petitioner's motion because the Petitioner failed to
state a colorable claim "since the alleged illegal
sentences have expired." The Petitioner then filed a
"Motion to Reconsider" on January 19, 2015, which
the trial court denied on the same grounds. The Petitioner
filed a notice of appeal on February 10, 2016.
Petitioner argues that the trial court erred in dismissing
his "Motion to Reconsider" because Rule 36.1 states
that "at any time" a Petitioner can seek correction
of an illegal sentence." The Petitioner relies on this
Court's opinion in State v. Kevin M. Thompson
for the proposition that Rule 36.1 does not "exempt its
applicability to 'expired sentences.'" State
v. Kevin M. Thompson, No. E2014-01358-CCA-R3-CD, 2015 WL
1548852, at *4 (Tenn. Crim. App. Apr. 1, 2015). The
Petitioner further argues that his sentences were illegal
"on the face of the judgment" and that they were
later used to enhance his sentence in an unrelated federal
case. The State argues, and we agree, that the trial court
properly dismissed the Petitioner's Rule 36.1 motion.
initial matter, we must address the timeliness of the
Petitioner's notice of appeal. The order dismissing the
Petitioner's motion was filed on December 28, 2015, and
the Petitioner's notice of appeal was filed on February
10, 2016. The Petitioner's motion to reconsider did not
toll the thirty-day filing period required by Tennessee Rule
of Appellate Procedure 4(a). See Ivory v. State, No.
W2015-00636-CCA-R3-PC, 2015 WL 6873474, at *2 (Tenn. Crim.
App. Nov. 9, 2015). ("A motion to reconsider is not one
of the specified motions in Tennessee Rule of Appellate
Procedure 4(c)."); See also Tenn. R. App. P.
4(c). Accordingly, his notice of appeal was untimely by
fourteen days; nevertheless, we will review his appeal on the
merits. See Tenn. R. App. P. 4(a) ("[I]n all
criminal cases the 'notice of appeal' document is not
jurisdictional and the filing of such document may be waived
in the interest of justice.").
to Rule 36.1 of the Tennessee Rules of Criminal Procedure,
"[e]ither the defendant or the state may, at any time,
seek the correction of an illegal sentence." Tenn. R.
Crim. P. 36.1(a)(1). "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)(2). A
petitioner is only entitled to a hearing and appointment of
counsel "[i]f the motion states a colorable claim that
the unexpired sentence is illegal." Tenn. R. Crim. P.
36.1(b)(3); see State v. Brown, 479 S.W.3d 200, 211
(Tenn. 2015) (stating that "a Rule 36.1 motion may be
summarily dismissed for failure to state a colorable claim if
the alleged illegal sentence has expired."). A colorable
claim is "a claim that, if taken as true and viewed in a
light most favorable to the moving party, would entitle the
moving party to relief under Rule 36.1." State v.
Wooden, 478 S.W.3d 585, 593 (Tenn. 2015). Whether a
motion states a colorable claim for correction of an illegal
sentence under Rule 36.1 is a question of law, which this
court reviews de novo. Id. at 589 (citing
Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007)).
the Petitioner's assertions as true and viewing them in
the light most favorable to him, the Petitioner is not
entitled to relief because his alleged illegal sentences have
expired. See State v. Brown, 479 S.W.3d 200, 211
(Tenn. 2015) (holding that Rule 36.1 does not expand the
scope of relief available for illegal sentence claims and
therefore does not authorize the correction of expired
illegal sentences). The record shows that the Petitioner
received an effective sentence of twelve years'
incarceration on May 23, 1994. At most, the Petitioner's
sentence was set to expire at some point in 2006. On
September 18, 2015, almost ten years after his sentences
expired, the Petitioner filed his Rule 36.1 motion. The
Petitioner's motion and brief rely on cases that have
been effectively overruled by State v. Brown, 479
S.W.3d 200, 211 (Tenn. 2015). Moreover, Rule 36.1 has been
amended and now states that "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) (amendment effective July 1, 2016). The Petitioner
is therefore not entitled to relief.
opinion would have no precedential value, this Court may
affirm by memorandum opinion the judgment or action of the
trial court when the judgment was rendered or the action was
taken in a proceeding without a jury and such judgment or
action was not a determination of guilt, and the evidence
does not preponderate against the finding of the trial judge.
See Tenn. Ct. Crim. App. R. 20. We conclude that
this case satisfies the criteria ...